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STATUS OF DEPARTMENT OF INTERIOR'S REFORM OF THE ESA

The Department of the Interior has in the past year and a half instituted a number of reforms to the Endangered Species Act, in addition to making a number of legislative recommendations to further improve the Act and its implementation. Many of these policies were announced in July 1994 and others were included in the Department's Statement of Principles on March 6, 1995. This is a brief summary of progress made on these reforms

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On July 1, 1994 the Service promulgated several policies (FR 59 34270-34275) ensuring that among other things the highest quality information would be used to develop and implement all ESA related activities. Requirements included peer review of listing rules and recovery plans, thus shifting the focus from what information is available at the time decisions are made, to the quality of the information used for the development and implementation of ESA related activities. These requirements will further validate the scientific underpinnings of these activities and unequivocally enhances the credibility of ESA decisions.

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All listing rules and over 30 recovery plans have been peer reviewed since the inception of this new policy. In some cases (e g. Steller's eider) the comment period has been extended to allow for formal peer review to be conducted.

Provide information to landowners at time of listing

Since July 1, 1994 the Service's policy (FR 59 34272) has been to identify those specific actions that would not be considered "take", to the extent known, at the time of listing. Most of these activities include historical land uses within the range of newly listed species, thus avoiding the immediate and complete disruption of economic activities within the range of these species. Furthermore, those actions that are known to be considered violations of take prohibitions have also been identified to the extent that they are known at the time of listing.

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All listing (proposed and final) rules have included specific language delineating which actions are to be considered "take" and which would not constitute a prohibited act

Small landowner/minimal impacts exemption to minimize social and economic impacts On July 12, 1995 the Administration announced a regulatory proposal for the exemption of certain types of activities from the section 9 prohibitions for species listed as threatened. The proposal would exempt small landowners from the prohibitions of "take" under ESA for activities within lands of 5 acres or less that individually and cumulatively would not result in significant impacts to the species of concern.

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On July 20, 1995 the Service published (FR 60 37419-37423) a proposed rule delineating the conditions under which those exemptions would take place assuring that the cumulative effects would not have lasting effects on the likelihood of survival and recovery of threatened species. The Service is evaluating the categorical exclusion of low impact HCPs from the requirements of incidental take permits under section 10(aX1XB) for the preparation of NEPA documentation. This will increase the flexibility at least for these almost non-consequential activities

No-Take agreements

Often times there are alternatives to the development of resources for economic gain that would result in no take of listed species, however, in the past, these approaches had not been fully explored The Service has entered into a number of No Take MOUs (especially in the SE) that delineate specific

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5.

At least 8 "no take" MUUS have been developed since the promulgation of these reforms For example, the Service has entered into the Swan Valley Grizzly Bear Conservation cooperative agreement with the Forest Service, the Montana Department of Public Lands, and the Plum Creek Timber Company. This agreement provides section 9 protections for the State and the timber company while providing conservation actions for listed species and allowing normal timber harvesting operations

Safe Harbor Policy

A number of policies and directives have been issued in the last two or three years but none is more direct than the "safe harbors" concept in providing certainty regarding future actions and the potential impacts of the ESA implementation on those actions. Basically, landowners/managers are protected against future restrictions for take above an established environmental baseline which is determined at the time of entering into the agreement. These "safe harbors" agreements are very popular in the Southeast where more than 15 such agreements have been finalized and many more are in the process of development.

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Over 23 "safe harbors" agreements have been reached or are in the process of development.

"No Surprises" Policy

In July 1994, the Department of the Interior announced a "no surprises" policy regarding previously approved Habitat Conservation Plans. In a nutshell this policy stated that fully operational incidental take permits would not be required to be amended or expanded to include newly listed species that occurred within the permit area. The "no surprises" policy also provides some certainty to already permitted activities under the ESA from future requirements for mitigation for species covered by the Issued permit or for requirements for mitigation to address any future listed species.

The Service's Candidate Species Guidance and Habitat Conservation Planning Guidance incorporate the "no surprises" policy relative to candidate species. Including candidate species in an HCP is strictly voluntary on the part of permit applicants. However, these two guidance policies provide that if an HCP addresses candidate species as if they were listed, the species subsequently become listed, they may be readily covered under the permit. Consequently, permittees avoid project delays and enjoy long-term certainty.

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Since the promulgation of these policies at least 26 multi-species Habitat Conservation Plans have been developed or are in some stage of development and negotiation. Very likely these plans include species that currently are candidates for listing. By including these species in these plans in some cases the need for listing may be precluded or if listing is necessary the certainty regarding the permitted actions is built in the permit prior to listing.

Recovery Planning Improvements

The Service specifically issued a policy on recovery plan implementation and participation (FR 59 34272-34273). The main goal of this policy is to minimize the economic and social impacts of the implementation of recovery plans. This policy included several noticeable requirements such as:

the diversification of the areas of expertise represented in recovery teams in order to adequately address in a comprehensive fashion the local perspective on the recovery of listed species,

development of participation plans as a mechanism to involve the local stakeholders in the development of potential alternatives approaches to the recovery of listed species, and

a definite timeline for the development of recovery plans (2 5 years) to provide some measure of certainty for all stakeholders on the recovery process timeline to aid in local planning efforts

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8.

Non-traditional areas of expertise represented in ESA recovery initiatives since the promulgation of the policy include engineers, hydrologists, lawyers, water developers, ranchers, hydropower, propagation specialists, silviculturists, timber industry, road engineers, range specialists, GIS specialists, County Extension agents, foresters, Hydro-economists, population ecologists, riparian ecologists, water planners, local governments, contaminants, and statisticians.

Multispecies Recovery Plans

The Service's recovery plan policy (FR 59 34272-34273) also encouraged the use of a multi-species approach to the maximum extent practicable to increase the efficiency of the recovery process and harness all the limited resources available for recovery to achieve the highest return for the least expense,

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9.

Since the inception of the policy at least 7 multi-species recovery plans have been finalized or are in various stages of development.

Provide state, tribal and local governments with opportunities to play a greater role in carrying out the ESA.

Several policies and agreements have been adopted or entered into designed to increase participation by State, tribal and local governments. These include the following:

Under the Service policy published July 1, 1994 (FR 59 34273) the Service is required to include local stakeholders in the recovery planning process. More importantly, their expertise is sought in order to develop recovery alternatives that while meeting the recovery goals of the species also minimize the socioeconomic impacts of the recovery process on the local

communities.

On September 29, 1993 the Director signed an Order specifically dealing with the involvement of State agencies in ESA activities (Director's Order number 64). Furthermore, on July 1, 1994 a policy statement (FR 59 34274) was issued reaffirming the D O. #64 and requiring State agency involvement in all aspects of recovery planning. This policy and Director's order expanded the level of expertise that would be brought to bear in dealing with the task of recovering listed species. Additionally, this would `greatly enhance the efficiency of recovery efforts by providing closer coordination at both the Federal and State level.

Service candidate guidance emphasizes close coordination with States in identifying species that may warrant listing. No species will be placed on the candidate list without prior coordination with all the States in the species' range. This better ensures that the Service is in receipt of all available scientific and commercial information, ensures that the States are aware of the species' need for management, and enhances the likelihood that cooperative conservation actions can alleviate the causes for the species' decline and perhaps avert the need to list.

Tribal governments also possess much needed expertise and resources in terms of accomplishing ESA's goals. On August 31, 1995 the Service announced a new policy to enhance Native American tribal government participation in all aspects of the ESA. This will definitely enhance the quality of decisions made under the ESA but it will also ensure the continuity of an informal working relationship between the Service and the Tribal governments

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To date since the inception of the new policies the Service has included different

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stakeholders in over 380 recovery planning and/or implementation initiatives. For example, the Service has coordinated with the Meniminee and Winnebago tribes to jointly conduct surveys for the presence of Churner blue butterflies and to establish guidelines for re-planting of native vegetation for logged areas within known localities to alleviate the effects to the species, while allowing logging in these areas.

Prevent species from becoming endangered or threatened

The Service has developed a Candidate Conservation MOU which establishes a group of cooperators that proposes to work together towards combining their resources and authorities to develop conservation initiatives for species that may become listed as threatened or endangered in the near future By developing these strategies perhaps the need to list some of these species can be obviated, thus saving much needed resources for the recovery of already listed species.

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11.

Several important MOAs have been completed including the following:

A MOA was completed to effect restoration and conservation actions that may preclude the need to list the robust redhorse. Cooperators include Federal agencies (FWS and NBS), State Agencies (GA, SC, and NC), power companies, and conservation groups (GA Wildlife Federation). This partnership will study propagation research to augment the population of this species and the potential for reintroduction efforts to be successful for the species.

A MOU has been completed among the FWS, Forest Service, and the Arkansas Fish and Game Commission to explore common-sense ways to reduce the vulnerability of this species in the long term. If successful this effort will preclude the need to list this species as a threatened or endangered species.

A MOU was signed among the FWS, Forest Service, Arkansas Fish and Game, and Oklahoma Fish and Game Departments to improve the status of the Caddo Mountain salamander to a point where listing it as threatened or endangered species would be precluded

A MOU was signed between the FWS, NBS, and International Paper Company to
survey and develop and implement conservation actions for candidate species such as
Wherry's and white-topped pitcher plants on International Paper Company lands.
Such actions may very well preclude the need to list any of these candidate species.

Section 4(d) Rules for Threatened Species

One of the most flexible, but little used provisions of the ESA is section 4(d). However, this provision has shown its worth in providing the necessary flexibility to effectively deal with protection of threatened species and regional economic development activities. An example of this flexibility is the northern spotted owl rule which releases approximately 80 percent of the privately held forest lands while protecting the owl. The Service encourages the development of section 4(d) special rules whenever appropriate.

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On August 4, 1995 the Service published (FR 60 39921-39925) a proposal to enact counterpart section 7 regulations with the purpose of streamlining the section 7 process for activities under the purview of the Forest Service and the Bureau of Land Management. This process, if approved, will greatly enhance the early consultation opportunities between these agencies and the Service, and provides for early consideration of listed species concerns before critical decisions are made

13. Ecosystem approach

By adopting a policy of ecosystem management for the implementation of ESA activities (FR 59 34273-34274) the Service definitely has focused on the most efficient and effective approach to achieve the recovery of most listed species. This approach also encourages the inclusion of multiple species in each recovery effort, thus allowing for a comprehensive view of the recovery goals of multiple species

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Since the inception of this and related policies described herein, the efficiency in the use of resources from outside the Service has increased significantly. For example at least 30 status reviews have been conducted with the cooperation of one or more partners, 38 prelisting agreements have been entered into or are in development, 7 multi-species recovery plans have been or are been developed, 26 multi-species HCPs are final or in the process of being finalized, and 28 HCPs have included one or more partners besides the applicant

Other Interagency Agreements

A variety of Memoranda of Understanding have been entered into by the Service and a multitude of agencies Most notably are the following:

The Interagency MOU on implementation of the ESA. This MOU states a commitment by the signatory agencies to utilize their authorities to further the purposes of the Act, take an ecosystem approach to the conservation of listed species, and among other things establish a national ESA interagency working group to provide a national forum for discussions regarding improvements to the implementation of the ESA provisions.

Federal Native Plant Conservation MOU. This MOƯ's purpose is to establish a committee that will establish national priorities for the conservation of the Nation's flora. This will definitely enhance the coordination among land Federal landholders in regards to the conservation of native plant species including listed species.

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