Obama admin tweaks policy for voluntary agreements

By Phil Taylor | 05/03/2016 01:16 PM EDT

The Obama administration today proposed changes to the agreements it strikes with landowners to help prevent declining wildlife from being listed under the Endangered Species Act.

The Obama administration today proposed changes to the agreements it strikes with landowners to help prevent declining wildlife from being listed under the Endangered Species Act.

The draft policy and rule from the Fish and Wildlife Service and the National Marine Fisheries Service would change the criteria the agencies use in approving candidate conservation agreements with assurances (CCAAs).

CCAAs, which were developed in the final years of the Clinton administration, allow landowners and industry to conserve or restore wildlife habitat for a declining species in exchange for assurances that they won’t face additional regulations if that species is eventually listed.


Under current regulations, in order to approve a CCAA, the agencies must conclude that the benefits of the conservation offered by the property owner, when combined with actions from "other necessary properties," would "preclude or remove any need to list the covered species."

This criterion creates confusion both for the prospective CCAA participants and for the federal officials seeking to enroll them, FWS said. Specifically, meeting the standard depends on other landowners undertaking additional actions that are beyond an individual landowner’s control, FWS said.

The new proposal would instead require that a CCAA provide a "net conservation benefit" to a species it covers. It would also eliminate references to "other necessary properties."

The proposal, which will be open to 60 days of public comment, is aimed at encouraging additional landowners to enter into CCAAs. The agreements have helped preclude the need to list declining species like the Adams Cave beetle and the dunes sagebrush lizard. CCAAs also played a minor role in FWS’s decision last September not to list the greater sage grouse across 11 Western states.

In February, the services also finalized a policy that clarified that lands enrolled in CCAAs and other voluntary conservation programs will generally be excluded from being designated as critical habitat for a listed species. It was another attempt to encourage voluntary habitat conservation that can preclude ESA listings.

Under the newly proposed changes for CCAAs, "net conservation benefit" would be measured "by the projected increase in the species’ population or improvement of the species’ habitat, taking into account the duration of the Agreement and any off-setting adverse effects attributable to the incidental taking allowed by the enhancement of survival permit."

Ya-Wei Li, senior director of endangered species conservation at Defenders of Wildlife, called the proposal a good step. He said the current standard’s concept of precluding the need to list a species can set false expectations by assuming enough other landowners will enroll to achieve the desired result: a decision not to list.

One example is the lesser prairie chicken in the southern Great Plains, which FWS decided in 2014 was in need of ESA protection in spite of landowners and energy companies enrolling in multiple CCAAs across the chicken’s five-state range.

"For some species, especially wide-ranging critters, it’s unrealistic to think that enough people will enroll in CCAAs to preclude the need to list," Li said. "The proposed ‘net benefit’ standard is better because it focuses on the beneficial and adverse impacts to a species under the CCAA at issue."

In the past, FWS’s analysis of "other necessary properties" has been "perfunctory at best," Li said, in part because it can be very difficult to evaluate.

In addition, Li said the "net conservation benefit" criterion better aligns CCAAs with the definition used for Safe Harbor Agreements, a similar program that encourages habitat conservation for species that are already listed.

Brett Hartl, endangered species policy director at the Center for Biological Diversity, said that while the new policy has good intentions, FWS has done little to ensure that the conservation commitments made in CCAAs are being kept.

"Today’s proposals do absolutely nothing to address the glaring lack of oversight by the Service that leaves these agreements as little more than paper promises that have low potential for actually conserving or recovering imperiled plants and animals," he said.