The United States Fish and Wildlife Service (“FWS”) have issued a final rule to update the implementing regulations for Section 10 of the Endangered Species Act (“ESA”). Section 10 of the ESA sets out various voluntary programs available to private landowners that allow participants to be exempted from certain ESA prohibitions in exchange for aiding species conservation. The new rule is aimed at streamlining aspects of the Section 10 programs by reducing the amount of time needed to apply for voluntary conservation programs, combining two existing programs into one agreement type, and providing FWS additional flexibility in issuing permits that authorize unintentional “take” of species.

Background

The ESA was enacted by Congress in 1973 with the primary goal of conserving endangered species and the ecosystems on which those species depend. 16 U.S.C. § 1531(b). The statute is co-administered by FWS together with the National Marine Fisheries Service (“NMFS”) (collectively “the Services”), which are both tasked with identifying species to be listed under the ESA as either threatened or endangered. Once a species is listed under the ESA it receives full ESA protection. A primary protection that the ESA grants to listed species is a prohibition on take. Under the ESA, “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” any listed species. 16 U.S.C. § 1532(19). The ESA’s prohibition on take applies to all persons – including private parties, states, and the federal government – and encompasses both purposeful and unintentional take of species. There are only two ways to take a species without violating the ESA. A federal agency may be authorized to take species incidental to an otherwise lawful activity through an Incidental Take Statement issued under Section 7 of the ESA. For states and private parties, the primary way to gain take authorization is by receiving an incidental take permit issued under Section 10 of the ESA.

Section 10 of the ESA allows the Services to issue permits authorizing activity that would otherwise be prohibited under the ESA. Section 10 creates three main types of permits: Recovery and Interstate Commerce Permits, Enhancement of Survival Permits, and Incidental Take Permits. In general, Recovery and Interstate Commerce Permits are issued to someone engaged in scientific activity aimed at enhancing the propagation or survival of a listed species. 16 U.S.C. § 1539(a)(1)(A). These permits are typically granted to parties conducting scientific research on a listed species in order to better understand the species’ survival needs. Because Recovery and Interstate Commerce Permits are primarily issued for scientific purposes, they are usually not particularly relevant to private landowners. Of greater interest to landowners are Enhancement of Survival Permits (“ESPs”) and Incidental Take Permits (“ITPs”).

Both ESPs and ITPs are issued to authorize take of listed species that is incidental to otherwise lawful activity. In general, ESPs are issued to authorize incidental take associated with conservation actions that are beneficial to a listed species, while ITPs authorize take that is incidental to otherwise legal activity such as building a highway or harvesting timber. 16 U.S.C. §§ 1539(a)(1)(A), (B). Traditionally, FWS has issued these permits as part of a voluntary conservation plan. ESPs are issued as part of either a Safe Harbor Agreement (“SHA”) or a Candidate Conservation Agreement with Assurances (“CCAA”) while ITPs are issued as part of a Habitat Conservation Plan (“HCP”).

Under both an SHA and a CCAA, a private landowner may enter into a voluntary agreement with the Services where the landowner agrees to take actions that help conserve listed species in exchange for assurances from the Services that the landowner will not need to take on any additional conservation practices or be liable for any incidental take of species that occurs as a result of carrying out the agreed upon management activities. The primary difference between the two programs is that SHAs apply to species that are already listed under the ESA while CCAAs are targeted at species that are considered candidates for future listing but are not listed yet. However, other than that distinction, SHAs and CCAAs are largely similar. Applicants to both programs must provide the Services with information on the species, habitat, and property that will be covered under the conservation agreement; describe the baseline conditions present on the property prior to carrying out any conservation practices; identify any management actions that the property owner will carry out pursuant to the agreement; describe any anticipated incidental take; and set a schedule for monitoring the implementation of the conservation plan. Once a landowner enters into a SHA or a CCAA, they receive formal assurances from the Services that no further conservation measures will be required unless the property owner agrees. For landowners who have entered into a CCAA, these assurances apply in the event that the candidate species becomes listed. These agreements can last for varying amount of time, and under a SHA, the landowner has the option to revert their land back to its baseline condition once the agreement expires. For both types of agreements, the Services will issue an ESP so long as the landowner’s application meets all the necessary criteria.

The Services generally issue ITPs to private landowners as part of an HCP. Importantly, the Services will only issue ITPs for activities that have no federal involvement, and only if those activities are otherwise legal but expected to result in the take of listed species. To apply for an ITP, the applicant will work with the Services to develop an HCP that includes an assessment of the impacts that are expected to occur as a result of the anticipated take; all measures the applicant will take to minimize the mitigate the expected impacts; and alternative actions to the proposed take that the applicant considered and reasons why those alternatives were not taken. The applicant will also provide information on the proposed activity itself, and the species expected to be covered by the ITP. So long as the applicant meets all the necessary criteria, the Services will approve the HCP and issue the accompanying ITP. Once a landowner enters into an HCP, they are protected by the so-called “No Suprises” rule which prevents the Services from requiring a landowner party to an HCP to adopt additional conservation measures other than those already included in the agreement. Like SHAs and CCAAs, HCPs can last for varying lengths of time. When an HCP expires, the landowner can work with the Services to renew both the HCP and ITP.

All three conservation plans – SHAs, CCAAs, and HCPs – represent ways the ESA allows the Services to work with private landowners to promote species conservation without concern that doing so will result in the landowner violating the ESA. For more detail on SHAs, CCAAs, and HCPs, click here to view NALC’s ESA Manual.

The New Rule

The final rule published in the Federal Register on April 12 is focused on updating regulations related to ESPs and ITPs with an overall goal of boosting landowner participation in the ESA’s voluntary conservation programs. While the new rule includes some minor updates to clarify certain aspects of the regulatory language, the main purpose of the rule is to combine the SHA program with the CCAA program to form a new type of conservation agreement called a Conservation Benefit Agreement. Going forward, the Services will no longer implement the SHA and CCAA programs as separate policies but will instead implement the singular Conservation Benefit Agreement program. By combining the SHA and CCAA programs into one, the Services hope to reduce confusion over the programs and encourage future landowner participation.

One of the ways that the new rule works to reduce confusion is by clarifying that by approving an application for any of the voluntary ESA conservation programs, the Services are not approving the conservation activities outlined by the applicant. The Services clarify that the ESA only grants them the authority to issue ESPs or ITPs which authorize otherwise prohibited take. The Services do not actually approve the conservation activities themselves, just the incidental take. Next, the new rule clarifies that ESPs are only issued to authorize take of species when the conservation actions that are part of the overall conservation agreement are “of the nature of improving the condition of the species[.]” In other words, ESPs are issued for the primary purpose of carrying out conservation activities that will be beneficial to a listed species. ITPs, on the other hand, are issued to authorize take that is incidental to otherwise lawful activities for which species conservation is not the primary purpose such as resource extraction, commercial development, and energy development. According to the Services, codifying this clarification will help reduce confusion over when which permit is applicable.

Along with these clarifications, the new rule consolidates the pre-existing SHA and CCAA programs into one single conservation agreement called a Conservation Benefit Agreement. Going forward, any party who is interested in obtaining an ESP will apply for a Conservation Benefit Agreement instead of having to determine whether an SHA or a CCAA is most appropriate. Conservation Benefit Agreements can be entered into to conserve either a currently listed species or a species that is considered a candidate for listing. As with SHAs and CCAAs, a landowner who enters into a Conservation Benefit Agreement will receive assurances from the Services that they will not need to carry out any additional conservation measures beyond those set out in the agreement. When applying for a Conservation Benefit Agreement, the new rule requires applicants to include information on conservation measures that will be covered by the permit and their intended outcome for the covered species; a description of the covered species; the measurable biological goals and objectives of the conservation measures in the agreement; a baseline condition of the property to be covered by the agreement; the expected net conservation benefit of the proposed conservation measures; the applicant’s plans for monitoring and managing the conservation measures; and whether the applicant would chose to return the property to the baseline condition after the ESP expires. Previously, the choice to return to baseline was only available for landowners with an SHA. Going forward, that option will be available to all applicants for an ESP regardless of whether it will be applied to an already listed species or a candidate species.

Once a landowner submits a completed Conservation Benefit Agreement application, the Services will review and, under the new rule, “may issue the permit” if all the necessary criteria are met. That requires the Services to make a determination that incidental take is necessary for the implementation of the Conservation Benefit Agreement, the impacts of the authorized take are unlikely to contribute to the species becoming extinct, and that the agreement is reasonably expected to provide a conservation benefit to the covered species.

If an ESP is issued as part of a Conservation Benefit Agreement involving an already listed species, the permit will become effective once the permittee signs the permit, which must be done within 90 days of issuance. For an ESP issued as part of a Conservation Benefit Agreement involving a non-listed candidate species, the permit becomes effective upon the date the species is listed so long as the permittee signed the permit within 90 days of it being issued.

Going Forward

The ESA’s voluntary conservation programs provide a unique opportunity for private landowners to work with the Services to authorize otherwise prohibited take of a species. For landowners, the agreements provide assurances that so long as the landowner carries out the agreed upon conservation measures, they will not be expected to carry out any future conservation activities. This is particularly helpful for landowners who are aware that a candidate species is located on or near their property and would like to avoid unforeseen ESA restrictions should the species become listed. For the Services, these voluntary conservation agreements allow the government to work directly with landowners to carry out the goals of the ESA while being able to tailor conservation activities to particular landscapes.

By clarifying certain aspects of when an ESP or ITP is required, and by simplifying the ESP application process through the combination of the SHA and CCAA programs into one Conservation Benefit Agreement, the Services hope to clear up existing confusion and promote greater landowner participation in voluntary conservation programs. The new rule will go into effect May 13, 2024.

To read the new rule, click here.

For more NALC resources on the ESA, click here.