Comments Provided to USFWS on the Draft Candidate Conservation Agreement With Assurances for the Dunes Sagebrush Lizard
December 21, 2020
To Amy L. Lueders
Regional Director, Southwest Region
U.S. Fish and Wildlife Service 500 Gold Ave. SW,
New Mexico 87102
And/or Mr. Adam Zerrenner,
U.S. Fish and Wildlife Service
10711 Burnet Road, Suite 200,
Austin, Texas 78758
Re Comments for Docket No. FWS–R2–ES–2020–0065; FXES111602C0000–212–FF02ENEH00] Application for an Enhancement of Survival Permit; Draft Candidate Conservation Agreement With Assurances for the Dunes Sagebrush Lizard (Sceloporus arenicolus); Andrews, Gaines, Crane, Ector, Ward, and Winkler Counties, Texas
Dear Ms. Lueders, Mr. Zerrenner and Whom it Concerns,
We do not support the Enhancement of Survival Permit with the Candidate Conservation Agreement with Assurances (CCAA) as it stands. We are not certain the CCAA satisfies the criteria referenced in the docket the Service analyzes when making the decision for approval. Specifically, it is not certain that the CCAA supports a net conservation benefit (criteria 2), does not contribute to a reduction in the survival and recovery of any species (criteria 3), and that the applicant has shown capability and commitment to implementing the CCAA terms (criteria 6). We support the Service’s current alternative in consideration of a no action plan, and note alternative considerations if the no action plan is not chosen. Criteria 2 and 3: Net conservation benefit and non-contribution to the reduction of other species survival. This CCAA should not be legally binding for 23 years and this length of time does not support that the CCAA can satisfy these criteria. The species status can change in this time and this is many life cycles of the DSL amidst a changing climate and shifting energy needs. The agreement should be reconsidered every 5 years with the audited review and not be legally binding for 23 years. Can the binding length of these collective agreements be shortened if the no action plan is not chosen? Page references are from the Nov 2020 updated CCAA.
1. Page 11 “The 2020 DSL CCAA provides protections not otherwise available through regulatory means to the DSL and its habitat on private property while balancing the need for economic development in an area important to the nation’s domestic energy production, among other activities.” The nation’s energy sources are shifting and a 23 year permit does not reflect realistic expectations regarding long term or short term planning around all the groups broadly covered in this CCAA.
2. Page 12 ‘Provide Participants assurances that if the species is listed, the Service will not require “the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the Agreement without the consent of the permittee” and Participants (50 CFR §17.22(d)(5) and 17.33(d)(5)) so long as Participants properly implement their CIs consistent with the conservation program in this 2020 DSL CCAA…’ o Twenty three years is too long of a commitment, regardless of listing, to this method, as it should be reassessed with time, regularly, with the improvement of data referenced in this document as expected by the fees and associated research. Criteria 6: The applicant has shown capability and commitment to implementing the CCAA terms. The comments below highlight areas where the commitment or capability of the applicant to carry out the CCAA is not certain.
3. The administrator never has to follow the recommendations of the AMC? o ‘The Administrator must consider and respond in a timely manner to all issues and recommendations raised by the Adaptive Management Committee. No language in this CCAA will be construed as limiting the issues the Adaptive Management Committee may consider. The Adaptive Management Committee may develop a solution or set of recommendations for a particular issue.’ o So the administrator has no obligation to follow the recommendations of the AMC? The obligation only stands to consider and respond as is stated. Per other pages later in document ie p28 on map development, the management needs are ongoing and under refinement- is the administrator obligated to update plan according to the recommendations of the AMC?
4. Page 16 ‘Engaging a qualified third-party auditor for the financial health and implementation of the CCAA every 5 years’ o What is qualified and is there certainty the review accurately reflects the species impact? If AMC actions hold no weight, does this review? Can some criteria be satisfied by the contractor and can this review have the capacity to impact the CCAA actions towards their goals and/or suspension for participants?
5. Companies do not have to avoid High and Intermediate suitability if they can show in any way it is not economically feasible- are they ever required to participate? o See oil and gas Certificate of Inclusion in the Appendix B, page 120
6. How is the Administrator chosen? This role carries much of the weight to ensure species is protected? Is the Admin accountable to the AMC o Page 10 Is there a qualification threshold for the Administrator and the non-profit that they sit within and how are they appointed? They hold the permit and are the driving factor here and the success of what is recommended is dependent on this position. Does the TCP have insight on who holds this position? o Page 12 ‘The Administrator must consider and respond in a timely manner to all issues and recommendations raised by the Adaptive Management Committee. No language in this CCAA will be construed as limiting the issues the Adaptive Management Committee may consider. The Adaptive Management Committee may develop a solution or set of recommendations for a particular issue.’ ▪ So the administrator has no obligation to follow the recommendations of the AMC? The obligation only stands to consider and respond as is stated. Per other pages later in document ie p28 on map development, the management needs are ongoing and under refinement- is the administrator obligated to update plan according to the recommendations of the AMC?
7. Why do Participants only have to pay for 3 years if this is a 23 year agreement? How does this support ongoing conservation efforts? o Page 121 Certificate of Inclusion section 3.0 8. Can suspension of the CI and permit can only occur if a fee is not paid? Can other methods be included if the no action option is not chosen by the Service. o Page 123 Certificate of Inclusion section 5.1 Overall, the CCAA has some loopholes that have the potential to strip the companies participating in accountability needed to help preserve DSL, its habitat and nearby species. We support the FWS’s current consideration of a No Action option. Thank you and let us know if you would like additional information or insight.
Sydney James (Associate in Massachusetts)
Environmental Review, Inc., a 501(c)(3) Nonprofit Public Benefit Corporation