Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Notices 44761 

and the Indian Affairs Records Schedule 

(IARS). 

STORAGE: 

Records are stored on paper and 

electronic storage media. 

RETRIEVABILITY: 

Records are retrieved using either: 

(1) Identifiers linked to IIM Trust 

Fund account holders, such as name, 

Social Security Numbers, tribe, tribal 

enrollment, or census numbers, or 

(2) Organizational links and 

identifiers such as account numbers, 

tribal codes, and IIM Trust Fund 

account codes. 

SAFEGUARDS: 

ART is maintained with controls 

meeting safeguard requirements 

identified in Departmental Privacy Act 

Regulations (43 CFR 2.51) for manual 

and automated records. Access to 

records in the system is limited to 

authorized personnel whose official 

duties require such access. 

(1) Physical Security: Paper records 

are maintained in locked file cabinets 

and/or in secured rooms. 

(2) Technical Security: Electronic 

records are maintained in conformity 

with Office of Management and Budget 

and Departmental guidelines reflecting 

the implementation of the Federal 

Information Security Management Act. 

Electronic data are protected through 

user identification, passwords, database 

permissions and software controls. 

These security measures establish 

different degrees of access for different 

types of users. 

(3) Administrative Security: All DOI 

and contractor employees involved in 

any and all trust activities are required 

to complete Privacy Act, Records 

Management and Security Awareness 

trainings. The trainings are completed 

before an employee is permitted access 

to any trust data. Trainings are 

implemented on an annual basis. 

RETENTION AND DISPOSITION: 

ART is scheduled for permanent 

retention. 

SYSTEM MANAGER AND ADDRESS: 

Information Technology Program 

Manager, Office of Historical Trust 

Accounting, 1801 Pennsylvania Ave., 

NW., Suite 500, Washington, DC 20006. 

NOTIFICATION PROCEDURES: 

To determine whether your records 

are in this Privacy Act system of 

records, write to the Information 

Technology Program Manager at the 

address listed above. Provide the 

following information with your 

request: 

(1) Proof of your identity. 

(2) List of all of the names by which 

you have been known, such as maiden 

name or alias(es). 

(3) Mailing address. 

(4) Tribe, IIM Trust Fund account 

number, tribal enrollment or census 

number. 

(5) Time period(s) during which the 

records may have been created or 

maintained, to the extent known by you 

(See 43 CFR 2.60). 

RECORDS ACCESS PROCEDURES: 

To request access to your records, 

write to the Information Technology 

Program Manager at the address listed 

above. Provide the following 

information with your request: 

(1) Proof of your identity. 

(2) List of all of the names by which 

you have been known, such as maiden 

name or alias(es). 

(3) Mailing address. 

(4) Tribe, IIM Trust Fund account 

number, tribal enrollment or census 

number. 

(5) Time period(s) during which 

records may have been created or 

maintained, to the extent known by you. 

(6) Description or identification of the 

records you are requesting (including 

whether you are asking for a copy of all 

of your records or only a specific part 

of them) and the maximum amount of 

money that you are willing to pay for 

their copying. (See 43 CFR 2.63.) 

CONTESTING RECORDS PROCEDURES: 

To request an amendment of a record, 

write to the Information Technology 

Program Manager at the address listed 

above (See 43 CFR 2.71). Provide the 

following information with your 

request: 

(1) Proof of your identity. 

(2) List of all of the names by which 

you have been known, such as maiden 

name or alias(es). 

(3) Mailing address. 

(4) Tribe, IIM Trust Fund account 

number, tribal enrollment or census 

number. 

(5) Time period(s) during which the 

records may have been created or 

maintained, to the extent known by you. 

(6) Specific description or 

identification of the record(s) you are 

contesting and the reason(s) why you 

believe the record(s) are not accurate, 

relevant, timely, or complete. 

(7) Copy of documents or evidence in 

support of (6) above. 

RECORD SOURCE CATEGORIES: 

(1) The following DOI components: 

Bureau of Indian Affairs, Office of Trust 

Funds Management, Office of the 

Special Trustee, Minerals Management 

Service, Bureau of Land Management, 

Office of Hearings and Appeals. 

(2) Federal and state agencies. 

(3) IIM Trust Fund account holders or 

their heirs. Depositors to and claimants 

against the accounts. 

(4) Tribal offices, if the IIM function 

is contracted or compacted under the 

Indian Self-Determination and 

Education Assistance Act, Public Law 

93–638, 88 Stat. 2203, as amended. 

(5) Courts of competent jurisdiction, 

including tribal courts. 

EXEMPTIONS CLAIMED FOR THE SYSTEM: 

None. 

[FR Doc. E8–17582 Filed 7–30–08; 8:45 am] 

BILLING CODE 4310–10–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

[FWS–R9–ES–2008-N00166; 92220–1112–

0000–FY08–EA] 

Endangered and Threatened Wildlife 

and Plants; Recovery Crediting 

Guidance 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of availability. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of guidance to promote 

implementation of the Endangered 

Species Act. The guidance describes a 

crediting framework for Federal 

agencies in carrying out recovery 

measures for threatened and endangered 

species. The text of the guidance is 

included in this notice. Under the 

guidance, Federal agencies may show 

how adverse effects of agency activities 

to a listed species are offset by 

beneficial effects of actions taken 

elsewhere for that species. The 

combined effects of the adverse and 

beneficial actions must provide a net 

benefit to the recovery of the species. 

ADDRESSES: The guidance may be 

downloaded from our Web site at 

http://www.fws.gov/endangered/policy/ 

june.2008.html. To request a copy of the 

guidance, write to U.S. Fish and 

Wildlife Service, 420 ARLSQ, 

Washington, DC 20240, Attention: 

Recovery Crediting; or call 703–358–

2171. You may also send an e-mail 

request to recovery_crediting@fws.gov. 

Specify whether you wish to receive a 

hard copy by U.S. mail or an electronic 

copy by e-mail. 

FOR FURTHER INFORMATION CONTACT: 

Direct all questions or requests for 

additional information about the 

guidance to Dr. Richard Sayers, Division 


jlentini on PROD1PC65 with NOTICES
44762 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Notices 

of Consultation, Habitat Conservation 

Planning, Recovery, and State Grants, 

U.S. Fish and Wildlife Service, 420 

ARLSQ, Washington, DC 20240 (703–

358–2171). Individuals who are hearingimpaired or speech-impaired may call 

the Federal Relay Service at 1–800–877–

8337 for TTY assistance, 24 hours a day, 

7 days a week. 

SUPPLEMENTARY INFORMATION: 

Background 

The ultimate goal of the Endangered 

Species Act of 1973, as amended (ESA) 

(16 U.S.C. 1531 et seq.), is the recovery 

of endangered and threatened species 

and the ecosystems on which they 

depend. In administering the recovery 

provisions of the Act, the Service 

collaborates with many partners, 

including Federal, State, and local 

agencies, Tribal governments, 

conservation organizations, the business 

community, and private landowners. 

Effective recovery planning and 

implementation depend in part on 

creative processes and agreements with 

Federal partners as well as other nonFederal partners in community-based 

recovery efforts. Examples of innovative 

conservation tools under the ESA 

include safe harbor agreements, habitat 

conservation plans, recovery permits, 

and conservation banks. The ultimate 

success of conservation and recovery of 

endangered and threatened species 

depends on a variety of innovations, 

such as these, that may be used in 

concert with one another or alone. We 

expect recovery credit systems (RCS) to 

complement them further. Additional 

information concerning these tools is 

available through the sources listed 

above under ADDRESSES. 

The recovery credit approach 

provides Federal agencies with an 

additional recovery tool developed 

using existing authorities. As described 

below, this tool was initially established 

in Texas to allow Fort Hood Military 

Reservation to accrue credits for 

recovery measures that it arranged by 

contract with neighboring landowners. 

The type of arrangement we developed 

with Fort Hood can be applied by other 

Federal agencies that may obtain credit 

for advancing the recovery of a listed 

species, and this credit may be 

expended, or debited, to offset potential 

adverse effects of future actions. A 

recovery crediting system can allow a 

Federal agency to accrue credit for 

recovery actions in advance of effects 

resulting from any specific action that 

causes adverse effects. We expect this 

process to increase incentives for 

Federal agencies to use their authorities 

to further the purposes of the ESA. 

Under section 7 of the ESA, the Fish 

and Wildlife Service conducts 

consultations with Federal agencies to 

advise them whether their actions are 

likely to jeopardize listed species or 

adversely modify critical habitat. Each 

Federal agency has a duty under section 

7(a)(1) to use its authorities to further 

the purposes of the ESA by carrying out 

programs for the conservation of listed 

species. The Service and cooperating 

agencies can employ the consultation 

process to review agency programs and 

verify that they promote the recovery of 

one or more listed species. These 

consultations may establish a basis for 

adoption of RCS. In the discussion of 

procedures for consultation on an RCS, 

additional language has been inserted to 

note that action agencies should 

expressly state what the net benefit to 

recovery will be for the relevant species 

and how the proposed RCS will satisfy 

that standard (see section III.C.). 

The Service recognizes that recovery 

crediting is a particular mechanism 

within the broad concept of habitat 

credit trading. The Service may expand 

other types of crediting to entities other 

than Federal agencies or employ 

additional methods for Federal agencies. 

That is, we may be able to use credits 

as a measure of the benefit of recovery 

actions taken on Federal lands, and we 

may consider other credit trading 

systems, including conservation banks, 

for landowners who take recovery 

actions on their own land or other 

private lands. However, the guidance 

being adopted herein applies only for 

Federal agencies to accrue credits on 

non-Federal lands. 

Viewing Documents 

On November 2, 2007, we published 

in the Federal Register (72 FR 62258) a 

notice of availability and the complete 

text of draft guidance on RCS. An initial 

30-day public comment period was 

opened at that time and subsequently 

re-opened for an additional 60 days, 

until February 25, 2008 (72 FR 73351, 

December 27, 2007). 

The complete file for the recovery 

crediting guidance as well as the 

comments and materials we received are 

available for inspection, by 

appointment, during normal business 

hours at the Division of Consultation, 

Habitat Conservation Planning, 

Recovery, and State Grants, Room 420, 

4401 North Fairfax Drive, Arlington, VA 

22203–1601. 

Summary of Comments and 

Recommendations 

State and Federal government 

agencies, nongovernmental 

organizations, and private individuals 

responded to our notice. In all, we 

received comments from more than 60 

respondents. Some simply expressed 

support for or opposition to the concept 

of recovery crediting; others made more 

specific observations and 

recommendations. The latter were 

grouped thematically and are organized 

by category below with our responses. 

Category 1—Level of Specificity 

Issue 1. While some respondents 

supported the avoidance of specificity 

in the guidance, others recommended 

providing greater detail, particularly 

with respect to determining net 

conservation benefit, the valuation of 

credits, eligibility of species, and 

crediting and debiting standards and 

procedures. One respondent 

recommending greater detail in the 

guidance also recommended that we 

undertake a series of pilot projects to 

test the RCS concept and consider 

carrying out the guidance through 

adoption of a regulation. Some pointed 

to climate change as a specific 

widespread threat to species that should 

be accounted for in developing RCS. 

Response 1. Our responses to 

suggestions for greater specificity on 

particular issues are presented under 

the discussion of those issues. 

Generally, we believe that it is 

necessary, particularly at this stage in 

the development of RCS, to strike a 

balance between clearly expressing the 

principles governing the mechanism 

and allowing individual RCS to adapt to 

local conditions and needs. A series of 

carefully monitored pilot projects may 

provide a basis for incorporating greater 

detail in a future iteration of this 

guidance or replacing it with a 

regulation. 

With respect to the valuation of 

credits, we anticipate that a variety of 

quantitative measures may be employed 

under the guidance in different 

situations, such as number of 

individuals of a species, density of 

individuals over some measurable area, 

quantity of habitat displaying given 

characteristics, volume of flow in a 

given aquatic system, etc. In some cases 

it may also be possible to establish 

equivalencies between different 

measures. For example, habitat that is 

relatively abundant could be debited 

against scarce habitat of different 

character that requires restoration to 

promote recovery. 

Climate change is one of the 

widespread effects (such as invasive 

species) that may be appropriate to 

consider on a case by case basis. 


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Category 2—Adequacy of/ 

Appropriateness of the Net-Benefit 

Standard vs. Contribution To Recovery 

Issue 2a. Many respondents were 

concerned about the application of the 

net-benefit standard. Following is a 

summary of those concerns and our 

responses: 

‘‘Net conservation benefit’’ should be 

clearly and consistently defined in the 

guidance. This terminology should be 

consistently used throughout the 

guidance to avoid confusion and 

misapplication. 

Response 2a. We agree and have 

revised our terminology. Because ‘‘net 

conservation benefit’’ has been applied 

with respect to other policies, such as 

the Safe Harbor policy, and the RCS 

process applies a different standard to 

Federal agencies through the ESA 

section 7 process, we have revised our 

language to refer consistently to the 

term ‘‘net benefit to recovery,’’ which is 

now defined in section I. C. of the final 

guidance. 

Issue 2b. Some respondents 

contended that the draft guidance fails 

to set firm guidelines for ensuring a net 

conservation benefit; that the standard 

is too weak, and should be replaced by 

a stronger recovery standard; that the 

focus of the document is enabling 

Federal agencies to find new ways to 

mitigate the habitat destruction 

resulting from their activities; or that the 

practice of merely agreeing to avoid 

destruction of existing habitat should be 

discouraged as there would be no net 

gain. 

Response 2b. Our intent for this 

guidance is that its implementation will 

provide greater flexibility and increased 

opportunities for Federal agencies to 

implement their responsibilities under 

section 7(a)(1) of the ESA, to enhance 

the recovery of listed species. We have 

attempted to clarify this intent by 

revising our terminology in the 

guidance by defining ‘‘net benefit to 

recovery’’ and consistently refer to a 

‘‘net benefit to recovery’’ rather than a 

‘‘net conservation benefit’’. 

Issue 2c. An RCS should generally be 

available over the full range of the 

species to provide maximum 

flexibility—differences in habitat 

quality should be reflected in the 

definition of the credit for that species. 

Response 2c. We agree that in most 

cases where it is appropriate to develop 

an RCS, credits should be available 

throughout the species’ range, and 

habitat credits valued appropriate to the 

relative importance of the habitat to 

recovery. It is important to note that 

recovery credits may be accrued for 

recovery actions other than habitat 

protection—they could be applied to 

needed research, management, or 

outreach actions, for example. 

Issue 2d. Placement of an RCS should 

be focused on the benefit to species 

recovery and not proximity to public 

land. Listed species are more prevalent 

on private land. 

Response 2d. The focus of recovery 

credits is on benefits to the species. In 

terms of habitat credits, proximity to 

public lands may well be important for 

some species because public lands often 

take the form of large tracts of land that 

will be protected from fragmentation 

and development in perpetuity. Because 

habitat connectivity is often of critical 

importance, private lands near large 

tracts of public lands may contribute 

more to connectivity than isolated tracts 

of private lands. This does not in any 

way discount the importance of private 

lands to the conservation and recovery 

of endangered species. 

Issue 2e. Actions qualifying for a 

recovery credit should be measurable 

and outcome-based. A demonstrated 

positive response by the population of 

the target species in the area affected by 

the action should be the litmus test for 

evaluating the effectiveness or assigning 

a value to a recovery credit. 

Response 2e. We agree. The standard 

of using current recovery plans or an 

equivalent, Service-approved document, 

which must tie the recovery criteria and 

recovery actions directly to addressing 

the threats to the species, should assure 

that recovery credits are based upon 

measurable, outcome-based actions. 

Category 3—Expanding Scope 

Issue 3a. Who can participate in 

Recovery Crediting Systems? 

Response 3a. Under this guidance, 

recovery credits can only be established 

through an ESA section 7 consultation. 

The use of recovery credits is therefore 

limited to Federal action agencies, and 

only Federal action agencies may 

accrue, hold (bank), and use (debit) 

recovery credits. That does not mean 

that non-Federal entities cannot 

participate in the RCS process where 

appropriate. It is also important to note 

that other entities may be involved in 

consultation or acting on behalf of a 

Federal action agency and they may 

engage and participate in the recovery 

credit process and the consultation 

process as appropriate. Consultation is a 

responsibility of all Federal agencies, 

and the Federal action agency (a single 

Federal entity) is ultimately responsible 

for the accrual, use (debiting), and 

accounting of recovery credits. Other 

entities, Federal or non-Federal, may 

participate in RCS as appropriate, but a 

non-Federal entity cannot accrue, hold 

(bank), or use (debit) recovery credits. 

Issue 3b. Is the recovery credit process 

limited to federally listed species only? 

Response 3b. Yes, RCS are limited to 

federally listed species because the 

authority for establishing and using an 

RCS is the ESA’s section 4(f) and section 

7(a)(1), both of which apply only for 

listed species. The draft guidance 

clearly stated that recovery crediting is 

an optional process for a Federal agency 

to use its authorities to promote the 

conservation of listed species. 

Category 4—Comments on the Use of 

Federal Lands 

Issue 4a. Are recovery credits limited 

to actions on non-Federal lands or can 

credits be accrued from recovery 

activities on Federal lands? Several 

respondents noted that RCS should 

place a priority to carry out recovery 

actions and thus accrue recovery credits 

on Federal lands and, since the impacts 

are occurring on Federal lands, the 

impacts must be mitigated on Federal 

lands. One commenter noted that State 

or private lands should be used only as 

a last resort to mitigate for impacts on 

Federal lands. 

Response 4a. The draft guidance 

stated that ‘‘a recovery credit system is 

a specific program established to 

provide recovery actions on non-Federal 

lands for specific species while creating 

a bank of credits that a Federal agency 

may use to offset the effects of its 

actions.’’ Only conservation that occurs 

on non-Federal lands can be counted as 

recovery credits. 

The Service supports the mitigation of 

impacts using either Federal or nonFederal lands. As noted above, recovery 

credits were intended to promote the 

recovery of listed species on nonFederal land and to offset adverse 

effects to listed species from proposed 

Federal actions. 

Issue 4b. There was concern that the 

program could ultimately lead to the 

long-term degradation of Federal lands 

and a transfer of valuable fish and 

wildlife resources from lands held in 

public trust to private reserves. 

Respondents also recommended that 

Federal agencies strive to seek 

additional incentives to minimize loss 

of threatened and endangered species 

and their habitats on Federal lands. It 

was also noted that the full force of the 

Endangered Species Act does not apply 

on private lands, and that Federal 

activities on public lands should rarely, 

if ever, result in the net loss of habitat 

for listed species. 

Response 4b. Federal agencies are 

mandated under section 7(a)(1) of the 

ESA to use their authorities to further 


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the conservation of listed species. 

Recovery crediting is simply one tool 

that agencies may use in order to do so, 

and will not be appropriate in all 

situations. Because public lands often 

provide extremely valuable large tracts 

of protected habitat, it will be 

incumbent upon the Service and an 

action agency to assure in each RCS 

established that any debiting action on 

Federal lands does not lead to long-term 

degradation of habitat for listed species, 

but in fact enhances the recovery of the 

species through additional private 

partnerships and other recovery actions. 

Credits could potentially be applied to 

actions on other public lands, as well as 

State or private lands. Recovery debits 

on Federal lands must be valued against 

a net benefit to recovery standard for 

any credit on private lands. This must 

include assurance of equivalent 

protections for the species on private 

lands and a net benefit, not an even 

trade of debits for credits. Issues of 

habitat size, quality, and connectivity 

must be considered, and Federal lands 

will continue to play a major role for 

most species. 

Category 5—Temporary vs. Permanent 

Credits 

Issue 5. Several respondents 

expressed concern over the concept of 

temporary credits, while others 

supported the exchange of temporary 

credits for temporary impacts. Some 

respondents did not believe the 

guidance provided enough information 

concerning the use and/or 

determination of temporary versus 

permanent credits. Concerns included 

the inadequacy of achieving species 

needs in the short term, lack of specific 

standards for in-perpetuity protection, 

and the use of temporary credits for 

outreach and research that could be 

traded for habitat impacts. A few 

comments recommended that only 

permanent credits be allowed, much 

like the situation in conservation 

banking, with even temporary impacts 

offset through a permanent credit 

system. One respondent questioned the 

manner in which temporary effects were 

quantified for the Fort Hood pilot 

project and how it could be applied to 

a national model. 

Response 5. The Service has not 

attempted to outline specific details on 

what may constitute a ‘‘temporary’’ or 

‘‘permanent’’ impact because of the 

multitude and range of direct and 

indirect effects that may occur from a 

variety of Federal actions. Such an 

attempt would ultimately fall short of 

capturing the concept of temporary or 

permanent credits. Instead, we believe 

the nature of effects are best described 

during formal consultation, which 

requires a detailed effects analysis of the 

specific Federal action on listed species. 

We agree that, in most cases, the impact 

must be commensurate with the credit 

(while providing a net benefit to 

recovery), which is how the pilot project 

at Fort Hood is modeled. However, we 

do not want to preclude the inclusion of 

any recovery tasks (e.g., research, public 

outreach) that are necessary for delisting 

or downlisting of the target species in 

the development of RCS. The decision 

on the appropriate credit exchange, as 

well as the value of credits, would be 

made through the development of 

specific RCS. Thus, the guidance is 

intentionally general in outlining the 

concept of recovery crediting and does 

not rely on specific aspects from the 

pilot project at Fort Hood, which is still 

in the development phase. 

Both temporary and permanent 

credits may be necessary components of 

an RCS. Using permanent credits to 

offset both temporary and permanent 

impacts is not precluded under this 

guidance, but developing appropriate 

temporary credits adds incentives for 

furthering the recovery of listed species. 

Because of the net benefit to recovery 

standard for crediting, temporary credits 

must provide a measurable contribution 

to the recovery of the target species. 

Category 6—Role of the States 

Issue 6. The Service received several 

comments from State natural resources 

agencies and other interested parties on 

the importance of and status of the 

States in working with the Service on 

recovery of listed species under the 

ESA. In addition, the comments stressed 

three elements in creating a functional 

RCS. First, that States, given their status 

under section 6 of the ESA, have a 

direct need to work in a collaborative 

partnership with the Service to develop 

an RCS and share the responsibility to 

ensure that an RCS works in partnership 

with Federal agencies, States, private 

landowners, Tribes, land trust 

organizations and other partners and 

stakeholders. Second, several State 

interest comments advocated that the 

Service create a science team to further 

develop this guidance, review other 

recovery or conservation tools, such as 

conservation banking, and then develop 

more detailed guidance for the Service 

to review in public comment. Third, 

several respondents recommended that 

the Service, in partnership with the 

States and other national partners, 

monitor a few pilot recovery credit 

projects first, review these with a 

national team, and then develop more 

credible RCS guidance. 

Response 6. The Service agrees that 

the States play an important role as our 

conservation partners under section 6 of 

the ESA and other Federal fish and 

wildlife conservation laws. Each State 

was required to develop a State Wildlife 

Action Plan by October 2005 and 

implement its plan, with Service 

approval, by January 2007. These plans 

are now in place. Several Memoranda of 

Understanding (MOU) between the 

Service and the States and other 

partners reflect the importance of the 

States’ role in conservation of listed 

species and other species at risk. 

The Service expects that appropriate 

scientific advisory groups will be 

formed to assist in the development of 

individual RCS, and will be capable of 

evaluating these systems as they are 

carried out. We decline to establish a 

national science team at this time, but 

may do so in the future if we determine 

that it is warranted, and may provide 

more informed detailed guidance at that 

time. 

Category 7—Scope and Transfer or 

Interstate Trading 

Issue 7a. One respondent asked 

whether recovery credits be accrued in 

one portion of a species’ range and used 

in another portion of a species’ range 

that may be some distance away. 

Response 7a. Appropriate credits may 

be accrued and used anywhere within a 

species’ range. However, as discussed in 

the draft guidance, recovery plans, State 

plans and other guiding documents or 

groups, such as a recovery team, science 

or biology workgroup, etc., may 

prioritize particular areas for credit 

accrual and/or use based on the needs 

of the species. 

Issue 7b. One respondent inquired 

whether credits should be transferable 

or traded among entities. 

Response 7b. The draft guidance 

clearly stated, ‘‘Circumstances may arise 

in which a Federal agency may opt to 

sell or transfer banked credits to another 

agency.’’ Federal agencies may trade, 

transfer, or sell recovery credits to 

another Federal agency in accordance to 

the agencies’ scopes of authority. The 

Service does not usually participate in 

how a Federal action agency 

implements aspects of a consultation, 

such as carrying out activities described 

in a biological assessment or a biological 

opinion. If a Federal action agency 

contracts with a non-Federal entity or 

with another Federal entity to 

accomplish conservation actions for 

listed species, the Service may not be 

aware of or involved in that process. 

The Service’s role is work with the 

action agency and the action as it is 

presented to us in the consultation 


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process. The Service will examine 

credits and their availability for use 

during the consultation process and 

issue a biological opinion. The origin of 

the credits is not a concern for the 

Service. Put simply, the transfer or 

trading of credits among Federal 

agencies is acceptable, however, the 

Service will not engage in negotiation or 

trading activities among Federal 

agencies or their surrogates. The Federal 

action agency must accurately account 

for all credits and debits it offers to use 

during the consultation process, and the 

Federal action agency is ultimately 

responsible for all subsequent 

accounting and tracking of recovery 

credits. 

Since State agencies and private 

entities do not have a consultation 

responsibility, there is no basis for them 

to design or implement an RCS without 

the involvement of a Federal action 

agency. Under this guidance, only RCS 

involving Federal agencies will be 

recognized by the Service during the 

consultation process. 

Category 8—RCS and Other Recovery 

Mechanisms (e.g., Conservation Banks) 

Issue 8. Several respondents noted 

similarities or differences between this 

guidance and the Service’s conservation 

banking guidance issued in 2003 (68 FR 

24753, May 8, 2003). Some considered 

conservation banking to be a superior 

method of protecting habitat with an 

established record of success, and 

recommended that RCS be abandoned 

in favor of conservation banking. Others 

recommended that a clear distinction be 

drawn between the two mechanisms, or 

that RCS be held to the same standards 

that apply for conservation banking, 

such as in-perpetuity protection, legally 

binding commitments, non-wasting 

endowments, and conservation 

easements. One respondent 

characterized RCS as potentially 

providing the functional equivalent of 

conservation banking. One respondent 

recommended that the Service examine 

the economic effects that establishment 

of RCS would have on the conservation 

banking industry. One submittal 

included a cost-benefit analysis 

supporting lower costs associated with 

recovery crediting in the Fort Hood area 

as compared to habitat protection 

through easement or acquisition. 

Response 8. We appreciate the 

conservation value provided by existing 

conservation banking arrangements, and 

in fact described RCS as a complement 

to conservation banking in our 

November 2, 2007, notice. We do not 

intend to establish recovery crediting as 

an alternative to other conservation 

measures that are already playing a role 

in conserving species, but rather to 

serve in situations that lend themselves 

to the particular features of recovery 

crediting. The most apparent 

distinguishing characteristics of 

recovery crediting are the possibility of 

encumbering property on a less than 

permanent basis and of protecting 

habitat in a dispersed array over a 

landscape. Some landowners may find 

non-permanent arrangements more 

attractive than conventional banks, and 

thus be induced to participate where 

they might not otherwise. The 

potentially dispersed nature of habitat 

covered by an RCS will demand 

vigilance on the part of the Service and 

its cooperators to avoid excessive 

habitat fragmentation. We do not plan to 

examine the economic effects of 

recovery crediting on conventional 

conservation banks, as we believe that 

doing so at this time would be 

excessively speculative. In a similar 

vein, it may not be valid to compare 

conservation measures through costbenefit analyses because of the differing 

nature of the benefits provided by the 

various measures. In this context, we 

note that the Army has contracted for a 

study examining return on investment 

for the Fort Hood crediting system. 

Category 9—Adequacy of RCS Based on 

Documents Other Than Recovery Plans 

Several respondents were concerned 

about whether documents other than 

recovery plans should be used as the 

basis for an RCS. Following is a 

summary of those concerns and our 

responses: 

Issue 9a. Acceptable documents 

should be more completely described. 

Response 9a. We agree that what 

constitutes an acceptable document 

should be well defined. We have added 

language under section III.B., ‘‘planning 

and development phase’’ that more 

clearly defines acceptable documents. 

Issue 9b. Documents should not be 

limited to those that are approved by the 

Service, even when recovery plans are 

available. 

Response 9b. Section 4(f) of the ESA 

requires the Service to develop and 

implement recovery plans for listed 

species. Because an RCS must be based 

upon clearly identified actions that will 

address threats to the species, and that 

will contribute to its recovery, these 

actions should be part of a Serviceapproved document. However, that 

Service-approved document may be a 

conservation plan or framework, or 

include recommendations within a 5- 

year review that meet the standard of 

addressing threats and contributing to 

recovery of the species. Actions so 

identified in an RCS would be treated 

on the same basis as those in a current 

recovery plan. 

Issue 9c. Recovery credits should be 

based only upon approved and current 

recovery plans, and the Service should 

prioritize developing or updating plans 

before implementing an RCS. 

Documents other than recovery plans 

referenced in the draft guidance may be 

insufficient to provide the necessary 

recovery tasks and measures to ensure a 

net benefit to recovery, or may be 

inadequate in their public participation. 

The guidance should include language 

that requires the recovery plan or 

equivalent conservation plan for a target 

species to be up-to-date and contain the 

best scientific data available. 

Response 9c. We agree that a current 

recovery plan would generally be the 

best source for developing an RCS, and 

that it should be the generally 

applicable standard. The Service is 

working to streamline its processes for 

revising and updating recovery plans, 

and will consider the need for 

prioritizing those species for which an 

RCS might be beneficial. However, in 

some instances, it may be appropriate to 

utilize information from a Serviceapproved conservation plan or a recent 

5-year review to develop an RCS with 

the best available scientific information 

on the needs of the species. We have 

added language under section III.B., 

‘‘planning and development phase’’, 

that more clearly defines acceptable 

documents and how they should be 

used. 

Issue 9d. Recovery plans are flawed 

and will not likely lead to recovery, so 

recovery credits should not be based 

upon them. 

Response 9d. Recovery plans are 

developed with the participation of our 

partners in the scientific community as 

well as our partners in implementation 

and represent the best available science 

as applied to addressing the threats to 

species and their ultimate recovery. 

Recovery plans are one of the most 

important tools we have to ensure 

sound decisionmaking in the 

implementation and tracking of species 

recovery. 

Category 10—The Role of Monitoring 

Issue 10. We received numerous 

comments concerning responsibility 

and accountability for monitoring of 

RCS. Some believed the Service should 

oversee all monitoring plans and 

accounting of credits and debits. Some 

suggested that monitoring data should 

be equally shared among all 

stakeholders, while others 

recommended that an independent third 

party conduct monitoring to provide 

confidentiality assurances to private 


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entities participating in the system. 

Other comments suggested the Service’s 

5-year review process was inadequate to 

monitor the contribution of RCS to the 

status of target species. One respondent 

believed Federal agencies should not 

monitor their own systems due to the 

potential overlap of credits between two 

or more agencies. Several expressed 

concerns about funding shortfalls, 

including the ability for the Service to 

allocate funding and the costs to private 

entities for monitoring. Two comments 

believed the guidance should outline a 

remedial process for problems identified 

through monitoring (e.g., failure of 

credit to produce benefits). 

Response 10. The Service intends to 

play an active role in all aspects of RCS 

development and implementation. The 

draft guidance may not have stated the 

Service’s role as plainly as possible, but 

it was our intent that an oversight 

function would occur under credit 

accrual through ‘‘sanctioning’’ the 

credit, and under the debit process 

through a biological opinion. We have 

revised those sections to clarify the 

Service’s role. We also believe that 

monitoring should be coordinated 

among our Federal and non-Federal 

partners in order to ensure a rigorous 

and transparent monitoring and 

reporting process. We agree that all 

stakeholders committed to participation 

under an RCS should be full partners 

and share equally in the information 

generated from monitoring. We also 

agree that an independent third party is 

acceptable for implementation of a 

monitoring plan. However, the prospect 

of granting assurances for some 

participants to remain anonymous is not 

within the Service’s authority. Further, 

the Service believes that a monitoring 

plan that conceals certain information 

from certain participants would not 

adequately provide checks and balances 

in the system and would undermine the 

concept of Cooperative Conservation. 

The Service has experienced this 

situation through the pilot project at 

Fort Hood. Certain confidentiality 

assurances developed in the pilot have 

created challenges to the effectiveness 

monitoring process, which resulted in 

an individual funded project failing to 

produce credits. 

The Service agrees that funding for 

monitoring and reporting is an 

important issue for a properly 

functioning RCS. In the guidance, we 

acknowledge the lack of resources 

within our agency to implement many 

recovery actions for listed species. For 

these reasons, the guidance invites 

participation from all potential 

stakeholders—Federal, State, private 

and nongovernmental—to produce a 

more effective system and pool 

resources to ensure success. In this way 

monitoring plans can be developed and 

collaborated among participants, as 

expertise and resources allow, to meet 

the goals and objectives of each 

particular system. 

The Service agrees that a process for 

corrective action or remediation based 

on feedback from monitoring should be 

developed within an RCS. However, it 

would be ineffective to generalize such 

a process in the guidance. Rather, those 

processes are best developed on a 

system-specific basis. 

Category 11—Military Related 

Comments 

Issue 11. The Service received a few 

comments from within the Department 

of Defense (DoD) and from other 

respondents on the role of the military 

working in partnership with the Service, 

States, private landowners, and other 

partners in developing potential RCS. 

Comments stressed four elements in 

creating a functional RCS: 

First, that any credit-debit system 

must support a military installation in 

protecting its military mission and must 

allow flexibility for the target species’

conservation with partners. 

Second, the guidance should refer to 

Integrated Natural Resources 

Management Plans (INRMPs) as 

examples of Service-approved 

documents that could serve as the basis 

for developing an RCS on a military 

installation. 

Third, given the unique nature of the 

DoD and challenges it engages in 

carrying out its core military missions 

and in meeting its obligations under the 

ESA, that there are unique opportunities 

to conduct initial pilot projects 

combined with the DoD’s Range and 

Environmental Protection Initiative 

(REPI). 

Fourth, DoD manages some 25 million 

acres of land on military installations 

that support multiple training needs 

across a wide geographical area, while 

maintaining a diversity of ecosystems 

and endangered species, creating a need 

for further collaborative conflict 

resolution over land use and 

endangered species conservation and 

recovery across those landscapes with 

private landowners, and other Federal, 

State, Tribal, and local government and 

other nongovernmental partners. 

Response 11. Some of the best 

examples today of endangered species 

conservation partnerships involve 

military installations around the nation. 

The Fort Hood pilot project is an 

example of two themes expressed in 

many of the comments. First, that the 

Service, the States, and other 

conservation partners should focus on 

the lessons learned from this pilot in 

applying it elsewhere and that it is only 

one example of a system we expect to 

help shape the guidance in the future. 

Second, that there are other potential 

pilot projects that may involve military 

installations, depending on the 

endangered species and potential 

applicability of an RCS that benefits the 

species, the military, and other partners. 

The Service agrees that there is 

potential that some INRMPs being 

implemented at military installations 

can serve as recovery tools for certain 

endangered species, in tandem with 

recovery plans, State Wildlife Action 

Plans, and other conservation plans that 

target the species. The Sikes Act 

mandates that each military installation 

develop, implement, and revise an 

INRMP where significant natural 

resources occur on military lands with 

the mutual agreement by its two 

primary conservation partners, the 

Service and the appropriate State fish 

and wildlife agency. The Service 

acknowledges that the tri-partite MOU 

between DoD, the Service, and the 

Association of Fish and Wildlife 

Agencies (AFWA) for a Cooperative 

Integrated Natural Resources 

Management Program on Military 

Installations is a key agreement for 

cooperative conservation on military 

lands. INRMPs that include active 

conservation and management 

initiatives for endangered species can 

contribute to the recovery of a species. 

Supporting military installations’

conservation efforts is a concerted effort 

by the DoD, the four Military Services, 

the DoD Legacy Management Program, 

the DoD REPI Program, the DoD Partners 

in Flight Program, the National Military 

Fish and Wildlife Association, and the 

Association of Fish and Wildlife 

Agencies. Other supporting MOUs are 

key to potential military installation—

private landowner—State agency 

lands—other Federal lands conservation 

partnerships. These include the 2006 

MOU between USDA, Natural Resources 

Conservation Service, the Service, and 

the AFWA to strengthen cooperation 

among the parties to proactively 

conserve plant and animal species-atrisk and their habitats, to foster the 

recovery of listed species, and address 

similar needs for State species of 

concern. A similar 2007 MOU exists 

between the DoD and the Service for bat 

conservation. 

The Service agrees with the comment 

about the unique nature of DoD’s 

military mission and the challenges it 

faces in carrying out its core mission 

while meeting its obligations under the 

ESA, and that there are various 


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opportunities to conduct initial pilot 

projects elsewhere in the nation 

combined with certain DoD 

conservation programs. As noted above, 

military installations, the Service, and 

the States work as collaborative partners 

under the Sikes Act and the tri-partite 

MOU at several installations and are 

promoting further collaborative 

partnerships with private landowners, 

State lands, other Federal agencies, 

Tribes, nongovernmental organizations, 

and other partners in the recovery of 

endangered species found on military 

lands and adjacent lands. The DoD 

conservation programs such as the DoD 

Legacy Program, the DoD REPI, and the 

DoD Partners in Flight Program are 

conservation tools that DoD uses 

effectively with conservation partners 

on endangered species, fish and 

wildlife, and other natural resources. As 

noted in the Service’s response to 

comments under the Role of States, 

carrying out an effective RCS may lead 

to establishment of national and projectlevel science teams that can guide and 

target endangered species recovery 

actions. The Service recognizes a need 

to invite the DoD and military services 

to be represented on any future national 

science team. In any case where the 

military installation may be part of a 

potential pilot RCS, it is key that the 

military installation natural resources 

staff represent the military on a local 

science team to steer a pilot project with 

the Service, State, and other partners. 

The Service also acknowledges that 

DoD and the four military services have 

balanced sustaining the military 

readiness mission with stewardship of 

natural resources including endangered 

species over a diverse range of 

ecosystems in the nation. DoD, the 

Service, and the States work on several 

conservation partnership teams to bring 

conservation resolution out of potential 

conflicts 

Category 12—Critical Habitat 

Issue 12. A variety of opinions were 

offered in response to our solicitation of 

comment on the relationship of RCS to 

critical habitat. One respondent 

recommended that there be no specific 

link between the two. Others suggested 

that areas covered by an RCS should not 

be designated as critical habitat, that 

existing designations be removed for 

areas covered by an RCS, that existing 

critical habitat be accorded high value 

for RCS coverage, or that RCS coverage 

be given explicit preference over critical 

habitat designation as a means of 

promoting conservation. 

Response 12. We have declined to 

attempt articulating any explicit 

relationship between RCS and critical 

habitat at this time. Given the wide 

range of opinion expressed and the 

relatively broad discretion we are 

afforded by the ESA in designating 

critical habitat, we believe that a 

relation between the two, if any, is most 

likely to arise in the context of future 

RCS applications and specific 

designations. 

Category 13—Legal Issues 

Issue 13a. Several respondents 

asserted that RCS would allow agencies 

to exceed their existing Congressional 

mandates under the ESA and other 

statutes. 

Response 13a. RCS do not expand the 

authorities of the Service or the 

cooperating agencies. 

Issue 13b. One respondent asserted 

that the Service is ‘‘literally authorizing 

increased endangered and threatened 

species take and habitat destruction/ 

degradation’’ with RCS. 

Response 13b. This guidance does not 

authorize any take or habitat 

destruction. As plainly set out in the 

guidance, any actions taken under the 

guidance would be subject to section 7 

consultation. It is the issuance of a 

future biological opinion with an 

incidental take statement that authorizes 

any take. Further, any action that may 

affect critical habitat would be subject to 

consultation as well. 

Issue 13c. One respondent 

‘‘reject[ed]’’ the authority of the Service 

to ‘‘weaken the section 7’’ consultation 

process by creating RCS that promote 

the take of species or the degradation of 

their habitat. 

Response 13c. The respondent 

misunderstands the premise of section 

7(a)(2). The ESA allows action agencies 

to take species and impact critical 

habitat if, after consultation with the 

Service, it is determined that those 

actions are not likely to jeopardize listed 

species or adversely modify or destroy 

critical habitat. Actions taken under an 

RCS will be subject to section 7 

consultation. Further, because RCS 

require a net benefit to the recovery of 

the species concerned, there is no 

weakening of their section 7(a)(1) 

responsibilities. 

Issue 13d. One respondent questioned 

what would happen if a landowner were 

not in compliance with an agreement. 

Response 13d. As with any Federal 

agency action subject to consultation 

under section 7, an action taken under 

an RCS would be governed by the 

reinitiation clause of the section 7 

regulations (50 CFR 402.16). That is, the 

Federal action agency would be 

required to reinitiate consultation if the 

action being implemented causes effects 

to the species that were not considered 

during the consultation. 

Issue 13e. One respondent asserted 

that Federal agencies cannot take 

actions that are likely to jeopardize 

listed species even if they have taken 

‘‘previous actions that have been 

demonstrably effective in promoting 

that species’ recovery.’’

Response 13e. We agree that action 

agencies cannot lawfully take actions 

that are likely to jeopardize listed 

species. Under an RCS, however, an 

action could not lead to jeopardy 

because the RCS must demonstrate a net 

benefit to recovery. Furthermore, the 

regulations implementing section 7 

specifically speak to this point (see 50 

CFR 402.14(g)(8)). 

Guidance 

The text of the guidance follows: 

Guidance on Recovery Crediting for the 

Conservation of Threatened and 

Endangered Species 

I. Introduction 

A. Purpose and Scope of Guidance 

This document is intended to provide 

guidance on the development, 

management, and use of recovery 

credits as a measure for mitigating 

adverse effects to and contributing to 

the recovery of species listed as 

threatened or endangered under the 

Endangered Species Act of 1973, as 

amended (ESA). The guidance should 

assist Service personnel in determining 

the applicability of recovery credits for 

the recovery needs of a species, fulfill 

the purposes of the ESA, and provide 

consistency in the establishment, 

management, and use of recovery 

credits. For more detailed guidance and 

information on various other recovery 

programs, we include a list of helpful 

documents in section VI of this 

guidance. These documents will help 

the reader have a more complete 

understanding of recovery programs as 

a whole. 

Recovery crediting is an optional 

process for Federal agencies to use their 

authorities to further the conservation of 

listed species. Recovery credits can 

provide an additional means of 

implementing ‘‘conservation measures,’’

commonly offered by Federal agencies 

to offset effects to listed species 

resulting from Federal actions. As noted 

in the Service’s Consultation Handbook, 

‘‘When used in the context of the Act, 

‘conservation measures’ represent 

actions pledged in the project 

description that the action agency or 

applicant will implement to further the 

recovery of the species under review.’’

For further discussion of conservation 


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measures, see Endangered Species 

Consultation Handbook, pp. 4–8. In a 

recovery crediting system (RCS), the 

action agency would present credits as 

part of its project description. A pledge 

represented by a credit must be a legally 

binding commitment such as a contract 

with a private landowner. 

Some potential benefits of an RCS 

include (1) better and more costeffective contributions to recovery 

through agency activities; (2) more exact 

analysis; and (3) increased predictability 

for all parties. The Service and its 

cooperators should closely evaluate the 

use of recovery credits as a conservation 

tool for each species or group of species; 

recovery credits may not be appropriate 

in some situations. In other cases, 

recovery credits may be a valuable tool 

in advancing the recovery of a species. 

This guidance is general in nature, as 

each process developed for using 

recovery credits will differ based on a 

variety of circumstances. An RCS 

should be tailored to the specific 

circumstances under which it would be 

applied; ideally it should be based on 

the relevant recovery plans and, when 

recovery plans are lacking or inadequate 

for the design of an RCS, should rely on 

other Service-approved documents (see 

‘‘III. B. Planning and Development 

Phase’’ below for examples). RCS may 

complement mitigation tools and 

conservation programs currently 

available, such as conservation banking. 

This guidance also does not attempt to 

closely define or assign roles to the 

agencies and other participants in an 

RCS; we anticipate that these roles will 

vary to some degree in response to the 

circumstances surrounding particular 

systems. 

B. Background 

We have long recognized that 

effective recovery planning and 

implementation for listed species 

require cooperative processes, including 

recovery actions by Federal land 

managing agencies with adjacent 

landowners, local communities, Tribes, 

States, and other Federal agencies. 

The concept of recovery credits was 

developed in Texas to allow the 

Department of Defense (DoD) to receive 

credit for recovery measures being 

implemented by Fort Hood Military 

Reservation. Fort Hood, which is home 

to the largest known population of the 

endangered golden-cheeked warbler 

within its breeding range, carries out 

recovery measures with neighboring 

landowners in an effort to offset adverse 

effects that may result from future onbase military readiness activities. In 

exchange for implementing recovery 

actions, DoD requested that these 

actions be considered for ‘‘banking’’ to 

offset effects attributable to training 

activities. 

Although the Fort Hood example is 

very specific and limited in scope, the 

general concept can be applied more 

broadly. Federal agencies may obtain 

credit for actions undertaken on nonFederal lands to advance the recovery of 

listed species, and this credit may be 

expended, or debited, to offset potential 

adverse effects of future actions. In other 

words, Federal agencies may ‘‘bank’’

recovery credits in advance in a 

particular RCS, and apply those credits 

at a later time to the analysis of an 

agency action. This process can add an 

incentive for Federal agencies to use 

their authorities to further the purposes 

of the ESA. 

C. What Is a Recovery Credit? 

A recovery credit is a quantifiable 

unit of measure recognized by the 

Service representing a contribution to 

the recovery of a species listed under 

the ESA. For example, in its simplest 

form, one credit could equal a specified 

number of acres of habitat, the acreage 

necessary to support one nest of the 

target species, or a specified number of 

acre-feet of water secured. Recovery 

credits should be based on a 

commitment to implement recovery 

actions outlined in a particular species’

recovery plan or alternative Serviceapproved document. Each recovery 

credit, therefore, may be considered to 

be part of recovery implementation 

leading towards the downlisting or 

delisting goals of a threatened or 

endangered species, taking into account 

the debits that have occurred. 

An RCS is a specific program 

established to implement recovery 

actions on non-Federal lands for 

specific species while creating a ‘‘bank’’

of credits that a Federal agency may use 

to offset the effects of its actions. That 

is, the Federal agency may develop and 

store credits to be used at a later time 

to offset particular adverse effects of its 

actions. The overall system must 

provide a net benefit to recovery for 

covered species. ‘‘Net benefit to 

recovery’’ is defined as follows: 

Enhancement of a species’ current status 

by addressing the threats identified at 

the time of listing or in a current status 

review. Net benefit to recovery 

represents the cumulative benefits of the 

recovery actions for a species identified 

in an RCS that contribute to the goal of 

downlisting or delisting the species, as 

specified in a current recovery plan or 

equivalent Service-approved document, 

after consideration of the debits applied 

to any adverse effects of a Federal 

agency action. A net benefit to recovery 

will generally be found when an action 

directly or indirectly provides a material 

increase in a species’ population and/or 

a material enhancement, restoration, or 

protection of that species’ habitat. 

Under this policy, only Federal 

agencies may apply recovery credits to 

the effects of their proposed actions, but 

the system is similar in principle to 

conservation banking and habitat 

conservation plans. Recovery credits 

must be realized to create a ‘‘bank’’ of 

credits before they can be used to 

compensate for adverse effects to listed 

species. Unlike the situation with 

conservation banks, the RCS may be 

used for either permanent or temporary 

effects. However, the positive effects of 

the credits may be temporary (e.g., 

secured by a term contract) only if the 

negative effects to be offset are also 

temporary and, further, if the 

accounting function of the recovery 

credit system ensures that benefits of 

the credits are achieved in a way so that 

there is a net benefit to recovery. The 

recovery actions represented by credits 

must take place within a geographic 

area that is biologically appropriate to 

offset the adverse effects, such as a 

recovery unit. 

II. Guidance Considerations 

A. Authorities 

The ESA provides the basis and 

framework for this guidance. The ESA’s 

stated purposes include providing ‘‘a 

means whereby the ecosystems upon 

which [listed] species depend may be 

conserved’’ and ‘‘a program for the 

conservation of such [listed] species.’’

Under section 3 of the ESA, 

conservation is defined as ‘‘using all 

methods and procedures which are 

necessary to bring any [listed] species to 

the point at which the measures 

provided pursuant to [the ESA] are no 

longer necessary.’’ Within the context of 

this guidance, these definitions help 

determine and evaluate appropriate 

conservation measures and benefits. 

Further, recovery planning is addressed 

under section 4(f) of the ESA, where 

provisions for the development of 

recovery plans for the ‘‘conservation 

and survival of [listed] species’’ are 

provided. A recovery plan is one of the 

most important tools to ensure sound 

decisionmaking throughout the recovery 

process. 

Section 7(a)(1) of the ESA requires 

that all Federal agencies ‘‘in 

consultation with and with the 

assistance of the [Service], utilize their 

authorities in furtherance of the 

purposes of [the ESA] by carrying out 

programs for the conservation of [listed 

species].’’ The ESA gives broad 


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discretion to Federal agencies to 

determine the appropriate methods for 

implementation of section 7(a)(1). One 

possible method for agencies to utilize 

their authorities for the conservation of 

the species is through an RCS. 

Establishing an RCS should result in 

a net benefit to the recovery of a listed 

species. That is, the status of the target 

species will improve because, overall, 

the crediting system must contribute to 

the recovery of that species. Of course, 

each Federal agency will have to 

balance its authorities, statutory 

obligations, and missions to determine 

if this policy is appropriate or viable for 

the agency’s purposes. For example, a 

Federal agency will have to determine if 

it has authority to acquire interests in 

non-Federal lands. 

B. Goals and Objectives 

The goal of an RCS is to enhance the 

ability of Federal agencies to promote 

the recovery of listed species on nonFederal land and offset adverse effects 

to listed species from proposed actions. 

Objectives are (1) to produce a net 

benefit to recovery of the target species, 

(2) to increase the flexibility of Federal 

agencies to accomplish their missions 

while meeting their requirements under 

the ESA, and (3) to promote effective 

Federal/non-Federal partnerships for 

species recovery. 

In order to meet the first objective, the 

standard for establishing recovery 

credits should be implementing actions 

within an approved recovery plan that 

has been identified as current by the 

Service office with lead for the species. 

The Service should prioritize updating 

or supplementing recovery plans that 

are not current for species for which an 

RCS is being considered, so that any 

new actions being considered are 

integrated with the recovery criteria and 

plan for the species. In some instances, 

a recovery plan may not be available for 

a species being considered for an RCS. 

If so, an alternative document such as a 

Service-approved conservation plan, 

strategy, or framework that has 

identified specific actions to address the 

threats to the species may be used. 

Examples of documents that can 

contribute to establishing an RCS 

include military Integrated Natural 

Resource Management Plans, State 

Wildlife Action Plans, 5-year status 

reviews, and biological opinions. 

However, those can be utilized in 

tandem with a recovery plan and any 

specific actions within alternative 

documents must be consistent with the 

goals, objectives, and recovery strategy 

identified in the species’ recovery plan 

to address threats and promote recovery 

of the species. Providing credits for 

recovery tasks allows Federal agencies 

to work together with other entities to 

more effectively use measures in 

achieving net benefits that contribute to 

recovery, rather than simply addressing 

on-site effects of particular projects. 

When it is possible to foresee the utility 

of an RCS during the preparation of a 

recovery plan, authors of a plan may 

incorporate elements of the system 

explicitly in the plan. 

C. Principles of Recovery Crediting 

Simply put, the recovery credit 

system is: (1) The development and 

accrual of credits, which would 

accomplish recovery tasks and have a 

net benefit to recovery for the target 

species; and (2) a subsequent Federal 

action, which uses (debits) some portion 

of the credits, as part of the Federal 

action to offset adverse effects. 

Federal agencies can employ an RCS 

to accomplish recovery tasks as well as 

offset the adverse effects of their actions. 

Although Federal agencies with 

appropriate authorities may also 

purchase credits in a conservation bank 

or employ other mitigation or recovery 

measures, a Federal agency may want to 

establish a system specific to its needs. 

Recovery crediting works within the 

existing framework of the ESA and its 

implementing regulations. This 

guidance is intended to assist in the 

early stages of planning and 

development of a proposed RCS. While 

no two crediting systems are likely to be 

identical, this guidance addresses 

fundamental principles that would 

apply to all situations. 

The general principles of establishing 

an RCS include—

The Recovery Crediting Process 

• Information gathering and analysis; 

• Planning and credit development 

phase; and 

• Consultation on the credit accrual 

process (ordinarily combined with the 

consultation on the debiting process) 

The Recovery Debiting Process 

• Debit development phase; 

• Programmatic debiting 

consultation; and 

Project-Specific Application 

• Project-specific consultation under 

programmatic consultation; and 

• Actual debits of the credits. 

While these principles are based on 

our experiences from multiple 

consultations, the Service believes that 

consultation can be achieved in many 

cases through a two-step consultation 

process: (1) A programmatic 

consultation to establish the recovery 

credit and debiting process and (2) a 

project-specific consultation. 

D. Coordination Process 

The Service lacks the resources to 

implement many, if not most, recovery 

actions. Collaboration with a wide 

variety of potential stakeholders is 

essential for the implementation of 

recovery plans. An appropriate RCS can 

assist the Service, other Federal 

agencies, and their partners to achieve 

more effective implementation of 

recovery plans. 

The Service and the Federal action 

agency will coordinate to ensure that 

the crediting system complies with all 

applicable laws. In particular, action 

agencies and the Service may need to 

review laws relating to privacy such as 

the Freedom of Information Act (FOIA) 

and the Privacy Act. Further, depending 

on the system used to create the 

recovery credits, action agencies and the 

Service may need to review the Federal 

Advisory Committee Act (FACA). The 

National Environmental Policy Act 

(NEPA) may be a relevant consideration 

as well. Service employees should 

consult with their appropriate solicitor’s 

office for more specific advice with 

regard to these laws. 

The Service will coordinate with 

appropriate Federal and State partners, 

and we will encourage State and local 

entities, both governmental and 

nongovernmental, to participate on the 

various workgroups and committees 

formed under the RCS that will be 

central to each process involved. For 

example, a local scientific committee 

may be established to assist the Service 

in defining recovery credits. While 

accrued recovery credits are used only 

by the Federal agency, the accrual 

process (as described below) is the key 

to success and should include 

participation by whatever non-Federal 

entities are appropriate. 

III. Recovery Crediting Process 

A. Information Gathering and Analysis 

Phase 

This phase involves the identification 

of threats and the actions needed to 

address those threats. Generally, the 

species’ recovery plan, or other Serviceapproved document, will provide a 

framework for analysis. This analysis 

also establishes the means by which a 

credit in a recovery crediting system 

will be measured and accounted for. 

Information gathering and analysis 

involves the compiling of available 

information sources, identifying data 

gaps, and evaluation of target species. 

As stated above, a central element to 

defining an RCS is coordination with 


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appropriate Federal and State partners, 

as well as interested local and 

nongovernmental entities. 

Within this phase, two important 

issues should be addressed: (1) 

Evaluation of the recovery needs of the 

target species, and (2) determination 

whether an RCS is feasible based on the 

recovery needs of the listed species. 

Critical to both issues is the ability to 

evaluate measurable recovery benefits to 

the target species. RCS will vary in 

details, and some listed species may not 

be appropriate for inclusion in a credit 

system based on their recovery needs. 

Examples may include—

• Species with poorly understood 

threats, 

• Species for which even minimal 

incidental take is likely to result in a 

jeopardy determination, 

• Species with recovery plans that 

provide only interim objectives due to a 

lack of information necessary for 

recovery such that a net benefit to 

recovery cannot be determined, or 

• Species for which credits cannot 

easily be valued due to the nature of 

threats (e.g., a local endemic threatened 

by impoundment of a river). 

B. Planning and Development Phase 

This phase uses the results of the 

information gathering and analysis to 

establish in detail what constitutes a 

credit. As in other recovery programs, 

the planning and development phase is 

likely to be the most important and 

time-consuming part of the process. 

Although debiting of credits will not 

come into play until after the credits are 

established (e.g., after restoration or 

management actions have achieved their 

goals), the debiting must be considered 

in the credit development phase in 

order to meet the standard of a net 

benefit to recovery of the species. As 

part of the planning process, Federal 

agencies may identify future needs, 

locations of future projects, types of 

future projects, and associated project 

activities. Values may be assigned to 

different tasks within a recovery plan or 

alternative Service-approved planning 

document based on priority, and the use 

of debits may be limited depending on 

the needs of the species’ recovery. In 

addition, the RCS must integrate 

monitoring and reporting of both 

accrual and debiting of credits. 

Any RCS should address the threats 

that caused the species to be listed, 

advance the recovery goals of the 

species, and must be based on sound 

scientific principles. That is, the system 

must demonstrate the relationship 

between the conservation value of the 

recovery measure as it applies to the 

credit. 

As stated above, in instances where a 

recovery plan is not specific, is not 

available, or is outdated, the Service 

may consider other documents to 

establish recovery crediting. We will use 

information that we determine 

represents the best available scientific 

information on the needs of the species. 

The Service should prioritize updating 

or supplementing recovery plans that 

are not current for species for which an 

RCS is being considered, so that any 

new actions being considered are 

integrated with the recovery criteria and 

plan for the species. An alternative 

document such as a Service-approved 

conservation plan, strategy, or 

framework that has identified specific 

actions to address the threats to the 

species may be appropriate in some 

instances. Examples of documents that 

can contribute to establishing an RCS 

include military Integrated Natural 

Resource Management Plans, State 

Wildlife Action Plans, 5-year status 

reviews, and biological opinions. 

However, these can be utilized in 

tandem with a recovery plan, and any 

specific actions within alternative 

documents must be consistent with the 

goals, objectives, and recovery strategy 

identified in the species’ recovery plan 

to address threats and promote recovery 

of the species. 

Credits should be valued based on 

recovery tasks, or analogous measures, 

available to a Federal agency. This 

phase will develop values to be assigned 

to recovery tasks, ensuring that a net 

benefit to recovery is realized for the 

target species. Credit values are based 

upon achieving measurable objectives, 

and higher priority recovery tasks 

would generally receive more credit 

than lower priority ones. Ranking 

threats may be accomplished among or 

within tasks in a recovery plan. For 

example, various Federal conservation 

programs use a project selection process 

based on several considerations. Higher 

value (i.e., more credit) is typically 

placed on potential projects that—

• Preserve long-term habitat. 

• Address high-priority recovery 

needs. 

• Are larger in size (i.e., habitat size 

or quality). 

• Are adjacent or in proximity to 

public lands or other permanently 

protected areas. 

• Target a specific geographic focus 

area (e.g., recovery unit). 

• Benefit multiple species. 

• Establish corridors to accommodate 

migration or connect fragmented 

habitat. 

In this phase, the temporal nature of 

potential effects on or needs of the 

species would be analyzed. Many 

species require active management (e.g., 

invasive species control, prescribed fire, 

etc.) or public outreach to contribute to 

recovery or research to support 

recovery. Thus, some credits may be 

temporary in nature, provided the 

action meets the recovery needs of the 

species. Temporary credits could be 

used to offset temporary adverse effects 

in appropriate situations that still allow 

a net benefit to recovery. For example, 

many transportation and linear utility 

projects require temporary workspace 

for construction, which is later returned 

to pre-construction conditions. An 

agency could accrue credits for the 

restoration and temporary protection of 

degraded habitat to mitigate for habitat 

that has temporary adverse effect, with 

the duration of credit based on benefits 

achieved at the restored site and 

eventual restoration of the affected site. 

In its simplest form, a single Federal 

agency would identify a recovery 

action(s) for establishment of an RCS. 

For example, a recovery plan may call 

for the permanent preservation of a 

viable population in a particular 

recovery unit. A Federal agency may 

identify that need, and develop a 

process for accruing credits through 

conservation easements that would meet 

that objective of the recovery plan 

(preserving the viable population). 

Credits reflecting habitat protection or 

restoration would be considered to be 

banked when conditions on the ground 

indicate completion of the recovery 

task. More complex crediting systems 

may involve multiple Federal agencies 

and may assign credits to several or all 

tasks within a recovery plan. In either 

case, a single Federal agency would be 

the holder of credits. Whenever 

possible, other partners should be 

included in the development process 

(e.g., State agencies, nongovernmental 

organizations, etc.), and they may play 

a major role in implementing the credit 

accrual process. 

Finally, in the development phase, it 

is important to address the 

transferability of accrued credits. 

Circumstances may arise in which a 

Federal agency may opt to sell or 

transfer banked credits to another 

agency. These situations should be 

considered early and be included in the 

crediting process, but may be defined in 

greater detail within the debiting 

process. 

C. Consultation on Credit Accrual Phase 

Upon completing the development of 

a proposed crediting process the Federal 

action agency will consult on the 

process under section 7 of the ESA. 

Ordinarily, a programmatic consultation 

will address both the crediting and 


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debiting processes; in rare cases 

separate consultations may address the 

two processes. The use of a proposed 

crediting system is a discretionary 

Federal action that ‘‘may affect’’ a listed 

species, and therefore requires section 7 

consultation. This consultation 

determines whether a proposed agency 

action is likely to jeopardize the 

continued existence of a listed species 

or destroy or adversely modify critical 

habitat. For the process developed to 

accrue credits, the net effect on the 

target species should be beneficial. In 

some instances, temporary adverse 

effects may be necessary to achieve the 

maximum recovery benefit to the target 

species. For example, a survey may 

involve some level of taking of a listed 

species. In these cases, it may be 

necessary to consult formally on the 

credit accrual process, if it is anticipated 

that incidental take may occur as a 

result of credit acquisition. An agency 

requesting initiation of consultation on 

an RCS must include in its initiation 

package an adequate explanation of the 

net benefit to recovery that the RCS will 

provide to the relevant species and the 

specific means by which it will be 

provided. 

As discussed above, although a 

Federal agency needs to consider how 

credits will be debited while 

determining how they will be accrued, 

once it establishes an RCS through the 

section 7 consultation process, a Federal 

agency may begin accruing credits 

through the procedures outlined in the 

plan. 

IV. Recovery Debiting Process 

A. Debit Development Phase 

This phase establishes the standards 

according to which credits will be used. 

This phase may be conducted separately 

or concurrently with the credit accrual 

planning and development. An 

advantage of considering crediting and 

debiting at the same time is that a better 

match may be achieved between the 

credits accrued and the debiting needs. 

Establishing the guidelines for debit use 

and other factors, limitations, 

accounting, and monitoring and 

reporting may be created as a standalone document, but will eventually 

become the ‘‘Project Description’’

within a biological assessment or 

evaluation, and subsequent biological 

opinion. In addition, the debit process 

could consider the possibility of Federal 

agencies other than the Federal agency 

that established the RCS being able to 

use credits. 

Consideration of debits includes 

ensuring that agencies maintain a net 

benefit to recovery gained by credit 

accrual. In general, credits that 

accomplish tasks in a species’ recovery 

plan would normally meet a net benefit 

to recovery standard. However, because 

credits would be used for mitigation, it 

is important to ensure the debit process 

does not limit, counter, or preclude 

necessary recovery objectives and is 

developed in reliance on a recovery 

plan or analogous document. Examples 

of using a debiting process to ensure a 

benefit to recovery include—

• Using biologically appropriate 

mitigation ratios in habitat-based 

crediting (e.g., more than one credit for 

each debit necessary to fully offset 

adverse effects). 

• Maintaining a credit balance that 

ensures an incremental increase in the 

species’ recovery status. 

• Restricting use of debits to areas not 

deemed essential in recovery plans or a 

Service approved conservation plan, 

strategy, or framework that has 

identified specific actions to address the 

threats to the species. 

• Limiting the types of activities 

available for debiting. 

Similar to planning the crediting 

phase, it is essential that an activity or 

action’s potential effects to the target 

species be sufficiently understood in 

order for it to be included in the 

debiting process. In some instances, the 

effects of even well-understood actions 

may possess some level of uncertainty. 

The debiting process should be 

designed to accommodate uncertainty 

that is evaluated based on a clearly 

stated and explained set of assumptions. 

B. Programmatic Debiting Consultation 

The debiting process as part of an RCS 

is subject to consultation under section 

7(a)(2) of the ESA. Programmatic 

consultation addresses programs or 

groups of similar actions implemented 

by a Federal agency. A non-jeopardy 

biological opinion also determines the 

amount or extent of anticipated 

incidental take, if any. 

In implementing an RCS, the 

programmatic approach will be 

necessary due to the nature of credit and 

debit concepts, and to ensure a net 

benefit to recovery of the species. The 

Federal action subject to consultation is 

the establishment of the debiting 

process and actions included therein. 

Under programmatic consultation, 

much of the effects analysis is 

completed upfront, rather than 

repeatedly for each individual action. 

By completing this analysis beforehand 

in a programmatic biological opinion, 

the anticipated effects of the action 

agency’s future projects can be added 

into the environmental baseline prior to 

their actual completion. When both 

accrual and debiting processes are 

considered together in consultation, a 

more accurate analysis of the benefits of 

the RCS is possible than would be the 

case were they to be addressed 

separately. The appended and tiered 

methods of programmatic consultation 

involve a two-stage consultation process 

that would be appropriate here. The first 

stage is programmatic and analyzes the 

potential landscape-level effects that 

may result from the debiting process. 

The second stage addresses projectspecific effects of each individual 

project under the action agency’s 

program and previously included in the 

programmatic biological opinion. The 

prior consultation at a programmatic 

level is intended to expedite this second 

stage; to the extent that it is possible to 

anticipate project-specific effects at a 

programmatic level, they need not be 

revisited in any detail later on. 

A Federal agency may include 

recovery measures in a proposed action 

as mandatory, non-discretionary actions 

or activities that will minimize adverse 

effects to listed species. An RCS would 

formalize that process and mitigate 

adverse effects to listed species by 

taking measures (accruing recovery 

credits) that may be included as 

conservation measures for a specific 

project in a specific geographic location. 

The Service would consider the use of 

recovery credits when it analyzes 

potential jeopardy to the species and 

destruction or adverse modification of 

any critical habitat in a biological 

opinion. The ESA requires the Service 

to specify any necessary or appropriate 

minimization of the effects of incidental 

take exempted in a biological opinion. 

Because recovery credits would be 

acquired in advance of a specific 

Federal action and may not be 

associated with incidental take resulting 

from the proposed action itself, they 

would normally offset the effects of 

incidental take with respect to the RCS 

standard of net benefit to recovery, but 

would not necessarily minimize the 

effects on individuals affected by the 

proposed action as required by section 

7(b)(4)(C) of the ESA. Therefore, the 

biological opinion may still require 

reasonable and prudent measures and 

terms and conditions that address the 

incidental take resulting at the projectspecific level. These must fit within the 

context of ‘‘minor changes’’ as described 

at 50 CFR 402.14(i)(2). 

The end product of programmatic 

consultation will be a comprehensive 

biological opinion issued to the Federal 

action agency that describes in detail or 

incorporates by reference the crediting 

and debiting processes and all actions 

and activities involved. It will evaluate 


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all potential effects of the actions 

(debits) as well as the credits accrued 

and used to offset the effects and 

provide a jeopardy analysis for listed 

species and destruction/adverse 

modification analysis for designated 

critical habitat if applicable. The 

consultation would consider all listed 

species that may be affected, not just the 

target species, and any designated 

critical habitat occurring in the action 

area for the jeopardy/adverse 

modification analysis. 

The programmatic biological opinion 

may not be able to describe take at the 

programmatic level. In this case, the 

specific take authorization and 

associated reasonable and prudent 

measures and terms and conditions 

would be described in site-specific 

biological opinions. If the overarching 

biological opinion can describe, with 

appropriate documentation from the 

action agency, the project-specific 

actions, then a list of reasonable and 

prudent measures and terms and 

conditions can be included, and no 

additional opinion is needed for those 

actions. The Service must develop 

reasonable and prudent measures and 

terms and conditions in close 

coordination with the action agency. 

This coordination may identify specific 

measures the action agency will 

incorporate at the project-specific level. 

C. Project-Specific Consultation 

As individual projects are proposed, 

the action agency provides projectspecific information as described in the 

programmatic biological opinion. This 

information should include, but not be 

limited to, the specific areas to be 

affected, the species and critical habitat 

that may be affected, a description of 

anticipated effects (in reference to those 

already analyzed in the programmatic 

biological opinion), a description of any 

additional effects not considered in the 

programmatic consultation, appropriate 

reasonable and prudent measures and 

terms and conditions, the resulting 

debits as ranked in the programmatic 

opinion, and the credit balance resulting 

from the action. The project-level 

consultation should be an expedited 

process because most of the needed 

analysis will have occurred at the 

programmatic level. This is an added 

incentive for Federal agencies to use 

programmatic consultation and recovery 

crediting. 

V. Monitoring 

A monitoring program is essential to 

the success and the credibility of an 

RCS, both for the crediting and debiting 

aspects of the process. The scope of the 

monitoring plan should be 

commensurate with the crediting 

system’s recovery framework, based on 

the goals and objectives of the species’

recovery plan; the monitoring should 

measure the objectives as implemented 

by the crediting system. Ultimately, the 

Federal action agency is responsible for 

accounting for credits and compliance 

with the debiting process as determined 

through the programmatic biological 

opinion. However, the Service will 

provide technical assistance in the 

monitoring plan and contribute to the 

monitoring process through the 

development of terms and conditions 

within biological opinions, as well as 

reviewing and providing concurrence, if 

warranted, under project-specific 

consultations. Additionally, the Service 

will be responsible for periodic review 

of the species’ environmental status, 

either through an established protocol 

or more conventional methods (e.g., 

5-year review, programmatic biological 

opinions, etc.). 

In general, monitoring may comprise 

two elements: effectiveness monitoring 

and compliance monitoring. 

Effectiveness monitoring will evaluate 

the credit valuation and accrual process 

in achieving the goals and objectives of 

recovery actions. This monitoring 

focuses on the crediting process, 

involves principles of adaptive 

management, and includes all 

implementation partners. The 

responsibility of effectiveness 

monitoring belongs to the Federal 

agency that accrues and holds credits, 

although other entities would be 

involved. When the credit accrual 

process results in a biological opinion 

from the Service, effectiveness 

monitoring provisions are part of the 

project description. Any coverage under 

the incidental take statement, therefore, 

is dependent on the action agency 

carrying out the action as described in 

the project description. 

Compliance monitoring audits and 

accounts for credits and debits and 

ensures proper implementation of the 

agency action. Any monitoring and 

reporting must be incorporated into the 

project description as an integral part of 

implementing the RCS. 

Although an RCS is a focused tool for 

Federal agencies to make a positive 

contribution towards the recovery of 

listed species while creating flexibility 

for offsetting effects of their other 

actions, the Service encourages the 

development and use of other types of 

crediting systems to meet other needs 

and circumstances. In addition, this 

guidance by no means restricts Federal 

agencies from developing or using other 

crediting systems such as conservation 

banks. An RCS is one method by which 

a Federal agency may contribute 

towards its section 7(a)(1) 

responsibilities. The Service encourages 

Federal agencies to develop other 

programs that would also contribute to 

the recovery of listed species on Federal 

and non-Federal lands. 

VI. References 

The following is a list of documents 

that would be useful for establishing an 

RCS. Some are in draft form, but are 

readily available to Service personnel 

through Regional Offices or the 

Washington Office. 

U.S. Fish and Wildlife Service. 1990. Policies 

and guidelines for planning and 

coordinating recovery of endangered and 

threatened species. Washington, DC. 

14pp. + appendices. 

U.S. Fish and Wildlife Service. 1999. Final 

Safe Harbor Policy. 64 FR 32717, June 

17, 1999. 

U.S. Fish and Wildlife Service. 2003. 

Guidance for the Establishment, Use, and 

Operation of Conservation Banks. 

U.S. Fish and Wildlife Service and National 

Marine Fisheries Service. 1998. 

Endangered Species Act Consultation 

Handbook: Procedures for Conducting 

Section 7 Consultations and 

Conferences. Washington, DC. 

U.S. Fish and Wildlife Service and National 

Marine Fisheries Service. 2004 (updated 

2006). Draft Endangered and Threatened 

Species Recovery Planning Guidance. 

Williams, B.K., R.C. Szaro, and C.D. Shapiro. 

2007. Adaptive Management: The U.S. 

Department of the Interior Technical 

Guide. Adaptive Management Working 

Group, U.S. Department of the Interior, 

Washington, DC. 

Authority The authority for this action is 

the Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.). 

Dated: July 25, 2008. 

H. Dale Hall, 

Director, Fish and Wildlife Service. 

[FR Doc. E8–17579 Filed 7–30–08; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—Intersocietal 

Accreditation Commission 

Notice is hereby given that, on June 

25, 2008, pursuant to Section 6(a) of the 

National Cooperative Research and 

Production Act of 1993, 15 U.S.C. 4301 

et seq. (‘‘the Act’’), Intersocietal 

Accreditation Commission (‘‘IAC’’) has 

filed written notifications 

simultaneously with the Attorney 

General and the Federal Trade 

Commission disclosing (1) the name and 


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