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Recovery Program: Endangered and Threatened Species, 1994

Relationship of Recovery to Other Sections of the Act

JPG-Kentucky Cave shrimp JPG-Gray Wolf

Coordination among Federal, State, and local agencies, academic researchers, conservation organizations, private individuals, and major land users is an essential ingredient in developing and implementing an effective recovery program. A summary of sections 6, 7, and 10 of the Act follows. These sections of the Act play an important role in the recovery of listed species.

Section 6 (Cooperation with the States)

Section 6 of the Act authorizes the Secretary to enter into cooperative agreements with States that establish and maintain an adequate and active program for the conservation of endangered species. Those States are provided with financial assistance to support the development of programs for the conservation of endangered and threatened species and to monitor the status of candidate and recovered species. Up to 5 percent of the combined annual amounts of the Federal Aid in Wildlife and Sport Fish Restoration accounts can be appropriated annually to the Cooperative Endangered Species Conservation Fund and allocated to the States in accordance with subsection 6(d) of the Act. The total appropriations for FY 1993 and FY 1994 for activities conducted under section 6 was $6.565 and $9.0 million respectively. The majority of recent grants have been used for implementation of recovery actions.

All 50 States, Puerto Rico, the Virgin Islands, and Guam are under cooperative agreements for animals. All but 11 of these entities are also under cooperative agreements for plants. States assist the recovery of endangered and threatened species and in monitoring the status of recovered species. Reimbursement can be up to 90 percent when two or more States have a common interest in conservation of one or more species.

These grants provide States with resources to participate in a wide array of recovery activities that include population assessments, habitat restoration, propagation, and reintroductions of listed species. States may also use section 6 grants to initiate conservation actions before a species is listed. Stabilization of candidate species and their habitats can often be accomplished in a more cost effective manner than through the process of listing, recovery planning and recovery implementation. A few examples of these grants are:

Section 7 (Interagency Cooperation)

Congress placed special responsibilities on all Federal agencies to ensure that the Federal government would not contribute to the extermination of species. Section 7(a)(1) of the Act clearly identifies the role Federal agencies play in recovery and directs them to use existing authorities to promote the conservation of listed species. These existing authorities include the National Forest Management Act of 1976 [16 U.S.C.A. 1601-1614], Multiple-Use Sustained Yield Act [16 U.S.C.A. 528-531], Federal Water Pollution Control Act Amendments of 1972 (i.e., the Clean Water Act) [22 U.S.C. 1251 et seq.], and the Federal Land Policy and Management Act [43 U.S.C. 1701 et seq.].

Responsibilities under section 7 of the Act fall into two categories. Under section 7(a)(1), Federal agencies are directed to use existing authorities to promote the conservation of listed species. Under section 7(a)(2), Federal agencies are precluded from authorizing, funding, or carrying out activities that are likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. Through consultation with the Service before initiating projects, the agencies review their actions to determine whether they could adversely affect listed species or habitat.

Section 7(a)(2) consultation may be either "informal" or "formal." Informal consultation provides an assessment of a proposed project to determine if formal consultation is required or if project modifications could be implemented that reduce or remove adverse impacts to the listed species. If an agency finds an action "may adversely affect" a listed species or designated critical habitat, formal consultation is required. Formal consultation results in a biological opinion outlining the Service's assessment of the proposed activity and its likely impact on the listed species. The Action agency may proceed with the action as proposed, provided no incidental take is anticipated. If incidental take is anticipated, the agency or the applicant must comply with the reasonable and prudent measures and implementing terms and conditions in the Servicers incidental take statement to avoid liability from taking under the Act.

A General Accounting Office study of the Act and the implementation of section 7 found that over a 5-year period (1987-1991) the Service conducted 71,560 informal consultations with Federal agencies to assess the potential for impacts on listed species and critical habitat. Of these, 2,000 (or 2.8 percent) required formal consultation, and only 350 (or 0.5 percent) of those concluded that the Federal action would be likely to jeopardize listed species or adversely modify critical habitat. In all but 23 cases, the Service and Federal action agencies were able to develop alternatives that allowed the actions to go forward while adequately protecting listed species or designated critical habitats. The 23 actions that were not undertaken due (in whole or in part) to listed species conflicts, represent less than 0.03 percent of all actions reviewed. Thus, over 99.97 percent of the projects were not "blocked" due to such conflicts. This success was largely due to informal cooperation between the Service and the Federal action agencies early in the planning process, allowing relatively minor adjustments to projects that decrease or remove any adverse impacts they may otherwise have on listed species. The cooperative spirit exhibited by many Federal agencies has contributed greatly to this record of success.

In addition to the determination of "jeopardy" or "no-jeopardy," the formal consultation process also provides a vehicle for recommending additional, discretionary conservation measures to Federal action agencies. Often drawing on tasks outlined in the implementation schedules of recovery plans, conservation actions appropriate to the Federal agency and the specific Federal action under review can be recommended in biological opinions. While not required, these actions provide a means whereby all Federal agencies can fulfill their section 7(a)(1) obligations to go beyond just ensuring that their actions do not jeopardize threatened or endangered species.

There are numerous instances where section 7 consultation has resulted in conservation benefits to listed and candidate species. For example:

All Federal agencies play a vital role in the conservation of listed and candidate species, and the Service makes a consistent effort to educate other Federal agencies and emphasizes the importance of the role they play in the conservation of the Nation's diverse natural resources.

Section 1O(a)(1)(B) (Habitat Conservation Plans)

Section 10(a)(1)(B) allows the Service to issue permits for the "take" of federally listed species if the taking will be incidental to, and not the purpose of, an otherwise lawful activity. Congress intended that the section 10(a)(1)(B) process be used to reduce conflicts between listed species and private development and to provide a framework that would encourage "creative partnerships" between the private sector and local, State, and Federal agencies in the interests of listed species and their habitat.

To obtain an "incidental take permit," an applicant must submit a Habitat Conservation Plan (HCP) that describes how the applicant will minimize and mitigate the impacts of the taking and how HCP implementation will be funded. An HCP allows development activities that impact threatened or endangered species in return for a conservation program implemented by the permittee that offsets those impacts or benefits the species. HCPs vary greatly in size and complexity, covering anywhere from a few acres to statewide efforts.

Recovery of listed species is not a direct requirement of the HCP process but is indirectly involved through the "no jeopardy" standard required by section 7(a)(2) of the Act and by the permit issuance criteria found at section 10(a)(2)(B). Under both these mandates, the Service must ensure that issuance of an incidental take permit does not "reduce appreciably the likelihood of the survival and recovery of the species in the wild." In other words, an HCP must not preclude or significantly reduce the recovery prospects of affected species. Nevertheless, though not a statutory requirement, many HCPs have a net positive affect on species recovery, and some substantially contribute to meeting recovery goals. This is especially true of HCPs that are range-wide or regional in scope because they provide long-term assurances of conservation actions and protection across large habitat areas. Recovery plans are often used to guide the crafting of HCPs. Thus, recovery is inherently an important consideration in any HCP. HCPs can significantly advance or even achieve recovery objectives.

The Service's role in the habitat conservation planning process is to provide technical assistance to the applicant during the HCP development phase, review the permit application and HCP, and issue the permit if all requirements have been satisfied. Examples of recently completed HCPs include the Simpson Timber Company HCP for the northern spotted owl in northern California (1992), the International Paper HCP for the Red Hills salamander in Alabama (1993), and the Metropolitan Bakersfield HCP for the San Joaquin kit fox and other species in California (1994). Each of these HCPs involves relatively large planning areas (30,000 to 380,000 acres) and allows economic activities (e.g., timber harvest or residential development) to proceed in endangered species habitat. However, each plan also requires that sufficient habitat be protected, through set-aside or acquisition, to offset project effects on listed species.

HCPs currently under development include the Brevard County HCP in Florida (10,000 acres); HCPs for timber harvest activities in Georgia (1,000,000 acres), South Carolina (3,000,000 acres), North Carolina (300,000 acres), Mississippi (500,000 acres), Washington (3,000,000 acres), and Oregon (300,000 acres); Washington County HCP in Utah (135,000 acres); Balcones Canyonlands HCP in Travis County, Texas (633,000 acres); Kern County HCP in California's San Jouquin Valley (1,920,000 acres); several HCPs in southern California being developed jointly with the State's Natural Communities Conservation Planning (NCCP) Program; and the Clark County HCP in Nevada (22,500 acres).

GIF-Black lace cactus

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