Voluntary Conservation Agreements to Preclude the Need to List Species

1. Voluntary Conservation Agreements to Preclude the Need to List Species Gabrielle Horner U.S. Fish and Wildlife Service Southeast Region June 2012

2. Website www.fws.gov/southeast/candidateconservation

4. Overview for Gopher Tortoise Team • SERPPAS, SEAFWA Coordination. • USFWS Policy on Evaluating Conservation Efforts when making listing decisions (PECE). • GT Rangewide Conservation Strategy --Oct 2012. • CCA vs CCAA . • Programmatic CCAA - Enrollments Fall 2013? • Conference Opinions = “regulatory certainty” • October 2012 GTT Meeting to Amend CCA.

5. Candidate Conservation NEW Issue Team • The Southeast Regional Partnership for Planning and Sustainability (SERPPAS). • 6 state partnership of state and federal agencies. • Collaborate on resource-use decisions to support conservation: -natural resources -working lands -national defense. • 1. ID priority species /focus areas, conservation overlay maps of candidate and imperiled species by land-use, habitat type, etc. • 2. Coordinated outreach . • 3. Identify efficiencies.

6. Listing Decision Process Listed or Candidate Species Recover Plan vs “Conservation Strategy Conservation Action Decision on Status 5 Factor Analysis and maybe PECE Threats Abated? Yes Proposed rule? List/no list Remove from candidates Delist Down list No change

7. Threats to the species (ESA 5 Listing factors) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; (E) Other natural or manmade factors affecting its continued existence (climate change, relocation effects, herbicides, road mortality, invasive species).

8. Range-wide Conservation StrategyFor each of the 5 factors, identify and assign the following: Primary threats to the species Actions needed to address specific threatsOther species that could benefitPolicy/regulatory partnersImplementation partnersLeads (FWS & State agency)Due dates

10. PECE and Section 4 Section 4(b)(1)(A) requires that a listing determination take into account efforts made by any State (or political subdivision of a State), to protect a species. We have extended this consideration to efforts made by other parties.

11. PECE Analysis :Conservation Efforts Not Yet Implemented/Demonstrated Effectiveness • Can guide development of conservation efforts to improve species status to make listing unnecessary (actions that preclude the need to list) AND…. • Findings on Petitions to List. • Assign or remove candidate status. • Issue proposed listing rules. • Finalize listing rules. • Withdraw listing rules.

12. Court Rulings Prior to PECE • Courts upheld consideration of existing conservation efforts where the administrative record shows that the effort reduced or removed a threat to a species. • Courts ruled that we cannot rely upon speculative future measures with uncertain effects as a basis for determining that listing is not necessary. PECE published in Federal Register 2003, has guided many listing decisions – most recently Dunes Sagebrush Lizard decision to not list (2012).

13. PECE Standard • Formal conservation effort = Documented. “cannot rely on speculative promise of future action when making listing decisions.” • Conservation Effort Will Be Implemented. • Certainty Effort will Be Effective. • CCA, CCAAs…state signed voluntary agreements, etc. • Staffed, funded, legal authority, permits, type and level of voluntary participation. • Nature and extent of threats described. • Explicit incremental objectives, dates to achieve. • Monitoring and reporting. • Etc.

14. Candidate Agreements CCA = MOU • Formal partnerships. • Any agency, ANYONE. • Identify specific conservation measures. • Vary widely. • No permits or assurances. CCAA =“Contract” • Non-Federal landowners receive “Assurances.” • Threats/needs must be “adequately” understood. • Actions should reduce threats to preclude listing. • Enhancement of survival permit (incidental take). Elfin Woods Warbler, Puerto Rico

15. Linking CCA & CCAAExample: Lesser Prairie Chicken “Since this CCA is designed to address the activities of lessees and permittees on Federal lands, a companion CCAA will be used to address the needs of both species on non-Federal lands within New Mexico.” Documents for CCA partners that CCAA will be developed & links actions among all public and private ownerships.

16. Robust Redhorse CCAA Signed in 2002 by USFWS, Georgia DNR, and Georgia Power. The species has not required Federal listing.

17. Regulatory Standard USFWS will enter into CCAA upon determining: “benefits of the conservation measures implemented by a property owner ….when combined with those benefits that would be achieved if it is assumed that conservation measures were also to be implemented on other necessary properties, would preclude or remove any need to list the covered species.” Federal Register/Vol. 64, No. 116/June 17, 1999.

18. CCAA = “Assurance” no additional measures required if species listed. “By entering into a Candidate Conservation Agreement with assurances, a property owner can obtain certaintythat no additional conservation measures will be required and no additional land, water, and resource use restrictions will be imposed if the species is listed in the future.” Federal Register/Vol. 64, No. 116/June 17, 1999.

19. 6 Elements of CCAA • Existing Conditions - population levels (if known) of covered species, habitat characteristics. • Conservation Measures. (FWS Technical Assistance) • Expected Benefits . • Assurances. “No additional measures…beyond those described….” • Monitoring. • Notificationto USFWS or State to rescue individuals before authorized (permitted) incidental take. Excerpt from CCAA Policy – 64 FR 32726; June 17, 1999

20. Safe Harbor Agreement vs CCAA SHA Listed species. “Baseline” Temporary Benefit to Species. CCAA Candidate species or likely to become candidate. “Existing Conditions” Actions to preclude the need to list.

21. Southeast CCAAs in Development: ALABAMA -Spring Pygmy Sunfish.3,200 acres. Partners: USFWS, private landowner, local land trust. ARKANSAS -Programmatic SHA/CCAA Arkansas Fatmucket, Pink Mucket, Harperella and 22 Other Aquatic Species of Greatest Conservation Need in the upper Saline, Caddo, and Ouachita River Watersheds. 1,087,358 acres. Partners: USFWS, TNC, Arkansas Game and Fish Commission, NRCS. Prioritization model for enrolling private lands that has not been used in previous SHAs/CCAAs. ALABAMA, LOUISIANA, MISSISSIPPI - SHA Red Cockaded Woodpecker/Gopher Tortoise & CCAA Black Pine Snake. Non-federal lands. Partners: American Forest Foundation, Environmental Defense Fund, Mississippi Fish and Wildlife Foundation, USFWS.

22. ESA Section 7 Conference Opinion For “Regulatory Certainty” “Federal agencies shall…utilize their authorities (to further ESA) by carrying out programs for conservation of endangered and threatened species listed….” • Sage Grouse Example: NRCS and FWS used the “conferencing” provisions under Section 7 of the ESA to assess NRCS conservation practices to be implemented and maintained by landowners. Report can be used as the basis for preparing a Biological Opinion under Section 7 of the E SA that would include “incidental take.” • INRMPs ?

23. Expanding Voluntary Incentives Under ESA Advance Notice of Proposed Rule Comments due July 13, 2012 • How to improve SHA, HCP, CCAA? • New: “Pre-listing mitigation.” How can the Service allow conservation credits for voluntary actions taken in advance of listing? Federal Register/Vol. 77, No. 51, March 15, 2012.

24. Thank You! For more information: Gabrielle (Gabe) Horner Coordinator Regional Candidate and Ecosystem Conservation USFWS Southeast Region gabrielle_horner@fws.gov 404-679-7066 www.fws.gov/southeast/candidateconservation