U.S. Fish and Wildlife Service Publishes Regulations Governing Revocation

U.S. Fish and Wildlife Service Publishes Regulations Governing Revocation
of Incidental Take Permits


The U.S. Fish and Wildlife Service today published in the Federal Register
new regulations covering incidental take permits issued under the
Endangered Species Act.  The regulations describe circumstances in which
the Service may revoke these permits.

The Service grants incidental take permits to landowners who have
voluntarily agreed to develop Habitat Conservation Plans, or HCPs.  These
plans provide a framework for landowners to conserve threatened and
endangered species on their property. In return, the permits give
landowners authorization for incidental take of listed species resulting
from otherwise lawful development or land use activities.

The regulations governing revocation of incidental take permits were first
published in June 1999. But a U.S. District Court judge for the District of
Columbia ruled the Service had violated the Administrative Procedure Act by
failing to provide the public with an adequate opportunity to comment. To
address the court ruling the Service:

·     Published a final rule on May 25, 2004, in the Federal Register
withdrawing the permit revocation regulations that the court vacated (69 FR
29669).

·     Published a proposed rule on May 25, 2004, in the Federal Register
providing notice to the public and requesting comments on the Service’s
proposed new regulations for revoking incidental take permits for Habitat
Conservation Plans (69 FR 29681).

·     Published a final rule December 10, 2004,  in the Federal Register
establishing regulations describing circumstances in which the Service may
revoke incidental take permits issued under the Endangered Species Act.

While the Service has not revoked an incidental take permit associated with
an HCP to date, these regulations clarify the limited circumstances when
this could happen. This rule allows the Service to revoke an incidental
take permit only if take of listed species caused by the permitted activity
will reduce the likelihood of survival and recovery in the wild of one or
more of the covered species and the Service cannot find a remedy to prevent
this situation.

The Service received approximately 250 comments on the proposed rule.  Most
commenters felt that the permit revocation regulations were appropriate as
proposed. Some commenters thought the permit revocation regulations
inappropriately limited when the Service could revoke incidental take
permits.  A few commenters thought the proposed regulations were overly
protective of listed resources and undermined the regulatory certainty
provided by the No Surprises Rule.

The Service deleted the phase “in a timely fashion” from the final
regulations because each HCP is unique.  It is difficult to define a
precise timeframe in which the Service would remedy a situation in which
the permitted activity would appreciably reduce the likelihood of survival
and recovery in the wild of one or more of the covered species or revoke an
incidental take permit.  Regulations regarding the procedure for making
such findings are found in 50 CFR 17.22(b)(5)(iii) and 17.32(b)(5)(iii).

The U.S. Fish and Wildlife Service is the principal Federal agency
responsible for conserving, protecting and enhancing fish, wildlife and
plants and their habitats for the continuing benefit of the American
people. The Service manages the 95-million-acre National Wildlife Refuge
System which encompasses 544 national wildlife refuges, thousands of small
wetlands and other special management areas. It also operates 69 national
fish hatcheries, 63 fishery resource offices and 81 ecological services
field stations. The agency enforces Federal wildlife laws, administers the
Endangered Species Act, manages migratory bird populations, restores
nationally significant fisheries, conserves and restores wildlife habitat
such as wetlands, and helps foreign governments with their conservation
efforts. It also oversees the Federal Aid program that distributes hundreds
of millions of dollars in excise taxes on fishing and hunting equipment to
State fish and wildlife agencies.
U.S. Fish and Wildlife Service Publishes Regulations Governing Revocation
of Incidental Take Permits


The U.S. Fish and Wildlife Service today published in the Federal Register
new regulations covering incidental take permits issued under the
Endangered Species Act.  The regulations describe circumstances in which
the Service may revoke these permits.

The Service grants incidental take permits to landowners who have
voluntarily agreed to develop Habitat Conservation Plans, or HCPs.  These
plans provide a framework for landowners to conserve threatened and
endangered species on their property. In return, the permits give
landowners authorization for incidental take of listed species resulting
from otherwise lawful development or land use activities.

The regulations governing revocation of incidental take permits were first
published in June 1999. But a U.S. District Court judge for the District of
Columbia ruled the Service had violated the Administrative Procedure Act by
failing to provide the public with an adequate opportunity to comment. To
address the court ruling the Service:

·     Published a final rule on May 25, 2004, in the Federal Register
withdrawing the permit revocation regulations that the court vacated (69 FR
29669).

·     Published a proposed rule on May 25, 2004, in the Federal Register
providing notice to the public and requesting comments on the Service’s
proposed new regulations for revoking incidental take permits for Habitat
Conservation Plans (69 FR 29681).

·     Published a final rule December 10, 2004,  in the Federal Register
establishing regulations describing circumstances in which the Service may
revoke incidental take permits issued under the Endangered Species Act.

While the Service has not revoked an incidental take permit associated with
an HCP to date, these regulations clarify the limited circumstances when
this could happen. This rule allows the Service to revoke an incidental
take permit only if take of listed species caused by the permitted activity
will reduce the likelihood of survival and recovery in the wild of one or
more of the covered species and the Service cannot find a remedy to prevent
this situation.

The Service received approximately 250 comments on the proposed rule.  Most
commenters felt that the permit revocation regulations were appropriate as
proposed. Some commenters thought the permit revocation regulations
inappropriately limited when the Service could revoke incidental take
permits.  A few commenters thought the proposed regulations were overly
protective of listed resources and undermined the regulatory certainty
provided by the No Surprises Rule.

The Service deleted the phase “in a timely fashion” from the final
regulations because each HCP is unique.  It is difficult to define a
precise timeframe in which the Service would remedy a situation in which
the permitted activity would appreciably reduce the likelihood of survival
and recovery in the wild of one or more of the covered species or revoke an
incidental take permit.  Regulations regarding the procedure for making
such findings are found in 50 CFR 17.22(b)(5)(iii) and 17.32(b)(5)(iii).

The U.S. Fish and Wildlife Service is the principal Federal agency
responsible for conserving, protecting and enhancing fish, wildlife and
plants and their habitats for the continuing benefit of the American
people. The Service manages the 95-million-acre National Wildlife Refuge
System which encompasses 544 national wildlife refuges, thousands of small
wetlands and other special management areas. It also operates 69 national
fish hatcheries, 63 fishery resource offices and 81 ecological services
field stations. The agency enforces Federal wildlife laws, administers the
Endangered Species Act, manages migratory bird populations, restores
nationally significant fisheries, conserves and restores wildlife habitat
such as wetlands, and helps foreign governments with their conservation
efforts. It also oversees the Federal Aid program that distributes hundreds
of millions of dollars in excise taxes on fishing and hunting equipment to
State fish and wildlife agencies.