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«Candidate Conservation Agreement with Assurances Agreement Number: Candidate Conservation Agreement with Assurances for the Eastern Massasauga ...»

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Candidate Conservation Agreement with Assurances -- Agreement Number:

Candidate Conservation Agreement with Assurances

for the Eastern Massasauga Rattlesnake in Michigan

This Agreement, effective and binding on the date of the last signature below, is between the

Michigan Department of Natural Resources (DNR), the Michigan Department of Military and

Veterans Affairs (DMVA) and the U.S. Fish and Wildlife Service (Service). Participating

property owners and oil, gas and mineral development companies may also be included under the Agreement by signing a Certificate of Inclusion (CI Participants).

Participating Landowners: Michigan Department of Natural Resources and Michigan Department of Military and Veterans Affairs Permit Holder: Michigan Department of Natural Resources

Service: The Service designates the following individual as the Agreement Administrator:

Scott Hicks Field Supervisor East Lansing Field Office 2651 Coolidge Road East Lansing, Michigan 48823

Tracking Number:

Candidate Conservation Agreement with Assurances -- Agreement Number:

Table of Contents

1) Introduction

2) Purpose

3) Authority

4) Background and Status

4.1 Life History

4.1.1 Phenology and Movement

4.1.2 Reproduction

4.1.3 Population Ecology

4.1.4 Food habits

4.1.5 Behavior

4.1.6 Hibernation

4.1.7 Home Range

4.2 Population Status in Great Lakes Region

4.3 Population Status in Michigan

4.4 Habitat Characteristics

4.5 Threats

4.5.1 Threat (A)

4.5.2 Threat (B)

4.5.3 Threat (C)

4.5.4 Threat (D)

4.5.5 Threat (E)

5) Conservation Goals

5.1 Game and Wildlife Areas

5.2 Parks and Recreation Areas

5.3 Forest Lands

5.4 Expected Benefits to EMR, Rare Plants, and Rare Animals

6) Enrolled Lands

6.1 Michigan Department of Natural Resources

6.2 Department of Military and Veterans Affairs

Candidate Conservation Agreement with Assurances -- Agreement Number:

6.3 Managed Lands

6.4 Unmanaged Lands

7) Conservation Measures

7.1 Management Strategies for Managed Lands

7.1.1 Wetland Protection

7.1.2 Prescribed Fire

7.1.3 Mowing and Hydro-axing

7.1.4 Cultivation

7.1.5 Water Level Manipulation

7.1.6 Forest Management

7.1.7 Chemical Control

7.1.8 Collection, Release, Relocation and Persecution

7.1.9 Trails and Pathways

7.2 Management Strategies for Unmanaged Lands

7.3 Management Strategies for Oil, Gas and Mineral Development

7.4 Education and Outreach

8) Obligations of the Cooperators

8.1 All Enrolled Participants (DNR, DMVA and CI Participants) agree to:

8.2 The DNR agrees to:

8.3 The Service agrees to:

9) Duration of Agreement and Permit

9.1 Renewal

10) Adaptive Management

11) Monitoring

11.1 Population Monitoring

11.2 Habitat Monitoring

11.3 Take Monitoring

11.4 Compliance Monitoring and Reporting

12) Take, Regulatory Assurances, and Unforeseen Circumstances

12.1 Level/Type of Take/Impacts

Candidate Conservation Agreement with Assurances -- Agreement Number:

12.1.1 Managed Lands

12.1.2 Unmanaged Lands with Potential EMR Habitat

12.2 Assurances Provided

12.2.1 Changed Circumstances provided for in the CCAA

12.2.2 Changed Circumstances not provided for in the CCAA

12.2.3 Unforeseen Circumstances

12.3 Notification of Take

13) National Historic Preservation Act

14) Terms and Conditions of the Agreement

14.1 Modifications

14.2 Modification of the CCAA

14.3 Amendment of the Permit

14.4 Termination of the CCAA

14.5 Permit Suspension or Revocation

14.6 Remedies

14.7 Dispute Resolution

14.8 Succession and Transfer

14.9 Availability of Funds

14.10 No Third-Party Beneficiaries

14.11 Succession and Transfer of the Permit and Certificates of Inclusion

14.12 Relationship to Other Agreements

14.13 Notices and Reports

References Cited

Appendix A. Certificate of Inclusion

Appendix B. State Threatened and Endangered Species

Appendix C. Connecting Threats to Conservation Measures……………………………………56 Appendix D. Map of Eastern Massasauga Managed Lands

Candidate Conservation Agreement with Assurances -- Agreement Number:

1) Introduction The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA) requires that the U.S. Fish and Wildlife Service (hereafter “the Service”) list species of wildlife and plants that are endangered or threatened based on the best available scientific and commercial information.

The Service identifies species as “candidates” for listing when there is sufficient information on biological vulnerability and threats to support a proposal to list, but preparation of a proposal is precluded by higher-priority listing actions.

If and when a species becomes listed under the ESA that action triggers both a regulatory and a conservation responsibility for Federal, State, and private landowners. These responsibilities stem from section 9 of the ESA that prohibits “take” (i.e., harass, harm, pursue, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct) of listed species. Along with the section 9 prohibitions, Federal agencies must ensure that their actions will not jeopardize the continued existence of the listed species and carry out programs for the conservation of listed species.

Candidate species offer unique challenges and opportunities to non-federal landowners The challenge is that the Eastern Massasauga Rattlesnake (Sistrurus catenatus) (EMR) was proposed for listing in September 2015, which means if the species is listed the “take” prohibitions and the accompanying restrictions may apply. This introduces uncertainty to land planning and makes long-term planning especially difficult. However, candidate species also open an opportunity to address threats to the species, especially if the species is concentrated on the lands of one or a few landowners. If those threats are addressed, the species might never need to be listed under the ESA.

The concept behind a Candidate Conservation Agreement with Assurances (CCAA) is to simultaneously capitalize on the opportunity to conserve the candidate species while reducing the uncertainty that landowners face in managing lands with candidate species. The Service and the landowner(s) voluntarily agree to a conservation program for the candidate species, which may include management restrictions, mitigation, education, other conservation tools, or some combination. In return the Service provides formal assurances that the landowner will not face new restrictions or prohibitions as a result of listing. Thus, a CCAA provides a species with a conservation program and relieves the landowner of uncertainty in land management.

The ESA (subsections 7(a)(1) and (a)(2)) obligates Federal agencies to affirmatively conserve listed species; and therefore, Federal landowners and actions are not eligible for the assurances provided through a CCAA. Although assurances cannot be conveyed to Federal agencies, because the conservation measures of a CCAA must “preclude or remove any need to list the species covered by the agreement” (50 CFR 17.22(d)(8)), the CCAA can inform and significantly streamline the section 7 consultation process. Therefore, even though actions with a federal nexus on lands enrolled in a CCAA must undergo section 7 consultation, such actions that fully comply with the terms of the CCAA are unlikely to require additional conservation measures.

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Thus there is a high level of certainty for non-Federal cooperators that their management activities funded by Federal agencies are unlikely to be disrupted if listing occurs, provided the agreed-upon actions are being properly implemented. However, if actions with a federal nexus are not adequately addressed by the CCAA, or unanticipated and unusual circumstances develop, there may be a need for additional conservation measures and/or a Biological Opinion that may include reasonable and prudent measures to minimize the impacts(s) of such action(s).

Finally, when a CCAA is programmatic (designed to allow for multiple landowners), other nonFederal cooperators may participate through Certificates of Inclusion (Appendix A) by agreeing to implement the conservation measures and other requirements of the CCAA. The participation of other cooperators is encouraged, but their participation is voluntary and must be approved by the holder of the ESA permit associated with the CCAA.

Most viable populations of EMR occur on land managed by the Michigan Department of Natural Resources (hereafter “DNR”) and the Michigan Department of Military and Veterans Affairs (hereafter “DMVA”), who are together the “Participating Landowners.” This document is an agreement between the DNR, the DMVA and the Service, to which additional landowners and oil, gas and mineral development companies in Michigan will later be invited to participate through Certificates of Inclusion (hereafter “CI Participants”). EMR was listed as a candidate species in 1999. The urgency of listing was upgraded in 2011. In July 2011, the Service entered into an agreement with the non-for-profit Center for Biological Diversity to make final decisions on most currently- listed Candidate species by 2018. The EMR was proposed for listing as a threatened species on September 30, 2015. The DNR and Service have less than 1 year for CCAA review by the Service, DNR signing on CI Participants, and Service review of the species status in light of the CCAA.

2) Purpose The purpose of this Agreement is to encourage non-Federal landowners in Michigan to manage their properties in ways that are consistent with the long-term sustainability and persistence of EMR. Because the management of DNR lands to provide habitat for wildlife, to restore natural communities, to manage healthy forests, and to provide recreational opportunities has resulted in the persistence of populations of EMR on those lands, this Agreement does not require significant changes in DNR land management. However, management techniques are constantly changing, and this document provides guidelines and strategies to ensure that those changes are consistent with the persistence of this species on DNR lands in the future.

The ESA’s take provisions can affect implementation of conservation measures intended to benefit a listed species. For example, the take prohibitions have indirectly led to the degradation of some Karner blue butterfly habitat in Michigan. The butterfly needs oak savanna, a habitat that was created by fires set largely by Native Americans, then early settlers, and more recently by managers of state game areas and private land owners.

Page 2Candidate Conservation Agreement with Assurances -- Agreement Number:

When the Karner blue butterfly was listed under the ESA, burning, mowing, and forest harvest (which had maintained savanna) ceased because the activities could have harmed individual butterflies. Savanna habitat began converting to forest through the process of ecological succession. Through a statewide HCP with associated Incidental Take Permit, the DNR can again manage oak savannas for many wildlife species, from Karner Blue butterflies to wild turkeys.

Regulatory tools such as HCPs and CCAAs are valuable to ensure that species recovery can occur, even when management of occupied habitat is necessary.

Across its range, EMR demonstrates considerable plasticity in preferred habitat. It relies on vegetation structure that is found in open or shrubby wetlands, savannas and early successional forests. In the event that the EMR is listed, a cessation of mowing, burning, and forest harvest will likely result in ecological succession and habitat degradation in areas with EMR. As with Karner Blue butterfly habitat, tree canopies would close together and shade the ground, threatening EMR habitat in the one state where this species persists in many viable populations.

This Agreement seeks to avoid that outcome. The general management strategy is to identify and minimize threats in management areas or properties at which EMR have either been known to occur or where extensive habitat occurs. Education and outreach efforts are proposed to raise awareness and increase understanding about the species for all stakeholders, reduce persecution or indiscriminate killing, and promote conservation of the species. The conservation goal of this Agreement on the part of the Service, the DNR, the DMVA and other cooperators is to maintain viable populations of EMR by managing and restoring habitat for EMR. This goal is consistent with the Service’s “Candidate Conservation Agreement with Assurances Final Policy” (64 FR 32726, June 17, 1999), revisions to that policy (69 FR 24084: May 3, 2004) and the regulations that implement the policy (69 FR 24084, May 3, 2004).

3) Authority Sections 2, 7, and 10 of the ESA allow the Service to enter into this CCAA with other cooperating partners. Section 2 of the ESA 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 ESA requires the Service to review programs it administers and utilize such programs in furtherance of the purposes of the ESA. By entering into this CCAA, the Service is utilizing its authority to enter into this type of agreement to further the conservation of the Nation’s fish and wildlife resources.

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