LEARNING FROM THE IMPLEMENTATION OF CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES
| Jurisdiction | United States |
LEARNING FROM THE IMPLEMENTATION OF CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES
Assistant Regional Solicitor
United States Department of the Interior, Office of the Solicitor
Albuquerque, NM
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FRANK LUPO is an Assistant Regional Solicitor with the U.S. Department of the Interior, Office of the Solicitor, Southwest Region. Frank leads the Southwest Region's Natural Resources group, which primarily advises the Fish & Wildlife Service, Bureau of Land Management, National Park Service, and Bureau of Reclamation. Frank has been with the Solicitor's Office since 2009. He was previously an Honors Attorney with the U.S. Army Corps of Engineers in New Orleans assisting with environmental law matters related to post-Katrina recovery and rebuilding. Frank completed a judicial clerkship with the State of Alaska Court of Appeals in Anchorage. He received his J.D. from Lewis and Clark School of Law with certificates in Environmental and Natural Resources Law and Criminal Law and has a B.A. in Political Science from the University of Florida.
I. Introduction
II. Conservation of the Dunes Sagebrush Lizard and Lesser Prairie-Chicken
A. Requirements for Pre-Listing Conservation Planning Agreements
B. Dunes Sagebrush Lizard: Conservation Efforts and Listing Status History
C. Lesser Prairie-Chicken: Conservation Efforts and Listing Status History
III. Considering Adaptive Management and Appropriate Triggers for Changes
A. Defining Adaptive Management
B. The Benefits of Adaptive Management
C. Effective Adaptive Management from the DSL and LPC CCAA Experience
IV. Addressing Changes to Mapping and Occupancy of the Species Over Time
A. LPC RWP's Buffer of Occupied Area
B. LPC RWP's Adaptive Management Regarding Impact Radius Zones
C. DSL CCAA's Mapping of Occupied Areas
VI. Conclusion
I. Introduction
Adding a species to the Federal List of Endangered or Threatened Wildlife or Plants maintained pursuant to the Endangered Species Act (ESA), i.e. listing the species, can trigger significant regulatory obligations for landowners and members of the mineral development community operating within the range of the species. However, opportunities exist to develop conservation agreements before listing the species that will provide participants in these agreements assurances to limit any subsequent regulatory burdens. In exchange, the conservation measures adopted in advance of listing can aid the species avoid the risk of extinction and can, in some instances, avoid the need to list the species.
A Candidate Conservation Agreement with Assurances (CCAA) is one of the tools available under the ESA to promote the conservation of a declining species prior to its listing. CCAAs encourage a commitment to defined conservation measures in exchange for the
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commitment to a permit authorizing continuity of existing business practices if a listing is later required.2 The United States Fish & Wildlife Service's (FWS or the Service)3 CCAA policy is built explicitly on the recognition that private landowners are essential to the conservation of species and the successful implementation of the ESA.4 The Service develops a CCAA in cooperation with non-Federal property owners, such as individuals, States, local governments, Tribes, businesses, and organizations.5 The non-Federal property owner implements conservation measures for declining species in exchange for regulatory assurances against further land, water, or resource use restrictions if the species is later listed.6 CCAAs can be developed for species proposed for listing, candidate species,7 and species that may become candidates or proposed for listing in the near future.8 These agreements are one of several conservation tools designed to reduce threats to the species in order to contribute to the "conservation and stabilization of populations or habitat of the species."9 The parties must demonstrate the agreement will reduce "key threats to the covered species so as to contribute to the conservation and stabilization of populations or habitat of the species and provides a substantial net conservation benefit" before providing the regulatory assurances to participants.10
By entering into a CCAA, a non-Federal landowner receives a level of certainty about future restrictions to use of the affected property. The lynchpin of this certainty is the Service's regulatory assurances, which provides that, unless the CCAA's changed circumstances provision is triggered, the Service will not require any additional commitment of land, water, or financial compensation, or impose additional restrictions on the permittee.11 In order to provide this level of certainty, the Service must know enough about the threats and life history requirements of the covered species to develop beneficial conservation measures.12
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CCAAs are entered into at a defined point in time but provide participants with certainty for the duration of the agreement. As these agreements are implemented, the parties learn more about the covered species and better understand both the species and the factors that pressed their decline. Likewise, the interests of the private parties participating in these agreements do not remain static. Business needs change and new methods of operations are developed. The question emerges as to how the Service and participating private parties can ensure that CCAAs remain viable, durable, and effective, for both the species and the participants, over the duration of the agreement.
This paper presents a review of two key CCAAs developed for species that occur on private lands with extensive mineral development opportunities: the dunes sagebrush lizard (DSL) and lesser prairie-chicken (LPC). For both species, CCAAs have been in place for nearly a decade. These CCAAs were based on the best available information at the time of their execution, and were intended to provide lasting conservation benefits for the species and certainty to participants over a thirty year duration. Looking back at these agreements nearly a third of the way into their intended duration can provide an opportunity to improve future agreements.
First, this paper summarizes the commonly used tools to encourage conservation efforts in advance of listing decisions. This paper presents a summary of the prelisting conservation efforts for both the DSL and LPC. Second, this paper reviews the concept of adaptive management and how it has been incorporated into these agreements. This paper then assesses options for updating the agreements to ensure that conservation benefits continue to accrue as conditions and available information changes. Finally, this paper will review how these agreements respond to movement of the species or updates in habitat mapping. By reviewing the history and implementation of specific agreements, we can identify opportunities for improvement in future pre-listing conservation agreements.
II. Conservation of the Dunes Sagebrush Lizard and Lesser Prairie-Chicken
A. Requirements for Pre-Listing Conservation Planning Agreements
Two of the most common types of pre-listing conservation planning agreements on private lands, Habitat Conservation Plans (HCPs) and Candidate Conservation Agreements with Assurances (CCAAs), both result in permits issued under section 10 of the ESA.13 HCPs generate incidental take permits issued under the ESA's section 10(a)(1)(B) authority. The incidental take permit can be issued to authorize the taking of listed fish and wildlife "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."14 Candidate Conservation Agreements with Assurances (CCAAs) generate an enhancement of survival permit issued under the ESA's section 10(a)(1)(A) authority. The enhancement of
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survival permit can be issued "to enhance the propagation or survival" of the listed species.15 In contrast, a Candidate Conservation Agreement (CCA) is a similar formal, voluntary agreement between FWS and another party committing to specific actions to remove or reduce threats to species but do not result in a permit or any specific assurances related to the potential requirement for subsequent conservation measures.16 Because no assurances are provided, CCAs are most often entered into with other federal agencies and states, as opposed to private landowners.17
The ESA has detailed requirements for incidental take permits, such as those supporting HCPs. An incidental take permit must be based on a conservation plan that specifies: (1) "the impact which will likely result from such taking"; (2) "steps the applicant will take to minimize and mitigate" the impacts of the take and "the funding that will be available to implement" those steps; (3) the "alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized"; and (4) what other measures the Service may require "as being necessary or appropriate for purposes of the plan."18 The HCP and proposed incidental take permit require public notice and comment. After considering these comments, the Service may issue incidental take permits if the taking is incidental to the activities proposed, the applicant will minimize and mitigation the impacts of the taking and commits to other necessary measures required by the Service, the plan has adequate funding, and the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.19
In contrast, the ESA does not establish a statutory baseline for enhancement of survival permits issued under section 10(a)(1)(A). Instead, enhancement of survival permits, and correspondingly CCAAs, are guided by a series of Service regulations20 and policies, primarily the 1999 final policy for CCAAs21 and the 2016 revisions to the CCAA policy.22 CCAAs are also guided by the...
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