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U.S. Fish and Wildlife Service
Policy Regarding Voluntary Prelisting Conservation Actions
SUMMARY: We, the U.S. Fish and Wildlife Service, announce a final policy on crediting voluntary
conservation actions taken for species prior to their listing under the Endangered Species Act of 1973,
as amended (ESA). The policy gives landowners, government agencies, and others incentives to carry
out voluntary conservation actions for unlisted species by allowing the benefits to the species from a
voluntary conservation action undertaken prior to listing under the ESA to be used—either by the
person who undertook such action or by a third party—to mitigate or to serve as a compensatory
measure for the detrimental effects of another action undertaken after listing. This policy will help us
further our efforts to protect native species and conserve the ecosystems on which they depend.
Background
The U.S. Fish and Wildlife Service (Service or FWS) is charged with implementing the
Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.); the goal of the ESA is to
provide a means to conserve the ecosystems upon which listed species depend and a program for
listed species conservation. Through its Candidate Conservation program, the Service encourages the
public to implement conservation actions for species prior to them being listed under the ESA. Doing
so may result in precluding the need to list a species, may result in listing a species as threatened
instead of endangered, or, if a species becomes listed, may provide the basis for its recovery and
eventual removal from the protections of the ESA. As explained below, the policy provides
incentives to the public to implement these prelisting conservation actions. Note that this policy is
consistent with the Service’s March 8, 2016, proposed revisions to the 1981 mitigation policy (81 FR
12380).
Recognizing that species benefit from focused conservation actions taken to address threats to
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their survival, the Service encourages landowners to conserve candidate and other unlisted species by
stabilizing and increasing populations so that the species may not need listing. In March 2012, the
Service published in the Federal Register an advance notice of proposed rulemaking inviting the
public to identify potential changes to our regulations under the ESA (77 FR 15352, March 15, 2012).
Our goal was to create additional incentives and improve or expand existing incentives for
landowners and others to invest in early voluntary conservation actions to benefit species that may
become listed as threatened or endangered species. Because we received a request from the
Association of Fish and Wildlife Agencies to extend the comment period, we published a document in
the Federal Register extending the comment period an additional 60 days (77 FR 28347, May 14,
2012).
The comments and recommendations in the 95 responses the Service received in response to
the advance notice of proposed rulemaking supported the tenet that, if the need to list a species under
the ESA can be avoided, everyone, including the species, benefits. The responses also underscored
the need for incentives for individuals and agencies, both Federal and State, to invest in conservation
actions for species prior to listing. The comments and recommendations made by the individuals,
organizations, and agencies covered an array of issues such as the need for guidance on developing
crediting programs, updating the Service’s mitigation policy, the need for conservation strategies to
guide candidate conservation agreements, streamlining the conservation agreement process, and
improving conservation banking. On July 22, 2014, we published a draft policy (79 FR 42525),
which was based on recommendations generated by the advance notice of proposed rulemaking, and
we accepted public comments on the draft policy until September 22, 2014. On September 22, 2014,
we extended the comment period on the draft policy until November 6, 2014 (79 FR 56602). The
comments we received are available at http://www.regulations.gov under Docket No. FWS–R9–ES–
2011–0099.
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Changes from the Draft Policy
Based on comments we received on the draft policy and on discussions with State
conservation or wildlife agencies, we include the following changes in this final policy:
(1)
We added a definitions section to the policy to explain key terms.
(2)
The draft policy stated that the credits earned by undertaking a prelisting conservation
action may be transferred to a third party but must be used for the same species and within the same
State where the credit was earned. In the final policy we require that the credit be used within a
“service area” that is based on the biological needs of the species rather than on State boundaries and
include a definition of “service area.”
(3)
We clarified that qualifying conservation actions must be part of a conservation
program that is operational and generating conservation benefits for the species before the date on
which a proposed rule to list the species under the ESA is published in the Federal Register.
(4)
In section 4 of the policy, rather than using the phrase “positive assistance to the
recovery of the species,” we indicate that the benefit from the prelisting actions combined with the
detriment of an action taken after listing must result in a “net conservation benefit” to the species and
provide a definition of this phrase.
(5)
We expanded the policy by incorporating, by reference, requirements and program
elements that are contained in other Service mitigation policies to further define and govern voluntary
prelisting conservation actions taken as part of a prelisting conservation program. We are
incorporating these requirements from other Service mitigation policies in order to have consistency
among all the different types of mitigation programs.
(6)
We clarified the role of the U.S. Fish and Wildlife Service to indicate that the Service
may assist a State in any aspect of a voluntary-prelisting-conservation program, but only if requested
by the State.
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(7)
We expanded section 7 of the policy to incorporate, by reference, principles and
requirements contained in Service mitigation policies that prelisting crediting programs need to
encompass.
(8)
We included a new section in the policy to further explain the relationship between this
policy and candidate conservation agreements (both Candidate Conservation Agreements (CCAs) and
Candidate Conservation Agreements with Assurances (CCAAs)).
Policy Explanation
Introduction: Incentivizing voluntary conservation action prior to listing.
The policy has
two stated purposes, as set forth in section 1. The first and more general purpose is to incentivize
voluntary conservation actions on behalf of species before they reach the point at which they need to
be listed as threatened or endangered under the ESA. Such voluntary conservation actions, if they
address threats at a sufficient scale and for a long enough time, could result in stabilizing and
increasing populations of the species such that the protections of the ESA would not be needed. In
other words, the voluntary conservation actions could contribute to precluding the need to list the
species. The policy seeks to reward those who voluntarily undertake actions to help the species when
they have no legal obligation to do so. As described in more detail later, the reward is that the
benefits to the species from a voluntary conservation action undertaken prior to listing may be
available to be used—either by the person who undertook that action or by a third party—to mitigate
or be a compensatory measure for the detrimental effects of another action undertaken after listing. In
this policy, the credit earned by undertaking a prelisting conservation action can be transferred to a
third party if the prelisting conservation action and the credit are for the same species and within the
appropriate biological area (i.e., service area). The service area may encompass more than one State.
Clarifying existing regulations at 50 CFR 402.14(g)(8). A second, more narrow, purpose of
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the policy is to clarify a provision that has been in the regulations that implement section 7 of the ESA
since 1986, but that received little explanation then or thereafter. That provision, set forth in 50 CFR
402.14(g)(8), states that the Service “will give appropriate consideration to any beneficial actions
taken by the Federal agency or applicant, including any actions taken prior to the initiation of
consultation” during the course of consultation under section 7(a)(2) of the ESA or “early
consultation” under section 7(a)(3). The policy makes clear that beneficial actions “taken prior to the
initiation of consultation” include actions taken prior to listing, provided they meet the policy’s
definition of a “voluntary prelisting action.” Note that the Service will also give appropriate
consideration during our consultation process to other beneficial actions that do not qualify for the
special treatment described in this policy. In addition to clarifying that prelisting beneficial actions
are among the actions to be given “appropriate consideration,” the policy also clarifies how the
Service will give appropriate consideration to those beneficial actions that are subject to the policy.
Specifically, in the course of section 7 consultations, the Service will consider the beneficial effects of
a voluntary prelisting conservation action to be included as part of the environmental baseline for the
agency action if requested by the action agency or, in the case of an agency action involving a permit
applicant, by such applicant.
The policy also makes clear that the Service will evaluate the conservation value of a
prelisting conservation action based on its inclusion and priority in a conservation strategy for the
species. A conservation strategy is a foundational document that should guide all conservation efforts
for at-risk unlisted species, including Federal, State, Tribal, and private conservation actions. A
strategy can be authored by any one of these entities, but ideally it will be created as a collaborative
effort, with States playing a primary role, and the public having an opportunity to contribute. A
conservation strategy that is used in a voluntary-prelisting-conservation program must be reviewed by
the Service if the Service is not an author, co-author, or part of the effort that developed the strategy.
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Coordinated efforts will likely result in better conservation outcomes for the species and efficiencies
in implementing and monitoring conservation actions. While a strategy may cover more than one
State and be ecosystem-based and thus include a suite of species, from the Service’s perspective, the
primary goal of the strategy is to provide the necessary detailed information to guide management of a
species so that it is successfully conserved and does not need the protections of the ESA.
How voluntary prelisting conservation actions are to be treated. Section 3 of the policy sets
forth in general terms how the Service will treat voluntary prelisting conservation actions. Two
possibilities are described. First, such an action can be treated as a voluntary prelisting conservation
action to offset the impacts of the incidental taking of a listed species for which a permit is sought
under section 10(a)(1)(B) of the ESA in conjunction with a habitat conservation plan. Alternatively,
where a proposed action that detrimentally affects a listed species is authorized, funded, or carried out
by a Federal agency, the voluntary prelisting conservation action can be treated as a compensatory
measure for the proposed action. Section 7 of the ESA, unlike section 10(a)(1)(B), does not explicitly
require that detrimental impacts be mitigated, but it is a long-established practice under section 7 that
Federal agencies or their permit applicants can incorporate mitigating measures into their proposed
projects so as to reduce their overall impact. The policy makes clear that voluntary prelisting
conservation actions can be used in this manner.
Section 3 of the policy also establishes that a voluntary prelisting conservation action
undertaken by anyone, including a Federal agency, can be used as described in the policy. Unlike
some other incentive-based policies (e.g., the Safe Harbor Agreements (SHAs) policy (64 FR 32717,
June 17, 1999) and the Candidate Conservation Agreements with Assurances (CCAAs) policy (64 FR
32726, June 17, 1999)) that apply only to non-Federal property owners, this policy applies to anyone
or any entity that undertakes the prelisting conservation action through a program that follows this
policy.
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Defining voluntary prelisting conservation actions. Section 4 of the policy defines “voluntary
prelisting conservation actions.” The definition has three key components. First, the action has to be
undertaken before the species it is intended to benefit is listed under the ESA. An action can be
undertaken at any time prior to a species being listed. Once a species has been listed, however, no
new voluntary prelisting conservation actions would receive credit under this policy, but ongoing
actions initiated prior to a final listing would continue. Second, the policy also specifies that actions
taken prior to the policy being finalized will not be considered under this policy. However, any
conservation actions taken outside the policy would still be considered in a listing decision. Third, the
action must be truly voluntary, one that is not required by the ESA or by any other Federal, State, or
local regulatory mechanism.
The Service recognizes that State wildlife agencies have management expertise, authority, and
responsibility for conservation of unlisted species in their respective jurisdictions. Acknowledging
this jurisdiction, the third component requires that actions undertaken are part of a State-administered
program, and the program must reference or include a conservation strategy for the species that has
been developed or adopted by the State. The policy contemplates the active engagement of the States
in designing and implementing a program to encourage voluntary prelisting conservation actions, as
further described in section 5 of the policy. The policy envisions that the States will use a
collaborative and transparent approach in designing such a program. The policy also makes it clear
that States can use Federal funds in accordance with section 6 of the ESA to administer and oversee
the implementation of the prelisting conservation program to ensure the successful implementation
and maintenance of the voluntary prelisting conservation actions as they relate to candidate species.
The States may allow for another entity (e.g., local government or nongovernmental organization) to
fulfill the measuring, monitoring, and oversight obligations that are necessary to ensure the successful
implementation and maintenance of the voluntary prelisting conservation actions. Regardless of
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which State agency or entity is authorized to develop and track prelisting mitigation actions, the State
agency with jurisdictional authority for the species identified (plant or animal) must be provided an
opportunity to participate in the development of, and ultimately either approve or deny, any mitigation
plans or criteria for issuing credits that may affect those populations.
Role of the States. The role of the States under the policy, should they choose to participate, is
addressed in greater detail in section 5. This section of the policy aims to ensure the primacy of the
States in conserving species before they are listed, while also ensuring an effective partnership with
the Service so that voluntary prelisting conservation actions will be recognized by the Service in the
event that the species is later listed. An important role of the States is to ensure that voluntary
prelisting conservation actions are effectively implemented and maintained. The primary tracking and
oversight is to be done by the States, which will then annually provide information on the
conservation actions to the Service. However, in some cases, a single State may be unable to take a
lead role in implementing a program that qualifies under this policy. States may then decide to form
partnerships or consortiums in order to pool resources or to better manage species whose ranges
include multiple States. Additionally, under some circumstances, no State agencies within a State
may be able to fully implement a program under this policy. In these cases, the Service or another
entity may assist a State, if requested. To avail themselves of the postlisting opportunity provided by
the policy, persons planning to undertake voluntary prelisting conservation actions must do so within
the framework of a State- or multi-State-approved program and a State conservation strategy for the
species or multi-species-ecosystem- or landscape-conservation strategy; the Service must have
reviewed both the program and conservation strategy. If no State conservation strategy exists, the
State may adopt a strategy developed by another entity.
Some States may have their own laws or regulatory authorities (separate from the ESA) under
which they can require mitigation requirements for certain activities. If that is the case, and a person
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who undertakes a voluntary prelisting conservation action is allowed by the State to treat the benefits
of that action as fulfilling the mitigation requirements of State law, the individual cannot subsequently
use the same action as mitigation for a separate activity carried out after listing. That is, if used prior
to listing to meet the mitigation requirements of State law, the benefits of prelisting conservation
actions cannot be used again as mitigation for separate actions carried out later. Use of prelisting
conservation actions to meet State mitigation requirements should be reflected in the register
maintained by a State so as to avoid using the same credit(s) for multiple actions.
Role of the U.S. Fish and Wildlife Service. The role of the Service is addressed in section 6 of
the policy. This section explains that the Service will assist the State(s), as requested, in tracking the
implementation and maintenance of the prelisting conservation actions, as well as reviewing any
voluntary prelisting conservation programs developed under this policy. While States have the
primary role in managing species that are not listed under the ESA, they may not have the necessary
resources or authority to implement a conservation program for some species or to fully track the
prelisting conservation actions. Consequently, the Service may assist the States, if requested by a
State, to help achieve the mutual goal of conserving species before they are listed under the ESA.
Additionally, the Service will coordinate between the State(s) and other Federal agencies to help
develop conservation actions and assist in tracking the implementation and maintenance of those
actions, if requested. Should a species be listed, the Service will review and approve the use of credits
from voluntary prelisting conservation actions as compensatory measures or mitigation under sections
7 and 10, respectively, of the ESA.
Quantifying beneficial and detrimental impacts. Providing credit for an effort to mitigate or
serve as a compensatory measure for the impacts of a detrimental action to a species (or any other
resource) requires measuring both the detrimental impact and the offsetting benefit to be secured
through a voluntary prelisting conservation program. Section 7 of the policy provides that, in
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evaluating the impacts of both detrimental actions and beneficial actions, the Service will use the
same criteria, standards, and metrics to quantify the former as it is used to quantify the latter. While
the policy provides general guidance on establishing the metrics, and references the FWS’s ESA
mitigation policies for further information, it does not specify the metrics that will be used for
particular species. Instead, those will need to be developed independently and are likely to vary from
species to species or situation to situation. However, the benefit of a voluntary prelisting conservation
action for which credit may be available must be greater than the detriment from the action for which
the credit will be used; that is, the benefit from the prelisting action, combined with the detriment
from a later action, must result in a net conservation benefit to the species. This would be achieved by
permanently setting aside a minimum of 10 percent of the credits for each action to gain a net
conservation benefit to the species (i.e., net benefit credits). The percent set aside could be greater
than 10 percent in some cases—if, for example, the status of the species is declining precipitously.
The specific percentage will depend on the status of the species and the nature of the actions. Some
additional credits will also be set aside to manage for risk of the conservation actions failing to
achieve their intended purpose; these do not need to be permanently set aside. Also, a voluntary
prelisting conservation action can be supplemented with an additional postlisting conservation action
so that the combined benefit of prelisting and postlisting conservation actions is greater than the
detriment from the postlisting detrimental actions.
Over time, new scientific information may indicate that the metric may need revision or a new
metric should be used. The Service will work with the program administrator to decide if the metric
needs to be changed. However, any new or improved metrics will not undermine or devalue existing
credits or voluntary conservation action agreements except in cases where failure to utilize a new or
revised metric would appreciably reduce the likelihood of survival and recovery of the affected
species in the wild. In these cases, the Service will require a new or improved metric for credits not
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yet used or sold and will work with the landowner to find alternatives to address the needed changes.
Preferential use of voluntary prelisting conservation actions to offset the impacts of postlisting
activities. Since the purpose of the policy is to incentivize voluntary prelisting conservation actions
by allowing the benefits of such actions to serve as mitigation or a compensatory measure for the
detriments of postlisting actions, that purpose would clearly be undercut if the Service were routinely
to require some other form of mitigation or compensatory measure for actions that it consults on or
authorizes after listing. Put differently, those who invest in voluntary prelisting conservation actions
under the policy are likely to want a reasonable assurance that, when the Service evaluates the
mitigation or compensatory measure needs for postlisting activities, we will give first consideration to
these already-established mitigation or compensatory measures. However, although prelisting
conservation actions may be proposed by a proponent as mitigation or a compensatory measure for
postlisting detrimental actions, this policy does not prevent the Service from encouraging or
recommending an alternative mitigation or compensatory measure in circumstances where it is
determined to clearly produce a better, or more certain, environmental outcome. Such circumstances
are expected to be the rare exception to the preference to use existing credits from voluntary prelisting
conservation actions. Likewise, if the proponent of a postlisting action can achieve a commensurate
or better environmental outcome with less effort, cost, and time expended, the policy allows the
proponent the flexibility to make that choice.
Effect of using voluntary prelisting conservation actions to offset the impact of postlisting
activities. As previously noted, section 5 of the policy makes clear that, if a State treats the benefits of
a prelisting conservation action as meeting State mitigation requirements for actions carried out prior
to listing, the use of those benefits precludes their later reuse. In a parallel fashion, section 8 of the
policy provides that, after listing, once the Service allows the benefits of a prelisting conservation
action to serve as mitigation or a compensatory measure for the impacts of a postlisting action, those
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same benefits cannot not be used again to offset the impacts of other later postlisting actions.
Relationship to Candidate Conservation Agreements. Although CCAs, CCAAs, and voluntary
prelisting conservation actions covered by the policy serve the same purpose, conservation of unlisted
species before they become listed, they employ different mechanisms, have different approval
requirements, and have other important differences.
First, a CCAA is intended to provide a landowner (non-Federal) with an assurance that, if the
species covered by the CCAA is later listed as threatened or endangered, no new restrictions or
conservation obligations will be imposed on the landowner for that species. In contrast, the purpose
of the policy’s treatment of a voluntary prelisting conservation action is to give a landowner (Federal
or non-Federal) the opportunity to have that action serve as mitigation or a compensatory measure for
the detrimental impact of an action undertaken after the species is listed as threatened or endangered.
Second, CCAAs are subject to more exacting approval requirements. To qualify for a CCAA,
a non-Federal landowner must commit to carry out conservation measures that are designed to reduce
or eliminate those current and future threats on an enrolled property, that are under the control of the
property owner, in order to provide a net conservation benefit to the covered species. In contrast, to
be treated as a voluntary prelisting conservation action under the policy, an action need only be
beneficial to a particular species; the policy requires no specific magnitude of benefit. While it is
possible for a voluntary prelisting conservation action to satisfy the requirements of both the CCAA
policy and this policy, the action cannot be treated under both policies. Using the same conservation
action as mitigation or a compensatory measure against a future detrimental action is inconsistent with
the intent of the CCAA policy to secure durable conservation commitments that would constitute a
particular landowner’s contributions necessary to preclude the need to list a species. However, a
landowner may participate in both a CCAA and a voluntary prelisting conservation actions program if
the actions taken under a mitigation program are in addition to those taken to satisfy the CCAA
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requirements. Also a landowner may terminate their participation in a CCAA and participate in any
type of mitigation program. In this situation, the assurances and the incidental take permit associated
with the CCAA would no longer be in effect. Section 10 of the policy clarifies this relationship
between candidate conservation agreements and prelisting conservation actions as defined by the
policy.
Summary of Comments and Recommendations
On July 22, 2014, we published a document in the Federal Register (79 FR 42525) that
requested written comments and information from the public on the draft Policy Regarding Voluntary
Prelisting Conservation Actions. In that document, we announced that the comment period would be
open for 60 days, ending September 22, 2014; we later extended that period to November 6, 2014.
Comments we received are grouped into general categories specifically relating to the draft policy.
General Comments
Comment (1): Many State agencies indicated that resources from the Service are essential to setting
up and implementing a voluntary-prelisting-conservation program.
Our Response: We agree with the commenters that resources would be needed to setup and
implement a program under this policy. However, the Service does not have funding or other
resources to provide to the States, other than funding under section 6 of the ESA that may be used for
candidate species. The policy does explicitly allow a State to designate a third party (e.g., an
entrepreneurial conservation banker) as its agent in carrying out the State role in implementing a
voluntary-prelisting-conservation program, although it must retain an effective role in oversight of
any program implementation assigned to a third party.
Comment (2): Some commenters suggested that we clarify what constitutes a ‘voluntary’ action
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under this policy to better explain what actions would qualify as voluntary. Other commenters
thought that conservation actions that are required under an already-established State program, such as
a State mitigation program, should qualify as a voluntary action and be able to receive credit under
this Federal policy.
Our Response: Section 4 of the policy provides a definition of voluntary prelisting conservation
actions. We disagree with the commenters that a conservation action required under an alreadyestablished State program should also receive credit under this policy. The goal of the policy is to
encourage additional conservation actions for unlisted species, and, thus, we have made it clear in the
policy that conservation actions required under already-established State programs will not be eligible
for credit under this policy.
Comment (3): Numerous commenters did not think our use of the term “positive assist to recovery”
was appropriate and instead suggested we use the term “net conservation benefit.”
Our Response: We agree and have substituted the term “net conservation benefit” in the final policy;
we have also added a definition of that term.
Comment (4): Regarding section 4 of the policy, which describes voluntary prelisting conservation
actions, numerous commenters said that we should use the natural range of species rather than restrict
actions to within State boundaries.
Our Response: We agree with the commenters and have revised the policy to indicate that where
voluntary prelisting conservation actions will be undertaken is based on the biology of the species and
not on State boundaries. We have also indicated that under this policy, programs can be developed
that include multiple States and species.
Comment (5): Most commenters supported the need for conservation strategies or plans to guide
conservation actions, and that the conservation plan or strategy does not have to be developed by the
Service. Some commenters requested clarification on whether the Service has to approve a strategy
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and who could develop the strategy. Guidance for developing a strategy was also requested.
Our Response: We agree and provide guidance on what we recommend be included in a conservation
strategy for use in developing prelisting conservation programs that will address threats to a specific
species and result in conservation actions that contribute to not needing to list that species. In the
final policy, we indicate that while the Service does not have to approve a strategy, we must review it
if we were not an active participant in the development of the strategy.
Comment (6): Several commenters requested that we clarify how new science will affect credits
already established. Commenters thought it was important to assure credit producers or credit buyers
that those credits will retain their value over time.
Our Response: In the Adaptive Management section of the policy, we clarified that any new or
improved metrics that are based on new science will not undermine or devalue existing credits or
voluntary conservation action agreements, except in cases where failure to utilize a new or revised
metric would appreciably reduce the likelihood of survival and recovery of the affected species in the
wild.
Comment (7): Many commenters said the program needs to be transparent.
Our Response: We agree and have required that the program, particularly the metrics used to
calculate credits and debits and the availability of credits, be transparent and available to the public.
Comment (8): Actions underway before the policy is finalized should be eligible for crediting as well
as actions taken “historically” if those actions can be appropriately documented.
Our Response: Since a primary goal of the policy is to encourage entities to take additional voluntary
conservation actions for unlisted species, the policy is clear that actions taken prior to the effective
date of the policy are not eligible to receive credits. However, as we clarified in the preamble and
section 3 of the policy, under the ESA section 7 regulations (50 CFR 402.14(g)(8)), the Service “will
give appropriate consideration to any beneficial actions taken by the Federal agency or applicant,
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including any actions taken prior to the initiation of consultation” during the course of consultation
under section 7(a)(2) of the ESA or “early consultation” under section 7(a)(3).
Comment (9): Some commenters requested that we define “landowner” and that definition should
include entities that lease land and not just entities that own a property. Entities that lease land and
take voluntary prelisting conservation on those lands should be eligible to earn credits under the
policy.
Our Response: While we have not defined “landowner” in the policy, we do use this term to
generally refer to property owners. However, we believe the policy is clear that it applies to any
entity, including ones that lease land, as long as they have the authority to implement, maintain and
monitor the voluntary conservation actions they are seeking credit for under the policy.
Comment (10): Many of the commenters indicated that the policy lacked information on how to set
up a crediting program that meets the policy.
Our Response: We agree that the draft policy lacked specifics on what a program needs to include or
address to qualify under this policy, and we have expanded sections of the final policy with more
information. For example, we expanded the section on the definition of “prelisting conservation
action,” and added the following sections to the policy: principles and requirements of voluntary
prelisting conservation actions; metrics; site selection, conservation actions, and management;
duration; biological effectiveness; durability; and program administration.
Comment (11): Several commenters requested that the policy provide more detail on how the Service
or States will determine the level of conservation benefit.
Our Response: We have included a section on Principles and Requirements of Voluntary
Prelisting Conservation Programs that outlines, in general, how a net conservation benefit should
be achieved. We have purposely not been prescriptive in order to provide flexibility to States who
desire to set up a program under the policy. The policy does require that a minimum of 10 percent of
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the credits must be permanently set aside and cannot be used when taking a detrimental action that
requires mitigation or a compensatory action. In the policy, we define these as “net benefit credits.”
Comment (12): Many commenters stated that the policy lacked details on the metrics that would be
used to determine credits and debits.
Our Response: We agree that the draft policy lacked detail on the metrics used to calculate credits
and debits. In this final policy, we added a section describing general requirements for metrics and
referenced the Service’s ESA mitigation policies, which are more detailed, but are not overly
prescriptive because metrics will need to vary by species.
Comment (13): Commenters stated that the policy should include information on how a voluntary
prelisting program will address risk and additionality.
Our Response: We agree and have addressed additionality in section 7 of this policy as well as in
section 11 in relation to CCAAs; we address risk in section 8 of this policy.
Comment (14): Several commenters suggested that the policy use the same standards and metrics that
other mitigation programs use to ensure consistency; there is no need for the Service to develop new
standards and metrics. Some commenters cautioned us not to let programs with lower standards
undercut the viability and efficiency of programs with higher standards like this policy.
In addition,
commenters asked how this policy relates to the Service’s new mitigation policy under development.
Our Response: We agree that the policy should be as consistent as possible with other mitigation
programs and policies. In finalizing this policy, we ensured that it is consistent with other Service
mitigation policies and, in fact, refer to those policies for more detailed information rather than
repeating that information in this policy.
Comment (15): Several comments also suggested we incorporate concepts from the Service’s 2014
Greater Sage-grouse Range-wide Mitigation Framework (Framework).
Our Response: We reviewed and incorporated many concepts from the Framework into the
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Principles and Requirements of Voluntary Prelisting Conservation Actions section of this final
policy.
Comment (16): Commenters suggested that we either refer to or use elements from the Service’s
2003 Guidance for the Establishment, Use, and Operation of Conservation Banks.
Our Response: In finalizing this policy, we ensured that it is consistent with the Service’s current
conservation-banking policy, as well as the new, more comprehensive Service mitigation policy, and
we reference the principles and standards in the new mitigation policy rather than repeat them in this
document.
Comment (17): One commenter requested that we clarify in the policy who owns the credits if public
funds are used to implement the voluntary conservation actions that provide the benefit.
Our Response: Except for projects where federal funding is specifically authorized to provide
mitigation, federally-funded conservation projects, including the non-federal contribution required for
federal cost-share conservation programs, undertaken for purposes other than mitigation will not be
considered to be additional voluntary conservation actions (and not eligible to receive credits under
this policy) except as outlined in Section 7 of the policy. However, credits may be generated by
activities undertaken in conjunction with, but supplemental to, such programs in order to maximize
the overall ecological benefits of the restoration or conservation project. Where federal funds have
been used in the establishment of a mitigation area, the allocation of credits will be proportionate to
the non-federal contribution. Preventing participants in some federal conservation projects or
programs with a cost-share or in-kind match from receiving credits under this policy may have
unintended consequences for those federal programs and unnecessarily limit the potential of this
policy. The Service will continue to evaluate this aspect of the policy and the extent to which federal
conservation programs with a cost-share or in-kind match can be used to leverage this policy in
providing a strong conservation incentive towards conserving pre-listed species.
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Comment (18): Several commenters indicated that voluntary-prelisting-conservation programs should
be able to cover multiple States and include multiple species.
Our Response: We agree and have clarified in the policy that voluntary-prelisting-conservation
programs may include multiple State and species. In section 4 of the policy, Definition of Voluntary
Prelisting Conservation Actions, we refer to a “State- or multi-State-administered program.”
Comment (19): Commenters suggested that the policy be broadened to allow other entities, in
addition to States, to assume roles for administration of voluntary-prelisting-conservation programs,
including tracking and monitoring of the implementation and success of conservation actions, as well
as transfer and debiting of credits.
Our Response: We agree with this suggestion; section 8 addresses the possible roles of cooperators.
Partnerships among States (e.g., a consortium) are encouraged to facilitate the implementation and
oversight of voluntary-prelisting-conservation programs. A State may designate a third party (e.g., an
entrepreneurial conservation banker) as its agent in carrying out the State role in implementing a
voluntary-prelisting-conservation program.
States may assign oversight functions to a third party, including a Federal agency, or conservation
consortiums such as Landscape Conservation Cooperatives (LCCs). The program administrator
(State or other entity) will be the entity with enforcing authority for the establishment, operation, and
management of a voluntary-prelisting-conservation program and must have the ability to enforce
management actions, reconcile funding issues, incorporate adaptive management, track debits and
credits, and report results and other activities, as needed. A State agency must, however, retain an
effective role in oversight of any program implementation assigned to a third party
Comment (20): Several commenters requested that we clarify the relationship between Candidate
Conservation Agreements with Assurances and voluntary prelisting conservation programs; the
Service should indicate if a non-Federal entity can participate in both programs or be able to switch
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from one program to the other.
Our Response: We added section 11 to explain the relationship and differences between this policy
and candidate conservation agreements (both Candidate Conservation Agreements (CCAs) and
Candidate Conservation Agreements with Assurances (CCAAs)). Candidate Conservation
Agreements with Assurances apply only to non-Federal property owners; this policy applies to anyone
or any entity who undertakes the prelisting conservation action through a program that follows this
policy. Landowners enrolled in CCAs or CCAAs can receive credit under this policy for prelisting
conservation actions if the actions are additional to the conservation measures required by the CCA or
CCAA. Conservation measures and prelisting conservation actions will need to be independently
accounted for and reported to each respective program. Also, a landowner can exit the CCAA
program and enter the same property in a voluntary prelisting conservation program. However, in this
situation, the assurances and the incidental take permit associated with the CCAA would no longer be
in effect.
Comment (21): Commenters indicated that the policy should allow entities to “stack” credits on the
same piece of property depending on how conservation requirements are set up.
Our Response: We added a reference to the issue of credit stacking to section 8 and directed readers
to the Service’s mitigation policy for additional information.
Comment (22): Several commenters stated that the policy will impinge upon a State’s ability to
administer at-risk species conservation by adding requirements for the conservation of those species.
Our Response: States have the option of creating a voluntary-prelisting-conservation program; such
programs are not required by the Service. Should a State decide to create such a voluntary program,
that State can design it so it does not interfere with or preclude that State from using other programs
and approaches to address the conservation needs of at-risk species.
Comment (23): Some commenters believed that the policy will act as an incentive to list species
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under the ESA, as actions will only have value when a species is listed.
Our Response: The mechanism for generating or earning credits is to undertake specific voluntary
conservation actions that are designed to contribute to not having to list a species. Cumulatively, such
actions taken by multiple landowners may result in keeping a species from being listed rather than
providing reasons to list a species.
Comment (24): Some commenters believed the policy will provide a mechanism for people to avoid
ESA regulations and will put at-risk species at a greater risk.
Our Response: If the landowners are actually providing benefits to a species prior to listing, thus
before the credits can be used, the species will not be put at greater risk of accelerated decline from
these voluntary conservation actions.
Comment (25): Some commenters questioned how the policy is legal since current habitat
conservation plan (HCP) and section 7 consultation regulations do not require a net conservation
benefit, while a net benefit is a requirement of this policy.
Our Response: While it is true that the HCP and section 7 regulations (50 CFR 17.22 (b)(1), 17.32
(b)(1), and 50 CFR 402 subparts A and B) do not specify that a net conservation benefit be achieved,
both are viewed as recovery tools and in practice many HCPs and section 7 consultations can
contribute toward recovery of listed species. The overall goal of this policy is to provide additional
incentives to entities to take early voluntary conservation actions that will benefit unlisted species; the
goal is that enough of these actions will be implemented in accordance with a conservation strategy so
that the species does not need the protections of the ESA. To achieve this goal, a net conservation
benefit standard is essential. In any case, use of this policy is entirely voluntary—HCPs and section 7
consultations can continue as always in the absence of voluntary-prelisting-conservation programs.
Comments Responding to Specific Questions Asked in the Draft Policy
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In the draft policy, we requested input on six specific questions. The following is a summary
of the comments we received and our responses:
(1) The policy requires an overall positive assistance to the species; how should we define this
benefit?
Comment: Several commenters suggested we use the term “net benefit to recovery” in the policy
and should assert a clear goal that allows for the development of standards for defining benefit,
including how impacts and offsets should be valued. Other commenters recommended we use a 1
unit of credit to equal 1 unit of debit with no set aside. The credit creation and value must
incorporate the term “positive assist.” Other commenters suggested we add examples of what
constitutes a positive assist.
Our Response: In this final policy, we are no longer using the term “net benefit to recovery” or
“positive assistance” but are using “net conservation benefit” as the standard under the policy.
(2) The policy requires that a prelisting conservation action be part of a State plan. What approach
should we take if there is no State plan for the species?
Comment: The policy is overly restrictive in requiring adherence to a State plan because few such
plans exist that identify conservation needs of individual species and strategies to address them.
The policy should define what constitutes an “appropriate” conservation plan; any plan that meets
standards of that definition should be eligible. If no plan or strategy from a State exists, we should
rely on a strategy from other interested parties and agencies. Commenters stated that State
wildlife action plans (SWAPs) should be used, or if there are none, we should collaborate with the
States to develop a conservation plan or ad-hoc conservation plans approved by States and FWS.
A number of commenters support the requirement that actions must be within the framework of a
State or multi-State approved program and the use of SWAPs, though not every SWAP will
include “species-specific metrics.” SWAPs will provide a basis for developing policy at the State
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level.
Our Response: The commenter is confusing a State prelisting-conservation program, through
which a State administers a voluntary prelisting crediting system, with a conservation strategy or
plan for a particular species that identifies the conservation actions needed to address specific
threats to that species. A State must have in place a voluntary-prelisting-conservation program
that it administers and through which an individual or other entity can establish and use
conservation credits. A conservation strategy or conservation plan can be developed by various
sources; for example, many conservation strategies result from the cooperative efforts of States,
the Service, and species experts. Such species plans may be found in SWAPs but are not required
to be in a SWAP. Sources of such strategies can vary as long as the Service has had the
opportunity to review the strategy. The conservation actions identified to address the priority
threats causing the decline of a species are the essential requirement of a conservation strategy or
plan rather than the source or author.
(3) For those species for which the State does not have the authority or jurisdiction, should we revise
the policy to allow prelisting conservation actions for these species to receive credit? If so, how
would these prelisting conservation actions be tracked and monitored?
Comment: All agencies with plant or animal authority should be allowed to implement the policy,
but the State’s fish and wildlife management agency should be involved. A Federal agency or
third party could provide tracking and monitoring. Eligibility to obtain credits for prelisting
conservation activities should not be limited to States in which a plan has been developed. The
ability for the Service to administer a program can accommodate those instances where a State
plan has not been adopted or the State, itself, does not have authority or jurisdiction over such
species.
Our Response: States have the responsibility for species that are not federally listed under the
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ESA. The Service may assist a State in administering or monitoring a prelisting program, if
requested by the State. In addition, through a formal agreement with a State, another entity may
administer the prelisting program for that State.
(4) How should we quantify the value of the voluntary prelisting conservation actions and credits?
Comment: We received a variety of ideas on how the value of credits should be quantified. Some
commenters indicated States should decide the value of credits with minimal assistance from FWS
while other commenters thought FWS should not be quantifying the credit or debit methodologies
because these are supposed to be State-run programs, but FWS should approve them. Some
commenters believed the value of the credits should be tied to the value of the threat reduction to
the species. The unit of measure should not be in dollars, but should be measured by the
importance to the survival of the species. Others thought that the buyer and seller should
determine the value of the credit with State and FWS input, while another commenter suggested
that quantifying the value of voluntary conservation actions should be addressed through
facilitated discussions with stakeholders. After FWS develops a quantification tool, it should be
released to the public for additional comments. The commenter suggested we include criteria for
approval from other existing programs. If credits are devalued or not recognized, a landowner
should be able to go back to the baseline with no penalty like in SHAs. The commenter also
suggested we use conservation-banking and recovery-crediting approaches. Other commenters
suggested that the value of the voluntary prelisting conservation actions should be determined at
the time the impact to the species occurs to account for new science rather than assign the value
when the conservation action is taken. A final commenter indicated that we should develop
criteria to quantify the value of the conservation actions and credits by using metrics that are
derived from existing habitat exchanges, CCAs, CCAAs, and other existing programs
administered by State or local governments as potential models or templates.
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Our Response: A State participating in the voluntary-prelisting-conservation program will be
responsible for assigning conservation value to credits, approving and recording credit trading and
transfer transactions, and maintaining a register of all voluntary prelisting conservation actions
that is publically accessible. To provide the required net conservation benefit to a species, such
actions must be based on priority conservation actions identified within a species-specific State or
other Service-reviewed conservation strategy to address threats to that species.
The State agency or other entity administering the prelisting program will provide appropriate
oversight to ensure the effective implementation and maintenance of voluntary prelisting
conservation actions and provide a mechanism to notify the Service of each voluntary prelisting
conservation action. Regardless of which State agency or entity is authorized to develop and track
prelisting mitigation actions, the State agency with jurisdictional authority for the species
identified (plant or animal) must be provided an opportunity to participate in the development of,
and ultimately either approve or deny, any criteria for issuing credits that may impact those
populations.
In order to determine conservation benefits (from voluntary prelisting conservation actions
that generate credits) and potential impacts (debits for development sites), pre-project baselines of
a property must be assessed. Pre-project baseline refers to the habitat or species population
conditions at any given point in time against which conservation actions are measured to
determine ecological gain or loss. If the species of interest is listed, the Service will consider the
beneficial effects of voluntary prelisting conservation actions when determining the mitigation
actions a non-Federal entity needs to implement under an HCP or when evaluating the
compensatory measures a Federal agency chooses to implement in conjunction with a section 7
consultation. The Service’s determination of the effects of the action being considered under
these two sections of the ESA will reflect the conservation value of the voluntary actions.
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Section 7 of the policy provides that, in evaluating the impacts of both detrimental actions and
beneficial actions, the Service will use the same criteria, standards, and metrics to quantify the
former as were used to quantify the latter. These criteria should be similar to those established for
conservation banks and similar habitat exchanges. While the policy provides guidance on
establishing the credits and metrics, it does not specify those that will be used for particular
species. Instead, those will need to be developed independently by a State or entity administering
the prelisting program and are likely to vary from species to species or situation to situation.
(5) Based on the species and the nature of the actions, how should we determine the percentage set
aside?
Comment: A few commenters believed the draft policy is overly restrictive in limiting methods to
create a net benefit. Currently it only allows the goal to be achieved by withdrawing a certain
percent of credits from use. There should be a diversity of approaches available such as those
included in the Recovery Credit System policy. FWS should set a guideline (not restriction) for
balancing credits and debits that allows use of biologically appropriate mitigation ratios,
restricting use of debits to areas not essential to recovery, limiting the activities available for
debiting, and withdrawing credits from use. Each of these methods, as well as others, may be an
appropriate way to ensure a net benefit. In addition, FWS should require a certain reserve of
credits to be set aside to deal with potential project failure. By setting a 10 percent ‘buffer’ or
reserve, States would have a consistent target with which to build out credits. Another commenter
stated that for species that are extremely endangered (i.e., extremely small populations, extremely
limited habitat, extremely low reproductive potential, and extremely poor colonizers of novel
territory), mitigation is not likely to be an appropriate tool. They went on to suggest that for those
species that are more robust and/or have relatively secure populations and habitat, mitigation
seems a reasonable opportunity to increase populations and habitat. For actions that occur in
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suitable occupied habitat and are intended to increase habitat quality or population size, the
percentage set aside might be as low as 3:1 or 2:1. In the case where the mitigation effort is
attempting to establish populations in unoccupied habitat, or marginal quality habitat, the
acceptable percentage set aside should be much higher (greater than 3:1, possibly much higher,
depending on risk and the projected possibility of success). Calculating percentage set aside
should consider the likelihood of ‘success’ and benefit to the species; high risk actions with lower
probabilities of success should be tried on small scales (in the spirit of adaptive management and
learning), but should carry a high percentage set aside.
Our Response: While we agree that there may be more than one method to ensure that a net
conservation benefit is achieved, such as those found in the Recovery Credit System
(https://www.gpo.gov/fdsys/pkg/FR-2008-07-31/pdf/E8-17579.pdf ) and the Greater Sage-grouse
Range-wide Mitigation Framework
(http://www.fws.gov/greaterSageGrouse/documents/Landowners/USFWS_GRSG%20RangeWide
_Mitigation_Framework20140903.pdf), we decided to use a required minimum 10 percent set
aside as a uncomplicated but effective method to reach a net conservation benefit.
(6) The policy allows for the transfer of credits. How could we develop an uncomplicated trading
system mechanism?
Comment: The majority of commenters supported the concept of transferring credits to other
entities, but one commenter stated that it is not FWS’s job to develop trading system mechanisms.
A commenter believed this is an area of State authority and the policy gives States license to run
their own programs. Several commenters urged FWS to encourage States to rely upon existing
tools, models, and mechanisms in the administration of their programs. They suggested that credit
trading systems could be established utilizing the following mechanisms:
Adoption by States of an FWS-approved prelisting-conservation program.
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An agreement (e.g., memorandum of understanding) between a State and FWS that records
credits and debits in a tracking system developed and run by that State to record credit
purchase agreements.
Establishment of conservation action sites via the process and using a template
conservation action plan identified in the program.
Purchase of credits from project proponents established through a credit-purchase
agreement provided to the State.
Record credit availability in the State through a State-administered credit registry.
One commenter believed issue of the transfer of credits warrants a separate policy provided to
the State. A few commenters stated FWS should use the wetlands mitigation policy
(https://www.epa.gov/sites/production/files/201503/documents/2008_04_10_wetlands_wetlands_mitigation_final_rule_4_10_08.pdf) as a model;
and that we need an online system to account for credits both generated and as they are being
used, and to keep track of transfers. Credit transfers should be modeled after existing wetlands (or
species) banking programs. Another commenter suggested that the State, FWS, and the
landowner should work out the value and number of credits based on some defined criteria such as
scale of project, quality of habitat created or protected, or perhaps increase in species. Credits
could also be released over time as improvements in habitat, populations, or both are documented.
One commenter stated we should engage those individuals and entities at the State-level that
will use the system during development, and not just those that will administer it; a cooperative
approach can help build support.
Our Response: In section 7 of the final policy, we did not require a specific trading system
mechanism but instead outlined general principles and requirements of a voluntary-prelistingconservation program to ensure that any program under this policy will meet the overall goal of
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providing a net conservation benefit to species covered by such a program. We also reference
principles and standards found in the Service’s mitigation policy.
Policy Regarding Voluntary Prelisting Conservation Actions
Section 1. Purpose. The purpose of this policy is to incentivize voluntary conservation efforts on
behalf of species before they are listed as endangered or threatened species under the Endangered
Species Act (ESA); and to clarify the manner in which the Service “will give appropriate
consideration to any beneficial actions taken by the Federal agency or applicant, including any actions
taken prior to the initiation of consultation” under section 7(a)(2) or 7(a)(3), or to offset the impacts of
incidental take of a listed species under section 10(a)(1)(B), of the ESA, as provided at 50 CFR
402.14(g)(8).
Section 2. Definitions. The following definitions apply specifically to this policy:
Additionality: Conservation benefits of a conservation action or measure that improve upon the
baseline condition of the impacted species or its habitat in a manner that is demonstrably new and
would not have occurred without the prelisting conservation action.
Compensatory measures: Under section 7(a)(2) or 7(a)(3) of the ESA, actions that provide
compensation for unavoidable adverse impacts to species or their habitat. Under this policy, these
actions are taken in advance of the impact.
Conservation strategy: A science-based foundational document or a best conservation practice that
can guide Federal, State, Tribal, and private conservation actions for candidate and other at-risk
unlisted species. A conservation strategy identifies the current condition of the species, includes an
assessment of threats, and identifies conservation and science needs, actions that address those threats
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and needs, and their implementation and monitoring.
Credit (species credit, habitat credit): A defined unit of trade representing the increase or
improvement of populations, or quantity or quality of habitat of a species, at a mitigation site or
within a mitigation program. Credits are often expressed as a measure of habitat surface area (e.g., an
acre or hectare); linear distance of constant width (e.g., stream mile); number of individuals, mating
pairs, or family groups of a particular species; habitat function (e.g., habitat suitability index); or other
appropriate metric that can be consistently quantified and traded.
Debit: A defined unit of trade representing the loss of populations, decrease in number of individuals,
or decrease in habitat quantity or quality of a species at an impact site. Debits will be expressed using
the same metrics used to value credits at mitigation sites.
Mitigation: Under section 10(a)(1)(B) of the ESA, programs, projects, or actions intended to offset
known or projected impacts to species or their habitats. Under this policy, these actions are taken in
advance of the impact.
Net benefit credits: Credits set aside that are not available for use as mitigation. For the purposes of
this policy, net benefit credits are used to achieve the net conservation benefit.
Net conservation benefit: The cumulative benefits of the mitigation or compensatory measures (i.e.,
beneficial actions taken under a voluntary prelisting conservation program) that provide for an
increase in the population(s) of the species of interest directly or indirectly through the enhancement
or restoration of its suitable habitat, or maintenance of currently suitable habitat, that reduces or
eliminates current and future threats, taking into account the duration of the voluntary prelisting
conservation actions and all the adverse effects of the impact project. The net conservation benefits
must be sufficient to contribute, either directly or indirectly, to the conservation of the species.
Program administrator: The entity with enforcing authority for the establishment, operation, and
management of a voluntary prelisting conservation program. The administrator or their designee(s)
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must have the authority to enforce management actions, reconcile funding issues, implement adaptive
management, track debits and credits, report results, and perform other activities as needed.
Service area: The geographic area within which credits may be applied to offset debits associated
with future development activities. Service areas are mapped geographies with unique ecological
significance and sometimes political boundaries. The area should be based on the conservation needs
of the species as outlined in a conservation strategy for that species.
Section 3. Treatment of Voluntary Prelisting Conservation Actions. If requested to do so by the
person, Tribe, or Federal, State, or local government agency that undertakes a qualifying voluntary
prelisting conservation action, or by a third party to whom the credits have been transferred, the
Service will treat the action as (1) a measure to minimize and mitigate the impact of the taking of an
endangered or threatened species pursuant to section 10(a)(1)(B) of the ESA, or (2) an intended
compensatory measure of a proposed Federal agency action subject to the consultation requirements
of section 7(a)(2) or 7(a)(3) of the ESA. Specifically, in the course of section 7 consultations, the
Service will consider the beneficial effects of voluntary prelisting conservation actions to be included
as part of the environmental baseline for the action under consideration if requested by the action
agency or, in the case of an agency action involving a permit application, by such applicant. Under
section 10(a)(1)(B) of the ESA, the Service will consider the credits available through voluntary
prelisting conservation actions when determining the mitigation actions a non-Federal entity needs to
implement under a habitat conservation plan. The Service’s determination of the effects, or the
mitigation needs, of the action being considered under these sections of the ESA will reflect the
credits previously awarded under an approved conservation program for the voluntary prelisting
action based on priority actions identified in a conservation strategy for the species. The credits
earned by undertaking a prelisting conservation action may be transferred to a third party but must be
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used for the same species, or suite of species, and within a recognized “service area” for particular
species. Establishing service areas is critical to ensuring that future impacts are adequately offset. In
general, larger service areas provide greater flexibility to trade credits and debits.
Section 4. Definition of Voluntary Prelisting Conservation Actions. As used in this policy, the
term “voluntary prelisting conservation action” refers to any conservation measure undertaken to
benefit an unlisted species of plant or wildlife as described below, including but not limited to:
The acquisition or transfer of ownership of land or water or interests therein for conservation
purposes;
The restraint or relinquishment of the lawful use of a particular resource negatively affecting
such species;
The establishment, restoration, enhancement, preservation, or commitment (e.g. financial or
legal) to continue management of habitat for such species; and
The cooperation either in the introduction of such species into a portion of its historical range
where it is absent or in the augmentation of such species in an area where it occurs.
Prelisting conservation actions may be supplemented with additional postlisting conservation
actions. The benefit of those combined conservation actions must be functionally greater than the
detriment of the action for which the credit is used and retired. That is, the benefit from the
conservation actions combined with the detriment of the postlisting action must result in a net
conservation benefit to the species (see definition in Section 2).
A voluntary prelisting conservation action must be:
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(1)
Beneficial to an unlisted species that is, or may become, a candidate for listing as
threatened or endangered;
(2)
Started prior to the date a final rule is published in the Federal Register to list the
species as an endangered or threatened species under the ESA and after the date this
policy is finalized. The actions must be part of an already established conservation
program that meets the principles and requirement of this policy, or be included in a
voluntary conservation program that has been developed under this policy after the
date this policy is finalized. Note that in contrast to the conservation action, the
voluntary prelisting conservation program must be operational and generating
conservation benefits for the species before the date on which a proposed rule to list
the species is published in the Federal Register;
(3)
Undertaken as part of a State- or multi-State-administered program (including a
program that consists of a partnership or consortium of States) that implements a
conservation strategy for the species and is intended to encourage voluntary
conservation measures for the species; and
(4)
Not required by any Federal, State, or local law, regulation, permit, or other regulatory
mechanism.
If voluntary prelisting conservation actions have served as mitigation or a
compensatory measure for the environmental impacts of activities regulated by the State and
undertaken prior to the listing of a species as an endangered or threatened species, such
voluntary prelisting conservation actions cannot earn credit under this policy. Funds available
under section 6 of the ESA may be used to supplement funding that is generated by the
program itself to administer and oversee the implementation of the program.
The program must be reviewed by the Service to ensure it is in compliance with this
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policy and the Service’s mitigation policies. The voluntary-conservation-action program must
identify:
The service area;
The metrics that will be used to measure progress toward meeting the conservation
outcomes;
The type and location of compensatory actions;
A registry or tracking system that ensures transparency;
Defined process for seeking approval of compensatory-mitigation projects;
Defined process for a credit buyer to secure credits through a contractual agreement;
Administrative standards that define monitoring, adaptive-management, financialassurance, and oversight roles (see sections 7 and 8, below, for additional information);
and
Potential amount or level of take associated with voluntary prelisting conservation
actions if the species of interest becomes listed.
Conservation Strategy
To contribute to efforts to prevent the listing of a species, conservation actions must be
carefully planned and focused on specific threats in particular areas. If well crafted, conservation
actions will stabilize and increase populations of candidate and other at-risk species (at-risk species
are unlisted species that are declining and are at risk of becoming candidates for listing under the
ESA; at-risk species may include, but are not limited to, State-listed species, species identified by
States as species of greatest conservation need, or species with State heritage ranks of G1 or G2). A
species conservation strategy is essential to guide the development of a voluntary-prelistingconservation program. Without a conservation strategy it is difficult to determine the value to assign
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to a specific prelisting conservation action. Should the species subject to prelisting crediting be listed
under the ESA, the strategy can be the basis for developing a recovery outline and plan.
A strategy is a living document and should be updated as new information is obtained; of
particular importance would be new information on the species’ status, threats, and aspects of its
biology that would change management practices, as well as compatibility with other management
plans and conservation actions. Strategies, especially initial ones, do not need to be as complex as a
recovery plan, nor is it necessary to know everything about a species before one is developed.
However, a strategy does need to include enough information to set preliminary demographic and
habitat targets for the species and to guide the on-the-ground conservation actions designed to meet
these targets. The strategy-development process should be a collaborative effort and the information
used in a strategy should undergo scientific peer review or be derived from scientific literature that
has already been peer reviewed.
A voluntary-prelisting-conservation program must be based upon a conservation strategy that
includes the seven elements listed below.
1.
Goals, Objectives, and Criteria. The goal is a statement of what the strategy is designed to
achieve. For example, for a candidate species, the goal may be to contribute to precluding listing by
increasing the number of populations and individuals through habitat management. Objectives
describe the conditions and means necessary for achieving the goal; they can be identified in terms of
reduction or elimination of threats to the species, or demographic parameters. Criteria, or
performance standards, are the values by which it is determined that an objective has been reached;
they must be specific, measurable, achievable, realistic, and results-oriented, and have a timeframe.
2. Geography or Landscape Context. Provide a description of the lands where the species currently
exists (e.g., locations, what land ownerships are involved, how many acres are involved). Include
available maps. This information will assist in prioritizing work with landowners and in setting
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service areas. Include available maps in a standard GIS format, e.g., map package, shape file, or file
geodatabase, and maps with descriptive information about objectives and criteria values.
3. Current Conditions:
A. Species Information.
i. Identify the more important populations or core areas that are necessary for the conservation
of the species.
ii. Summarize appropriate biological information about the species, including its taxonomy,
life-history characteristics, biological needs (including habitat requirements), current distribution and
abundance, and other relevant information. Much or all of this information can be cross-referenced if
it is already available.
B. Conservation Efforts. Include a description of ongoing action or actions that are part of a
formalized conservation effort that is being implemented or is about to be implemented. Indicate the
threat(s) that the action(s) is addressing, the anticipated response of the species, how long the effort
will be in place, and the extent of the range of the species it covers. Describe how the different
efforts complement each other and fit within the strategy.
4. Assessment of Threats. Develop a concise description of known, suspected, and anticipated threats
to the species; include a deconstruction of the threats into sources and stressors, and consider the
exposure of individuals and populations to the threat (geographical and temporal (seasonal, ongoing,
or near future)). Indicate which threats may have more significant impacts on the species. A
geographical representation of the threats across the landscape, or species’ distribution, or local
occurrence level of the species would be beneficial. If the conservation strategy is intended to define
what conservation actions would preclude the need to list the species, indicate the threats that must be
addressed and the anticipated response of the species.
5. Conservation Action; Priorities and Implementation. Provide a description of the specific
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conservation actions or best management practices needed to address the identified threats and to
achieve sustainable populations. Prioritize the actions to address the more significant threat(s),
indicate key partners or cooperators to engage to implement them, and indicate when the actions
should commence. Identify where these actions need to be implemented and indicate if any actions
can be combined or if particular actions need to be completed or initiated before others.
6. Measurement and Reporting of Success. Include a monitoring plan describing procedures to
monitor and report progress on the implementation and the effectiveness of the specific conservation
actions called for in the strategy by creating benchmarks for species populations or habitat indicators.
If the conservation strategy is intended to inform a future listing decision, annual reporting should
include a description of the degree to which the threats are being addressed by the conservation
actions in the strategy and the response of the species to date.
7. Climate-Change Impacts and Resilience. Identify and promote measures that help reduce the
effects of climate change and improve the resilience of the species and its habitat. Such measures
include:
Protecting and restoring core, unfragmented habitat areas, and the key habitat linkages among
them;
Anticipating and preparing for shifting wildlife and plant movement patterns;
Monitoring, preventing, and slowing the spread of invasive species whose introduction does or
is likely to cause environmental harm; and
Developing, analyzing, and using mitigation measures that account for uncertainty and risk, as
needed, particularly when considering change agents such as climate change.
Section 5. Role of the States. A State choosing to participate in the voluntary-prelistingconservation program established by the policy will assign conservation value to credits, approve and
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record transactions transferring and trading credits, and maintain a register of all voluntary-prelistingconservation actions that is publically accessible. The State will provide appropriate oversight to
ensure the effective implementation and maintenance of voluntary-prelisting-conservation actions and
provide a mechanism to notify the Service at least annually of each voluntary-prelisting-conservation
action taken under a program. Regardless of which State agency or entity is authorized to develop
and track prelisting-mitigation actions or compensatory measures, the State agency with jurisdictional
authority for the species identified (plant or animal) must be provided an opportunity to participate in
the development of, and ultimately either approve or deny, any mitigation plans or criteria for issuing
credits that may affect those populations. In addition, the State agency with jurisdictional authority
for the species may decide whether they also want to approve each credit assignment. The voluntaryprelisting-conservation actions must be based on conservation actions identified within a State
conservation strategy for the species. If no State strategy exists, a State may adopt a strategy
developed by another entity. The Service must review the strategy that is used in conjunction with the
voluntary-prelisting-conservation program. Partnerships among States (e.g., a consortium) are
encouraged to facilitate the implementation and oversight of voluntary-prelisting-conservation
programs for species whose ranges encompass multiple States. Utilization of existing resources such
as landscape conservation cooperatives (LCCs) can provide support for such landscape conservationplanning efforts. In addition, oversight functions can be performed by another entity, including a
Federal agency.
A State may designate a third party (e.g., an entrepreneurial conservation banker) as its agent
in carrying out the State role in implementing a voluntary-prelisting-conservation program, but must
retain an effective role in oversight of any program implementation assigned to a third party.
Section 6. Role of the Fish and Wildlife Service. The Service, when requested, may assist the State
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in any aspect of a voluntary-prelisting-conservation program. The Service will coordinate between
the State and other Federal agencies to help develop conservation actions and review implementation
of actions taken by other Federal agencies to ensure effectiveness and maintenance of those actions.
The Service will review any voluntary-prelisting-conservation program for consistency with this
policy and the other mitigation policies and guidelines established by the Service.
The Service’s involvement in any given voluntary-prelisting-conservation program will include
the following roles:
Provide ongoing expertise and advice to State voluntary-prelisting-conservation programs and
State wildlife agencies as requested;
Collaborate with States and review conservation strategies that are to be used in conjunction
with voluntary-prelisting-conservation programs;
Accept and evaluate annual reports from voluntary-prelisting-conservation programs,
including evaluation of the effectiveness of any voluntary prelisting conservation action
performed in relation to both the species of interest and the program;
Review programs that seek to provide credits under this voluntary-prelisting-conservation
policy; and
Provide, as necessary, any conferencing or consultations under section 7 of the ESA that may
be required for projects under a voluntary-prelisting-conservation program on Federal lands.
Section 7. Principles and Requirements of Voluntary Prelisting Conservation Actions. A
voluntary-prelisting-conservation program must explain how the net-conservation-benefit requirement
will be met. Each voluntary prelisting conservation action, regardless of land ownership, must
provide benefits additional to those that would be achieved if the voluntary prelisting conservation
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action had not taken place during ongoing land-use activities. The additional value (additionality)
may result from conservation benefits to the species of interest associated with restoration,
enhancement, or creation of habitat; protection of habitat (e.g., fire-protection measures, legal and
financial site protections); other activities that reduce threats (e.g., threats from disease or predation);
and most likely a combination of all three categories. The amount of credit a voluntary prelisting
conservation action will earn is determined at the time the action is proposed or initiated.
The proposed voluntary prelisting conservation actions must comply with all applicable
Federal, State, and local laws. Lands already designated for conservation or mitigation purposes
cannot be used to generate credits under a voluntary-prelisting-conservation program unless the
proposed mitigation project would add additional conservation benefit for a particular species above
and beyond that attainable under the existing land designation. Examples of lands that cannot be used
to generate credits under this policy unless additional conservation benefit is achieved include public
lands already dedicated for conservation purposes; private lands enrolled in government programs that
compensate landowners who permanently protect, restore, or create habitat for the species of interest;
or lands protected by a habitat-management agreement with the Service or similar programs.
Conservation actions on non-Federal lands that are supported by Federal funds or an
associated non-Federal match are not eligible to accrue credits for purposes of this policy. However,
credit can be accrued for actions on those same lands that provide additional conservation benefits to
that generated by Federal funds and the associated non-Federal match (e.g., if a landowner maintains
the conservation action beyond the term of the Federally-funded conservation effort), but only if the
conservation benefit can be clearly demonstrated and is legally attainable.
In the exceptional case in which: 1) acquisition of private land easements through U.S.
Department of Agriculture (USDA) conservation easement programs are an essential element of an
effective species conservation strategy, 2) crediting of the non-federal contribution to the USDA
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conservation easement program to mitigation purposes is necessary in order to make participation
financially feasible for the affected private landowners, and 3) USDA agrees to allow the non-federal
contribution to be credited for mitigation, the pro-rata share of benefits of a USDA conservation
easement program associated with the non-federal contribution may be accepted as a qualifying
voluntary prelisting conservation action. All other required characteristics of voluntary prelisting
conservation actions and the associated conservation program set forth in Sections 4 and 7 of this
policy must also be satisfied.
Credits may be generated by activities undertaken in conjunction with, but additional to,
Federally-funded conservation programs in order to maximize the overall ecological benefits of the
restoration or conservation project. For example, when Natural Resources Conservation Service
(NRCS) financial assistance is used for habitat restoration for a species, a landowner may participate
in a voluntary-prelisting-conservation program once the financial term of the NRCS contract expires
or for activities additional to the NRCS contract. Where federal assistance is solely technical in
nature and there is no financial assistance, there are no additional restrictions for landowners to
participate in and receive credit under a voluntary prelisting conservation program. In treating any
voluntary prelisting conservation action as a measure to minimize and mitigate the impact of the
taking of any endangered or threatened species pursuant to section 10(a)(1)(B) of the ESA, or as an
intended part of any proposed Federal action subject to the consultation requirements of section
7(a)(2) or 7(a)(3) of the ESA, the Service will evaluate the beneficial impacts of such action according
to the same criteria, standards, and metrics that it uses to evaluate the detrimental impacts of activities
that give rise to mitigating or compensatory measures. The following principles, requirements, and
elements must be incorporated into any voluntary-prelisting-conservation program established under
this policy.
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Principles of Voluntary-Prelisting-Conservation Programs
Any program developed for unlisted species that includes voluntary prelisting conservation
actions for the purposes of generating credit to be used as mitigation (under section 10 of the ESA) or
compensatory measures (under section 7 of the ESA), should a species be listed, must incorporate all
of the following principles:
Attain net conservation benefit: Overall outcomes must result in a net conservation benefit to
the species; programs will be structured to attain this net conservation benefit. The net
conservation benefit will be achieved by permanently setting aside a minimum of 10 percent
of the credits generated that cannot be applied to offset the effects of a detrimental action that
requires mitigation or a compensatory action (these are known as net benefit credits; see
definition in Section 2). The percent set aside will be based on the status of the species and
the nature of the action(s). In some cases, a voluntary-prelisting-conservation program may
require that the percent set aside be greater than 10 percent (for example, if the status of the
species is declining precipitously).
Use a landscape-scale approach to inform mitigation when appropriate for the species of
interest;
Ensure transparency, consistency, and participation; and
Base crediting decisions in science.
The latter three principles are described in greater detail in the Service’s mitigation policy.
Requirements of Voluntary-Prelisting-Conservation Programs
We expect that approaches to voluntary prelisting conservation that follow the above principles
and adhere to the requirements below will achieve the best outcomes for conservation through
effective management of the risks associated with voluntary prelisting conservation actions.
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Application of equivalent requirements across all mitigation sources will better ensure conservation
goals are met. For the following requirements, see the Service’s mitigation policy for information:
Site Selection: Voluntary-prelisting-conservation programs should ensure that conservation
actions are sited in priority locations that are identified in species-specific conservation
strategies and are the most likely to successfully and fully contribute to conservation of the
species of interest.
Duration: The length of time that the voluntary prelisting conservation actions persist on and
influence the landscape should be commensurate with the value of the credits issued for the
action. A voluntary conservation action that provides temporary benefits to the species should
receive proportionately fewer credits than an action whose benefits to the species are
permanent. The conservation program must ensure that credit transactions assign enough
credits to fully offset the duration and amount of projected project impacts that will negatively
affect the species.
Effectiveness: Voluntary-prelisting-conservation programs should be designed to be
reasonably likely to deliver expected conservation benefits, target those actions that will
provide the greatest benefit to the species of interest, and be measurable.
Durability: Actions or plans proposed as voluntary-prelisting-conservation programs must be
accompanied by adequate management, and legal and financial assurances that ensure the
program and associated conservation actions will be in place and effective for the intended
duration.
Best Available Science
Voluntary prelisting conservation programs must incorporate best-available science into
conservation strategies, decisions, and continually seek better information in areas of greatest
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uncertainty. Programs should develop and utilize the scientific information and tools necessary to
identify efficient and effective means to determine baseline and future conditions, and to monitor and
evaluate effectiveness of prelisting conservation actions.
Metrics
Metrics developed to measure an increase in ecological functions and services at voluntaryprelisting-conservation-program sites (credits) and to measure an expected loss in ecological functions
and services at impact sites (debits) must be science-based, quantifiable, and peer reviewed;
repeatable; sensitive; transparent; practical; and based on the conservation goals for the species as
outlined in a conservation strategy for the species. See the Service’s mitigation policy for further
explanation of metrics.
Site Selection, Conservation Actions, and Management
Voluntary-prelisting-conservation programs should be established on private, public, or Tribal
lands where they will provide the greatest benefit and reduce the greatest threats to the species of
interest. Priority areas where voluntary prelisting conservation actions should be located should be
biologically based, identified in the species’ conservation strategy, and integrated, as appropriate,
among private and public land ownerships.
Minimum requirements for establishment and operation of voluntary-prelisting-conservationprogram sites include real estate assurances, financial assurances, a management plan, and a site-level
agreement. See the Service’s mitigation policy for information on real estate and financial assurances,
and management plans.
Site-level Agreements
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The site-level agreement defines the roles and responsibilities of the landowner, the agencies,
and any other parties, and provides an operational framework for development, implementation,
monitoring, and compliance of the project. Site-level agreements must include a description of the
amount of voluntary-prelisting-conservation-program credits to be provided, including a brief
explanation of the metric used for this determination, and a process for adaptive management that will
address uncertainties, including new information and unforeseen or unregulated situations (e.g.,
weather, fire). Each agreement must identify discrete ecological- and administrative-performance
standards to be met, and possible contingencies and consequences for not meeting standards.
Monitoring will be designed to validate the effectiveness of the conservation actions, answer program
questions, contribute to filling knowledge gaps, and provide data to inform adaptive-management
decisions.
Site-selection criteria will outline the types of sites that are ecologically suitable for providing
the desired habitat conditions and functions based on the species conservation strategy. In
determining the ecological suitability of the project site, the following factors will be considered, to
the extent practicable:
Physical characteristics of the site;
Landscape-scale features, such as habitat diversity, function, and connectivity;
Juxtaposition of the voluntary-prelisting-conservation-action site relative to other areas of
suitable habitat and ecological features;
Ecological compatibility with adjacent land uses;
Legal compatibility with existing and adjacent land uses;
Compatibility with existing conservation plans and assessments;
Development trends;
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Anticipated land-use changes;
Habitat status and trends;
The relative locations of the impact and compensation sites; and
Local or regional goals for the protection or restoration of particular habitat types or
functions.
Site Selection—Pre-project Baselines
In order to determine conservation benefits from voluntary prelisting conservation actions,
pre-project baselines must be assessed. “Pre-project baseline” refers to the habitat or species
population conditions at any given point in time against which conservation actions are measured to
determine ecological gain or loss. Baseline conditions should be assessed and measured using the
same methodology employed to predict future conditions during project-planning stages and
ultimately to verify project conditions and associated credits during periodic and final monitoring of
voluntary-prelisting-conservation-action sites. A consistent methodology must also be applied to
predict impacts to a species of interest and its habitat (see Metrics). For voluntary-prelistingconservation-program sites, baseline measures should explicitly acknowledge the potential threat of
anthropogenic and natural disturbance, as well as the overall landscape resiliency of the site.
Pre-project baseline methods will be consistently employed across the area covered by the
voluntary-prelisting-conservation program, unless variation of conditions and available data justify
differences. The Service has not developed or endorsed any one specific methodology for
determining pre-project baseline conditions. States and other management entities may find it useful
to cooperatively develop, adapt, adopt, or align methods that can be consistently applied across larger
landscapes. The methods that will be used for measuring these types of baselines should be
determined early in the voluntary-prelisting-conservation-program development. Consider including
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information about scale (e.g., plan-level, State-level), vegetation base layers, existing disturbance
layers, breeding area date, occupied habitat, etc.
Duration and Timing
The length of time voluntary prelisting conservation actions persist on and influence the
landscape needs to be sufficient to generate credits to fully offset the duration and degree of harm
from the projected impacts from a project. Duration includes the time extent of the direct, indirect,
and cumulative effects of an impact as well as the time period for an impact site to be fully restored
for the affected species. As a general rule, the Service will expect that credits generated through
voluntary prelisting conservation programs be permanent in nature, particularly if they are evaluated
as contributing to precluding the need to list. However, some impacts may be temporary and in these
cases, the benefits of the conservation actions can be temporary.
While voluntary prelisting conservation actions will begin before a project that negatively
affects the species begins, their implementation may overlap with that project. However, because
negative impacts typically begin to occur in the early stages of projects (i.e., construction and initial
operations), the benefits of voluntary prelisting conservation actions should accrue before or as early
in the life of the project as possible. When the success of the voluntary prelisting conservation actions
is demonstrated prior to impacts occurring, ecological risk (due to uncertainty of implementation and
time lag) is reduced. These benefits need to be verified via standardized monitoring.
Effectiveness—Biological
Voluntary prelisting conservation actions must have a high likelihood of success based on the
biophysical setting. Actions must be supported by sound science. Actions that are unproven,
especially those where time lags in providing conservation benefits are not adequately addressed,
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should not be prioritized for implementation. However, such unproven actions can be encouraged
without causing significant environmental risk by allowing a portion of credit to be released for
implementation of actions, and holding back the majority of credit until defined and observable
performance criteria related to habitat quality are achieved (see Credit Release in Section 8).
Conservation actions are also more likely to be meaningful if they are aggregated. Voluntaryprelisting-conservation-action sites are most effective if they are large enough so that they will, either
in themselves or in conjunction with adjacent landscape conditions, provide long-term, targeted
biological benefits. Voluntary prelisting conservation actions are not effective if they occur in areas
affected by a development project (i.e., on-site), where future development is likely to occur, or in
areas where benefits are likely to be reduced over time by incompatible land uses and surrounding
landscape-edge effects. Applying credits from one area to multiple debit sources in the same service
area may provide more concentrated landscape-level conservation benefits.
Potential credits associated with proposed restoration and enhancement activities will be
evaluated on a given site in comparison with both pre-project baseline and projected future condition
that would be expected in the absence of the proposed voluntary prelisting conservation actions.
Preservation projects will be evaluated, and credits proportionately assigned, according to the
magnitude and likelihood of existing and future threats to the habitat and/or the value of that site to
conservation of the species. Crediting for such avoided loss may be acceptable if it reduces threats, is
discounted according to the likelihood of loss, and includes actions above and beyond closure to
development (e.g., permanent conservation easement).
Adaptive Management
Adaptive management is an iterative approach to decision-making, providing the opportunity
to adjust decisions in light of learning with an overarching goal of reducing uncertainty over time.
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Incorporating adaptive-management strategies into conservation strategies and voluntary-prelistingconservation management plans can help to manage risk and uncertainty for any type of conservation
action area. Adaptive-management processes require establishment of management benchmarks to
ensure progress toward goals, protocols to monitor progress related to these benchmarks, and the
resources and ability to make adjustments as needed to ensure objectives are achieved. The adaptivemanagement plan should include triggers for identifying when corrective actions should be taken.
Over time, new scientific information may indicate that the metric may need revision or a new
metric should be used. The Service will work with the program administrator to decide if the metric
needs to be changed. However, any new or improved metrics will not undermine or devalue existing
credits or voluntary conservation action agreements, except in cases where failure to utilize a new or
revised metric would appreciably reduce the likelihood of survival and recovery of the affected
species in the wild. In these cases, the Service will require a new or improved metric as appropriate
and will work with the program administrator and landowner(s) to find alternatives to address the
needed changes.
Section 8. Program Administration. The program administrator (State or other entity) will be the
entity with enforcing authority for the establishment, operation, and management of a voluntaryprelisting-conservation program. The administrator or their designee(s) must have the ability to
enforce management actions, reconcile funding issues, incorporate adaptive management, ensure that
monitoring of implementation and effectiveness of voluntary conservation actions is completed, track
debits and credits, report results, and conduct other activities as needed.
The authority granted to the administrator ensures that conservation benefits from voluntary
prelisting conservation actions will persist. As successful habitat conservation will most likely
require coordination across Federal, State, tribal, and private interests, the program administrator
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should be recognized through a formal agreement developed with major stakeholders including
Federal, State, and tribal partners. The agreement should clearly articulate the selection process for
any entity responsible for administration of various elements of the program.
The entity handling funds (usually the program administrator) must have the ability to
separately manage, collect, and distribute funds. Prior to collection of any funds, plans should be in
place that explain the maximum time funds can be held before being spent, how funds will be
invested (including inflation protection), tracking and accounting for benefits generated by funds,
guidelines for avoiding potential conflicts of interest between collecting and spending funds, and
responsibility for performance of voluntary prelisting conservation actions.
Compliance and Enforcement
Compliance will be monitored by the program administrator; compliance measures must
include a credit-verification process, a tracking system, and a review of periodic monitoring reports.
Processes to verify that conservation actions meet program standards provide assurances that
voluntary-prelisting-conservation-action sites are delivering benefits. A system to track both debits
and credits is essential in ensuring compliance, increasing transparency, and allowing the
administrator to determine the success of the actions in achieving conservation. Monitoring reports at
both the program and site level will be required at least annually, and copies must be submitted to the
Service. Monitoring will be structured to provide feedback on which conservation actions
successfully yield intended results and which have a higher likelihood of failure. Site-level reports
will document site conditions, attainment of administrative- and ecological-performance standards
(measurable attributes used to determine if the management plan meets the agreed-upon goals and
objectives), and management actions taken and expected to be taken in the future.
Enforcement structure and procedures will be developed at the program level. At the site
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level, agreements must include clear enforcement provisions that dictate the consequences of noncompliance, including a requirement that if the conservation actions fail to meet performance
standards, the credit provider provide equal compensation through other means. If the agreement
holder does not satisfy the crediting requirements, the regulating entity must have the ability to
suspend or terminate credit releases, credit sales, or the agreement itself, and to pursue penalties for
violations as appropriate.
Credit Release
To manage risk and uncertainty, a voluntary conservation program should create release
schedules that only allow use of prelisting conservation actions when specific success criteria are met.
Success criteria must be designed to identify when risk and uncertainty have been substantially
reduced. The Service recommends providing phased credit releases based on both ecological and
administrative performance. A legally binding credit agreement must be in place between any party
generating credits and the program administrator. The credit agreement will provide a schedule for
credit releases as appropriate milestones are achieved. Failure to meet these milestones will result in
suspension of credit release to ensure compliance. Administrative criteria that allow for initial credit
release could include: Site agreement and management plan have been approved; the site has been
secured with an appropriate real estate instrument; and appropriate financial assurances have been
established. Subsequent credits may be released for meeting ecological milestones (as determined
through site monitoring) and financial milestones (e.g., endowments partially funded by portions of
each credit sale). The credit-release schedule will reserve a significant share of the total credits for
release only after full achievement of performance standards. As discussed in Section 4 of this
policy, credits must be permanently set aside to achieve the net-conservation-benefit requirement.
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Credit Stacking and Bundling
The Service recognizes the inherent efficiencies in leveraging multiple conservation efforts on the
landscape and encourages these coordinated efforts. However, prelisting conservation actions taken
under a voluntary prelisting conservation program and other conservation actions that occur on the
same mitigation site must be accounted for separately, and all aspects of the different actions must be
managed and tracked in a transparent manner. Stacking mitigation credits within a mitigation site
(i.e., more than one credit type on spatially overlapping areas) is allowed, but the stacked credits
cannot be used to provide credits for more than one permitted environmental impact action even if all
the resources included in the stacked credit are not needed for that action. To do so would result in a
net loss of resources in most cases because using a prelisting conservation species credit separately
from the functions and services that accompany its habitat, such as carbon sequestration or pollination
services, would result in double counting (i.e., double dipping). Double counting is selling or using a
unit of the same ecosystem function or service on the ground more than once. This can occur through
an accounting error in which the credit is used twice, and it also can occur when stacked credits are
unstacked and one or more functions or services are used separately. For example, a credit
representing an acre of habitat is used once as a species habitat credit for a permitted action and again
as a carbon credit for a different action in a different location. The loss of species habitat at the first
impact site included all functions and services associated with that habitat including carbon
sequestration, so selling that same unit of compensatory mitigation again for carbon sequestration
results in no carbon offset for the loss of carbon sequestration at the second impact location. Using a
stacked credit separately to reflect its various values is an ecologically challenging accounting
exercise.
Section 9. Prelisting-Credit-Trading Process. Individuals or entities that have engaged in the
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generation of voluntary-prelisting-conservation-action credits may trade or sell the credits before or
after listing. The administrator will establish a process and a legal mechanism for transferring credits
to a third party. While there is flexibility in how the process will work in each State, this policy lays
out the minimum requirements for that process. An example of a legal mechanism would be a
Conservation Banking Agreement, which is part of an established or new conservation bank. In this
case, the agreement outlines the use and operation of such a bank. The Service established banking
guidance in 2003, which is incorporated into the Service’s mitigation policy.
Buyers of established voluntary-prelisting-conservation-action credits may include any public
or private entity. The Service and any relevant State wildlife agencies must review the overall process
for third parties to purchase prelisting credits from the administrator. The administrator controlling
funds will have the ability to separately manage, collect, and distribute funds. Prior to collection of
any funds, the administrator must have plans in place that establish: the maximum time funds can be
held before being spent; how funds will be invested (including inflation protection); processes for
tracking and accounting for benefits generated by funds; guidelines for avoiding potential conflicts of
interest between collecting and spending funds; and responsibility for performance of prelistingconservation-action projects. In the case where the State agency itself engages in implementing
voluntary prelisting conservation actions to earn credits, we strongly recommend that either a third
party acts as the administrator or a public review process is incorporated into the voluntary-prelistingconservation program to ensure transparency.
In addition to designing the legal agreement to facilitate trading of prelisting credits, the
administrator will address the following requirements to facilitate the exchange of prelisting credits:
Legal Instrument. The mechanism for executing a specific trade such as a written
agreement, conservation-banking agreement, contract, or other similar legal document.
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Credit Calculation. While the credits will have been established before a trade is
conducted, credit calculation is necessary to confirm that the number of credits a potential
buyer is required to purchase is based on the degree or amount of impact that the buyer’s
development action has on the species or its habitat. The credit calculation will include the
amount needed to provide the required net conservation benefit.
Approval. Potential third party buyers of prelisting credits need formal approval from the
necessary regulatory agencies, including the Service and program administrator, to be in
compliance with their permit requirements through the acquisition (exchange/trading) of
credits. This step determines that buyers are both eligible to purchase and need to acquire
credits to offset their impacts.
Registry. The register of prelisting credits, managed either by the State or program
administrator, will track the acquisition of credits and certify that those credits are no
longer available for use by another entity. Buyers may be required to pay an account
origination fee that helps defer the costs of managing the registry.
Control of Funds. Confirm the availability and use of sufficient budgetary and financial
assurances (whether the responsibility of the State, project developer, or a third party) to
ensure, with a high degree of confidence, the durability and effectiveness of prelistingconservation-action measures.
Sale of Credits. Third-party buyers and sellers will typically negotiate and finalize a credit
purchase rather than the administrator. The registry will not set the price of the credits,
and will not set the terms and condition of sales.
Verification Program. Sellers will conduct appropriate verification of all credits on a set
schedule through independent verifiers and provide the data to the State or program
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administrator using a monitoring and evaluation framework to determine the effectiveness
of prelisting-conservation-action measures and progress toward the goals and objectives
established by species strategies and plans, and to direct adjustments when necessary to
correct reversals in voluntary prelisting conservation actions and adapt to changing
conditions (see discussion under Adaptive Management in Section 7). In addition,
verification of credits will be necessary before the time at which credits can be used as
mitigation for a listed species and continue to be verified on a schedule or plan that would
be identified in Section 7 or Section 10 documents.
Section 10. The Single Use of Voluntary Prelisting Conservation Actions as a Mitigation or
Compensatory Measure. To the extent that a voluntary prelisting conservation action is treated by
the Service as a measure to minimize or mitigate any future impact of the taking of an endangered or
threatened species pursuant to section 10(a)(1)(B) of the ESA, or as an intended compensatory
measure of a Federal agency action subject to the consultation requirements of section 7(a)(2) or
7(a)(3) of the ESA, that action and its associated credits may not be used again. However, a short
term action generating credits that is subsequently continued beyond a previously specified ending
date can earn additional prelisting conservation action credits generated during the new time period,
as long as the new time period starts prior to the effective date of listing for that species.
Section 11. Relationship of Voluntary Prelisting Conservation Actions to Candidate
Conservation Agreements. Landowners enrolled in Candidate Conservation Agreements (CCAs) or
Candidate Conservation Agreements with Assurances (CCAAs) can receive credit under this policy
for prelisting conservation actions if the actions are additional to the conservation measures required
by the CCA or CCAA. In order to track conservation actions and ensure additionality, conservation
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measures and prelisting conservation actions should be independently accounted for and reported to
each respective program. Alternatively, a landowner can exit the CCAA program and enter the same
property in a voluntary prelisting conservation program. However, the assurances and the incidental
take permit associated with the CCAA would no longer be in effect.
Actions managed in perpetuity through an agreement associated with a voluntary-prelistingconservation program would provide both additionality and durability to the conservation measures
provided under often shorter term candidate agreements. The ability to fund additional conservation
on individual CCA or CCAA properties through voluntary-prelisting-conservation-action dollars
could further guarantee implementation of positive conservation actions. By keeping open the ability
for those in CCAs or CCAAs to market their additional conservation improvements to others needing
to offset unavoidable impacts, more landowners could be encouraged to enroll in candidate
agreements. Providing a menu of conservation options for landowners and reducing risk and
uncertainty by securing conservation actions under a voluntary-prelisting-conservation program may
contribute to an overall positive conservation goal for a species that operates on a landscape scale and
for which protection and management of existing habitat is key to its survival.
Considerations of Executive Orders and Acts
As mentioned above, we intend to apply this policy in considering voluntary-prelistingconservation programs. Below we discuss compliance with several Executive Orders and statutes as
they pertain to this policy.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA)
in the Office of Management and Budget will review all significant rules. OIRA has determined that
this final policy to be significant rule because it may raise novel legal or policy issues arising out of
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legal mandates, the President’s priorities, or the principles set forth in this Executive order.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote predictability, to reduce uncertainty,
and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The
executive order directs agencies to consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further that our regulatory system must
be based on the best available science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this policy in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., whenever an agency is required
to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available
for public comment a regulatory flexibility analysis that describes the effects of the rule on small
entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities. The SBREFA amended the
RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of small entities.
This policy sets forth the Service’s policy regarding the consideration of voluntary prelisting
conservation actions through sections 7 or 10 of the ESA should a species be listed. A full description
of the action, why it is being considered, and the legal basis for this action are set forth earlier in this
document. The policy will provide an incentive to Federal, State, or local government agencies,
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Indian Tribes, nongovernmental organizations, or private individuals to take voluntary conservation
actions for species before they are listed under the ESA.
The Service, States, local government agencies, Indian Tribes, nongovernmental
organizations, or private landowners are the entities that are affected by this policy. However, the
effect is very limited; if they so choose, each entity would only need to report, to the State with a
voluntary-prelisting-conservation program, limited information on any voluntary prelisting
conservation action they took and for which they wished to receive credit under this policy.
Therefore, for the reasons described above, this policy will not have a significant economic impact on
a substantial number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
(a) On the basis of information contained in the “Regulatory Flexibility Act” section above,
this policy will not “significantly or uniquely” affect small governments. We have determined and
certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this policy will not
impose a cost of $100 million or more in any given year on local or State governments or private
entities. As explained above, small governments could potentially be affected because the policy
could place additional requirements on any city, county, or other local municipalities. However, the
requirement, under this policy, which is to collect minimal information on any prelisting conservation
actions they voluntarily choose to implement and report to their State wildlife agency, will only result
in a minimal effect.
(b) This policy will not produce a Federal mandate on State, local, or Tribal governments or
the private sector of $100 million or greater in any year; that is, it is not a “significant regulatory
action”' under the Unfunded Mandates Reform Act. This policy could impose only minimal
obligations on local or tribal governments and as well as on State governments if they choose to
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participate. As such, a Small Government Agency Plan is not required.
Takings―Executive Order 12630
In accordance with Executive Order 12630, this policy will not have significant takings
implications. This policy will not pertain to “taking” of private property interests, nor will it directly
affect private property. A takings implication assessment is not required because this policy (1) will
not effectively compel a landowner to suffer a physical invasion of property and (2) will not deny all
economically beneficial or productive use of the land or aquatic resources. This policy will
substantially advance a legitimate government interest (establish a policy through which the Service
would consider voluntary prelisting conservation actions through sections 7 and 10 of the ESA should
a species become listed) and will not present a barrier to all reasonable and expected beneficial use of
private property.
Federalism―Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this policy does not have significant
Federalism effects and a federalism summary impact statement is not required. This policy pertains
only to the Service’s treatment of voluntary prelisting conservation actions should a species become
listed under the ESA, and will not have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution of power and responsibilities
among the various levels of government. A State that chooses to participate under the policy must
monitor prelisting conservation actions. As States have an existing mechanism to conduct the
monitoring for other purposes, the policy does not create a new requirement.
Civil Justice Reform―Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform), this policy will not unduly
burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive
Order. The establishment of a policy for the Service to consider voluntary prelisting conservation
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actions in the context of sections 7 and 10 of the ESA should the species be listed should not
significantly affect or burden the judicial system.
Paperwork Reduction Act of 1995
This policy contains a collection of information that we submitted to OMB for review and
approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct
or sponsor and a person is not required to respond to a collection of information unless it displays a
currently valid OMB control number. OMB has reviewed and approved this information collection
and assigned OMB Control Number 1018-0158, which expires 01/13/2020.
OMB Control No.: 1018-0158.
Title: Voluntary Prelisting Conservation Actions.
Service Form Number(s): None.
Description of Respondents: Individuals; businesses and organizations; and State, tribal and
local governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: Ongoing for recordkeeping and annually for reporting.
ACTIVITY
NUMBER OF
RESPONDENTS
NUMBER OF
RESPONSES
COMPLETION
TIME PER
RESPONSE
TOTAL ANNUAL
BURDEN HOURS
Report
Information to
States
400
400
15 minutes
100
States Collect
and Annually
Report
Information to
the Service
States develop
a Voluntary
conservationaction program
Development of
a Conservation
Strategy
Development of
a Site
10
10
20 hours
200
10
10
320 hours
3,200
10
10
200 hours
2,000
16
16
100 hours
1,600
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ACTIVITY
NUMBER OF
RESPONDENTS
Agreement
Management
Plan
Development
for Sites
Credit
Agreement
Development
Totals
NUMBER OF
RESPONSES
COMPLETION
TIME PER
RESPONSE
TOTAL ANNUAL
BURDEN HOURS
16
16
120 hours
1,920
16
16
80 hours
1,280
478
478
841 hours
10,300
We will collect the following information from the States:
Description of the prelisting conservation action being taken.
Location of the action (does not include a specific address).
Name of the entity taking the action and their contact information (email address only).
Frequency of the action (ongoing for X years, or one-time implementation) and an
indication if the action is included in a conservation strategy for the species.
Any transfer to a third party of the credits earned by implementing a voluntary
conservation action.
We estimate that 10 States will choose to participate in the first three years of the program.
Each State will collect information from landowners, businesses, organizations, and tribal and local
governments that wish to receive credit for voluntary prelisting conservation actions. States may
collect this information via an Access database, Excel spreadsheet, or other database of their choosing
and submit the information to the Fish and Wildlife Service (via email) annually. We will use this
information to calculate the amount of credits that the entity taking the conservation action will
receive. We will keep track of the credits and notify the entity of how much credit they have earned.
The entity can then use these credits to mitigate or offset the detrimental effects of other actions they
take after the species is listed (assuming it is listed).
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We have added some additional information collection requirements into this final policy
including the need for a State to develop a Conservation Strategy, or reference an already-established
strategy, the need for the States to develop, in conjunction with the entity taking a voluntary
conservation action under the State program, a Site Agreement which would also have a Management
Plan. The State program would also need to have the requirement to have a credit agreement between
the entity that earns the credits for the voluntary prelisting conservation actions, the State agency, and
a third party that wishes to purchase the credits. As outlined above in the policy, the State program
must also include the following information: the service area; the metrics that will be used to measure
progress toward meeting the conservation outcomes; the type and location of compensatory actions; a
registry or tracking system that ensures transparency; defined process for seeking approval of
compensatory-mitigation projects; defined process for a credit buyer to secure credits through a
contractual agreement; administrative standards that define monitoring, adaptive-management,
financial-assurance, and oversight roles (see sections 7 and 8, below, for additional information); and
potential amount or level of take associated with voluntary prelisting conservation actions if the
species of interest becomes listed.
We received one comment on the information collection requirements in the draft policy. All
comments received are addressed above. The public may comment, at any time, on the accuracy of
the information collection burden in this policy and may submit any comments to the Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, Mailstop BPHC, 5275 Leesburg Pike,
Falls Church, VA 22041-3803 (mail); or [email protected] (email).
National Environmental Policy Act (NEPA)
We have analyzed the policy in accordance with the criteria of the National Environmental
Policy Act (NEPA) (42 U.S.C. 4332(c)), the Council on Environmental Quality’s Regulations for
Implementing the Procedural Provisions of NEPA (40 CFR 1500–1508), and the Department of the
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Interior’s NEPA procedures (516 DM 2 and 8; 43 CFR part 46).
We have determined that the policy is categorically excluded from NEPA documentation
requirements consistent with 40 CFR 1508.4 and 43 CFR 46.210(i). This categorical exclusion
applies to policies, directives, regulations, and guidelines that are “of an administrative, financial,
legal, technical, or procedural nature.” This action does not trigger an extraordinary circumstance, as
outlined in 43 CFR 46.215, applicable to the categorical exclusion. Therefore, the policy does not
constitute a major Federal action significantly affecting the quality of the human environment.
Government-to-Government Relationship with Tribes
In accordance with the President’s memorandum of April 29, 1994, “Government-toGovernment Relations with Native American Tribal Governments” (59 FR 22951), Executive Order
13175 “Consultation and Coordination with Indian Tribal Governments,” and the Department of the
Interior Manual at 512 DM 2, we have considered possible effects on federally recognized Indian
tribes and have determined that there are no potential adverse effects of issuing this policy. Our intent
with the policy is to provide a consistent approach to the consideration of voluntary prelisting
conservation actions, including those taken on Tribal lands. Participation in a prelisting conservation
program as described in this policy is voluntary.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. The policy is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant energy action and no Statement of
Energy Effects is required.
Authors
The primary authors of the policy are staff members of the Ecological Services Program,
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Branch of Conservation and Communications, U.S. Fish and Wildlife Service, 5275 Leesburg Pike,
MS: ES, Falls Church, VA 22041-3803.
Authority
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.).
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| File Type | application/pdf |
| File Title | Appendix 1 to 735 FW 1, Policy Regarding Voluntary Prelisting Conservation Actions |
| Subject | unlisted species conservation, voluntary conservation actions |
| Author | Division of Restoration and Recovery |
| File Modified | 2018-05-31 |
| File Created | 2018-05-31 |