On February 8, the U.S. Fish and Wildlife Service (USFWS) published in the Federal Register important proposed changes to the regulations that implement Section 10 of the Endangered Species Act (ESA). ESA Section 10 is the key provision for non-federal entities of all kinds—state agencies, local agencies, private companies, non-profit organizations, and individual landowners. These are the first regulatory changes to ESA Section 10 since 2016, when revisions to Candidate Conservation Agreement with Assurances regulations were implemented.
Both the USFWS and National Marine Fisheries Service (NMFS) administer the ESA. However, only the USFWS proposed these regulatory changes. If enacted, these regulatory changes would therefore not apply to the species under NMFS’s jurisdiction—anadromous fish and marine species.
Comments on these proposed regulatory changes are due by April 10, 2023. Because the proposed changes are largely consistent with USFWS's current practice and are not extensive, the regulations may be finalized relatively quickly, perhaps before the end of 2023. If enacted, the new regulations only apply to new permits or permit amendment applications. The new regulations will therefore apply to any ESA Section 10 permit currently in preparation and not approved before the regulations take effect. The new regulations will not affect existing permits retroactively.
Below is a summary prepared by our subject matter experts of the seven important proposed changes to ESA Section 10. Minor procedural changes are not described.
1. Clarify uses of enhancement of survival permits vs. incidental take permits
Explanation: The USFWS clarifies when it is appropriate to use an enhancement of survival permit and when it is more appropriate to use an incidental take permit. Enhancement of survival permits were introduced in 1999 as a tool to allow landowners to continue implementing land or water management action that benefit listed species without the risk of restrictions on these activities if the listed species increases in population or range on their property. Enhancement of survival permits have been used to authorize development activities even though those activities would typically not be considered as voluntary conservation actions. The USFWS clarifies that enhancement of survival permits will be limited to situations where landowners conduct activities that are designed to benefit a listed or at-risk species, or where land or water management actions clearly benefit species but their purpose may not be to benefit the species. This proposal is consistent with current practices within the USFWS. The explanation in the proposed regulations is helpful:
“Enhancement of survival permits authorize take of covered species, above the baseline condition, when the primary purpose of the associated conservation agreement is to implement beneficial actions that address threats to the covered species, establish new wild populations, or otherwise benefit the covered species. In contrast, incidental take permits authorize take that is incidental to otherwise lawful activities (e.g., resource extraction, commercial and residential development, and energy development); the conservation actions in the associated conservation plan minimize and mitigate the impacts of the authorized take. Maintaining this distinction between these two permit types will ensure take is sought through and authorized under the proper authority, reduce confusion, and expedite the permitting process.”
2. Clarify that enhancement of survival permits and incidental take permits can include non-listed species without including a listed species on the permit
Explanation: In the past, habitat conservation plans (HCPs) had to cover at least one listed species and could not only cover non-listed species. This policy is reflected in the 2016 HCP Handbook. However, the USFWS shifted this policy recently and approved several HCPs that only cover non-listed species (e.g., lesser prairie chicken). This change will benefit applicants who wish to seek an incidental take permit for a species that may be listed, but do not have a listed species in the area that may be affected by the covered activities.
3. Clarify the USFWS’s authority in issuing a permit and reviewing a permit amendment application
Explanation: There is often confusion by USFWS staff, applicants, and their consultants about the authority of the agency in their issuance of either an enhancement of survival permit or an incidental take permit. This authority is important because it determines the scope of the USFWS’s proposed action under the National Environmental Policy Act (NEPA). If the scope of the proposed action is defined too broadly, the scope of the NEPA document may be unnecessarily broad, extending the timeline and costs for NEPA compliance. Some argue that the USFWS’s authority is limited to the issuance of the permit. Others maintain that the underlying covered activities are part of the proposed action because they are influenced by the permit. This proposed regulatory change resolves this debate by defining the USFWS’s authority clearly and only to the take authorized by their permit, not the underlying covered activities of the Habitat Conservation Plan, Safe Harbor Agreement, or Candidate Conservation Agreement with Assurances. Again, the language of the proposal is helpful:
“We are proposing to clarify the language in both §§ 17.22(b) and (c) and 17.32(b) and (c) to emphasize that our authority extends to authorizing take that would otherwise be prohibited under section 9 of the ESA, rather than to authorize the applicant’s proposed conservation activities or the otherwise lawful activities that may result in take of a covered species. In other words, the issuance of enhancement of survival or incidental take permits does not authorize the covered activities themselves, but instead authorizes only the take of covered species resulting from those activities.”
The USFWS also proposed to clarify its purview in reviewing applications for permit amendments or renewals. Holders of incidental take permits are often concerned about proposing useful changes to their habitat conservation plan and permit because doing so may “reopen” other aspects of their program they do not wish to change. The USFWS clarifies that the scope of their decision to amend or renew an existing permit extends only to the specific amendment requested, not the previously approved permit or any parts of the conservation plan or benefit agreement that are unchanged. With this clarification, the USFWS would only review the changes proposed. This change should reduce concerns by permit holders and give them more confidence to propose needed changes to an existing permit.
4. Combine both enhancement of survival tools into one
Explanation: Currently, enhancement of survival permits come in two forms: A Safe Harbor Agreement (SHA) for listed species or a Candidate Conservation Agreement with Assurances (CCAA) for non-listed species. If an applicant wishes to cover listed and non-listed species in one agreement, an SHA and CCAA can be combined. However, the applicant must submit two separate permit applications, and the USFWS issues two separate permits.
There is also an important difference between an SHA and a CCAA besides the species that can be included. Currently, holders of approved SHAs can, if desired, return lands to baseline conditions at the end of the term of the SHA. Baseline conditions are defined for each covered species in the SHA but typically mean the habitat condition or population size at the time the SHA is approved. This benefit is not available in a CCAA. In other words, CCAA holders must maintain the beneficial conditions for the covered species at the end of the agreement term and cannot return the enrolled land to baseline conditions. The proposed change would combine those two tools into one tool called a “Conservation Benefit Agreement.” This change will benefit applicants for enhancement of survival permits who wish to cover listed and non-listed species by simplifying the process to one application and one permit.
The USFWS also proposes to allow agreement holders to return conditions of enrolled land to baseline conditions at the end of the agreement term, regardless of whether the species was listed or non-listed at the time the agreement was signed. This important change eliminates the key difference between an SHA and CCAA that exists today, also benefitting applicants. The revised permit application form will require applicants to specify whether they intend to return enrolled land to baseline conditions at the end of the permit term. This is also a departure from current practice, in which SHAs allow landowners to return enrolled land to baseline conditions but do not say whether the landowner intends to do so or not.
5. Revised and new definitions
Explanation: The USFWS proposes several existing definitions be revised. They also propose several new terms be defined in the regulation—terms that are already in wide use today. Notable proposed definition changes include:
“Baseline condition means population estimates and distribution or habitat characteristics on the enrolled land that could sustain seasonal or permanent use by the covered species at the time a conservation benefit agreement is executed by the Service and the property owner, or by a programmatic permit holder and the property owner, under §§ 17.22(c) and 17.32(c) of this part, as applicable.” [Note that this proposed definition only applies to conservation benefit agreements, not to Habitat Conservation Plans.]
“Net conservation benefit means the cumulative benefit provided by specific measures described in a conservation benefit agreement that are designed to improve the existing baseline condition of a covered species by reducing or eliminating threats or otherwise improving the status of covered species, minus the adverse impacts to covered species from ongoing land or water use activities and conservation measures, so that the condition of the covered species or the amount or quality of its habitat is reasonably expected to be greater at the end of the agreement period than at the beginning.”
Notable proposed new definitions include:
“Programmatic permit associated with a conservation benefit agreement means an enhancement of survival permit issued under § 17.22(c) or § 17.32(c), with an accompanying conservation benefit agreement that allows at least one named permittee to extend the incidental take authorization to enrolled property owners who are capable of carrying out and agree to properly implement the conservation benefit agreement.”
“Programmatic permit associated with a conservation plan means an incidental take permit issued under § 17.22(b) or § 17.32(b), with an accompanying conservation plan that allows at least one named permittee to extend the incidental take authorization to participants who are capable of carrying out and agree to properly implement the conservation plan.”
6. Simplify permit transfers
Explanation: Permit transfers are sometimes necessary if land or other assets such as renewable energy projects are sold that are subject to an ESA permit. ESA permit transfers have always been allowed, but the process to do so is sometimes unclear and cumbersome. In some cases, permits were amended to identify new landowners or new asset owners. This proposed change creates a new permit transfer application that the USFWS believes will greatly simplify permit transfers.
7. Clarify information requirements for a permit application
Explanation: The USFWS also proposes to revise and simplify their permit application forms for enhancement of survival permits and incidental take permits. The information requested will more closely align with the permit issuance criteria. These information requirements are consistent with current best practices. The revised forms are also intended to be more compatible with the USFWS ePermit online permit system that allows electronic submittal.
Overall, the proposed changes to the ESA are sensible and practical. The proposed changes, if approved, will benefit ESA Section 10 permit applicants and permit holders by streamlining and clarifying the permit process for ESA Section 10 applications, amendments, and transfers.