American Oil and Gas Reporter - March 2018 - 99

Industry Asks For Flexibility In CCAAs
WASHINGTON-Candidate Conservation Agreements with Assurances
(CCAAs) are beneficial for conserving
endangered species and their habitats,
but need to be flexible enough to encourage
participation by landowners, suggest four
oil and gas associations.
The Independent Petroleum Association
of America, American Exploration &
Production Council, American Petroleum
Institute and the International Association
of Geophysical Contractors filed comments
with the U.S. Fish & Wildlife Service in
response to a November announcement
that the service was reviewing and might
revise its CCAA policies and regulations.
Those late January comments urge
USFWS to continue to support CCAAs,
but ask the agency to withdraw and revise
several plan amendments adopted in December 2016. The associations make four
detailed recommendations:
* Restore a past directive that CCAAs
"preclude or remove any need to list"
and adopt flexibility in evaluating proposals for CCAAs;
* Avoid a one-size-fit-all standard
for evaluating conservation benefits;
* Eliminate the net-conservation-benefit standard adopted in 2016; and
* Do not evaluate CCAA proposals
based on speculative criteria.
In a separate letter, the four associations
recommend specific language for amending 50 CFR § 17.22(d)(2)(ii) and 50 CFR
§ 17.32(d)(ii) pertaining to CCAA permits
for enhancing species survival, and to 50
CFR § 17.32(d)(8) duration of permits.
The comments are available on IPAA's
website at www.ipaa.org under "Issues
& Policies" by clicking on "Letters &
Comments."
Return To The Past
The industry associations urge USFWS
to replace the phrase "net conservation
benefit" in its current CCAA policy with
the "preclude or remove any need to list
the species" language that existed previously.
They point out, "Such an approach will
align the scope of a given CCAA with the
characteristics of the property to be enrolled
and the capabilities of the property owners,
particularly given that individual property
owners do not possess the capability to remove the need to list a species."
The comments also note, "The potential
that a CCAA may preclude the need to list
a species can provide a significant incentive
for property owners to participate."
The associations observe that the final
CCAA policy published in June 1999

recognized that the kinds of conservation
measures specified in an agreement depended on the types, amounts and conditions of existing habitats, and that different
kinds of conservation measures might
benefit different life stages or requirements
of covered species.
"It will be important to retain this understanding in any revision of the CCAA
policy," the associations tell USFWS and
encourage the agency to clarify that
achieving only one of the conservation
measures identified may suffice for approving a CCAA.
Afford Flexibility
The associations expand on their objections to the net-conservation-benefit
standard in their second and third recommendations by insisting it "does not
afford property owners flexibility in developing CCAAs tailored to their own
needs and the needs of individual species."
They contend that the scope of threats
addressed by a particular CCAA may
not suffice to achieve an increase in population or improvement in habitat, especially for small property parcels.
The associations also object to the expectation that the net-conservation-benefit
criterion addresses "likely future threat,"
which requires both the landowner and
USFWS to speculate on population increases or habitat improvement. They insist
that CCAA policy be based on what is
economically and technologically feasible
for the property owner to implement.
"By including a more expansive consideration of benefits, the services will encourage broader enrollment in CCAAs,
which ultimately will promote the conservation of covered species," the comments
state. "In this regard, the associations urge
that a revised (policy) should create incentives
for oil and natural gas operators to avoid
and minimize the impacts of development
by using technologies that reduce surface
disturbance and habitat fragmentation."
The associations further argue that the
net-conservation-benefit standard should
be removed because it is ambiguous and
holds the potential to be applied arbitrarily.
"This definition raises the question of how
much improvement is necessary to allow
the services to approve CCAAs," they write.
The comments suggest that insisting
on a net conservation benefit likely will
discourage participation in CCAAs by
being overly restrictive, and maintain
there are benefits for species in agreements
that merely remove, reduce or minimize
threats; prevent or limit habitat degradation;

promote resiliency; or slow or stabilize a
declining population trajectory.
"The results of the measures implemented under a specific CCAA may not
be expressed as an 'increase in population
or improvement in habitat,' but there still
will be a benefit," the comments declare,
adding that the associations recommend
USFWS take a more expansive view of
the benefits.
On using speculative criteria to evaluate
a CCAA, the associations point out that
the term "future threats" does not appear
in the Endangered Species Act nor its
implementing regulations.
They question whether failing to
achieve such a standard will affect the
assurances provided by a CCAA and
comment, "The future threats requirement
decreases regulatory certainty and most
likely would reduce the number of participating parties, thus reducing conservation of an at-risk species."
The associations insist, "USFWS
should not be empowered to revisit or
modify the terms of CCAAs if it later
anticipates the expected increases in populations or habitat will not occur. Likewise,
it ought not be able to revoke the assurances provided by the CCAA if the expected increases in populations or habitat
do not occur. Otherwise, the service would
eliminate a significant incentive to participate."
Additional Points
The association comments make several
other recommendations, including that
USFWS define "management actions"
and "management activities" independently of "conservation measures." As part
of this, they say:
* The definition of conservation measures should recognize that a management
commitment can be made for a specified
period.
* The conservation measures and
management activities covered by a CCAA
must be designed to reduce or eliminate
threats under the property owner's control.
* The definition of conservation measures must recognize that increasing species
population or improving habitat are not
the only objectives for recognizing a
CCAA.
Other points made in the association
comments are:
* Habitat disturbance fees should be
considered compensatory mitigation under
a CCAA.
* Policy changes should enhance coMARCH 2018 99


http://www.ipaa.org

American Oil and Gas Reporter - March 2018

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