APPENDIX 7:

 

 

 

Safe Harbor Policy
federal register

32177

Thursday

June 12, 1997

Part III

Department of the

Interior

Fish and Wildlife Service

Department of

Commerce

National Oceanic and Atmospheric

Administration

50 CFR Parts 13 and 17

Announcements: Draft Safe Harbor Policy

and Candidate Conservation Agreements

Draft Policy, Notices; and Safe Harbor

and Candidate Conservation Agreements;

Proposed Rule
32178 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

Announcement of Draft Safe Harbor

Policy

AGENCY: Fish and Wildlife Service,

Interior; National Marine Fisheries

Service, NOAA, Commerce.

ACTION: Announcement of draft policy;

request for public comments.

SUMMARY: The Fish and Wildlife Service

and the National Marine Fisheries

Service (Services) announce a joint Draft

Safe Harbor Policy under the

Endangered Species Act of 1973, as

amended (Act). Many endangered and

threatened species occur exclusively or

to a large extent upon privately owned

property; the involvement of the private

sector in the conservation and recovery

of species is critical to the eventual

success of these efforts. This policy

would provide incentives for private

and other non-Federal property owners

to restore, enhance or maintain habitats

for listed species. Either Service, or the

Services jointly, will closely coordinate

with the appropriate State agencies and

any affected Native American Tribal

governments before entering into Safe

Harbor Agreements (Agreements).

Under the policy, either Service, or the

Services, jointly, would provide

participating property owners with

technical assistance in the development

of Agreements and would provide

assurances that additional land-use or

resource-use restrictions as a result of

their voluntary conservation actions to

benefit covered species would not be

imposed. If the Agreement provides a

net conservation benefit to the covered

species and the property owner meets

all the terms of the Agreement, the

Services would authorize the incidental

taking of the covered species to enable

the property owner to ultimately return

the enrolled property back to agreed

upon baseline conditions. The Services

seek public comment on the draft

policy. Additionally, the Fish and

Wildlife Service (FWS) has published in

today’s Federal Register a proposed rule

that contains the necessary regulatory

changes to implement this policy. The

Services also seek public comment on

the appropriateness of allowing a

property owner to enter into a Safe

Harbor Agreement in conjunction with

a Habitat Conservation Plan (HCP)

under section 10(a)(1)(B) of the Act.

DATES: Comments on the draft policy

must be received by August 11, 1997.

ADDRESSES: Send any comments or

materials concerning the Draft Safe

Harbor Policy to the Chief, Division of

Endangered Species, U.S. Fish and

Wildlife Service, 452 ARLSQ,

Washington, D.C. 20240 (Telephone

703/358–2171, Facsimile 703/358–1735)

You may examine comments and

materials received during normal

business hours in room 452, Arlington

Square Building, 4401 North Fairfax

Drive, Arlington, Virginia. You must

make an appointment to examine these

materials.

FOR FURTHER INFORMATION CONTACT: E.

LaVerne Smith, Chief, Fish and Wildlife

Service, Division of Endangered Species

(Telephone (703)358–2171) or Nancy

Chu, National Marine Fisheries Service,

Chief, Endangered Species Division

(Telephone (301) 713–1401).

SUPPLEMENTARY INFORMATION:

Background

Much of the nation’s current and

potential fish and wildlife habitat is on

non-Federal property, owned by private

citizens, States, municipalities, Native

American Tribal governments, and other

non-Federal entities. Conservation

efforts on non-Federal property are

critical to the survival and recovery of

many endangered and threatened

species. The Services strongly believe

that a collaborative stewardship

approach to the proactive management

of listed species involving government

agencies (Federal, State, and local) and

the private sector is critical to achieving

the ultimate goal of the Endangered

Species Act (Act). The long-term

recovery of certain species can benefit

from short-term and mid-term

enhancement, restoration, or

maintenance of terrestrial and aquatic

habitats on non-Federal property.

Many property owners are willing to

voluntarily manage their property to

benefit listed fish and wildlife, provided

that such actions do not result in new

restrictions being placed on the future

use of their property. Beneficial

management could include actions to

enhance, restore, or maintain habitat

(e.g., restoring fire by prescribed

burning, restoring hydrological

conditions), so that it is suitable for

listed species. Such proactive

management actions cannot be

mandated or required by the Act. Thus,

failure to conduct habitat enhancement

or restoration activities would not

violate any of the Act’s provisions.

Although property owners recognize the

benefits of proactive habitat

conservation activities to help listed

species, some are still concerned about

additional land-use or resource-use

restrictions that may result if listed

species colonize their property or

increase in numbers or distribution

because of their conservation efforts.

Concern centers on the applicability of

the Act’s section 9 ‘‘take’’ prohibitions

if listed species occupy their property

and on future property-use restrictions

that may result from their conservationoriented property management actions.

The potential for future land- or

resource-use restrictions has led

property owners to avoid or limit

property management practices that

could enhance or maintain habitat and

benefit or attract fish and wildlife that

are currently Federally listed as

endangered or threatened.

A fundamental purpose of section 2 of

the Act, is to conserve the ecosystems

upon which endangered and threatened

species depend and to conserve listed

species. Section 9 of the Act prohibits

the ‘‘take’’ of listed fish and wildlife

species, which is defined in section

3(18) to include, among other things,

killing, harming or harassing. The Act’s

implementing regulations (50 CFR 17.3),

as promulgated by the FWS, define

‘‘harm’’ to include ‘‘significant habitat

modification or degradation where it

actually kills or injures wildlife by

significantly impairing essential

behavioral patterns, including breeding,

feeding and sheltering.’’ Regulations in

50 CFR 17.31 extend the prohibition

against take to threatened fish and

wildlife species. Consequently, property

owners whose properties support

endangered or threatened species could

violate section 9 of the Act if the

property owners significantly develop,

modify, or manage those properties in a

way that causes harm to listed species.

The Services’ draft Safe Harbor Policy

encourages property owners to

voluntarily conserve threatened and

endangered species without the risk of

further restrictions pursuant to section

9. Previously the FWS has provided safe

harbor type assurances to non-Federal

property owners based on various

authorities under the Act, including

incidental take statements under section

7(a)(2) and incidental take permits

under section 10(a)(1)(B). After further

consideration of such alternatives and

other provisions of the Act, the Services

have determined that the section

10(a)(1)(A) ‘‘enhancement of survival’’

permit provisions of the Act provide the

best mechanism to carry out the Safe

Harbor Policy and provide the necessary

assurances for participating property

owners while also providing

conservation benefits to the covered

species. Assurances already provided by
Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices 32179

the FWS under sections 7 or 10(a)(1)(B)

would still be valid, and revision of

those proactive Agreements is

unnecessary. The Services are

developing this policy to provide

national consistency in the development

of Safe Harbor Agreements and link the

policy to an expanded enhancement of

survival permit program through section

10(a)(1)(A) of the Act.

The FWS’s proposed regulatory

changes necessary to implement this

draft policy were published in today’s

Federal Register. The proposed rule

provides the FWS’s procedures to

implement the Safe Harbor Policy as

well as other changes to Parts 13 and 17.

The National Marine Fisheries Service

will develop and propose regulatory

changes to implement this policy at a

later date.

Draft Safe Harbor Policy

Part 1. Purpose

Because many endangered and

threatened species occur exclusively, or

to a large extent, upon privately owned

property, the involvement of the private

sector in the conservation and recovery

of species is critical to the eventual

success of these efforts. Private property

owners are willing to be partners in the

conservation and recovery of fish,

wildlife, and plant species and their

habitats. However, property owners

often are reluctant to undertake

proactive activities that increase the

likelihood or extent of use of their

properties by endangered and

threatened species, due to fear of future

additional property-use restrictions.

Safe Harbor Agreements are a means of

providing an incentive to property

owners to restore, enhance, or maintain

habitats resulting in a net conservation

benefit to endangered and threatened

species. Although such Agreements may

not permanently conserve such habitats,

they nevertheless offer important shortterm and mid-term conservation

benefits. These net conservation benefits

may result from reduction of

fragmentation and increasing the

connectivity of habitats, maintaining or

increasing populations, insuring against

catastrophic events, enhancing and

restoring habitats, buffering protected

areas, and creating areas for testing and

implementing new conservation

strategies.

The purpose of the Safe Harbor Policy

is to ensure consistency in the

development of Safe Harbor

Agreements. Safe Harbor Agreements

encourage proactive species

conservation efforts by private and other

non-Federal property owners while

providing certainty relative to future

property-use restrictions, if these efforts

attract listed species onto their

properties, or areas affected by actions

undertaken on their property, or

increase the numbers or distribution of

listed species already present on their

properties. These voluntary Agreements

will be developed between, either

Service, or the Services jointly, and

private and other non-Federal property

owners. The Services will closely

coordinate development of these

Agreements with the appropriate State

fish and wildlife or other agencies and

any affected Native American Tribal

governments. Collaborative stewardship

with State fish and wildlife agencies is

particularly important given the

partnerships that exist between the

States and the Services in recovering

listed species. Under a Safe Harbor

Agreement, participating property

owners would voluntarily undertake

management activities on their property

to enhance, restore, or maintain habitat

to benefit Federally-listed species.

Safe Harbor Agreements may be

initiated by property owners, or, either

Service or the Services jointly, may take

the initiative on their own or in concert

with other Federal or State agencies to

encourage property owners to

voluntarily enter Safe Harbor

Agreements for a given area, particularly

when many non-Federal parcels of

property are involved. Either Service or

the Services jointly, will work with the

participating landowner in the

development of their permit application

and the Safe Harbor Agreement. The

Services will provide the necessary

technical assistance to the landowner in

developing mutually agreeable

management actions that the landowner

is willing to voluntarily undertake or

forgo that will provide a net

conservation benefit and help the

landowner describe how these activities

will benefit covered species.

Development of an acceptable permit

application and an adequate Safe Harbor

agreement is intricately linked. Either

Service or the Services jointly will

process the participating landowner’s

permit application following the Safe

Harbor permitting process as described

in Title 50 of the Code of Federal

Regulations Part 17. During this process

all parties to the Agreement will work

in close coordination in the

development of the Agreement to ensure

that measures included in the agreement

are consistent with the terms and

conditions of the permit. Once the

permit is issued the parties to the

Agreement can finalize and sign the

Agreement.

The Services recognize that Safe

Harbor Agreements are not appropriate

under all circumstances. In particular,

in situations when property owners are

seeking immediate take authorization,

development of a Habitat Conservation

Plan (HCP) and issuance of an

incidental take permit under section

10(a)(1)(B) would be more appropriate.

Safe Harbor Agreements are also not

appropriate in situations that do not

meet the net conservation benefit

standards of this policy. For example,

where either Service or the Services

jointly, reasonably anticipate that a

proposed Agreement would only

redistribute the existing population of a

listed species or attract a species away

from a habitat that enjoys long-term

protection to a habitat without such

protection, the Services would not enter

into the Agreement. As another

example, where a species is so depleted

or its habitat so degraded that some

improvement over baseline conditions

is necessary to result in a net

conservation benefit, a Safe Harbor

Agreement may not be appropriate. For

instance, certain aquatic, riverine, and/

or riparian species may present a

challenge in reaching a net conservation

benefit since returning to the baseline

conditions could have serious negative

effects and would negate or outweigh

the benefits achieved through the

Agreement. In these cases, if a net

conservation benefit cannot be achieved

after taking into consideration the return

to the baseline conditions, the Services

will not enter into a Safe Harbor

Agreement unless the Services and the

property owner agree to appropriate

conditions that provide such a benefit.

Availability of resources will also be

a governing factor for the Services. The

Services expect the interest in Safe

Harbor Agreements to rise and the

demand for technical assistance to

property owners to increase. Safe

Harbor Agreements are developed using

limited funds appropriated for recovery

activities. Priority will, therefore, be

given to Agreements that provide the

greatest contribution to the recovery of

multiple listed species. Another

governing factor will be whether there is

sufficient information to develop sound

conservation measures. The Services

will work with State, Tribal, and other

interested parties to fill information

gaps for species requirements that have

not been adequately documented in the

scientific literature.

Part 2. Definitions

The following definitions apply for

the purposes of this policy.

‘‘Baseline conditions’’ for covered

species means population estimates and

distribution (if available or

determinable) and/or habitat
32180 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices

characteristics of enrolled property that

sustain seasonal or permanent use, at

the time the Safe Harbor Agreement is

executed between either Service or the

Services jointly and the property owner.

‘‘Covered species’’ means a species

that is the intended subject of a Safe

Harbor Agreement. Covered species are

limited to species that are Federally

listed as endangered or threatened.

‘‘Enhancement of Survival Permit’’

means a permit issued under the

authority of section 10(a)(1)(A) of the

Act.

‘‘Enrolled property’’ means all private

or non-Federal property or waters

covered by a Safe Harbor Agreement to

which safe harbor assurances apply and

on which incidental taking is authorized

under the enhancement of survival

permit.

‘‘Management activities’’ are

voluntary conservation actions to be

undertaken by a property owner that

either Service or the Services jointly

believe will benefit the status of the

covered species.

‘‘Net conservation benefit’’ means the

cumulative results of the management

activities identified in an Agreement

that provide for an increase in a species’

population and/or the enhancement,

restoration or maintenance of covered

species’ suitable habitat within the

enrolled property, taking into account

the length of the Agreement and the

incidental taking allowed by the permit.

Net conservation benefits must be

sufficient to contribute to the recovery

of the covered species if undertaken by

other property owners similarly situated

within the range of the covered species.

‘‘Property owner’’ includes, but is not

limited to, private individuals,

organizations, businesses, Native

American Tribal governments, State and

local governments, and other nonFederal entities.

‘‘Safe Harbor Agreement’’ means an

Agreement signed by either Service, or

both Services jointly and a property

owner and any other cooperator, if

appropriate, that: (a) Sets forth specific

management activities that the private

or non-Federal property owner will

voluntarily undertake or forgo that will

provide a net conservation benefit to

covered species; and (b) provides the

property owner with the Safe Harbor

assurances described within the

Agreement and authorized in the

enhancement of survival permit.

‘‘Safe Harbor Assurances’’ are

assurances provided in the Agreement

and authorized in the enhancement of

survival permit for covered species, by

either Service, or both jointly, to a nonFederal property owner. These

assurances would allow the property

owner to alter or modify enrolled

property, even if such alteration or

modification will result in the

incidental take of a listed species that

would return the species back to the

originally agreed upon baseline

conditions. Such assurances may apply

to whole parcels, or portions thereof, of

the property owner’s property as

designated in the Agreement. These

assurances are dependent upon

compliance with the property owners’

obligations in the Agreement and in the

enhancement of survival permit.

Part 3. Cooperation and Coordination

With the States and Tribes

Coordination with the appropriate

State agencies and any affected Tribal

governments is critical for the success of

the Services’ collaborative stewardship

approach to recovery through these Safe

Harbor Agreements, which is the

underlying principle of the Safe Harbor

Policy. Coordination among the State

fish and wildlife agencies, Tribal

governments, the Services, and the

property owners are key to effectively

implementing a successful Safe Harbor

Agreement. This coordination allows

the special local knowledge of all

appropriately affected entities to be

considered in the Agreements. The

Services will work in close partnership

with State agencies on matters involving

the distribution of materials describing

the Safe Harbor Agreement policies and

programs, the determination of

acceptable baseline conditions and

development of appropriate monitoring

efforts. Because of the Services’ trust

responsibilities, the Services will also

closely coordinate and consult with any

affected Tribal government which has a

treaty right to any fish or wildlife

resources covered by a Safe Harbor

Agreement.

Part 4. Species Net Benefit From Safe

Harbor Agreements

Before entering into any Safe Harbor

Agreement, either Service, or the

Services jointly, must make a written

finding that all covered species would

receive a net conservation benefit from

management actions undertaken

pursuant to the Agreement. Net

conservation benefits must contribute to

the recovery of the covered species.

Although a Safe Harbor Agreement does

not have to provide permanent

conservation for enrolled property,

Agreements must nevertheless be of

sufficient design and duration to

provide a net conservation benefit to all

covered listed species.

Conservation benefits from Safe

Harbor Agreements may include

reduction of habitat fragmentation rates;

the maintenance, restoration or

enhancement of habitats; increase in

habitat connectivity; maintenance or

increase of population numbers or

distribution; reduction of the effects of

catastrophic events; establishment of

buffers for protected areas; and

establishment of areas to test and

develop new and innovative

conservation strategies. The Services

believe a ‘‘net conservation benefit’’ test

is necessary to justify the issuance of an

enhancement of survival permit under

section 10(a)(1)(A) of the Act. The

contribution to the recovery of listed

species by Safe Harbor Agreements must

be evaluated carefully, since realized

benefits from these agreements will be

affected by the duration of the

Agreement.

The Services believe that there are

many listed species that will benefit

from management actions carried out for

the duration of Safe Harbor Agreements

even if there is a return to baseline

conditions. Returning the habitat or

population numbers to the baseline

conditions must be possible without

negating the net conservation benefit

provided by the Agreement. If this net

conservation benefit standard cannot be

met, then the Services will not enter

into the Agreement. For example, where

the Services reasonably anticipate that a

proposed Agreement would only

redistribute the existing population of a

listed species or attract a species away

from a habitat that enjoys long-term

protection to a habitat without such

protection, the Services would not enter

into the Agreement. Aquatic, riverine,

and/or riparian species may present an

additional challenge in reaching a net

conservation benefit since returning to

the baseline conditions could have a

serious negative effect and would negate

or outweigh the benefits achieved

through the Agreement. In these cases,

if a net conservation benefit cannot be

achieved, and still allow for the return

to the baseline conditions, the Services

will not enter into a Safe Harbor

Agreement.

Part 5. Standards for and Development

of a Safe Harbor Agreement and Permit

Issuance Under Section 10(a)(1)(A) of

the Act

A property owner may obtain a permit

to incidentally take a listed species of

fish and wildlife above the agreed upon

baseline conditions of the Safe Harbor

Agreement, if the Agreement satisfies

the following requirements:

The Agreement must—

(1) Specify the species and/or habitats

and identify the enrolled property

covered by the Agreement;
Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices 32181

(2) Describe the agreed upon baseline

conditions for each of the covered

species within the enrolled property;

(3) Identify management actions that

would accomplish the expected net

conservation benefits to the species and

the agreed upon timeframes for these

management actions to remain in effect

in order to achieve the anticipated net

conservation benefits;

(4) Describe the anticipated results of

the management actions and any

incidental take associated with the

management actions;

(5) Incorporate a notification

requirement, where appropriate and

feasible, to provide either Service, or

Services jointly, or appropriate State

agencies with a reasonable opportunity

to rescue individual specimens of a

covered species before any authorized

incidental taking occurs;

(6) Describe the nature of the expected

incidental take upon termination of the

Agreement (i.e., back to baseline

conditions);

(7) Satisfy other requirements of

section 10 of the Act; and

(8) Identify the responsible parties

that will monitor maintenance of

baseline conditions, implementation of

terms and conditions of the Agreement,

and any incidental take as authorized in

the permit.

Issuance of a Safe Harbor permit by

the Services is subject to consultation

under the intra-Service consultation

provisions of section 7 of the Act.

Part 6. Baseline Conditions

Either Service, or the Services jointly,

the property owner, and any other

cooperator(s) must accurately describe

the baseline conditions for the property

and species covered by the Safe Harbor

Agreement to ensure that the Agreement

will not reduce current protection for

covered species that presently may use

the enrolled property, or result in

additional restrictions for such species

beyond the baseline conditions. The

baseline conditions must reflect the

known biological and habitat

characteristics that are necessary to

support existing levels of use of the

property by species covered in the

Agreement. However, in light of

circumstances beyond the control of the

property owner (e.g., loss of nest trees

due to storm damage), the parties to the

Agreement may revise the baseline

conditions to reflect the new

circumstances and may develop a new

baseline upon which all parties agree.

(A) Determining the Baseline Conditions

This Policy requires a full description

of baseline conditions for any species

covered in an Agreement (see Part 5

above). Either Service or the Services

jointly, or appropriate State or Tribal

agencies, with the concurrence of the

participating property owner, will

describe the baseline conditions for the

enrolled property in terms appropriate

for the covered species such as: number

and location of individual animals, if

available or determinable; necessary

habitat characteristics that support the

species covered by the Agreement; and

other appropriate attributes. On-site

inspections, maps, aerial photographs,

remote sensing, or other similar means

can help determine baseline conditions.

To the extent determinable, the parties

to the Agreement must identify and

agree on the level of occupation

(permanent or seasonal) by covered

species on the enrolled property. For

species that are extremely difficult to

survey and quantify, an estimate or an

indirect measure (e.g., number of

suitable acres of habitat needed to

sustain a member of the species) is

acceptable. Either Service or the

Services jointly, will develop the

estimate following a protocol agreed

upon by all parties to the Agreement.

Baseline conditions are then set, based

upon the agreed upon measurements or

estimates. Either Service or the Services

jointly, the property owner or the

property owner and any other

appropriate agency or government

acting in cooperation with either

Service or the Services jointly, may

determine the baseline conditions.

When either Service does not directly

determine the baseline conditions, they

must review and concur with the

determination before entering into an

Agreement. Formulation of baseline

conditions can incorporate information

provided by the property owner, any

other appropriate agency, or species

experts, as appropriate.

(B) Plants

The Act’s ‘‘take’’ prohibitions

generally do not apply to listed plant

species on private property. Therefore,

the incidental take assurances provided

in this policy are usually not necessary

for listed plant species. However, the

Services strongly encourage and often

enter into Agreements with non-Federal

property owners to restore and enhance

habitats for listed plants.

Either Service or the Services jointly,

must review the effects of their own

actions (e.g., issuance of a permit) on

listed plants, even when those plants

are found on private property under

section 7 of the Act. In approving an

enhancement of survival permit and

entering into a Safe Harbor Agreement,

either Service or the Services jointly,

must also confirm under section 7 that

the Agreement will not ‘‘jeopardize the

continued existence’’ of listed plants. In

the interest of conserving listed plants

and complying with their

responsibilities under section 7, either

Service or the Services jointly, may

negotiate with the property owner to

voluntarily assist the Services in

restoring or enhancing listed plant

habitats present within the enrolled

property.

(C) Future Section 7 Considerations and

Assurances

Before entering into a Safe Harbor

Agreement, the either Service or the

Services jointly, must conduct an intraService section 7 review. During that

process, either Service or the Services

jointly, must determine that future

property use changes within the

enrolled property and incidental take

consistent with the established baseline

conditions will neither jeopardize listed

species of fish and wildlife or plants,

nor destroy or adversely modify critical

habitat at the time of signing the

Agreement. If a future Federal nexus to

the enrolled property prompts the need

for a section 7 review and take of the

listed species above the baseline

conditions is likely, either Service or the

Services jointly, will issue a nonjeopardy biological opinion and

incidental take statement to the Federal

action agency. As required by section 7

and its implementing regulations, either

Service or the Services jointly, will also

provide the Federal agency with

reasonable and prudent measures that

are necessary or appropriate to

minimize the effects of the action. Those

measures will only require

implementation of the same terms and

conditions provided to the participating

landowner in his/her Safe Harbor

Agreement and associated 10(a)(1)(a)

permit. This approach is warranted and

consistent with section 7 consultation

procedures because the effects of any

incidental take consistent with the

established baseline conditions would

have been previously considered during

the Services’ intra-agency section 7

review for the proposed Agreement.

Part 7. Assurances to Property Owners

A property owner who enters an

Agreement and wishes to return

enrolled property to the baseline

conditions would need to show that the

agreed upon baseline conditions were

maintained and that activities identified

in the Agreement as necessary to

achieve the net conservation benefit

were carried out for the duration of the

agreement. If the property owner carried

out the management actions and

complied with the permit and the
32182 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices

Agreement conditions, the property

owner would be authorized to utilize

his/her property in a manner which

returns the enrolled property to baseline

conditions.

Part 8. Occupation by Non-Covered or

Newly Listed Species

After an Agreement is signed and an

enhancement of survival permit is

issued, a species not addressed in the

Agreement may occupy enrolled

property. If either Service or the

Services jointly, conclude that the

species is present as a direct result of

the property owner’s conservation

actions taken under the Agreement,

either Service or the Services, will:

(1) At the request of the property

owner, amend the Agreement to reflect

the changed circumstances and revise

the baseline condition description, as

appropriate; and

(2) Review and revise the permit, as

applicable, to address the presence of

additional listed species on enrolled

property.

Assurances in the permit may not

necessarily be extended to a noncovered species if the species was

specifically excluded from the original

Agreement as a result of the

participating property owner’s request,

or its presence is a result of activities

not directly attributable to the property

owner. In these cases, enhancement or

maintenance actions that are specific to

the non-covered species under

consideration must be developed, and

baseline conditions determined that will

provide a net conservation benefit to

that species.

Any substantial change to a Safe

Harbor Agreement or a revision to an

enhancement of survival permit because

of non-covered species would be subject

to the same review process (i.e., section

7 of the Act or public review) as the

original Safe Harbor agreement and

enhancement of survival permit.

Part 9. National Environmental Policy

Act Compliance

The National Environmental Policy

Act of 1969 (NEPA), as amended, and

the regulations of the Council on

Environmental Quality (CEQ) require all

Federal agencies to examine the

environmental impact of their actions,

to analyze a full range of alternatives,

and to utilize public participation in the

planning and implementation of their

actions. The purpose of the NEPA

process is to help Federal agencies make

better decisions and to ensure that those

decisions are based on an understanding

of environmental consequences. Federal

agencies can satisfy NEPA requirements

by either a Categorical Exclusion,

Environmental Assessment (EA), or

Environmental Impact Statement (EIS),

depending on the effects of their

proposed action.

Either Service or the Services jointly,

will review each permit action for other

significant environmental, economic,

social, historical or cultural impact, or

for significant controversy (516 DM 2,

Appendix 2 for FWS and NOAA’s

Environmental Review Procedures and

NOAA Administrative Order Series

216–6). If either Service or the Services

jointly, expect that significant impact

could occur, the issuance of a permit

would require preparation of an EA or

EIS. General guidance on when the

Services exclude an action categorically

and when and how to prepare an EA or

EIS is found in the FWS’s

Administrative Manual (30 AM 3) and

NOAA Administrative Order Series

216–6. If a Safe Harbor Agreement/

permit is not expected to individually or

cumulatively have a significant impact

on the quality of the human

environment, then the Agreement/

permit may be categorically excluded.

Part 10. Transfer of Ownership

If a property owner who is party to a

Safe Harbor Agreement transfers

ownership of the enrolled property,

either Service or the Services, will

regard the new owner as having the

same rights and obligations with respect

to the enrolled property as the original

property owner if the new property

owner agrees to become a party to the

original Agreement. Actions taken by

the new participating property owner

that result in the incidental take of

species covered by the Agreement

would be authorized if the new property

owner maintains the baseline

conditions. The new property owner,

however, would neither incur

responsibilities under the Agreement

nor receive any assurances relative to

section 9 restrictions from the

Agreement unless the new property

owner becomes a party to the

Agreement.

A Safe Harbor Agreement must

commit the participating property

owner to notify the Services of any

transfer of ownership at the time of the

transfer of any property subject to the

Agreement. This will allow the Services

to contact the new property owner to

explain the prior Safe Harbor Agreement

and to determine whether the new

property owner would like to continue

the original Agreement or enter a new

Agreement. When a new property owner

continues an existing Safe Harbor

Agreement, either Service or the

Services jointly, will honor the baseline

conditions for the enrolled property

under consideration.

Part 11. Property Owner Discretion

Nothing in this policy prevents a

participating property owner from

implementing management actions not

described in the Agreement, so long as

such actions maintain the baseline

conditions. Either Service or the

Services jointly, will provide technical

advice, to the maximum extent

practicable, to the property owner when

requested.

Part 12. Discretion of All Parties

Nothing in this policy compels any

party to enter a Safe Harbor Agreement

at any time. Entering a Safe Harbor

Agreement is voluntary and presumes

that the Agreement will serve the

interests of all affected parties. Unless

specifically noted, an Agreement does

not otherwise create or waive any legal

rights of any party to the Agreement.

Part 13. Scope of Policy

This policy applies to all federallylisted species of fish and wildlife

administered by either Service or the

Services jointly, as provided in the Act

and its implementing regulations.

Required Determinations

A major purpose of this proposed

policy is the facilitation of voluntary

cooperative programs for the proactive

management of non-Federal lands and

waters for the benefit of listed species.

From the Federal Government’s

perspective, implementation of this

policy would result in minor

expenditures (e.g., providing technical

assistance in the development of sitespecific management plans). The

benefits derived from such management

actions on non-Federal lands and waters

would significantly advance the

recovery of listed species. Non-Federal

program participants would be provided

regulatory certainty as a result of their

voluntary management actions. In some

cases, such participants may incur

minor expenditures to carry out some

management actions on their lands or

involving their water. The Services have

determined that the proposed policy

would not result in significant costs of

implementation to the Federal

Government or to non-Federal program

participants.

The Director of the Fish and Wildlife

Service certified to the Chief Counsel for

Advocacy of the Small Business

Administration that a review under the

Regulatory Flexibility Act of 1980 (5

U.S.C. 601 et seq.) has revealed that this

policy would not have a significant

effect on a substantial number of small
Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices 32183

entities, which includes businesses,

organizations, or governmental

jurisdictions. Because of the completely

voluntary nature of the Safe Harbor

program, no significant effects are

expected on non-Federal cooperators

exercising their option to enter into a

Safe Harbor Agreement. Therefore, this

policy would have minimal effect on

such entities.

This policy has been determined to be

not significant for purposes of Executive

Order 12866. Therefore, it was not

subject to review by the Office of

Management and Budget.

The Services have determined and

certify pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that

this proposed policy will not impose a

cost of $100 million or more in any

given year on local or State governments

or private entities. The Departments

have determined that these proposed

policy meets the applicable standards

provided in sections 3(a) and 3(b)(2) of

Executive Order 12988.

The Services have examined this

proposed policy under the Paperwork

Reduction Act of 1995 and found it to

contain no requests for additional

information or increase in the collection

requirement other than those already

approved under the Paperwork

Reduction Act of 1995 for incidental

take permits with OMB approval #1018–

0022 which expires July 31, 1997. The

Service requested renewal of the OMB

approval and in accordance with 5 CFR

1320 will not continue to collect the

information, if the approval has expired,

until OMB approval has been obtained.

The Department has determined that

the issuance of the proposed policy is

categorically excluded under the

Department of Interior’s NEPA

procedures in 516 DM 2, Appendix

1.10. NMFS concurs with the

Department of Interior’s determination

that the issuance of the proposed policy

qualifies for a categorical exclusion and

falls within the categorical exclusion

criteria in NOAA 216–3 Administrative

Order, Environmental Review

Procedure.

Public Comments Solicited

The Services request comments on

their Draft Safe Harbor Policy.

Particularly sought are comments on the

procedures or methods for enhancing

the utility of the Safe Harbor Policy in

carrying out the purposes of the Act.

The Services also are interested in the

views of interested parties on the

appropriateness of linking ‘‘Safe

Harbor’’ Agreements to incidental take

permits issued under section 10(a)(1)(B)

of the Act. In certain situations, HCP

permittees might be willing to conduct

activities that would enhance listed

species populations above their

mitigation obligations under an

incidental take permit or HCP. The

Services are interested in ideas,

comments, and suggestions on this

concept. The Services also are

requesting ideas, comments or

suggestions on how to delineate the

baseline conditions for a Safe Harbor

Agreement that is linked to an HCP

incidental take permit. After

consideration of all comments received

on this question, the Services will

decide whether it is appropriate to

utilize Safe Harbor Agreements in

connection with HCPs.

If the Services decide that it is

appropriate to provide these assurances

to incidental take permittees, the

Services will publish a proposed policy

on how best to provide such assurances.

In addition, situations may arise

where a property owner may want to

recover or conserve numerous species,

both listed and unlisted on their

property, and may want to enter into

both a Safe Harbor Agreement and a

Candidate Conservation Agreement. The

Services are also seeking comments, and

are interested in ideas and suggestions

on the ways to streamline and combine

these processes when developing these

two types of agreements with the same

property owner.

The Services will take into

consideration the comments and any

additional information received by the

Services by August 11, 1997. To ease

review and consideration of submitted

comments, the Services prefer that

reviewers organize their comments by

part (e.g., Part 1. Purpose, Part 2.

Definitions, and linking Safe Harbor

Agreements with HCP permits).

Dated: May 27, 1997.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

Dated: June 2, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries,

National Oceanic and Atmospheric

Administration.

[FR Doc. 97–15250 Filed 6–9–97; 1:26 pm]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

Announcement of Draft Policy for

Candidate Conservation Agreements

AGENCY: Fish and Wildlife Service,

Interior; National Marine Fisheries

Service, NOAA, Commerce.

ACTION: Announcement of draft policy;

request for public comments.

SUMMARY: The Fish and Wildlife Service

and the National Marine Fisheries

Service (Services) announce a joint Draft

Policy for Candidate Conservation

Agreements (Agreements) under the

Endangered Species Act of 1973, as

amended (Act). This policy would

provide incentives for private and other

non-Federal property owners, and State

and local land managing agencies, to

restore, enhance, or maintain habitats

for proposed, candidate and certain

other unlisted species. Candidate

Conservation Agreements would be

developed by participating property

owners or State or local land managing

agencies to remove the need to list the

covered species as threatened or

endangered under the Act. The Services

will coordinate closely with the

appropriate State agencies and any

affected Native American Tribal

governments before entering into

Candidate Conservation Agreements

with property owners to conserve

covered species.

Under this policy, either Service, or

the Services jointly, would provide

participating property owners and State

and local land managing agencies with

technical assistance in the development

of Candidate Conservation Agreements

and would provide assurances that, if

covered species are eventually listed,

the property owners or agencies would

not be required to do more than those

actions agreed to in the Candidate

Conservation Agreement. If a species is

listed, incidental take authorization

would be provided to allow the property

owner or agency to implement

management activities that may result in

take of individuals or modification of

habitat consistent with those levels

agreed upon and specified in the

Agreement.

Published concurrently in this

Federal Register are the Fish and

Wildlife Service’s (FWS) proposed

regulations necessary to implement this

policy. The Services seek public

comment on this proposed draft policy.