U.S. Fish and Wildlife Service Makes Important Changes to the Endangered Species Act

Section 10(a) of the Endangered Species Act (ESA) is the provision of the ESA that allows all non-federal entities—state agencies, local agencies, private companies, non-profit organizations, and individual landowners—to obtain take authorization for their projects and activities. On February 8, 2023, the U.S. Fish and Wildlife Service (USFWS) proposed in the Federal Register changes to the regulations that implement Section 10(a) of the ESA. Today, USFWS finalized these important changes in the Federal Register, the first revisions to ESA Section 10 regulations in eight years. These changes are effective in 30 days. The new regulations are not retroactive; they only apply to new applications, not applications already published in the Federal Register.

Below is a summary of the most important changes to ESA Section 10. The final changes are nearly identical to the changes proposed in the draft rule in 2023.

1. Enhancement of Survival Permits vs. Incidental Take Permits

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 permit regulations were introduced in 1999 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. In the past, enhancement of survival permits have been used to authorize activities such as oil and gas development that would typically not be considered a voluntary conservation action. USFWS clarifies that enhancement of survival permits will be limited to situations where the primary purpose of the permitted activity is to incentivize voluntary conservation of listed and at-risk species.

2.?Enhancement of Survival Permits and Incidental Take Permits can include non-listed species without including a listed species on the permit

According to the 2016 Habitat Conservation Planning and Incidental Take Permit Processing Handbook (HCP Handbook), habitat conservation plans (HCPs) must cover at least one listed species and cannot only cover a non-listed species. However, USFWS recently shifted this policy and approved several HCPs that only cover non-listed species (e.g., lesser prairie-chicken). USFWS has now codified this policy change in regulation. This change will benefit applicants who wish to seek an incidental take permit for a species that may become listed soon, but they do not have a listed species in the area that may be affected by their activities.

3.?Clarify USFWS’s authority in issuing a permit and reviewing a permit amendment application

There is often confusion about the authority of USFWS 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 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 USFWS’s authority is limited to the issuance of the permit. Others argue that the underlying covered activities are part of the proposed action because they are influenced by the USFWS permit. This regulatory change resolves this debate by defining USFWS’s authority as only the take authorized by their permit, not the underlying covered activities of the Conservation Plan or Conservation Agreement.

USFWS also clarifies their purview in reviewing applications for permit amendments or renewals. Holders of incidental take permits are often concerned about proposing useful changes to their HCP and permit because it may “reopen” other aspects of their program they don’t want to change. USFWS clarifies in these regulations that the scope of their decision to amend or renew an existing permit extends only to the specific amendment requested, not to any parts of the approved permit that are unchanged. In other words, USFWS would only review the changes proposed. This change should reduce concerns by permit holders, giving them more confidence to propose important changes to an existing permit without risking changes they don’t want.

4.?Conservation Benefit Agreement replaces the two previous enhancement of survival tools

Previously, Enhancement of Survival Permits came in two forms, either a Safe Harbor Agreement (SHA) for listed species, or a Candidate Conservation Agreement with Assurances (CCAA) for non-listed species. If an applicant wished to cover listed and non-listed species in one agreement, an SHA and CCAA could be combined, but the applicant had to submit two separate permit applications and USFWS issued two separate permits. USFWS has now combined these separate tools into one tool called a “Conservation Benefit Agreement.”

This change eliminated an important distinction between SHAs and CCAAs.? 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, typically by the habitat condition or population size at the time the SHA is approved. This benefit was 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 back to baseline conditions. Now, all Conservation Benefit Agreement holders may return conditions of enrolled land back to baseline conditions at the end of the agreement term, regardless of whether the species was listed or not at time the agreement was signed.? ?

5.?Expanded requirements for what constitutes a complete HCP application

The 2016 HCP Handbook includes information on the content of an HCP, including various components included in the 5-Point Policy (65 FR 35242). Many of the required components are now codified and consolidated in the updated regulations. The requirement include a project description (i.e., the covered activities), a list of covered species, biological goals and objectives, the timing of mitigation relative to the take, and an effectiveness monitoring program.?

In addition to these important changes, USFWS also revised definitions, established new definitions, and streamlined the process for a permit application and permit transfer.

Both USFWS and National Marine Fisheries Service (NMFS) administer the ESA. However, only USFWS enacted these regulatory changes. NMFS may decide later to propose the same or similar regulatory changes. For now, however, these changes do not apply to the species under NMFS’ jurisdiction, anadromous fish and marine species.

This summary was written by David Zippin, Ph.D., who leads ICF’s large Practice in habitat conservation planning and implementation. David and his team at ICF help clients prepare and implement ESA Section 10 compliance documents of all kinds, including Habitat Conservation Plans, Safe Harbor Agreements, Candidate Conservation Agreements with Assurances, and now, Conservation Benefit Agreements. We also help clients apply for federal grants to support the preparation or amendment of ESA Section 10 conservation plans. For more information on these services nationwide, contact [email protected].