U.S. Fish and Wildlife Service Announces Endangered Species Act Permitting Changes to Protect Species

Today, the U.S. Fish and Wildlife Service proposed new regulations impacting voluntary species conservation under the Endangered Species Act (ESA) on private lands. The agency has stated the proposed rules will offer greater clarity on the criteria by which certain permits are issued.  

Among other things, the new regulations would combine two existing types of voluntary agreements, Safe Harbor Agreements and Candidate Conservation Agreements with Assurances into a new type, a Conservation Benefit Agreement. It also sets forth a new definition of “net conservation benefit” to be achieved through these agreements and allows permittees to return the habitat to its pre-agreement baseline after the agreement term ends.

“Private landowners play an important role in protecting our nation’s imperiled species,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife. “We are pleased the Biden administration is taking steps to encourage greater involvement in these permitting programs, but it is important that greater accessibility does not come at the cost of weakening protections for imperiled species under these permits.”

Voluntary engagement in these programs is intended to further conservation goals that reflect the deep need of species experiencing decline.  

For permits issued, including under voluntary conservation agreements like Safe Harbor Agreements and Candidate Conservation Agreements with Assurances, participants are protected from legal liability if they harm, harass, or kill covered species so long as they follow conservation requirements set out in those agreements. The existence of Candidate Conservation Agreements with Assurances has also been used as a rationale to delay listing species under the ESA. Applicants can also receive “incidental take permits” if they are concerned that their activities might harm a species, so long as they get a Habitat Conservation Plan approved by the federal government that sets out how they will minimize and mitigate their impact on the species.  

Congress added provisions to the ESA to allow applicants to “take” protected species in certain circumstances, such as while carrying out activities to enhance the survival or the species, or incidentally while carrying out other activities. To qualify for these permits, applicants must take certain steps to protect the species at issue. The agencies responsible for implementing the ESA have since expanded these permits to candidate species that have not yet been listed.