CHAPTER 9 CANDIDATE CONSERVATION AGREEMENTS AND CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES UNDER THE ESA

JurisdictionUnited States
Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)

CHAPTER 9
CANDIDATE CONSERVATION AGREEMENTS AND CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES UNDER THE ESA

Amelia Orton-Palmer
U.S. Fish and Wildlife Service
Denver, Colorado

AMELIA ORTON-PALMER is the Conservation Plans and Grants Coordinator for the U.S. Fish and Wildlife Service's Mountain-Prairie Region Endangered Species Division. She first assisted with developing special rules for the Northern Rocky Mountain wolf, and has since been providing guidance to the field regarding development, regulations, and policy for conservation plans under section 10 of the Endangered Species Act (Habitat Conservation Plans, Safe Harbor Agreements, and Candidate Conservation Agreement with Assurances). She also coordinates with field and State wildlife agencies on the Endangered Species Act section 6 grant program to fund State conservation projects for listed and candidate species. She has several years experience implementing the Endangered Species Act in the field for the Monterey Bay region and the Chicago metropolitan area.

I. Introduction - Endangered Species Act Context for the CCAA Program

The Endangered Species Act ("ESA") (16 U.S.C. 1531 et seq.) was established to provide a means to conserve the ecosystems upon which endangered and threatened species depend, to provide a program for the conservation of these endangered and threatened species, and to take the appropriate steps that are necessary to bring any endangered or threatened species to the point where measures provided for under the Act are no longer necessary.1 The U.S. Fish and Wildlife Service ("FWS") and the National Oceanic and Atmospheric Administration administer the ESA. For the purposes of this paper, discussions will focus solely on the role of the FWS. The following descriptions of the sections of the ESA are limited to those portions that provide context for the CCAA program. Further discussion of their relevance to the program will be provided throughout this paper.

A. Section 2 - Purpose of the ESA

The purposes of the ESA are "...to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth [herein]..."2 Congress further declared in the ESA that "...all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act."3

B. Section 4 - Determination of Endangered and Threatened Species

This section outlines requirements for determining whether species should be listed as endangered or threatened under the ESA. FWS examines the following five factors as the basis for such determinations: 1) the present or threatened destruction, modification, or curtailment of the species' habitat or range; 2) overutilization for commercial, recreational, scientific, or educational purposes; 3) disease or predation; 4) the inadequacy of existing regulatory mechanisms; and 5) other natural or manmade factors affecting its continued existence.4 The FWS may conduct a review of the status of a species and must use the best scientific and commercial data available to determine if it should be designated as a candidate for listing. Citizens or organizations may formally request a species to be listed by submitting a petition to the FWS.5 If the FWS formally determines substantial information is available, the FWS must publish a finding of whether listing of the petitioned species is warranted (called a "12-Month

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Finding").6 Candidate species are those that the FWS has determined are warranted for listing, but are precluded from doing so due to other listing priorities.7 The FWS assigns listing priority numbers ("LPN") to each candidate species to help manage the listing backlog.8 The LPN indicates the relative urgency for listing species and reflects the magnitude and immediacy of threat to the species, as well as the relative distinctiveness or isolation of the genetic material they possess.9 LPNs range from 1 to 12, from highest to lowest priority.10

C. Section 6 - Cooperation with the States

Section 6 directs the FWS to cooperate with the States in endangered species conservation, including providing Federal funding and delegation of permitting authority.11 FWS considers collaborative stewardship with State agencies to be important in the development of CCAAs, because the States have management authority over candidate species until they are listed under the ESA.12

D. Section 7 - Interagency Cooperation

Section 7 specifies Federal responsibilities under the ESA by requiring that all Federal agencies shall "...utilize their authorities in furtherance of the purposes of the [ESA] by carrying out programs for the conservation of threatened and endangered species..."13 and "..., in consultation with and with the assistance of the Secretary [of the Department of Interior], insure that any action authorized, funded, or carried out...is not likely to jeopardize the continued existence of any [listed species] or result in the destruction or adverse modification of [designated critical habitat]..."14 As a result of such consultation, the FWS produces a biological opinion that determines whether a species may be jeopardized, provides measures to minimize adverse effects or alternatives to jeopardy as needed, and includes a statement anticipating any incidental take of the species.15 A similar process that produces a conference opinion is conducted for proposed, and in some cases, candidate species.16

E. Section 9 - Prohibited Acts

Section 9 prohibits the take of any fish or wildlife species listed under the ESA as endangered. under Federal regulation, take of fish or wildlife species listed as threatened is also prohibited unless otherwise specifically authorized by regulation.17 Take, as defined by the ESA, means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."18

F. Section 10 - Exceptions

Section 10(a)(1)(A) allows the FWS to issue permits for incidental take that would otherwise be prohibited by section 9, if the acts resulting in such take are expected to enhance the propagation or survival of the affected species.19 Because CCAAs are designed to enhance the survival of the covered species, the FWS has determined that section 10(a)(1)(A) enhancement

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of survival permits are appropriate for authorizing take that may result from activities in a CCAA.20

II. Genesis of the CCAA Approach

Sections 2(c) and 7(a)(1) of the ESA declare the policy that all Federal agencies shall use their authorities in furtherance of the purposes of the ESA. However, in 1997 FWS acknowledged that non-Federal lands support much of the populations and habitat of declining species.21 Thus, collaboration with owners of such lands would be essential for the success of conservation efforts.22 These agencies also recognized the importance of initiating early conservation programs for declining species to preclude the need for listing under the ESA and ensure management flexibility and application of limited resources to the highest priority conservation needs for those species that do become listed.23 Deferring conservation actions until after a species is listed is likely to limit recovery options and require more costly efforts to rectify the further compromised ecological integrity the species' habitat.24

Many property owners are willing to voluntarily manage their lands and waters to benefit fish, wildlife, and plants, especially those species that are declining. However, many property owners also are particularly concerned about possible future uncertainty relative to new landuse or resource-use restrictions if property owners' conservation efforts promote species to colonize or expand on their properties, yet become listed under the ESA.25 Landowner concerns under these circumstances are primarily twofold: 1) potential liability under ESA section 9 prohibitions of take of listed species on their lands, and 2) potential imposition of further conservation commitments and/or land-use or resource-use restrictions as a result of increased presence of listed species on their lands.26 These fears have led property owners to avoid or limit land and water management practices that could enhance or maintain habitat and benefit or attract fish and wildlife and plants that may be listed in the future.27 In some cases, property owners might even choose to eliminate or reduce the species' habitat before listing occurs to avoid liability in the future.28

Hence, the FWS developed the CCAA policy to facilitate the conservation of proposed and candidate species, and species that may become candidates, by giving non-Federal property owners incentives to implement conservation measures for candidate and other declining unlisted species.29 In return for volunteering to enter into a CCAA to conserve such species, the FWS provides landowners regulatory certainty by issuing an enhancement of survival permit under ESA section 10(a)(1)(A) that authorizes take of the covered species consistent with the provisions of the agreement, should the covered species become listed.30 The FWS provides enrollees additional assurances that no further land, water, or resource use commitments or restrictions beyond those agreed to in the CCAA will be imposed, even if the species later becomes listed under the ESA.31 The FWS uses the enhancement of survival permit as the vehicle to provide those assurances.32

III. History of CCAA Policy and Regulations

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In 1974, FWS published 50 C.F.R. § 13 to consolidate the...

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