Endangered Species Law & Policy

On July 27, 2022, the U.S. Fish and Wildlife Service (Service) published an advance notice of proposed rulemaking (ANPR) seeking comment on species conservation banking. Species conservation banking gives developers and other entities the opportunity to mitigate potential harm to wildlife by allowing them to purchase habitat or species credits from bank owners. The ANPR is a result of a provision in the 2021 National Defense Authorization Act (NDAA) that required the Service to issue regulations for species conservation banking programs. Although the ANPR stems from the NDAA, conservation banking regulations are expected to apply beyond the Department of Defense.

The Service states in its ANPR that “conservation banks contribute to the recovery of listed species and help reduce threats such as habitat fragmentation and lack of habitat connectivity by consolidating and managing priority habitat areas in a reserve network.” Thus far, 173 Service-approved conservation banks have covered about 260,000 acres of habitat for 57 endangered or threatened species. The Service makes sure to note that the proposed rule will be compatible with the rule governing wetland mitigation banks, Compensatory Mitigation for Losses of Aquatic Resources administered by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (73 Fed. Reg. 19,594 (April 10, 2008)) (2008 Rule).

Specifically, the Service seeks comment on:

• The level of detail necessary to ensure standards are applied consistently to all forms of compensatory mitigation, including equivalence in covering the costs of mitigation on public and private lands.
• The level of detail necessary when addressing durability and additionality standards to ensure consistency across mitigation mechanisms and provide species conservation.
• How the proposed rule should incorporate monitoring, financial assurances, and publicly accessible mitigation data tracking systems to ensure a compensatory mitigation mechanism is meeting its performance standards.
• The challenges to species bank establishment within the Service’s authority.
• How the proposed rule should align with the 2008 Rule so that wetlands mitigation banks and species banks remain compatible.
• How the Service should address potential bank projects on lands with unique ownership and protection considerations, such as Federal or Tribal lands.

The ANPR states comments are due September 26, 2022, and provides additional information regarding the submission of comments.