Endangered Species Law & Policy

The U.S. Fish and Wildlife Service (Service) recently announced a proposed policy establishing credits for voluntary prelisting conservation actions for imperiled species. The policy is intended to establish an additional measure for encouraging and awarding voluntary actions to protect species that may be listed as endangered or threatened under the Endangered Species Act (ESA).

The new policy would apply in two possible situations. For non-federal actions that may harm listed species and require a take permit under section 10 of the ESA, the policy would credit actions taken prior to listing and apply those credits towards mitigation to offset impacts that would occur after the species is listed. For federal agencies, credits from prelisting conservation actions would be used to offset adverse effects of the agency’s proposed action.

To be eligible for credits, conservation actions must be part of a state-administered program for conservation of the species. The policy is intended to engage states in designing and implementing programs to encourage voluntary prelisting conservation actions. All actions to be credited must occur before the species is listed under the ESA, and they cannot be required pursuant to any federal, state, or local regulation.

According to the Service, the policy enables any harm to a listed species to be offset by benefits provided prior to the listing of the species. Additionally, prelisting conservation actions could be combined with additional mitigation to offset any harm to the species. The Service has yet to define the metrics for measuring either the harm or benefit to the species.

States may choose to work with the Service to administer the prelisting conservation programs. Under the policy, the Service will assist states as needed in developing conservation plans, and in overseeing implementation and operation of the voluntary actions.