Getting Ahead of the Endangered Species Act

by Josh Donlan

This guest post is published to coincide with the Ecological Society of America conference in Baltimore, MD. Come back for a new post every day through the end of the conference on Thursday, August 13th.

Josh Donlan

While there are many views on the US Endangered Species Act (ESA), few would argue that it is efficient and cost-effective. Acting late to save something rare is usually slow and expensive. It also causes conflict—which is all too common with endangered species conservation. Thus, any policy that incentivizes conservation action for imperiled species prior to their listing under the ESA should be embraced wholeheartedly. Such proactive policies are especially needed in today’s world. Many, if not most, species are conservation-reliant: the threats they face cannot be entirely eliminated; rather, they must be constantly managed and minimized. Privately held land makes up the majority of land tenure in the United States, and a high percentage of at-risk species and their habitats are found on private lands.

The ESA is strongest at preventing additional harm from occurring. It is weak in promoting proactive measures to improve environmental conditions. Due out this summer, prelisting conservation does just that: provides incentives for landowners to conserve candidate species before they are listed.

In US Fish and Wildlife Service’s own words, the proposed policy “provides a mechanism for landowners, government agencies, and others to obtain credits for current conservation efforts benefitting declining species. These conservation credits can be redeemed later or sold to a third party to offset or mitigate detrimental actions to a species if it later gains ESA protection. Credits can be earned only before a species becomes listed and only for actions that are not mandated by federal, state, or local law.”

This is a big deal for several reasons.

First, it provides a policy pathway for anyone to invest in early species conservation, and get credit for that action if and when the species is listed. This means private entities and federal agencies. Those investment and actions must be voluntary and part of a state conservation program. Prelisting conservation is different from similar policy instruments in place, such as Conservation Agreements with Assurances (CCAA). These are only available to non-federal property owners. Providing a proactive tool to agencies like the Department of Defense could drastically improve voluntary species conservation on military lands (e.g., the US Marine Corp alone operates on 2.3 million acres). Further, CCAAs only provide assurances on the lack of further obligations if a species is listed. In contrast, prelisting conservation policy will provide credits that can be carried forward and used to mitigate the impacts of actions carried out subsequent to listing.

Second, prelisting credits are transferable. This opens up the opportunity for regional prelisting species conservation markets. The Service is allowing for flexibility on the criteria of a credit, which will likely vary across species and situation. However, any credit must meet a net conservation benefit standard: “a credit must be greater than the detriment from the action for which the credit is later redeemed, providing an overall benefit to the species.” The ability to buy and sell credits is perhaps the most exciting aspect of prelisting conservation policy. Why? Because it potentially provides strong incentives for private landowners to engage in stewardship behaviors for imperiled species. A rancher in the West could receive an annual check from an oil and gas company to restore and maintain healthy Greater Sage-Grouse habitat. Instead of selling his land because of high property taxes, a retired Georgia forest landowner could improve his land for gopher tortoises via prescribed burning and invasive plant control, and get paid by the the US Army to do so. These are exciting prospects.

There is strong support for prelisting conservation policy, including from the Western Governor’s Association. The devil, of course, is in the execution. Practitioners should take special care in the design of prelisting conservation programs. That care should extend beyond the biology of the target species to include the potential buyers and sellers of credits. Understanding the needs and preference of the buyers and sellers will be essential in order to design programs that incentivize sufficient participation to achieve the desired landscape-level net conservation benefits. Program designers should remember that these programs are voluntary—and a program with few participants will do little for species conservation nor public support for the ESA.

Josh Donlan is the Director of Advanced Conservation Strategies, a Visiting Fellow at Cornell University, and editor of Proactive Strategies for Protecting Species: Pre-listing Conservation and US Endangered Species Act (March 2015, UC Press).