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HomeMy WebLinkAboutMINUTES - 07202004 - C.72 Contra Costa TO: BOARD OF SUPERVISORS QCounty FROM: DENNIS M. BARRY, AICD 7 COMMUNITY DEVELOPMENT DIRECTOR DATE: July 20, 2004 SUBJECT: Report on Letter to the U.S. Fish and Wildlife Service re: "No Surprises" Rule SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION AUTHORIZE the Community Development Director, or his designee, to co-sign a letter to the U.S. Fish and Wildlife along with other local agencies involved in Regional Habitat Conservation Plans to express support for reinstating the"No Surprises" rule that has been an underpinning of regional conservation planning efforts. FISCAL IMPACT None. BACKGROUND?/REASONS FOR RECOMMENDATIONS On May 25, 2004 the U.S. Fish and Wildlife Service published a proposed Permit Revocation Rule related to the issuance of incidental take permits under the Federal Endangered Species Act. The primary purpose of this rule-making effort is to reinstate "No Surprises". "No Surprises" has been a foundation of Habitat Conservation Planning. It guarantees permittees that once a Habitat Conservation Plan is completed and approved by the permittee and the U.S. Fish and Wildlife Service, that the U.S. Fish and Wildlife will not subsequently and unilaterally change key permit terms and mitigation requirements. A federal judge recently suspended "No Surprises" citing errors in the rule-making process and the U.S. Fish and Wildlife Service has reinitiated the rule-making process in response. CONTINUED ON ATTACHMENT: YES SIGNATURE -RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMI EE APPROVE-,.--,,, OTHER SIGNATURE (S):` ACTION OF BdD ON APPROVED AS RECOMMENDED -OTS VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS {ABSENT AND CORRECT COPY OF AN ACTION TAKEN TAKEN AND ENTERED ON THE MINUTES AYES: NOES: OF THE BOARD OF SUPERVISORS ON ABSENT: ABSTAIN: THE DATE SHOWN. Contact: John Kopchik(925-335-1227) ATTESTED _. �e_ cc: Community Development Department (CDD) JOHN SWE N, CLERK OF County Administrator THE BOARD OF SUPERVISORS County Counsel AND COUNTY ADMINISTRATOR Public Works Director €� BY ���,�D PUTY G:\Conservation\HCPA\board—order no—suri)hses_7-20-04.doc C7 Report on tetter to the U.S. Fish and Wildlife Service re: "No Surprises" Rule July 20, 2004 Page 2 of 2 The County is a participant in the East Contra Costa County Habitat Conservation Plan Association, a Joint Powers Authority working to develop a regional Habitat Conservation Plan for East County. Inclusion of "No Surprises" provisions in the Habitat Conservation Plan was a key Principle of Participation cited by the County and other agency participants when deciding to launch the conservation planning effort. Other Northern California agencies that have been asked to sign include the Counties of Placer, Sacramento, and Yolo and the Solano County Water Agency. A copy of proposed draft text of the letter is attached. ........ ......... ......... ...... . July_, 2004 Sent By Facsimile and Electronic Mail Mr. Patrick Leonard Chief, Division of Consultation, Habitat Conservation Planning,Recovery and State Grants U.S. Fish and.Wildlife Service 4401 North Fairfax Drive, Room 420 Arlington, VA 22203 Fax.: (703) 3582229 Email: <pprrfws.gov> RE: USFWS Proposal to Reestablish permit Revocation Regulations RIN 1 X118 AT64 Mr. Leonard: This letter responds to the U.S. Fish and Wildlife Service's ("USFWS") request for public comment on the proposal to reestablish the Permit Revocation Rule.' The counties and special districts that have joined together in this comment letter would like to emphasize four key points in support of the proposed Permit Revocation Rule: • California local governments can play a pivotal role in safeguarding natural resources, including species listed ander the federal Endangered Species Act ("ESA"), • The significant challenges that confront local governments in carrying out this role can be moderated by regional habitat conservation planning; • Uniform, clear and reasonable policies regarding the revocation and modification of incidental take permits ("ITPs") provide an important incentive for development of such plans, and • Congress intended for USFWS to write uniform, clear, and reasonable policies regarding revocation and modification, to insert them into ITPs as terms and ' 69 Fed.Reg.29681 (May 25,2004). {00004660.DOC.8) Mr. Patrick Leonard July_, 2004 Page 2 conditions, and to thereafter abide by those terms and conditions, so long as the permittee holds up its end of the bargain. 1. The Role of Local Government in Safeguarding Species. California local governments can play an important role in safeguarding natural resources, including species listed under the ESA. The opportunity for them to do so arises under the inherent police power held by local governments, and under state statutes such as the California Environmental Quality Act and the California Planning and Zoning Law. The Police Power. In the United States, the common law recognizes that the power to directly regulate land use is the province of governmental entities that have the "police power"—the power of the sovereign to protect public health and the safety and welfare of residents. Within the ambit of the police power is also "the protection of endangered species of wildlife . . . as a matter of general concern and in the interests of the public."3 Local governments such as cities and counties have the police power inherently, not by virtue of a grant of authority from the state Legislature or federal government, and in California their possession of this power is also recognized in the state Constitution.4 The police power is not only inherent but also plenary, in that its possessor may enact legislation of any and every type. In any circumstance where the exercise of the sovereign, inherent, and plenary police power is not limited by the U.S. Constitution or displaced by state law, California local governments have an ability to directly advance the protection of species wherever they independently deem appropriate. California Environmental Quality Act. The California Legislature has also by statute provided local government with additional tools for advancing protection of the natural environment, including species. One example is the California Environmental Quality Act ("CEQA"),5 which is, in certain ways, analogous to the National Environmental Policy Actio ("NEPA"). Under CEQA, when a public agency in California 2 Berman v. Parker, 348 U.S. 26 (1954); Solid waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001) 531 U.S. 159, 174 (acknowledging"the states' traditional and primary power over land and water use'"). 3 People v.K. Sakai Co.,56 Cal.App. 3d 531,539(1976). ° Cal. Const. Art. XI, § 7; Devita v. County of Napa,9 Cal. 4th 763, 782 (1995). A city's police power is subject to displacement by general state law but otherwise is as broad as the police power exercisable by the state Legislature. Birkenfeld v. City of Berkeley, 17 CaDd 129, 140(1976). The police power is even more pronounced with respect to charter cities in California, since, in matters relating to municipal affairs, they are exempt from the restriction that their ordinances and regulations cannot conflict with general laws. Bishop v. San Jose, 1 Cal.3d 56,61 (1969). s Cal.Pub.Resources Code§ 21000 et seg.("CEQA"). The requirements of CEQA apply not only to cities and counties,but also to special districts,and other public agencies in California. 6 42 U.S.C. §4321,et seg. {ao004660.DoC.8) Mr. Patrick Leonard July_, 2004 Page 3 finds the impacts of a proposed project to be significant, the agency must address those effects through one or more findings, and typically by requiring mitigation. CEQA includes a low threshold for deeming impacts on endangered, threatened, and rare species, and their habitat, to be significant.7 CEQA's concept of significant effect embodies very high degree of sensitivity toward listed species. Linder the CEQA Guidelines, a local government is required to find significant any project impact having the "potential to...reduce the number or restrict the range of an endangered, rare or threatened species...."8 Linder CEQA, such species include not only species that are listed under the ESA or the California Endangered Species Act9"CESA", but also species that should be but are not listed.° Under CEQA, thus, California local governments have a specific ability to apply a protective legal standard to a wide set of species. This power arises not at the behest of federal authorities nor through any delegation or in-lieu arrangement requiring federal approval,but rather through California state law. California Planning and Zoning Law. Similarly, under the California Planning and Zoning Law,'' state law provides local governments with particular statutory tools for species protection. A local government's general plan is the "constitution" governing all future developments.12 A general plan in California is a comprehensive, long-term plan for the physical development of both the lands within the local government's jurisdiction, and of any land outside its boundaries which in the local government's judgment bears relation to its planning.13 Any land use action subordinate to the general plan (e.g., a zoning decision or project permit) must be consistent with a legally adequate local general plan.14 To be legally adequate, California law mandates that a general plan contain certain mandatory elements.15 Among these are land use, conservation, and open space elements. The conservation element of the general plan addresses the identification, conservation, development and use of natural resources, including wildlife and others.16 Through the Planning and Zoning Law, therefore, provides California local governments also the ability to govern land use and address wildlife conservation in particular ways. CEQA Guidelines,Cal.Cotte Regs.,tit. 14,§15065,subd.(a)("CEQA Guidelines"), 'CEQA Guidelines, § 15065,subd.(a). 9 Cal.Fish&G.Code, § 2050 et seq. 1°CEQA Guidelines, § 15380,subd. (d). 11 Cal.Gov't Code, § 65000,et seq. 12 Lesher Communications,Inc.v.City of Walnut Creek(1990)52 Cal.3d 531;Citizens of Goleta Valley v. Board of Supervisors(1990)52 CAM 553. 13 Cal.Gov't Code, §65300. The requirement to prepare and adopt a general plan applies to cities and counties. 14 Lesher,supra,52 Ca1.3d at 544. 15 Cal.Gov't Code, § 65302. 16 Cal.Gov't Code§ 65302,subd. (d.). (00004660.DOC.8) Mr. Patrick Leonard July_, 2004 Page 4 2. Coordinating Local Government Action Through Regional Conservation Planning. California local governments confront particular challenges in carrying out their protective role under the police power and state law, but these challenges can be addressed to some degree by regional habitat conservation planning, which provides a mechanism for mediating between and coordinating the activities of federal and local government. Specifically, some mechanism is needed to integrate, or at least to reconcile, local activities carried out under state and local authorities and federal activities carried out under the Commerce Clause. Congress recognized that regional conservation planning provides one tool to do so. The Commerce Clause. In contrast with California local governments, the U.S. "Constitution creates a Federal Government of enumerated powers."" The federal government does not have the plenary police power,'8 and instead has customarily founded its assertions of regulatory authority over matters affecting the environment and natural resources on the Commerce Clause--the authority of Congress "[t]o regulate Commerce . . . among the several States . . . ."'9 One expression of the Commerce Clause power is the ESA.20 The "Take"Prohibition. As you know, under the ESA, species may be listed by the USFWS or the National Marine Fisheries Service ("NMFS") (collectively, the "Services") as endangered or threatened.2' The ESA makes it unlawful to "take" a species that has been listed and subjected to this "take"prohibition.22 "Taking" a species means harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting member(s) of the species or attempting to do any of these things.23 "Harm" in the definition of "take" is defined to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."24 In certain circumstances, ground disturbing activities associated with the conversion of land to development purposes can involve a degree of habitat modification that would constitute unlawful "harm." The ESA's take prohibition thereby brings the ESA into the arena of local governmental decision-making regarding land use matters. Incidental Take Permits. While it is unlawful to intentionally "take" a listed species, the ESA allows USFWS or NMFS to issue permits allowing such take if the 17 United States v.Lopez(1995)514 U.S. 549,552. 16 United States v.Lopez(1995)514 U.S. 549,566,citing U.S.Const.,Art.L, § 8. 19 U.S.Const.,Art.I, 8,cl.3. 20 16 U.S.C. § 1531,et seq. 2i 16 U.S.C. § 1533. 22 16 U.S.C. §§ 1538, 1533(d). 23 16 U.S.C. § 1532(18). 24 50 C.F.R. § 17.3 (regulations of USFWS);50 C.F.R. § 222.102(regulations of NMFS)(essential behavior patterns also include spawning,rearing,and migrating). (00004660.DOC.8) ....................................................... Mr. Patrick Leonard July_, 2044 Page 5 taking is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."25 An ITP can only be issued if the permit applicant submits a habitat conservation plan ("HCP") to USFWS or NMFS, and the agency then approves it. The HCP has to specify: (1) the impacts that are likely to result from the taking; (2) the steps the applicant will take to minimize and mitigate those impacts; (3) the funding that will be available to implement those steps; (4) the alternatives the applicant considered; (5) the reason why the alternatives are not being utilized; and (6) such other necessary and appropriate measures that the Service may require.26 The ITP shall be issued if the Service finds that: (1) the taking will be incidental; (2) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (3) the applicant will ensure that adequate funding for the plan will be provided; (4) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (5) the mitigation measures required by the Service will be met and the Service has received such other assurances as it may require that the plan will be implernented.21 Regional Conservation Planning. Cities and counties take on the formidable task of regional conservation planning not simply to avoid liability under the ESA, but to improve land use planning and the land use planning process. ITPs issued in connection with regional HCPs devolve a degree of ESA permitting authority onto local governments. This structure helps to consolidate control over land use decisions in the level of government that has been generally and historically regarded as best suited to that task. Landowners apply, in the first instance, to the local government for authorization to take species under the ESA. Local governments then issue local government permits to landowners in conformance with the HCP and ITP that the Services have earlier approved. Such an approach—once all of the arduous and costly work has been done to put it in place-----provides an opportunity to reduce conflicts between, on the one hand, local governments exercising their inherent police power and their duties under state law and, on the other, the federal government exercising power under the Commerce Clause. A regional HCP can also facilitate multi-party coordination among the Services, local governments seeking to develop land use plans in cooperation with neighboring jurisdictions, and both private and governmental entities seeking to make management decisions regarding land that they awn. Where a local government is undertaking a regional conservation planning process, other private and governmental entities may also participate in the plan, helping to make their activities as landowners more consistent with the overall conservation vision offered by the plan. Programmatic permitting based on regional conservation plans can thereby help to coordinate and reconcile conflicts between restrictions imposed by the federal as 16 U.S.C. § 1539(a)(1)(B). z� 16 U.S.C. § 1539(a)(2)(A). 16 U.S.C. § 1539(a)(2)(B). {00004660.DOC.8) Mr. Patrick Leonard July_, 2004 Page 6 government under the Commerce Clause power and restrictions imposed by one or more local governments under their inherent police power. Ordinarily, the USFWS and NMFS are charged with ensuring on a case-by-case basis that each individual project or activity of each landowner complies with the ESA. In doing so, the Services may render mitigation or enforcement determinations that are not based on a well-thought-out regional vision for species and habitat needs, and may conflict with determinations by local authorities on the same project or activity. Federal agency decisions may follow and conflict with local government decisions, or vice versa. With the opportunity provided by regional conservation plans, species conservation efforts can be integrated more fundamentally and consistently into the fabric of local land use planning. Where Regional Conservation Planning Fits Into the Intent of Congress. In enacting the Endangered Species Act Amendments of 1982, Congress included the incidental take provisions of section I0(a) with at least three discernable purposes in mind. The first two of these purposes, below, plainly encompass regional conservation planning efforts. And this places a special responsibility on the USFWS to consider the effect its regulations may have not only on potential ITP holders when considered as an undifferentiated group, but rather with particular attention to the effects on local government permittees willing to do the hard work of helping to weave together a regional approach to species conservation. Thus, the intent of Congress was: • To foster "creative partnerships" among governmental agencies, an approach that Congress envisioned to be an alternative mode to the ESA's traditional "regulatory mechanisms."Zs • To establish a mechanism for conserving ecosystems, a mechanism which goes beyond a focus on listed species and "regulatory mechanisms," and which is a goal of not only the ESA but also other wildlife statutes.24 28 "To the maximum extent possible, the Secretary should utilize this authority under this provision to encourage creative partnerships between the public and private sectors and among governmental agencies in the interest of species and habitat conservation. . . . This provision will measurably reduce conflicts under the Act and will provide the institutional framework to permit cooperation between the public and private sectors in the interest of endangered species and habitat conservation. [Ifl The terms of this provision require a unique partnership between the public and private sectors in the interest of species and habitat conservation." Conference Report on the Endangered Species Act Amendments of 1982, H.R. Conf.Rep.No.97-835,97th Cong.,2d Sess. at pp.30-31 (Sept. 17, 1982)(hereinafter"Conf,Report"). 29 "1n enacting the Endangered Species Act, Congress recognized that individual species should not be viewed in isolation,but must be viewed in terms of their relationship to the ecosystem of which they form a constitutent [sic] element. Although the regulatory mechanisms of the Act focus on species that are formally listed as endangered or threatened, the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species. This is consistent with the purposes of several other fish and wildlife statutes (e.g.,Fish and Wildlife Act of 1956, Fish and Wildlife Coordination Act) which are intended to authorize the Secretary to cooperate with the states and private entities on matters regarding conservation of all fish and wildlife resources of this nation. The conservation plan will implement the broader purposes of all of those statutes and allow unlisted species to be addressed in the plan."Conf Report at p.30. {00004660.DOC.8) Mr. Patrick Leonard July , 2004 Page 7 • To establish an exemption that, in appropriate circumstances, will provide landowners with relief from the take prohibition. ° 3. Revocation and Modification Policies, and Other Incentives to Plan. Uniform, clear and reasonable policies regarding the revocation and modification of ITPs provide an important incentive for development of regional habitat conservation plans. The No Surprises Rule represents a uniform, clear, and reasonable policy, in regard to the question of permit modification. And the Permit Revocation Rule represents a uniform, clear, and reasonable policy,in regard to revocation. Buying Plans and Lands in .Exchange for Allocation of Unforeseen Risks. Applicants for regional ITPs bear the substantial costs of preparing and submitting HCPs to the Services. Under an ITP and its associated HCP, the applicants commit to providing land, water and money to minimize and mitigate the impacts of taking listed species. As they undertake these commitments, they desire as much economic and regulatory certainty as possible regarding the overall costs of mitigation that they will bear during the life of the permit. With the added degree of certainty represented by the No Surprises Rule, applicants for regional ITPs are provided an incentive to exceed the minimal requirements established by statute and to make planning assumptions that favor species protection. For example, because of the No Surprises Rule's limitation against requiring additional mitigation lands or funds beyond those provided for in the plan, an incentive exists for permittees to provide for the needs of species that are presently not listed under the ESA and that otherwise, therefore, receive no protection under the Act. Through the No Surprises rule, therefore, federal agencies not only provide an incentive for the protection for a wider set of species and more habitat than they could otherwise obtain, but they also can achieve this by leveraging the direct efforts of local government. In order to use a regional HCP to make longterm financial and land-use decisions, local governments and special districts require reasonable certainty that the HCP will not be revised significantly over time. They want the Services to instead agree 30 Section 10(a) "adopt[s], with amendments a provision appearing in the House bill to give the Secretary more flexibility in regulating the incidental taking of endangered and threatened species. This provision establishes a procedure whereby those persons whose actions may affect endangered or threatened species may receive permits for the incidental taking of such species, provided the action will not jeopardize the continued existence of the species. This provision addresses the concerns of private landowners who are faced with having otherwise lawful actions not requiring Federal permits prevented by section 9 prohibitions against taking." Conf. Report, at p. 29. Prior to 1982 amendments, the ESA allowed the Secretary to"permit,under such terns and conditions as he may prescribe,any act otherwise prohibited by section 9 of this Act for scientific purposes or to enhance the propagation or survival of the affected species." Section§ 10(a)as added by the Endangered Species Act of 1973,Dec.28, 1973,by P.L.93-205, §10(a),87 Stat. 884. {00004660DOC.8) Mr. Patrick Leonard July_, 2004 Page 8 up front on the extent of mitigation commitments, and, to the extent possible, embody those commitments in the plan documents themselves. In other words, in exchange for their own up-front commitments and commitments during the term of the ITP, applicants desire"assurances"that there will be"no surprises." At root, then, the "no surprises" rule fulfills a need to encourage a significant initial investment in exchange for long-term risk sharing—a tool to encourage non- federal actors to voluntarily plan for, act consistently with, and provide resources for the needs of sensitive species and habitat, beyond what federal authorities can otherwise achieve on their own. The rule accomplishes this by sharing the risk of unforeseen species decline during the duration of an ITP with persons other than the permittee. At the same time, regional HCPs are not premised on a static view of species needs. Through adaptive management, the pursuit of identified goals and objectives, and the strategic flexibility typically incorporated into the terms of the plans themselves, regional HCPs today provide USFWS and permittees an opportunity to adjust and respond to unforeseen species decline in a strategic coordinated fashion. The No Surprises Rule provides the USFWS and permittee an incentive to build such responsiveness into a plan.31 Expansive permit revocation criteria, which might stop the operation of an HCP before its program could respond to early signs of species decline, would be at odds with the programmatic nature of regional HCPs. Where No Surprises Assurances Fit Into the 1973 and 1982 Enactments. The Services' decision to establish a formal policy of providing"no surprises" assurances was principally a response to enactment of the Endangered Species Act Amendments of 1982. Thus, the purposes underlying the policy and rule include the following: • To carry out the intent of Congress that commitments from ITP permittees be accompanied by assurances from the federal government.32 • To induce greater conservation of species and habitat on non-federal lands.33 31 See,e.g.,the USFWS Five-Point Policy Guidance,65 Fed.Reg, 35242,35243 (.Tune 1,2000)("The No Surprises assurances encourage contingency planning. Changes in circumstances that can reasonably be anticipated during the implementation of an HCP can be planned for in the HCP. Such HCPs should describe the modifications in the project or activity that will be implemented if these circumstances occur."), 32"The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long-term commitments regarding the conservation of listed as well as unlisted species and long- term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan." Conf. Report at p. 30. 33 "[A] driving concern in the development of the policy was the absence of adequate incentives for non- Federal landowners to factor endangered species conservation into their day-to-day land management activities. The Services knew that much of the habitat of listed species is in non-Federal lands and believed that HCPs should play a major role in protecting this habitat, Yet, while thousands of acres of species habitat were disappearing each year, only a handful of HCPs had been sought and approved since 1982. {00004660.DOC.8} _................................................................ ................................................._.._._... ............................................................................................................................................................................................................................................................................................................................ Mr. Patrick Leonard July_, 2004 Page 9 While primarily an agency implementation response to the policy judgments of the 97th Congress embodied in the Endangered Species Act Amendments of 1982, "no surprises" assurances are also consonant with the policy purposes set forth by the 93rd Congress when enacting the Federal Endangered Species Act of 1973. In that Act, Congress found and declared that: encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.34 Where the Permit Revocation Rule Fits Into the ,System of Incentives. The question of when USFWS can revoke a permit is inherently related to the question of when USFWS can modify a permit. If USFWS is given broad discretion to revoke a permit, the agency could unfairly coerce permit modifications through threat of revocation. Uniform, clear and reasonable policies regarding permit revocation that are consistent with policies regarding the modification of ITPs are a necessary condition for development of regional habitat conservation plans. They are both part of"a system of incentives" and the provision of "assurances" in accord with the intent of Congress as expressed in both 1973 and 1982. 4. The Intent of Congress. The statutory language of ESA section 10(a)(2)(C) establishes a requirement that USFWS or NMFS shall revoke an incidental take permit if the agency finds that "the permittee is not complying with the terms and conditions of the permit." This statutory language is an appropriate revocation standard for incidental take permits with No Surprises assurances. The Conference Report regarding the 1982 amendments to Section The No Surprises policy was designed to rechannel this uncontrolled ongoing habitat loss through the regulatory structure of section 10(a)(1)(B) by offering regulatory certainty to non-Federal landowners in exchange for a long-term commitment to species conservation. Given the significant increase in landowner interest in HCPs since the development of the No Surprises policy, the Services believe that the policy has accomplished one of its primary objectives—to act as a catalyst for integrating endangered species conservation into day-to-day management operations on non-Federal lands. The Services also believe that the HCP process, which is a mechanism that reconciles economic development and the conservation of listed species, is good for rare and declining species, and encourages the development of more of these plans. If species are to survive and recover, such plans are necessary because more than half of the species listed have 80 percent of their habitat on non-Federal lands." 63 Fed.Reg. 8859,8860(Feb.23, 1998). " 16 U.S.C. § 1531(a)(5),added Dec.28, 1973,by P.L.93-205, §2(a)(5),87 Stat. 884(emphasis added). 100004660.DOC.8) Mr. Patrick Leonard July_, 2004 Page 10 10 states that "The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long-term commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan."3s There is no statutory requirement that USFWS promulgate any regulation setting forth criteria for revocation of incidental take permits. As indicated by the statute and its legislative history, Congress had a clear preference that the USFWS state in each permit what it will or has agreed to under that permit. In promulgating a rule regarding permit revocation, it is important that the USFWS should remain consistent with that intent. The rule proposed here by the USFWS, which incorporates by reference an applicable permit- issuance criterion, is consistent with that intent. Thank you for the opportunity to comment on the USFWS proposal to reestablish the Permit Revocation Rule and for your kind attention to the points raised herein. Sincerely, [SIGNATURE BLOCKS] 35 Conference Report on the Endangered Species Act Amendments of 1982,H.R. Conf.Rep.No. 97-835, 97th Cong.,2d Sess. at p.30(Sept. 17, 1982)(emphasis added). 100004660.DOC.8)