FWS reinstates 'no surprises' assurances

Issue Date: February 9, 2005

By Christine Souza
Assistant Editor

A memo sent last month by the director of the U.S. Fish and Wildlife Service to FWS regional directors is being hailed as good news by landowners such as timber operators who complete habitat conservation plans as part of their long-term operations.

In his memo to the regional directors, FWS Director Steve Williams indicated that FWS has satisfied an order to complete the rulemaking process regarding incidental take permits or related documents containing "no surprises" assurances.

The "no surprises" rule describes circumstances in which FWS may revoke incidental take permits issued under the Endangered Species Act. According to Williams' directive, the service can now provide assurances to landowners with HCPs that they won't lose their incidental take permits under certain circumstances.

"No surprises" assurances are provided by the government to landowners who are assured that if unforeseen circumstances arise, the FWS 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 to in the habitat conservation plan without the landowner's consent.

In affect, this regulation states that the government will honor its commitment as long as the landowners honor theirs, said Emma Suarez, California Farm Bureau Federation National Resources and Environmental Division attorney.

Neal Ewald, general manager of Green Diamond Resource Co., and member of the Humbolt County Farm Bureau, is pleased with the recent news released by FWS.

"This is great news. We are in the process of getting a habitat conservation plan approved and it is a multi-year process. We've been doing this for about eight years. You have to wonder whether you'd be willing to agree to a deal if there were no assurances that a deal is a deal," Ewald said. "It is crucial for us to make sure that these assurances are defended and maintained before we get our permit signed."

Green Diamond is the new name for Simpson Resource Company, which owns forestlands in California, Oregon and Washington.

Ewald said that Green Diamond, before it enters into a 50-year agreement, commits a significant amount of resources, time and money to the conservation of endangered species, so the "no surprises" assurances provide landowners with much security.

"To put forth all of those resources and not get the commitment that the deal won't migrate over time really puts the whole permit deal in question. It is obviously crucial to those folks who are trying to get these permits," Ewald said.

In December of 2003, the U.S. District Court for the District of Columbia in Spirit of the Sage Council vs. Norton, invalidated the "no surprises" regulations addressing FWS authority to revoke incidental take permits under certain circumstances. The court ruled that FWS adopted those regulations without adequately complying with the public notice and comment procedures required by the Administrative Procedure Act.

Between June 10, 2004 and Jan. 10 of this year, FWS issued new incidental take permits with disclaimer language that the "no surprises" assurances in the permit were unenforceable and ineffective.

Williams' recent announcement means that "no surprises" assurances may now apply to landowners' habitat conservation plan permits.

"The Fish and Wildlife Service is saying that they believe they have met all of obligations for the court order, so now they can go back to the business of issuing 'no surprises' assurances as part of the incidental take permitting process," Suarez said. "Some landowners who currently have these permits may not have to redo them because in the original permit the Fish and Wildlife Service inserted a clause that said, 'when we comply with the court order, you can have 'no surprises.'"

Suarez said that this decision by FWS to reinstate the "no surprises" assurances will impact anyone who already has a habitat conservation plan or anyone considering a habitat conservation plan.

(Christine Souza is a reporter for Ag Alert. She may be contacted at csouza@cfbf.com.)

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