The U.S. Fish and Wildlife Service (FWS) recently proposed a new
policy – the Policy Regarding Voluntary Prelisting
Conservation Actions – that would give landowners credit
for undertaking voluntary conservation measures for imperiled
species prior to their listing under the Endangered Species Act
(ESA). The proposed policy was published in the Federal
Register on July 22, 2014. Interested parties may provide
comments to the FWS during the 60-day comment period which ends
September 22, 2014.
Why does this matter? The ESA has a wide and
growing reach. The FWS has a long list of species that it is
considering for ESA protection. As the agency lists and designates
critical habitat for more species, the potential restrictions on
landowners will increase.
Why Comment? The FWS has a few ways for landowners
to obtain protection from ESA prohibitions by undertaking voluntary
measures, but they are cumbersome and have not offered sufficient
benefits. With this proposed policy, FWS is trying to expand the
benefits and the ways that landowners can obtain such benefits.
However, the policy only goes so far, and commenters can provide
changes to improve the approach.
Your Venable attorney or the authors of this alert can assist you
in understanding how this policy could affect you and your
property.
Additional Information
The purpose of the policy is to encourage and reward early
voluntary conservation actions taken to protect at-risk species.
According to the FWS, "[b]y incentivizing early voluntary
conservation efforts before they reach the point of endangerment,
the proposed policy will help protect at-risk wildlife from habitat
loss, competition from non-native species, and other threats from
the action for which the credit is later redeemed, providing an
overall benefit for the species." At-risk species are those
that are in decline but have not yet been listed as threatened or
endangered under the Endangered Species Act. This means the policy
covers more than species that are already awaiting listing, known
as candidate species.
The proposed policy allows landowners to earn credits for current
efforts that benefit at-risk species. Landowners can include any
landowning entity such as states, tribes, corporations, private
individuals, and federal agencies. If the species is ultimately
listed as threatened or endangered under the ESA, the landowner may
redeem earned credits to offset or mitigate other actions it takes
that are detrimental to the species. Landowners who earn credits
may also trade or sell them to a third party. The proposed policy,
however, provides no guarantees that there will be no further
restrictions on the landowner's actions if the species is
ultimately listed. This is a very important reservation of rights,
which should be clarified before the policy is finalized.
Some of the significant requirements for the landowner's
actions to receive credit include:
- The benefit of the action must be greater than the detriment from the action for which the credit is later redeemed;
- The conservation action must provide an overall benefit for the species;
- Credit may only be earned before the species is listed as threatened or endangered under the ESA;
- Credit may not be earned for actions that are otherwise mandated by federal, state, or local law (or that are part of an existing Candidate Conservation Agreement).
The proposed policy also sets forth specific provisions for
states and federal agencies. The policy is intended to engage
states in designing and implementing their own programs to
encourage voluntary prelisting conservation actions. States may
choose to work with the FWS to administer a program and the FWS
will provide assistance when it is needed.
Federal agencies may also take voluntary conservation actions in
order to earn credits. The federal agencies may have these
conservation actions, and any credits earned, taken into
consideration during ESA section 7 consultations
with the FWS.
Contrasting the Proposed Policy with Existing FWS Policies
Landowners may be interested to know how the proposed new policy
differs from other voluntary conservation actions permitted by the
FWS. Currently, landowners and the FWS may enter into Candidate
Conservation Agreements (CCAs) and Candidate Conservation
Agreements with Assurances (CCAAs).
Unlike the agreements in the proposed policy which may apply to
species that have not yet been declared candidate species by the
FWS, CCAs and CCAAs may only be used for conservation of candidate
species. Additionally, similar to CCAs – which may be entered
into by federal agencies, states, local governments, tribes,
private property owners, and others – any type of landowner
may take advantage of the agreements in the proposed policy. CCAAs,
on the other hand, are restricted to non-federal landowners.
A landowner in a CCAA receives a permit containing assurances that
he will not be required to later implement conservation measures
beyond those in the CCAA. This permit also guarantees that
additional resource and land use limitations will not be imposed if
or when the species is eventually listed. Meanwhile, a landowner in
a CCA – and a landowner under the proposed policy –
will receive no assurances or protections from the FWS. As
mentioned above, this is a significant reservation of rights which
landowners may find important.
Of course, the final difference between the proposed policy and
existing CCA and CCAAs – and the reason the FWS hopes it will
encourage more voluntary landowner actions – is the ability
to earn credits for those actions. This additional incentive is
designed to encourage more landowners to proactively take actions
to conserve at-risk species so that listing the species is
ultimately unnecessary.
Interested parties should take note that the public comment period
began on July 22, 2014 and parties will have until September 22,
2014 to submit comments on the proposed policy. Venable attorneys
can assist you with the public comment process and can help clients
ensure their concerns or comments are submitted to the FWS.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.