Programmatic Safe Harbor Agreement in Michigan
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Mitchell’s Satyr Programmatic Safe Harbor Agreement This Programmatic Safe Harbor Agreement, effective and binding on the date of last signature below, is between U.S. Fish and Wildlife Service’s East Lansing Field Office Project Leader and the U.S. Fish and Wildlife Service. Permittee: Scott Hicks, Project Leader U.S. Fish and Wildlife Service East Lansing Field Office 2651 Coolidge Road, Suite 101 East Lansing, Michigan 48823 (517) 351-2555 The Service designates the following as the Agreement Contact: Laura Ragan, Recovery Coordinator U.S. Fish & Wildlife Service, Region 3 5600 American Blvd. West, Suite 990 Bloomington, Minnesota 55437-1458 Tracking Number: Summary of Purpose of the SHA: The purpose of this agreement is to outline conservation actions that participating property owners will implement and monitor on their enrolled properties for Mitchell’s satyr (Neonympha mitchellii mitchellii). The goal of the agreement is to encourage property owners to engage in conservation actions for the Mitchell’s satyr that provide a net conservation benefit to recovery. 1.0 Introduction The U.S. Fish and Wildlife Service (Service) Safe Harbor Program (64 FR 32717) provides regulatory flexibility to non-federal landowners who voluntarily commit to implementing or avoiding specific activities, over a defined timeframe, that are reasonably expected to provide a net conservation benefit to species listed under the Endangered Species Act of 1973, as amended (Act). In exchange for this commitment, enrolled landowners (Cooperators) receive assurances from the Service that no additional future regulatory restrictions will be imposed or commitments required for species covered under a Safe Harbor Agreement. Sections 2, 7, and 10 of the Endangered Species Act (Act) of 1973, as amended, allow the Service to enter into this Safe Harbor Agreement. Section 2 of the Act states that encouraging interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs is a key to safeguarding the Nation’s heritage in fish, wildlife, and plants. Section 7 of the Act requires the Service to review programs that we administer and to utilize such programs in furtherance of the purposes of the Act. By entering into this Safe Harbor Agreement, we are utilizing our Recovery Programs to further the conservation of the Nation’s fish and wildlife. Lastly, section 10(a)(1)(A) of the Act authorizes the issuance of permits to “enhance the survival” of a listed species. The purpose of this Mitchell’s Satyr Programmatic Safe Harbor Agreement (Agreement) is to encourage non- federal landowners to voluntarily engage in conservation activities to benefit and advance recovery of the endangered Mitchell’s satyr (Neonympha mitchellii mitchellii). The primary conservation activity under this Agreement will be reintroductions of satyrs on properties of willing landowners. Cooperators who enroll in this Agreement may withdraw at any time without penalty, providing they give the Service an opportunity to retrieve any satyrs on their lands. This Agreement is programmatic in nature and applicable in certain counties in Michigan and Indiana as shown in Appendix A. Based on this Agreement and compliance with all other associated regulations and laws, the Service will issue a section 10(a)(1)(A) Enhancement of Survival Permit (Permit) to the Service’s East Lansing Field Office Project Leader (Permittee) for a term of 30 years. Under the Permit, the Permittee may enroll eligible and willing non-federal landowners through Certificates of Inclusion for a minimum term of 10 years under this Agreement. No Federal lands will be enrolled under this permit; therefore, no incidental take coverage or Safe Harbor assurances will be conveyed to the management of Federal lands. The single Permittee approach simplifies the process for private landowners and garners support for non-federal reintroductions. The Certificates of Inclusion will convey all of the Permit’s incidental take authorization and the Safe Harbor assurances to Cooperators. Site-specific Reintroduction Plans will describe the specific conservation and management details of each site within identified Conservation Zones on each enrolled property. Each Reintroduction Plan will be developed by the Permittee and the Cooperator, with technical input from State natural resource agencies and other partners as appropriate. The Permittee will issue a Certificate of Inclusion to each Cooperator after a Reintroduction Plan is approved and signed by the Permittee and the Cooperator. Collectively, the Permittee and the Cooperator are hereafter called the Parties. The programmatic nature of this Agreement provides Cooperators with a streamlined process for obtaining assurances that actions taken to benefit Mitchell’s satyr on their land will not restrict current land use or result in additional regulatory obligations associated with the species under the Act. An attendant Biological Opinion will be developed as a result of an intra-Service section 7 consultation, under the Act, on the effects of the issuance of the Permit and implementation of the Agreement. The Biological Opinion will consider the effects from (1) implementation of habitat management activities on enrolled lands, (2) assurances allowing Cooperators to return enrolled lands to baseline, (3) otherwise lawful activities that may occur on Cooperators’ lands outside the Conservation Zone, and (4) otherwise lawful activities occurring on immediately adjacent, non-participating lands that have suitable habitat for Mitchell’s satyr. The Safe Harbor policy allows the Service to grant incidental take authority to the owners of neighboring lands, where occupation of neighboring lands by the covered species is expected as a result of the Agreement. Neighboring landowners would only be required to agree to such conditions as would be necessary to ensure 2 that the Agreement does not circumvent those obligations or requirements, if any, under section 9 of the Act that were applicable at the time the Agreement was signed. Because this Agreement will be implemented only on lands with a baseline of zero Mitchell’s satyrs, neighboring landowners would have no obligations under section 9 of the Act at the time the Agreement is signed. As such, the Incidental Take Statement in the Biological Opinion associated with the Permit will authorize incidental take of Mitchell’s satyr resulting from otherwise lawful activities on immediately adjacent, non-participating lands that have suitable habitat for Mitchell’s satyr for the length of time that the Permit is in effect. Neighboring landowners who do not participate in the Agreement are not required to implement any actions on their property to benefit Mitchell’s satyr. Normal land use practices on neighboring properties that are otherwise lawful, such as residential and commercial development or agricultural activities, may result in incidental take of Mitchell’s satyrs. The prairie fens that Mitchell’s satyr inhabits are a type of wetland; as such, certain activities, e.g., discharge of fill material, may be regulated under section 404 of the Clean Water Act. Such activities, if conducted without benefit of any required permits, would not be considered an otherwise lawful activity. To address these normal land uses that would otherwise not be restricted due to Mitchell’s satyr, the Incidental Take Statement in the Biological Opinion associated with the Permit will provide authorization of incidental take of Mitchell’s satyr, resulting from otherwise lawful activities, to non-participating landowners (i.e., immediately adjacent landowners) where the presence of Mitchell’s satyr from a reintroduction effort under this Agreement may affect their ownership interests for the length of time that the Permit is in effect. Cooperators who withdraw from the Agreement become non-participating landowners and will also be covered through the Incidental Take Statement in the Biological Opinion for future incidental take of satyrs that may occur as a result of otherwise lawful activities for the duration of the Permit. This Agreement has been developed under section 10 of the Act, the Service’s Safe Harbor Policy (64 FR 32717) and final regulations (64 FR 32706), and revisions to the regulations (69 FR 24084). This Agreement supports the intent of the Parties to follow the procedural and substantive requirements of section 10(a)(1)(A) of the Act. The Safe Harbor Policy was developed to encourage private and other non-federal landowners to voluntarily undertake conservation activities on their properties to enhance, restore, or maintain habitat to benefit federally listed species. 2.0 Covered Species Covered species are those federally listed species that are subject to a Safe Harbor Agreement and accompanying 10(a)(1)(A) Enhancement of Survival Permit, as defined in the Service’s final Safe Harbor Policy (64 FR 32717). This Agreement’s covered species is the Mitchell’s satyr (Neonympha mitchellii mitchellii), which is federally listed as endangered. 3.0 Background The Mitchell’s satyr is a medium-sized, dark brown butterfly. Adult wingspan is approximately 4 cm (1.5–1.75 inches). A distinctive series of sub-marginal, yellow-ringed, black circular eyespots (ocelli) with silvery centers are found on the lower surfaces of both pairs of wings. The eyespots are accented by two orange bands along the posterior wing edges, as well as by two orange bands along the central portion of each wing. Females tend to be larger and lighter in color than males. The satyr has a characteristic slow, bobbing flight pattern and tends to fly through vegetation rather than over the top. They often, but not always, stop after a short flight. In Michigan and Indiana, Mitchell’s satyr is found exclusively in prairie fens, which are geologically unique wetlands, found only in the glaciated Midwest (Spieles et al. 1999), and open parts of rich tamarack swamps. These systems are a mosaic of open, shrubby, and forested communities, with peat soils and alkaline groundwater seeps. Thin-leaved sedges usually dominate the ground layer in the fens (Kost and DeSteven 2000).