FWS Considers Revising Endangered Species Act Regulations to Promote Voluntary Species Conservation

The U.S. Fish and Wildlife Service (FWS) recently published an advance notice of proposed rulemaking (ANPRM) seeking recommendations for regulatory revisions that would create incentives for landowners and others to take voluntary conservation actions in support of “candidate” species.  Candidate species are not yet listed as threatened or endangered under the Endangered Species Act (ESA) but are likely to become so, absent conservation efforts.  Specifically, FWS is considering how to offer assurance that the benefits of voluntary conservation actions will be recognized as offsetting the adverse effects of activities carried out by the landowner or others after listing (sometimes called “advance mitigation” or “pre-listing mitigation”).  FWS also requests comments on how best to establish clear mechanisms to encourage pre-listing mitigation measures and post-listing compliance.  Comments are due May 14, 2012, and a second opportunity for public comment will occur when FWS publishes draft regulations/guidance. The ANPRM presents a unique opportunity for interested parties to raise new ideas to improve effectiveness, efficiency, creativity, and cooperation under the ESA and its implementing regulations, and to reward voluntary conservation actions that benefit candidate species.  One organization, the Association of California Water Agencies (ACWA), held a roundtable discussion on the ANPRM on April 24, 2012, for which Michael Bean, Counselor to the Assistant Secretary of the Interior for Fish and Wildlife and Parks, provided introductory remarks on the ANPRM. FWS’s ANPRM was prompted by a need to clarify, expedite, and improve procedures for the development and approval of conservation agreements with landowners—a need that was identified during the development, in 2011, of the Department of the Interior’s Plan for Retrospective Regulatory Review.  Landowner conservation agreements providing assurances under the ESA currently take one of three primary forms: Habitat Conservation Plans (HCPs), Safe Harbor Agreements (SHAs), and Candidate Conservation Agreements with Assurances (CCAAs).  FWS’s existing conservation banking policy allows landowners or others to earn credits that can be used to offset the negative impacts of proposed actions on listed species, but not on candidate or other at-risk species and without emphasis on ecosystem health.  FWS is now proposing a new type of assurance related to candidate or other at-risk species, similar to the credit system that can be used for listed species.  FWS recognizes that multi-species HCPs—which typically cover both listed and unlisted species and offer mitigation for actions taken after covered species are listed—do provide precedent for the assurance concept that FWS is exploring.  FWS seeks comment on whether and how FWS can assure that the benefits of voluntary conservation actions, particularly outside of the multi-species HCP context, will be recognized as offsetting the adverse effects of activities carried out by the landowner or others after listing.   Hogan Lovells' Environmental Practice Area will continue to monitor FWS activities in this matter.

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