[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Proposed Rules]
[Pages 15352-15354]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6221]



Fish and Wildlife Service

50 CFR Parts 13, 17, and 402

[Docket No. FWS-R9-ES-2011-0099: FXES11150900000A2123]
RIN 1018-AY29

Endangered and Threatened Wildlife and Plants; Expanding 
Incentives for Voluntary Conservation Actions Under the Endangered 
Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
considering proposals to amend the regulations that implement parts of 
the Endangered Species Act. By this notice, we are inviting public 
comment to help us identify potential changes to our regulations that 
would create incentives for landowners and others to take voluntary 
conservation actions to benefit species that may be likely to become 
threatened or endangered species. In particular, we seek comment on 
whether and how the Service can assure those who take such voluntary 
actions that the benefits of such voluntary conservation actions will 
be recognized as offsetting the adverse effects of activities carried 
out after listing by that landowner or others. This practice sometimes 
referred to as ``advance mitigation'' or ``pre-listing mitigation,'' is 
intended to encourage early conservation efforts that could reduce or 
eliminate the need to list species as endangered or threatened.

DATES: We will consider comments received or postmarked on or before 
May 14, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R9-ES-
2011-0099, which is the docket number for this notice. You may submit a 
comment by clicking on ``Submit a Comment.''
    By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R9-ES-2011-0099; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments below for 
more details).

Communications and Candidate Conservation, U.S. Fish and Wildlife 
Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203 
(telephone 703-358-2171). If you use a telecommunications device for 
the deaf (TDD), call the Federal Information Relay Service (FIRS) at 


Public Comments

    We are considering whether and how we could revise our regulations 
to create incentives for landowners and others to take voluntary 
conservation actions to benefit species that may be likely to become 
threatened or endangered species, including revisions that could 
recognize the benefits of such conservation actions as offsetting the 
adverse effects of actions carried out after listing by that landowner 
or others. We request comments, information, and suggestions from the 
public, other concerned governmental agencies, the

[[Page 15353]]

scientific community, industry, private landowners, or any other 
interested parties to help us formulate any proposed regulation.
    You may submit your comments and materials concerning this notice 
by one of the methods listed in ADDRESSES. We will not accept comments 
sent by email or fax or to an address not listed in ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including your personal identifying information--will be 
posted on the Web site. If you submit a hard copy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this notice, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service 


    On January 18, 2011, President Obama issued Executive Order 13563, 
which called for improvements in the nation's regulatory system to 
promote predictability and reduce uncertainty and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
Pursuant to the Executive Order, the Department of the Interior 
published notices on February 25, 2011, and July 11, 2011, asking the 
public for suggestions as it prepared a plan for retrospective 
regulatory review. Representatives from State government, non-
governmental groups and industries ranging from residential 
construction to wind energy, and to electric utilities recommended that 
the Department of the Interior update ESA regulations. Subsequently, 
the Department of the Interior published its final Plan for 
Retrospective Regulatory Review. That Plan identified a number of areas 
where changes in the ESA regulations could improve conservation 
effectiveness, reduce administrative burdens, create clarity and 
consistency for affected interests, and encourage partnerships, 
innovation, and cooperation. To achieve these goals, the Plan 
identified a need to clarify, expedite, and improve procedures for the 
development and approval of conservation agreements with landowners.
    Currently, landowner agreements that provide regulatory assurances 
under the ESA take three principal forms: Habitat Conservation Plans 
(HCPs), Safe Harbor Agreements (SHAs), and Candidate Conservation 
Agreements with Assurances (CCAAs). Habitat Conservation Plans, which 
are required in order to secure a permit to take listed wildlife 
species incidental to otherwise lawful activities, set forth measures 
to be taken to mitigate the impacts of such authorized taking. Although 
HCPs must always cover one or more listed wildlife species, they may 
also cover unlisted species. Safe Harbor Agreements are voluntary 
agreements under which a property owner agrees to carry out 
conservation measures to benefit listed species without incurring any 
new or additional regulatory liability as a result of their voluntary 
action. Candidate Conservation Agreements with Assurances are voluntary 
agreements under which a property owner agrees to implement 
conservation measures for candidate or other unlisted species. In 
exchange, the Service issues an enhancement of survival permit that 
becomes active when the species covered by the CCAA is listed and 
allows a prescribed level of incidental take by the landowner for the 
duration of the agreement. While CCAAs enable a landowner to secure 
assurances as to what their post-listing responsibilities will be in 
advance of listing, these agreements do not explicitly address whether 
and how pre-listing conservation measures might serve as mitigation for 
post-listing activities that could negatively affect species, such as 
land clearing, construction activities, or water diversion.
    Related to these efforts, at present, Service policy pertaining to 
conservation banking allows landowners or others to earn credits that 
can be used to offset the negative impacts of proposed actions on 
listed species. Under that policy, a credit represents a standardized 
way of quantifying the impact of beneficial actions on the well being 
of a particular listed species. Credits can be used to offset the 
negative effects of detrimental actions, with the magnitude of those 
negative effects quantified in the same manner. We seek any ideas to 
improve these forms of landowner agreements.
    It is possible that voluntary conservation actions for unlisted 
species might lead to a determination that a particular species does 
not need to be listed. If the need to list a species under the ESA can 
be avoided, everyone benefits. The species benefit from early action to 
address threats to their survival. Landowners and other regulated 
interests avoid the imposition of potentially costly restrictions on 
their activities. The Service avoids the need to dedicate scarce 
conservation dollars to additional species. The States maintain their 
primary management authority over non-listed species, ensuring that 
local authorities respond to local problems with input from their 
    Although everyone benefits from avoiding the need to list a 
species, there are often inadequate incentives for many people to 
undertake conservation action for species prior to listing. Voluntary 
conservation actions undertaken by one or a few persons are unlikely to 
be sufficient to affect the need to list the species. Thus, those who 
do undertake such actions in the hope that doing so will avert the need 
to list the species are often disappointed or frustrated by the fact 
that listing nevertheless occurs. Moreover, such voluntary actions 
prior to listing may actually result in those persons being subject to 
greater restrictions after listing than they would have been had they 
done nothing at all (because, for example, their voluntary actions make 
the species more numerous or more widespread on their property than it 
otherwise would have been).
    Avoiding the potential for voluntary conservation actions to result 
in such unintended restrictions is a key purpose of a CCAA. Through a 
CCAA, the Service provides the assurance that if the conditions of the 
agreement are met, the landowner will not be asked to do more, commit 
more resources, or be subject to further land use restrictions than 
agreed upon if the species is listed. However, the development of such 
Agreements has often been time-consuming and difficult. Accordingly, 
the Service seeks suggestions to reduce the time and difficulty 
associated with CCAAs so as to further the goals of greater efficiency 
and flexibility in ESA regulatory programs.
    We also give advance notice of our intent to propose a rule to 
encourage landowners and other potentially regulated interests to fund 
or carry out voluntary conservation actions beneficial to candidate and 
other at-risk species by providing a new type of assurance that, in the 
event the species is listed, the benefits of appropriate voluntary 
conservation actions will be recognized as offsetting the adverse 
effects of activities carried out by that landowner or others after 
    Once a species is listed as endangered or threatened, actions that 
adversely affect it may need permits under section 10 of the ESA or 
approval under the interagency consultation provisions of

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section 7 of the ESA. For actions reviewed under the interagency 
consultation provisions of section 7, measures that offset the adverse 
effects of those actions may be incorporated into and made a part of 
the proposed action as a way of reducing its net effects and meeting 
the approval standards of section 7.
    Although existing regulations at 50 CFR 402.14(g)(8) require the 
Service to consider certain beneficial actions taken ``prior to the 
initiation of consultation,'' there is no clear mechanism for 
acknowledging the benefits to a species of actions voluntarily taken by 
a landowner or other person prior to its listing, or for recognizing 
those benefits as mitigation or other requirements needed to secure 
approval for an action carried out after listing.
    An exception to the foregoing is any HCP that covers both listed 
and unlisted species, as many large-scale HCPs do. These plans, and the 
permits issued in association with them, acknowledge or verify the 
conservation commitments contained in the plans as fulfilling the 
requirements of the ESA with respect to all covered species even when 
required conservation actions are carried out before some covered 
species are actually listed, and the development activities for which 
they serve as mitigation may be carried out after the species is 
listed. Implicitly, at least, these plans are accepted as mitigation 
for actions undertaken after some covered species are listed. Thus, 
there is precedent for the conceptual idea examined here, but no clear 
mechanism for accomplishing mitigation prior to listing outside the 
context of multispecies HCPs.
    We request suggestions and input from the public on how best to 
establish clear mechanisms to encourage landowners and other 
potentially regulated interests to fund or carry out voluntary 
conservation actions beneficial to candidate and other at-risk species 
by providing assurances that, in the event the species is listed, the 
benefits of appropriate voluntary conservation actions will be 
recognized as offsetting the adverse effects of activities carried out 
after listing by that landowner or others. In addition to the requests 
above, we specifically request input from the public on the following 

    (1) How can the Service allow for the recognition of 
conservation credits for voluntary action taken in advance of 
listing in a manner that is efficient, readily understood, and 
faster? How can this be accomplished in an expeditious manner?
    (2) Should credits recognized for voluntary conservation actions 
taken prior to listing be available for use solely by the person who 
created them or should they be transferable to third parties?
    (3) If voluntary conservation actions undertaken prior to 
listing generate conservation credits that can be used to offset 
impacts of post-listing activities, should they be based solely on 
the beneficial actions of the person undertaking them, or should 
they be based on the net impacts of both beneficial and detrimental 
    (5) What role should the States play in recognizing and 
overseeing the development of credits from voluntary conservation 
actions taken for species not yet listed?
    (6) How can or should the Service specify in advance of listing 
the manner in which it will quantify the value of voluntarily 
undertaken conservation actions?
    (7) How the Service's conservation banking policy could be 
revised to allow for the use of conservation credits accrued from 
voluntary actions taken prior to listing?
    (8) What changes, if any, are needed to the following 
regulations, policies and guidance (The handbooks and policy are 
available at http://www.fws.gov/endangered/esa-library/index.html.) 
to clarify mechanisms by which the Service can give ``credit'' for 
beneficial actions for unlisted species:
    a. 50 CFR part 13
    b. 50 CFR part 17
    c. 50 CFR part 402
    d. The Service's section 7 Handbook
    e. The Service's HCP Handbook
    f. The Service's Conservation Banking Policy
    (9) How could the Service use pilot projects to demonstrate that 
the ESA can provide landowners with credits and regulatory 
assurances for actions intended to benefit candidate species? Are 
there existing situations where such pilot projects could facilitate 
conservation for candidate species?
    (10) How can a landowner use such voluntary ``prelisting 
mitigation'' activities to satisfy requirements arising from any 
future section 7 consultation (such as ``conservation measures,'' 
``reasonable and prudent measure'' or ``reasonable and prudent 

    In considering these and other potential changes to the ESA's 
implementing regulations, we intend to be guided by the following 
     To improve the effectiveness of the ESA at conserving 
endangered, threatened, and candidate species;
     To eliminate unnecessary process requirements and to make 
as efficient as possible the remaining process requirements;
     To improve the clarity of, and eliminate the 
inconsistencies among, our regulations;
     To engage the States, conservation organizations, and 
private landowners more effectively as conservation partners;
     To encourage greater experimentation and creativity in the 
implementation of the Act; and
     To reduce the frequency and intensity of conflicts as much 
as possible.
    Accordingly, we invite recommendations for changes to our 
regulations or policy that would further these objectives.


    This notice is published under the authority of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 6, 2012.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2012-6221 Filed 3-14-12; 8:45 am]