FWS Issues Advance Notice of Proposed Rulemaking to Promote and Recognize Voluntary Conservation of Species under the ESA

March 16, 2012

By Joe Nelson, Jordan Smith, and Duncan Greene

INTRODUCTION

On March 15, 2012, the U.S. Fish and Wildlife Service (FWS) published an Advance Notice of Proposed Rulemaking (ANPR) requesting public comment on potential improvements to its Endangered Species Act (ESA) implementing regulations, policies, and guidance to better recognize voluntary conservation actions that benefit species.  Specifically, FWS has concluded that the present ESAregulations, guidance, implementing procedures, and existing conservation agreements do not adequately capture or encourage voluntary conservation efforts that may be undertaken prior to a species’ listing.

BACKGROUND

The ANPR principally focuses on how to promote voluntary conservation through recognition of “advance mitigation.”  Advance mitigation is intended to encourage landowners to take voluntary conservation actions to benefit species that may become threatened or endangered in exchange for regulatory assurances that the benefits of their voluntary actions will be recognized under the ESA.  Presently, FWS relies upon three types of agreements to encourage landowner conservation efforts for endangered, threatened, and at-risk species: Habitat Conservation Plans (HCPs), Candidate Conservation Agreements with Assurances (CCAAs), and Safe Harbor Agreements.  In addition, an existing FWS policy on conservation banking is intended to allow landowners, and others, to earn credits for species conservation efforts that can later be used to offset the negative impacts of that person’s or entity’s actions on a listed species.

FWS has determined that none of these mechanisms currently provide adequate assurances that pre-listing conservation actions will be recognized as offsetting the adverse effects of an individual’s or organization’s  activities on a species after it is listed.  In the ANPR, FWS concludes that the lack of such assurances creates a disincentive for voluntary conservation actions that might otherwise benefit a species.  Further, such voluntary conservation measures may avoid the need for listing a species altogether. 

COMMENTS SOUGHT IN THE ANPR

The ANPR seeks public comment on measures that will promote voluntary conservation.  In addition to input regarding improvements to the existing ESA implementing regulations, guidance, and the HCP,CCAA and Safe Harbor Agreement structures, FWS raises the potential for a significant new process for allowing advance mitigation for post-listing activities.  The ANPR states that “[w]e also give advance notice of our intent to propose a rule to encourage landowners and other potentially regulated interests to fund or carry out voluntary conservation actions beneficial to candidate and other at-risk species by providing a new type of assurance that, in the event the species is listed, the benefits of appropriate voluntary conservation actions will be recognized as offsetting the adverse effects of activities carried out by that landowner or others after listing.”  The ANPR does not describe this new type of assurance in detail.

As part of the ANPR, FWS requests public comment on a series of issues, including: 

  • How to effectively recognize conservation credits for voluntary action taken in advance of the listing of a species;
  • Whether conservation credits should be transferable to third parties;
  • Whether identification of conservation credits should take into account only beneficial actions or measure the net impacts of both beneficial and detrimental actions;
  • What is the appropriate role of States in recognizing and overseeing the development of conservation credits;
  • How to value and integrate recognition of pre-listing mitigation measures in the evaluation of whether a species should be listed;
  • How the FWS’ conservation banking policy can be improved to recognize  conservation credits for pre-listing mitigation actions;
  • What changes are required to the ESA implementing regulations, FWS’ Section 7 Consultation Handbook and the HCP Handbook in order to recognize and give credit for beneficial actions to unlisted species;
  • Whether FWS should use pilot projects to test approaches to conservation credit/pre-listing mitigation assurances; and
  • How FWS should recognize pre-listing mitigation, conservation credits or other assurances for pre-listing species protection measures in Section 7 consultations.

IMPLICATIONS

Landowners and project developers have long been faced with the dilemma that efforts to protect an unlisted species and its habitat are not fully recognized in later compliance with the ESA, should that species become listed.  Creating a meaningful set of regulatory assurances which allow for quantification and consideration of voluntary, pre-listing conservation efforts in later ESA §7 consultations, development of HCPs, or other ESA decisions provides the opportunity for regulatory certainty in species-related mitigation.  For example, in answering press questions on this ANPR, FWSDirector Dan Ashe stated that wind energy project developers could receive pre-listing mitigation credit for re-routing transmission lines around greater sage grouse habitat.  Also, FWS has explained that itsANPR is intended to ensure that landowners gain credit for the voluntary preservation and restoration efforts and also allow “working lands” such as farms, ranches, and timberland to continue to be used in production and agricultural activities.

Public comments on the ANPR are due by May 14, 2012.      

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Van Ness Feldman counsels clients on a broad range of matters relating to the Endangered Species Act including regulatory compliance, public policy development, project development and litigation matters.  For additional information on the ANPR or other ESA-related matters, please contact Joe Nelson, Matt Love, or any member of the firm's practice in our Washington, D.C. office at 202-298-1800 or our Seattle, WA office at 206-623-9372. 

In early 2012 Van Ness Feldman combined practices with the Seattle land use, real estate, and natural resources law firm GordonDerr LLP.  The combined firm continues to be known as Van Ness Feldman, A Professional Corporation.  The firm's Seattle office is using the name Van Ness Feldman GordonDerr for a transitional period.  For more information, please visit www.vnf.com/gordonderr.