The ‘Poison Pill’ in the Proposed Rule for Voluntary Species Conservation
The FWS proposed a rule (comments due April 10) that attempts to address flaws in previous voluntary species conservation policies (Safe Harbor Agreement, Candidate Conservation Agreement with Assurances) that were created to provide regulatory assurances and incentivize landowners to conserve species. In this blog post, we describe the ‘poison pill’ in the proposed rule and an antidote, provide background on voluntary conservation mechanisms, take a peek at what is in the proposed rule and what flaws it was intended to fix, and offer suggestions to enhance the proposed rule.
The Poison Pill
While the proposed rule makes some beneficial changes, we oppose the proposed rule as currently written because it judges projects based on their implied purpose rather than their conservation outcomes. Since any 10(a)(1)(A) or (B) permits (for voluntary conservation mechanisms and Habitat Conservation Plans, respectively) can only cover lawful activities, the subjective interpretation of “primary purpose” of the agreement is likely to make most projects ineligible for conservation benefit agreements, regardless of whether the projects would benefit species conservation. FWS includes the following text in the summary, to explain the new distinction between 10(a)(1)(A) and 10(a)(1)(B) permits. We see this text as a ‘poison pill’ for most contexts in which voluntary conservation agreements are useful.
“Enhancement of survival permits authorize take of covered species, above the baseline condition, when the primary purpose of the associated conservation agreement is to implement beneficial actions that address threats to the covered species, establish new wild populations, or otherwise benefit the covered species. In contrast, incidental take permits authorize take that is incidental to otherwise lawful activities (e.g., resource extraction, commercial and residential development, and energy development); the conservation actions in the associated conservation plan minimize and mitigate the impacts of the authorized take...”
In the new “Purpose” section of the regulations, the following text is added:
“Under section 10(a)(1)(B), the impacts of the take associated with the otherwise lawful activities must be minimized and mitigated to the maximum extent practicable. The purpose is to provide a means for ESA compliance when otherwise lawful development activities cause take of listed species. In contrast, under section 10(a)(1)(A), the primary purpose is to incentivize voluntary conservation of listed and at-risk species.”
EPIC’s belief is that the text highlighted above would make most past Safe Harbor Agreements (SHAs) and Candidate Conservation Agreements with Assurances (CCAAs) ineligible. This is because the principal purpose of the landowner’s activities covered by these agreements is commercial, energy, or natural resource-related activities, including farming, ranching and forestry.
The agreements that would be ineligible include the following sample, but EPIC would argue that the majority of agreements actually fall into these categories (source: ECOS database of conservation plans).
Voluntary Conservation Agreements that Would be Ineligible Under the Proposed Rule
| Agreement Name | Activities covered | Resource extraction | Energy development | Commercial development |
|---|---|---|---|---|
| Chevron SHA in Hawaii | Covers oil refinery operations | X | ||
| Lake Chaplain Tract SHA | Forest management, Pacific NW | X | ||
| Cocos Island Resort SHA | Resort activities | X | ||
| Columbia Basin pygmy rabbit SHA | Ranching activities | X | ||
| Bob Long SHA | Ranching activities | X | ||
| EDF Ocelot SHA | Ongoing ranching | |||
| Monarch Butterfly CCAA | Roadside and power line right of way maintenance | X | ||
| New Hampshire cottontail CCAA | Forest management and harvest, hayfield harvest | X | ||
| Arizona Electric Power Desert Tortoise CCAA | Power management and operations and maintenance | X | ||
| Prairie Chicken CCAA | Energy development and transmission | X |
Forcing all of these activities to seek an HCP might be okay except for two problems: 1) there is no efficient process to get an HCP and 2) pushing projects into HCPs means they have a lower conservation standard leading this policy to perversely have a negative effect on endangered species conservation. The high price tag of HCPs - which is on average > $1 million (see Conservation Practice and Letters) - would effectively kill the incentive for voluntary conservation on the part of the private sector.
The Antidote to the Poison Pill
If we are misinterpreting this it would be easy to clear up in a response to comment, by the FWS proactively describing which of the existing CCAs, CCAAs, and SHAs would no longer be eligible for a 10(a)(1)(A) permit under the proposed regulations. We doubt the FWS will do so because we expect the intent is to disqualify many of these types of projects from securing such permits in the future, despite the harm it causes to endangered species conservation progress.
We suggest an alternative to decide which permit type is appropriate for a project. Conservation benefit agreements should be the right permit structure if the outcome for the species is that it will likely be better off than it would be but for the covered activities. For example, a property that is being managed for timber harvest and a net benefit to endangered species might - decades from the present - be logged. It is nonetheless a great candidate for a conservation benefit agreement. The FWS’ regulation would force that property into an HCP because the primary purpose of the project is to carry out resource extraction activities. We propose the following rewrite to the preamble and parallel changes in the purpose section of the regulation (strikeout = remove, bold = add):
Enhancement of survival permits authorize take of covered species, above the baseline condition, when the primary purpose of the associated conservation agreement is to implement beneficial actions that address threats outcome of otherwise lawful activities is likely to be a net benefit to the covered species above the baseline condition, establish new wild populations, or otherwise benefit the covered species. In contrast, incidental take permits authorize take that is incidental to otherwise lawful activities whose impacts will be minimized and mitigated but nonetheless leave the covered species worse off than had the project not occurred. Projects whose incidental take is imminent and foreseeable (e.g. commercial and residential development) and whose conservation effects are speculative, even if they might provide a net benefit, are appropriate for coverage through an incidental take permit. (e.g., resource extraction, commercial and residential development, and energy development); the conservation actions in the associated conservation plan minimize and mitigate the impacts of the authorized take.
This small piece of text is what we are most eager to change. Below we step back to provide background on voluntary conservation mechanisms, take a peek at what is in the proposed rule and what flaws it was intended to fix, and our suggestions to enhance the proposed rule.
A Brief Background on Incentives for Voluntary Species Conservation
The US Endangered Species Act (ESA) has been described as “the most powerful natural resources law in the nation or, for that matter, in the world” (Salzman and Thompson). The law is helpful to species at risk of extinction but also can require expensive permitting for projects that may impact species. It’s no wonder that landowners might not want to entice an endangered species to make a home on their property, which has inspired the coarse phrase “shoot, shovel, and shut up.” To combat this grizzly disincentive, in 1999 the US Fish and Wildlife Service (FWS) created policy mechanisms to allow conservation and enhancement of endangered and threatened species as well as species that are candidates for listing.
Voluntary Conservation Agreements under the ESA
Safe Harbor Agreements (SHA): “a voluntary agreement involving private or other non-federal property owners whose actions contribute to the recovery of species listed as endangered or threatened under the ESA. The agreement is between cooperating non-federal property owners and the FWS or the National Oceanic and Atmospheric Administration... In exchange for actions that contribute to the recovery of listed species on non-federal lands, participating property owners receive formal assurances from the FWS that if they fulfill the conditions of the SHA, the FWS will not require any additional or different management activities by the participants without their consent. In addition, at the end of the agreement period, participants may return the enrolled property to the baseline conditions that existed at the beginning of the SHA.”
Candidate Species: “Candidate species are plants and animals for which the U.S. Fish and Wildlife Service (Service) has enough information regarding their biological status and threats to propose them as threatened or endangered under the Endangered Species Act (ESA), but listing is currently precluded by higher priority listing activities. Candidate species are not subject to the legal protections of the ESA. Proactive conservation efforts for these species can, in some cases, eliminate the need to list them under the ESA.”
Candidate Conservation Agreements with Assurances (CCAA): “A CCAA is a voluntary agreement that provides incentives for non-federal landowners to conserve candidate and other unlisted species likely to become candidates in the future. For the length of the agreement, landowners agree to undertake specific activities that address the identified threats to the target species. In return for the participant’s voluntary conservation action(s), the Service issues an Enhancement of Survival Permit under section 10(a)(1)(A) of the ESA. The permit, which goes into effect if the covered species is later listed as endangered or threatened under the ESA, provides assurances that, if the species is subsequently listed and no other changes have occurred, the Service will not require the permittee to conduct any additional conservation measures without consent. Additionally, the permit authorizes a specific level of incidental take of the covered species, should listing occur.”
The policies have not been used as much as they could, as we discovered in research with the Electric Power Research Institute (Barriers and Incentives to Voluntary Conservation Opportunities under the ESA). EPIC also collaborated in the effort to launch the Nationwide Monarch CCAA and had a birds-eye view of the CCAA process.
What’s in the Proposed Rule
There are 2 major sections in the proposed Rule: one changing text for incidental take permits, and the other is a new section (c)(1) Application requirements for an enhancement of survival permit associated with conservation benefit agreements. There are also new or revised definitions. Here are what we see as previous flaws, and the fixes proposed in the rule.
| Previous flaws | Fixes in proposed rule |
|---|---|
| The agreements could not cover a species that was not listed as endangered, threatened, or officially a ‘candidate’ for listing | The definition of covered species now “may include species… that the Service determines have a reasonable potential to be considered for listing during the permit’s duration. An incidental take or enhancement of survival permit need not include a listed species.” The FWS also plans to update their 2016 HCP Handbook which currently says at least 1 listed species must be in a conservation plan. |
| Regular incidental take permits also could not cover an unlisted species | They can now (see above) |
| It was unclear which policy mechanism would be most appropriate to use | SHA and CCAA are merged into a new mechanism called a Conservation Benefit Agreement which FWS says is intended to clarify & simplify permitting options |
| Landowners were disincentivized because they could not return to the baseline amount of species under the CCAA (SHA allowed this). For example, the landowner entered an agreement with 10 lizards on the property, and through their good activities increased the population to 20. Will they be on the hook for impacting the new population if they exit the agreement? | The rule makes it clear that the landowner can return to baseline condition under the new Conservation Benefit Agreement. “The applicant’s choice between including authorization to return enrolled land to baseline condition or forgoing that authorization. For applicants seeking authority to return to baseline condition, a description of steps that may be taken to return the property to baseline condition and measures to reduce the effects of the take to the covered species.” |
| Neighboring property owners could be on the hook for impacting the lizards coming over from the next door property | “The Director may provide incidental take coverage in the enhancement of survival permit for owners of properties adjacent to properties covered by the conservation benefit agreement…” |
| It was unclear what information was needed in an application, which could increase the time & $ it took to get an application approved | There is a list of what the application must include, which the FWS hopes will “reduce the time it takes for applicants to prepare and develop the required documents” and speed up permitting and on-the-ground conservation |
| The criteria for how the FWS would decide whether to issue an agreement was unclear | There is a list of criteria |
EPIC’s Suggested Changes
We offer the following suggestions that would enhance the FWS’ ability to meet the goals and objectives of the proposed rule:
FWS could make a minor edit to create an inclusive policy with opportunities for tribes under this proposed rule. This is particularly relevant because many tribes already try to conserve and restore species that are significant to the tribe, going beyond regulatory requirements under the ESA. In the proposed rule, the definition of “Applicant” makes reference to the definition of “Person” in §10.12, but this definition does not include tribes (“Person means any individual, firm, corporation, association, partnership, club, or private body, any one or all, as the context requires”). We recommend this edit to the definition of Applicant to clarify that tribes are eligible for voluntary conservation mechanisms:
Applicant means the person(s), as defined at §10.12 of this subchapter and tribes, who is named and identified on the application and, by signing the application, will assume the responsibility for implementing the terms of an issued permit. Other parties including, without limitations, affiliates, associates, subsidiaries, corporate families, and assigns of an applicant are not applicants or permittees unless, in accordance with applicable regulations, an application or permit has been amended to include them or unless a permit has been transferred.
Increase funding for staffing to review and approve these voluntary conservation agreements. A suggestion from a 2020 EPRI report was: “for private industry to enter into reimbursement agreements to pay for additional USFWS staff to work on their projects. The renewable energy and the land development sectors have done this in recent years.”
With regards to the application process:
Create a target timeframe for the FWS to decide whether or not to issue a conservation benefit agreement. Lack of deadlines and accountability to them is a bad sign for timeliness in these agreements.
Create a template with boilerplate language, and create an online platform for submission. As we understand it, SHAs and CCAAs do not have a template and are submitted as Microsoft Word documents. This may have been an acceptable use of ‘technology’ when the SHA policy was introduced in 1999, but it is inexplicably inefficient today. EPIC welcomes the opportunity to connect the FWS with resources and expertise to adopt suitable technology.
Done right, policy can provide an incentive to voluntarily conserve species before they reach the brink of extinction. We hope the final policy provides the opportunity for large-scale participation in voluntary conservation agreements.
Have your own ideas for the FWS? Comment by 10-April 2023 here.
The Restoration Economy Center, housed in the national nonprofit Environmental Policy Innovation Center (EPIC), aims to increase the scale and speed of high-quality, equitable restoration outcomes through policy change. Email becca@policyinnovation.org if interested in learning more, or consider supporting us!
