Section 10 of the Endangered Species Act (ESA) allows the U.S. Fish and Wildlife Service and National Marine Fisheries Services (Services) to issue permits to authorize take for scientific purposes or enhancement of survival (10(a)(1)(A)), or for take that is incidental but not the purpose of an otherwise lawful activity (10(a)(1)(B)). The issuance of these permits requires conservation plans, and the Services have issued a Final Rule that changes some of the process and requirements for these permits. The Final Rule also codified previous policy guidance, making these policies binding and part of permit issuance criteria.
KEY CHANGES INCLUDE:
- Safe Harbors Agreements (SHA), Candidate Conservation Agreements (CAA), and Candidate Conservation Agreements with Assurances (CCAA) are now collectively referred to as “conservation benefit agreements (CBA).” The aim is to simplify the process and requirements, and encourage voluntary conservation programs.
- Codified portions of CCAA Policy that define the standard and level of net-benefit conservation in a CBA are now necessary to meet permit issuance criteria.
- Permit applications must be reviewed by the Services for completeness and adherence to issuance criteria prior to the Services initiating the processing of permit applications.
- Codified portions of the Five-Point Policy and 2016 Habitat Conservation Planning Handbook clarify the required components, scope, and effectiveness of a habitat conservation plan (HCP). These include: 1) biological goals and objectives, 2) adaptive management and HCP assurances (No Surprises), 3) monitoring, 4) permit duration, and 5) public participation.
- The Services may add additional conservation measures to a permit application to carry out the purpose of the permit and conservation plan.
- CBAs and HCPs can cover non-listed species (only) and no longer require a federally listed species to be included to encourage voluntary conservation programs and potentially preclude federal listing. Should the species become federally listed, any associated take would not go into effect until the effective date of the listing.
The changes will apply to new permit applications, new amendments, and renewals to existing permits. These changes will not apply to issued permits or sections of permits that are unchanged by a new amendment. You can read the Final Rule, which is effective as of May 13, 2024, here.
WHY DO THESE CHANGES MATTER?
These changes clarify the expectations of the Services regarding the development and implementation of CBAs and HCPs. They may reduce confusion on the appropriate permit types necessary for applicants. Some of the changes expand the Services’ authority to determine the content of conservation plan and permit terms. This may impact an applicant’s flexibility and discretion in leading the process for these conservation plans. Costs of HCPs may increase to ensure funding assurances account for the first three elements of the now codified Five-Point Policy.
The Services are expected to provide additional guidance in an updated Habitat Conservation Planning and Incidental Take Permit Processing Handbook. The anticipated publication date is unknown.
LEARN MORE AND GET INVOLVED
SWCA can help you understand what the rule changes might mean for your projects. Reach out to your project manager or to one of SWCA’s regulatory specialists for more information, insights, and strategies to keep your projects on track.
Pauline Roberts | Natural Resources Technical Director, West
nsmolensky [at] swca [dot] com (Nicole Smolensky) | Lead Biologist, Central/East Region
kely [dot] wabnitz [at] swca [dot] com (Kely Wabnitz) | Principal Project Management Team Lead, Midwest
jessie [dot] webber [at] swca [dot] com (Jessie Webber) | Senior Project Manager, Northeast
aglen [at] swca [dot] com (Amanda Glen) | Senior Natural Resources Technical Director – Biological and ESA Services, Nationwide