FWS Releases Final Rule on Conservation Benefit Agreements
...and Other Endangered Species Act Section 10 Changes
Co-authors: Becca Madsen and Tim Male
The FWS released a final rule that amends ESA Section 10(a)(1)(A) and (B) agreements/permits (for voluntary conservation mechanisms and Habitat Conservation Plans/incidental take permits, respectively). The biggest changes are:
These are good steps forward. The previous voluntary conservation agreements - Safe Harbor and Candidate Conservation agreements - have been way-underutilized as conservation tools. They incentivize net gain outcomes for species, they eliminate truly useless paperwork, and they cut away serious disincentives. This regulation is one of many things the agency should be doing to rapidly expand proactive conservation for listed species. The most obvious beneficial technical change here is the ability to cover both at risk and listed species under the same agreement using the same standard. People have been scratching their heads around the CCAA and SHA difference for decades, but that difference has never mattered to the wildlife those agreements were trying to help.
Note - for background on the previous types of voluntary conservation agreements (Candidate Conservation Agreements with Assurances [CCAA], Safe Harbor Agreements [SHA]), see our previous blog post.
Incidental take coverage for neighbors is essential. It’s been a hypothetical fear from people for two decades that somehow a neighboring landowner is going to get a free ride, doing bad things to wildlife and getting coverage for it. After twenty years of this kind of chicken little conjecture I think we can put it to rest and its great to see that the final clears up uncertainty around this coverage that the draft rule had created.?
Our modest disappointment is that the Rule does not focus on outcomes in deciding #3, but rather “the nature and purpose of the proposed activities and the anticipated outcomes of the take” (scroll down to see specific examples of text from the preamble). In multiple places the preamble directs development projects to an incidental take permit yet it also makes clear that sustainable activities could be covered by a conservation agreement. This isn’t bad in and of itself but we wonder if there is any incentive left for corporates to enter into any voluntary work to improve unlisted species’ viability as doing so leaves them without the assurances afforded under a CBA. For example, the final Rule allows an applicant to now include unlisted species in an incidental take permit, but does not allow the applicant to return to baseline conditions, nor does it cover legal liability for neighbors.?
So, imagine you’re a corporate environmental manager of a “development” company of some sort (resource extraction, commercial / residential development, energy development, and renewable energy development were called out specifically in the preamble) and you’re trying to convince the upper-levels and corporate counsel that the company should try to improve biodiversity generally (we’re not talking compliance of ESA-listed species here, we’re talking only unlisted species). Maybe it’s for goodwill, maybe it’s because you think it could be listed in the future and you could reduce regulatory risk and costs in the future if you help the species out now. By doing good and increasing the number of birds and bunnies on your property, your company will have a higher baseline of compliance if in the future any of those species gets listed. Corporate counsel and upper management shut you down.?
This is not so far from reality. I was once told that corporate counsel prohibited a vegetation manager from using a native seed mix that included milkweed, which is a plant the Monarch butterfly needs for survival and at the time the species was under consideration for listing. The unintended consequence of calling out ‘good’ vs ‘bad’ project purposes instead of judging a project based on conservation outcomes means you create a disincentive for traditional companies to do good for biodiversity, and that’s too bad. The incentive that may remain is including an unlisted species if it is likely to be listed in the future and it’s expedient to go ahead and include it in a permit for a listed species that a company was already applying for.
It is nice that the preamble suggested that ‘sustainable’ agriculture might be appropriate for a CBA, but it’s not enough. We need all the investment in Nature that we can get.???
Directing traditional companies into the traditional incidental take permit process also means you’re losing the opportunity to achieve net gain (as opposed to “minimization and mitigation to the maximum extent practicable”). We really should be going for net conservation benefit across the board. Of any U.S. biodiversity policy that will matter to the world in a dozen years, ‘net conservation benefit’ is the single thing that is most important we see agencies working on here. The big picture is that there are millions of species at risk of extinction around the planet. We have to scale up our work. If more policies – not just section 10 but also section 7 – are framed around easing up on paperwork and procedures and focusing on the bottom line of animals and plants being better off, we are doing much better in protecting biodiversity. All of Europe, and many other counties around the world are moving toward ‘net gain/net zero’ policies. The US stands out as the laggard in biodiversity policy in this respect.? This is one of many areas that need way more emphasis and interpretation here if we are going to catch up with the world.?
It’s too bad the Service declined to give special attention to renewable energy. Renewable energy deployment will save thousands to millions of species from extinction – we just can’t name them specifically and causally (yet). And they can cause local impacts to individual species where they are deployed. Contrast that with fossil fuels which often kill species both in their deployment and in use. Renewables projects should really be able to use conservation agreements instead of HCPs way more often. Our guess is that a gigawatt of renewables deployed has a bigger biodiversity benefit (globally) than a $1 million in grant money deployed by the agency provides to species. We don’t think it’s even close.
It’s also too bad the Service didn’t take this opportunity to reduce the paperwork burden of these agreements or adopt timelines for review. We’ve got to keep finding ways to make it possible to get more of these agreements done more quickly. A lot of the paperwork that currently has to get done is an enemy of biodiversity conservation. Extra analyses that no one ever reads. Adaptive management plans that are painstaking to write and pointless in reality. The regulations make a bunch of meaningful steps to cut back on some of that but there is a lot more simplification needed.
Leaving that aside, there are also small, smart changes like adding “Tribal” to the definition of “property owner,” adding a definition of a programmatic agreement, noting that the level of monitoring should be commensurate with the scope and duration of the project impacts. Additionally, parts of the preamble provide a preview of things to come, like internally sharing the data collected by permittees during annual reporting (previously this was what we term ‘single-use’ data), potentially (“we are considering”) adding timelines for permit reviews to Section 10 handbooks which are currently being revised, potentially developing a policy to incorporate dispute resolution, and potentially developing a policy to help staff more objectively determine when an application is “complete” (which commenters expressed has been unpredictable and a source of delays).
Done right, policy can provide an incentive to voluntarily conserve species before they reach the brink of extinction. We were hoping for more from this Final Rule, but it still includes bright spots that we appreciate.
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*For reference - specific examples of text from the preamble relating to the distinction between when a project should go to a CBA vs. an incidental take permit.
NEW TEXT (italics indicate change from the proposed Rule, bold denotes emphasis): “Enhancement of survival permits authorize take of covered species, above the baseline condition, when the conservation actions in the associated conservation agreement are of the nature of improving the condition of the species or the amount or quality of its habitat to provide a net conservation benefit 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); and the conservation actions in the associated conservation plan are of the nature of minimizing and mitigating the impacts of the authorized take for the covered species...”
Later on, in the section addressing comments (EPIC’s included): “To determine the appropriate permit authority, we intend to look at the nature and purpose of the proposed activities and the anticipated outcomes of the take. For an enhancement of survival permit, the purpose and anticipated conservation outcome of the covered activity must be to provide a benefit to the species covered by the permit, i.e., to improve the condition of a species, the amount or quality of its habitat, or both. Conversely, for an incidental take permit, the purpose and anticipated outcome of the covered activity is to carry out otherwise lawful activities that are likely to result in incidental take that is harmful to the species and requires mitigation (e.g., activities that convert habitat to other uses). Thus, using the primary purpose and anticipated conservation outcome of the project provides a straightforward method for applicants to determine which type of permit to pursue and is consistent with Congress’s intent in creating the two different types of permits.”
“While certain types of activities are clearly more appropriate for an incidental take permit versus an enhancement of survival permit, such as housing developments and new infrastructure development, it is not possible to list all the different types of activities that could be covered by each permit type. To determine the appropriate permit authority, we will consider, on a case-by-case basis, the applicant’s purpose for seeking a permit and the anticipated conservation outcome of the activity. We intend to provide additional guidance on this topic in our respective handbooks.”
“With the changes we are making to our regulations, the appropriate permit (incidental take versus enhancement of survival) does not depend on the species an applicant is seeking to include, whether a listed or non-listed species. Rather, it depends on the primary purpose and anticipated conservation outcome of the project and the proposed covered activities for which take authorization is requested.”
Call outs of project types likely ineligible for CBA (and one call out for sustainable ag as potentially eligible).
“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), and the conservation actions in the associated conservation plan are of the nature of minimizing and mitigating the impacts of the anticipated incidental take”
The Service declined to clarify that “energy project proponents” have the flexibility to choose between a CBA and HCP (as commenters wished) but DID clarify that “working agricultural lands that are managed in a sustainable fashion to improve conditions for a listed and at-risk species may be appropriate…”.?
“Energy project proponents, as well as other project applicants, should seek assistance from the Service early in the preapplication and project planning phase to ensure the appropriate permit is pursued.”?
“In general, energy development projects do not have a primary purpose of habitat and species conservation and should seek incidental take permits.”
“The type of applicant does not dictate which type of permit is appropriate for the activity…? In general, take associated with working agricultural lands that are managed in a sustainable fashion to improve conditions for listed and at-risk species may be appropriate for permitting through a conservation agreement, depending upon the proposed covered activities.”
There were two comments related to renewable energy but they did not ask whether they were appropriate for a CBA, but rather asked about expediting permits (due to benefits to species from reducing climate change impacts), and asked about the ability to use a CBA as “a regulatory mechanism to seek coverage while the [renewable energy project] applicant is researching, developing, or testing a novel mitigation technology or technique.” Both these requests for special consideration for renewable energy projects were declined.
In response to EPIC asking whether previously approved conservation agreements (approved as CCAs CCAAs or SHAs) would be eligible under CBAs, the Service responded “Because of the extent of variability among projects, it is not possible for us to categorize all the types of activities that might be covered by an enhancement of survival permit as opposed to an incidental take permit. With the changes we are making to these regulations, it is possible that some activities affecting non-listed species that are included in existing CCAAs may in the future be found more appropriate for authorization though an incidental take permit.”?
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