U.S. Fish and Wildlife Service Finalizes Changes to Voluntary Endangered Species Act Programs and Related Permitting Process

On Friday, April 12, 2024, the U.S. Fish and Wildlife Service (the Service) issued a Final Rule making changes to 50 CFR part 13 to clarify and expedite the process for issuing enhancement of survival permits and incidental take permits pursuant to Section 10(a)(1)(A) and (B), respectively, of the Endangered Species Act. The regulatory changes are intended to provide the Service greater flexibility in implementing the permitting process and generate greater conservation results by encouraging additional engagement in voluntary programs associated with these permits, including safe harbor agreements (SHAs), candidate conservation agreements with assurances (CCAAs), and habitat conservation plans (HCPs).

Expanding the Scope of Enhancement of Survival. First, the Final Rule clarifies that an enhancement of survival permit, rather than an incidental take permit, is the appropriate permit mechanism to authorize take, above the baseline condition, for scientific purposes or to enhance the propagation or survival of the affected species. Such actions may include those addressing threats to covered species, establishing new wild populations, or otherwise benefiting the condition of the species or the amount or quality of its habitat to provide a net conservation benefit. Incidental take permits will remain the mechanism for authorized take that is incidental to otherwise lawful activities such as resource extraction, commercial development, and energy infrastructure.

Non-Listed Species. Second, the Final Rule provides additional flexibility to the Service to issue both permit types for non-listed species without having to include a listed species. Under such a permit, a permittee would be required to immediately begin implementing the conservation commitments for the non-listed species, but the associated take authorization would not go into effect until the non-listed species becomes listed (as either endangered or threatened).

Conservation Benefit Agreement. Third, and notably, the Final Rule simplifies the permitting options under Section 10(a)(1)(A) by combining CCAAs and SHAs into a single agreement type: a conservation benefit agreement. After the effective date of the Final Rule, the Service will no longer implement its CCAA and SHA policies.

Other Notable Changes. The Final Rule includes a number of other changes, including these:

• incorporating the five-point policy for safe harbor agreements and incidental take permits as well as guidance from the 2016 Habitat Conservation Planning Handbook to clarify and streamline the permitting process
• ensuring that applicants for an enhancement of survival permit have the option to return a property to baseline condition and codifying the definition of “baseline condition”
• clarifying regulatory language to emphasize that the Service’s authority pertains only to authorizing take of covered species and not the activities that may result in such a take
• clarifying the requirements for complete applications under ESA Sections 10(a)(1)(A) and (B)

Promulgation of the Final Rule will not require reevaluation of previously issued permits or applications in process and published in the Federal Register. However, applications for new permits, renewals, or amendments received after the effective date are subject to the Final Rule.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.