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USFWS Proposes Changes to ESA for Incidental Take & Voluntary Conservation

The U.S. Fish and Wildlife Service (USFWS) has published a proposed rule that would revise Section 10 of the Endangered Species Act (ESA) regarding incidental take permits and other voluntary conservation actions under the Act. The proposed rule seeks to clarify the appropriate use of enhancement of survival permits and incidental take permits, combine safe harbor agreements (SHAs) and candidate conservation agreements with assurances (CCAAs) into one agreement type, and make changes to SHAs, CCAAs, and habitat conservation plans (HCPs).

These regulatory mechanisms are critical for livestock producers’ ability to engage in proactive, voluntary conservation efforts before and during the process when a species is protected under the ESA, and changes to these agreements has the potential to create – rather than resolve – regulatory uncertainty. Among other things, the proposed rule:

  • Proposes a new “conservation benefit agreement” by combining SHAs and CCAAs into a single agreement.
    • Proposes a novel definition for “baseline conditions” for producers to exercise in these permits.
  • Seeks to incorporate components of the 2016 Habitat Conservation Planning Handbook into the incidental take permitting process.
  • Proposes amendments to the permits the Service can provide for non-listed species (ahead of any listing activity).

USFWS has opened a 60-day comment period, which will elapse on Monday, April 10, 2023. PLC will be developing our own comments and engaging in coalition comments before the deadline. Should you wish to develop your own comments, please contact

Comment today!