1. Endangered Species Act Listing and Candidate Conservation
Stephanie Chance
U.S. Fish and Wildlife Service

2. Endangered Species Act
Section 4(a)(1) The Secretary shall (b)determine whether any species is an endangered species or a threatened species because of any of the following factors:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms
(E) other natural or manmade factors affecting its continued existence
Give Examples:
impoundments, mining, water pollution
Genetic vouchers for very rare species
White nose syndrome – bats
Clean Water Act – water quality has improved, limits on some contaminants may not be protective of endangered species
Water temperature (as altered by dams or global climate change), small population size, invasive species

3. Determination of Status
USFWS Species Assessments
Relies heavily on academia, species experts, literature
Factors assessed
taxonomic validity
status and trends
threats
conservation efforts
monitoring
Petitions
Can be submitted by any interested party
90-day finding
12-month finding
Opportunity for academia and interested public to influence listing process by working with FWS biologists to highlight imperilment of particular species – both informally and formally
90-day finding – determine whether the petitioner presents “substantial” information – i.e., that amount of information that would lead a reasonable person to believe the action requested may be warranted (50 CFR (b))
If yes, then Service prepares a species status review using all available information, comments solicited from the public, correspondence with experts and other knowledgeable persons. Communication with relevant State, Tribal, and Federal officials.
12-month finding – based on status review; three possible outcomes: warranted (propose to list), warranted but precluded (species becomes a candidate), not warranted
Listing priority number assigned based on taxonomic distinctiveness and immediacy/magnitude of threats
The Service is required to monitor the status of candidate species – typically done in Tennessee by TDEC Natural Heritage Program, other Federal agencies, academia
Candidate: A species for which we have all the information needed to propose for listing, but do not propose because listing is precluded by other candidate species or listing actions that have higher priority.
If warranted, assigned a listing priority number
Candidate Notice of Review published annually in Federal Register
Section 4

4. Listing Process Under the Endangered Species Act
Determination of Status
Endangered Species – a species which is in danger of extinction throughout all or a significant portion of its range.
Threatened Species – any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

5. Assigning Listing Priority Numbers Based on Threats
Magnitude
Immediacy
Taxonomy
Priority
High
Imminent
Non-imminent
Monotypic genus
Species
Subspecies/population 1 2 3 4 5 6
Moderate
to Low 7 8 9 10 11 12

6. Listing – Petition Process
Petition Received
90-day Finding
Substantial
Information
Not Substantial
Start
90 days
Time lines for listing (flowchart)
Listing process - started by internal status review or petition
Timeline (petition process)
90 days from receipt of the petition, to the maximum extent practicable we are required to determine if the petition contains substantial scientific information to support a conclusion that listing is warranted
If not warranted - publish notice and explanation of the decision and the process is complete
If warranted – continues into the process, we proceed with species assessment

7. Listing – Petition Process
Substantial Information
90 days
Candidate Species
12 month finding
Listing
Warranted
Listing Warranted
But Precluded
Listing Not
Warranted
Annual review
Proposed Listing
With Critical Habitat
Proposed Listing
Without Critical Habitat
1 year
if petition is found to contain enough information to indicate that listing may be warranted:
We have until 1 year from petition date make one of 3 findings
(1) listing not warranted – if so, publish this with rationale and we are done, or
(2) listing is warranted – and publish a proposed listing rule with critical habitat by the 1 year anniversary of the receipt of the petition, or
(3) listing is warranted but precluded (publish in yearly CNOR)
Warranted but precluded – we can place a species in this category IF we are using all our legally allotted listing resources to work on species that are at greater risk
In this case, we are allowed to delay listing a warranted species,
Must review each year to ensure the risk has not increased to the point where it is next in line, and proceed when we get the backlog cleared up
Once proposed, have 1 year to collect public comment, revise the materials as needed, and finalize the listing
In some cases, we cannot determine Critical Habitat at the time of the proposal
allowed to publish proposal without Critical Habitat,
BUT must publish proposed CH at 2 year mark with finalization of listing,
then finalize CH at the 3rd anniversary of the permit receipt
Each proposal includes a public comment period.
2 years
Final Listing with
Proposed Critical Habitat
Final Listing and
Critical Habitat
3 years
Final Critical Habitat

8. Proposed and Final listing rules published in Federal Register
Summarize factors affecting the species:
The present or threatened destruction, modification, or curtailment of its habitat or range
Over-utilization for commercial, recreational, scientific, or educational purposes
Disease or predation
The inadequacy of existing regulatory mechanisms
Other natural or manmade factors affecting its continued existence
Include finding of whether species should be listed as “threatened” or “endangered”
Peer review and public comment solicited for proposed rule
Critical habitat used to be proposed at time of final listing rule – now including in proposed rules
Publication in FR required, along with opportunity for public comment, because listing a species constitutes a change to existing federal statute
“Five-factor Analysis”
Endangered – any species which is in danger of extinction throughout all or a significant portion of its range
Threatened – any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range
Critical habitat designations identify habitat areas that provide essential life cycle needs of the species – i.e., areas in which the physical and biological features essential to the conservation of the species are found;
not restricted to occupied habitat – if some unoccupied habitat units are determined to be essential to the conservation of the species
Section 4

9. Listing Work Plan for Current Candidates
The Service consolidated multiple petition deadline lawsuits into the US District Court for the District of Columbia
Chief plaintiffs were WildEarth Guardians and Center for Biological Diversity
Requires either a Proposed Rule or a not-warranted finding by September 30, 2016, for 251 candidates
WildEarth Guardians agreed to dismiss pending lawsuits, refrain from new litigation until March 20, 2017, and limit petitions to 10 or less per year
Service refers to these as the Multi-District Litigation Agreement. It sets 5 year plan for how the Service will move forward with current petitions.
Section 4

10. In TN, we currently have 16 candidate species; 10 of these were originally petitioned
We are limited by the amount of funding received from Congress, often resulting in lawsuits for not moving forward with listing.

11. MDL Commitments Species Action FY Rabbitsfoot Quadrula cylindrica
Proposed listing/CH
2012
Final Listing/CH 2013
Fluted Kidneyshell
Ptychobranchus subtentum
Slabside Pearlymussel
Pleuronaia dolabelloides
Cumberland Darter
Etheostoma susanae
Final CH
Chucky Madtom
Noturus crypticus
Laurel Dace
Chrosomus saylori
Whorled Sunflower
Helianthus verticillatus
2013
Final Listing/CH 2014
Short’s Bladderpod
Physaria globosa
Eastern Smallfooted Bat
Myotis leibii
12 mo. finding
Northern Longeared Bat
Myotis septentrionalis
We will proceed with listing all 16 of our current candidates in TN by 2016.
We will take into account any conservation activities undertaken by the State – PECE policy (Policy for Evaluation of Conservation Efforts) – when making listing decisions.
Each FR document that is written takes approximately 6 months to complete. This means a high workload for us for the next 5 years, limiting time staff will be spending on recovery actions.

12. MDL Proposed Listing Schedule TN Candidate Species

13. 2010 Southeastern Mega-petition
Center for Biological Diversity
404 riparian and aquatic dependent species
374 species – substantial 90-day findings
82 species occur in TN
R4 will begin working on the mega-petitions in 2016
We need help: status information, threats to the species, distribution & abundance data
Ken or I can provide a list of these 82 species
Unfortunately, I cannot tell you how many of these species may actually warrant listing, it will probably vary by taxa
We do not know much about some of these species.

14. Yes, a large portion of these species really does occur in TN.
Between now and 2016, we will be working with our partners to determine how we might preclude the need to list these species.
Are there actions that can be undertaken to eliminate threats? What is their status?
We want to emphasize our Candidate Conservation Programs that are available for landowners.

15. Notice of Intents. . .
CBD has filed a notice of intent to sue the Service for failure to protect the Obey Crayfish
404 species petition
Failure to make the required 12-month finding
Our workload will continue to be driven by the courts for at least the next 10 years.
Workload and priorities continue to change. . . Stay tuned!

16. 2012 Petition to List 53 Reptiles & Amphibians
Nationwide petition
Center for Biological Diversity
4 Species in TN:
Green Salamander
Weller’s Salamander
Carolina Gopher Frog
Alligator Snapping Turtle

17. Candidate Conservation
“Tools” for Candidate Conservation:
Candidate Conservation Agreements with Assurances (CCAA)
Candidate Conservation Agreements (CCA)
Many species rely heavily – or even entirely – on private land. In the Southeast, about 70 to 90 percent of land is privately owned.
CCAAs were created because private property owners had been reluctant to engage in conservation activities that could encourage use of their land or water by a species that may one day be regulated by Federal law. By providing regulatory certainty, the CCAA eliminates the potential for additional property restrictions should a species becomes listed.
For EXAMPLE: State Foresters work with forest owners to promote Best Management Practices, which are fundamental to good habitat management, in addition to providing many other public benefits related to environmentally sound forest practices, such as improved water quality.
CCAAs can be another carrot State Foresters offer to forest owners to encourage BMPs. State Foresters can enroll forest owners in CCAAs, choosing species that are a priority to that State. These agreements can also be used in conjunction with other tools designed for listed species, such as Safe Harbor Agreements and Habitat Conservation Plans.
Example Conservation Actions:
Restoring riparian buffers and wetlands
Replanting native forests or prairies
Controlling invasive species
Prescribed burning

18. CCAs and CCAAs
CCAs and CCAAs are both voluntary, formal agreements with the Service
CCAAs also provide incentives to non-Federal landowners:
Regulatory Certainty
Cost Containment
There are many tools the Service can use to conserve rare and at-risk species. Among them are Candidate Conservation Agreements and Candidate Conservation Agreements with Assurances. These agreements foster collaboration among multiple parties to hopefully prevent a species or group of species from being listed under the ESA. They address the conservation needs of one or more candidate or imperiled species. Participants voluntarily agree to perform specific actions designed to remove or reduce threats to the covered species, so that listing may not be necessary.
The difference between the CCAs and CCAAs are the assurances offered in case a covered species is listed. CCAAs were created in 1999 to offer incentives to non-Federal landowners. If a species covered under the CCAA is listed despite our best efforts, the participants in the agreement will not be subjected to regulations or be required to perform conservation measures on their properties above what they already agreed to in the CCAA, as long as they are implementing the agreement.
If the species is listed, States and other non-Federal landowners, including private landowners, automatically receive what is called an Enhancement of Survival Permit, which allows take of the species as long as the CCAA is being implemented.
With CCAAs, Federal agencies cannot receive these assurances due to specific requirements under Section 7 (a) (1) of the ESA.

19. CCAs Federal and Non-federal cooperators Non-regulatory
No associated permit/assurances
Considered in listing determinations (may need to apply PECE - should have RO and WO review if using PECE)

20. Candidate Conservation Agreements With Assurances (CCAA)
CCAA final policy and regulations were published on June 17,1999
Limited to non-Federal landowners
Requires a determination that benefits to the species would preclude or remove any need to list the species if implemented on other necessary properties
Provide monitoring, as needed, to assure implementation and determine effectiveness of conservation measures

21. CCAAs Provide assurances
No additional measures will be required if the species is listed in the future
10(a)(1)(A) enhancement of survival permit, with delayed effective date tied to any future listing, allowing take consistent with Agreement

22. CCAAs – Current Agreements
25 CCAAs in 15 states
9 are umbrella or programmatic agreements
Cover more than 1 million acres and benefit more than 160 species including 14 that were candidates at the time the CCAA was adopted; 59 landowners
5 to 50 years in duration

23. Robust Redhorse CCAA
Signed in 2002 by USFWS, Georgia DNR, and Georgia Power. The species has not required Federal listing to date.
The robust redhorse, not seen in more than a century, was rediscovered in the early 1990s in the Oconee River below a hydropower dam at Lake Sinclair. In 2002, a Candidate Conservation Agreement with Assurances was signed by the U.S. Fish and Wildlife Service, the landowner, Georgia Power, and the Georgia Department of Natural Resources. Together, they agreed to establish a refugial population in the Ocmulgee River below Georgia Power’s Lloyd Shoals Dam and increase understanding of habitat requirements and life history of the robust redhorse. Under the CCAA, Georgia DNR stocked the fish in the Ocmulgee, and Georgia Power is funding research studies of the Ocmulgee population. In addition, beyond the CCAA, Georgia Power has modified hydro operations and funded many research studies in the Oconee. Georgia DNR, with funding from the Service, augmented gravel substrates in the Oconee and Ogeechee rivers. While the population appears to have declined in the Oconee, wild spawning populations have been rediscovered in the Pee Dee River in the Carolinas and the Savannah River on the Georgia-South Carolina border. Populations have been introduced to the Broad and Ogeechee rivers in Georgia by Georgia DNR, as well as the Broad and Wateree rivers in South Carolina by South Carolina DNR. There is evidence of spawning activity in most, if not all, of these rivers, and with funding from many partners of the Robust Redhorse Conservation Committee, the long-term sustainability of these populations is being assessed. The robust redhorse has not been listed under the ESA. It was included in the Service’s recent 90-day finding on the 374 aquatic and aquatic-dependent species in the Southeast that will undergo a status review some time after 2016.
Other Examples:
Panama City crayfish: The St. Joe Company, Florida
Spring pygmy sunfish: Belle Mina Farm Ltd., Alabama
SHA/CCAA for 3 listed and 24 candidate species: Arkansas, TNC and NRCS
SHA/CCAA for the RCW and two candidates, the black pine snake and gopher tortoise: Alabama, Louisiana, Mississippi and the American Forest Foundation

24. stephanie_chance@fws. gov www. fws
listing_workplan