March 15, 2012, the U.S. Fish and Wildlife Service (FWS) published an Advance Notice of Proposed Rulemaking (ANPR) requesting public comment on potential improvements to its Endangered Species Act (ESA) implementing regulations, policies, and guidance to better recognize voluntary conservation actions that benefit species.  Specifically, FWS has concluded that the present ESA regulations, guidance, implementing procedures, and existing conservation agreements do not adequately capture or encourage voluntary conservation efforts that may be undertaken prior to a species’ listing.

Landowners and project developers have long been faced with the dilemma that efforts to protect an unlisted species and its habitat are not fully recognized in later compliance with the ESA, should that species become listed.  Creating a meaningful set of regulatory assurances which allow for quantification and consideration of voluntary, pre-listing conservation efforts in later ESA §7 consultations, development of HCPs, or other ESA decisions provides the opportunity for regulatory certainty in species-related mitigation. 

For example, in answering press questions on this ANPR, FWS Director Dan Ashe stated that wind energy project developers could receive pre-listing mitigation credit for re-routing transmission lines around greater sage grouse habitat.  Also, FWS has explained that its ANPR is intended to ensure that landowners gain credit for the voluntary preservation and restoration efforts and also allow “working lands” such as farms, ranches, and timberland to continue to be used in production and agricultural activities.

Public comments on the ANPR are due by May 14, 2012.