The greater sage-grouse. Tom Reichner/Shutterstock.

Meadow in Riverside County, California. Courtesy of the Western Riverside County Regional Conservation Authority.

Habitat Conservation Plans play just one small role within the universe of opportunities for wildlife habitat conservation. Unfortunately, habitat conservation is expensive, as it generally involves land acquisition, conservation easements, and/or changes in land management practices to prioritize conservation at the expense of revenue-generating activities. There are well established tools that can make this trade-off work, including with oversight by Congress and government agencies, such as conservation banking and tax benefits for conservation easements.

There are also innovative private-market approaches to paying for conservation. For example, the National Audubon Society’s Conservation Ranching program offers a certification for bird-friendly cattle grazing practices. The resulting beef can then be sold in the market to conservation-oriented consumers at a premium. But compared to other environmental values such as water quality, water resources, carbon capture, or stormwater resources, wildlife conservation suffers from a lack of federal support through programs such as loans, loan guarantees, tax credits, and tax rebates.

There are many opportunities for innovation, if Congress is willing to make the investment. One possibility is stipulating fixed price floors for wildlife mitigation credits, in which the government would guarantee that credits will garner no less than a stipulated return, with the government promising to cover any shortfall when the credits are put on the market. This would incentivize more credit generation, and the ready availability of credits would then encourage their purchase by consumers, ultimately jump starting a more active market.

Another tool to consider is a wildlife revolving loan fund. Revolving loan funds are pools of capital, usually but not always first seeded by government, that provide gap financing for infrastructure projects that need significant capital to complete and are expected to have future sources of revenue to pay back the loan. As loan capital is repaid, it can be used to issue more loans for additional projects. The Environmental Protection Agency operates the Clean Water Act State Revolving Fund and the Safe Drinking Water Act State Revolving Fund. Since 1987, these funds have generated investments totaling $155 billion, mostly through low-cost financing, to protect waterways and drinking water supplies and to improve water quality.

Because money spent by a revolving fund is later returned to the fund and spent again, these programs generate benefits that greatly exceed their initial investment. For wildlife, revolving fund loans could be used for acquisition of endangered species habitat and acquisition of mitigation lands for Habitat Conservation Plans or species conservation banks. They could also be used to provide capital to private partners carrying out large-scale ecological restoration projects like the removal of Klamath River dams or Western forest management activities to reduce wildfire risk and severity.

As a third example, Congress could fund pay-for-success recovery contracting, where the government directly purchases conservation from a landowner, but the fee is only paid upon delivery of the agreed-upon outcome. This sort of fixed-price contract is akin to purchasing goods or services in the private sector, and creates an incentive for the contractor to complete the required objectives as efficiently as possible, maximizing their profit. This approach has been successfully used in ecological restoration programs in California, water quality programs in Maryland, and coastal protection and restoration programs in Louisiana. In contrast, many existing grants and contracts for conservation work are cost-based and seek to cover the expense of conservation. Under that status quo, whether or not conservation happens is defined by the individual interest of the landowner and the other opportunities that are available to them, leading to a lack of innovation and stagnation.

Finally, Congress could expand direct payments to landowners for conservation. The federal Farm Bill provides almost $6 billion per year to farmers and ranchers who produce water quality, carbon, wildlife and other benefits on their property by adopting various stewardship practices. The vast majority of Farm Bill programs are focused on a wide array of environmental values, with wildlife just one among them. And only the Healthy Forests Reserve Program (averaging $4 million per year or less) explicitly mandates that threatened and endangered species conservation is one of the program’s goals. There is clearly room for new opportunities for direct payments to landowners to conserve listed species.

Kirtland’s warbler. Matthew Jolley/iStock by Getty Images.

The ESA defines an “endangered” species as one “in danger of extinction throughout all or a significant portion of its range,” while a “threatened” species “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” From the earliest drafts of the legislation, the threatened label was intended to provide a new, intermediate status where less imperiled species could be recognized, protected, and conserved before they became endangered.

In developing the statutory protections for listed species, Congress explicitly laid out in Section 9 of the ESA activities that would be prohibited with respect to endangered species, including taking, importation, possession, transportation, buying, or selling. But for threatened species, Congress authorized federal agencies to choose to apply any or all of those protections, or not at all.

For many years, the federal government has exercised this discretion to grant most threatened species the full protections of the ESA. 4(d) rules (which govern threatened species) have laid out protections for specific species, and between 1975 and 2019 the U.S. Fish and Wildlife Service employed a universal, or “blanket” 4(d) rule that provided full protection to any threatened species not subject to an individual 4(d) rule.

Even within this framework, 4(d) rules have been used to facilitate state conservation programs and test innovative conservation schemes. For example, existing 4(d) rules in the Code of Federal Regulations include 43 instances of a special role for a non-federal agency or official, such as a state employee carrying out their duties. There are thirty instances of take being authorized if done by property owners participating in a conservation program. Thirteen regulations authorize take if it is consistent with a specified conservation plan (state or otherwise), effectively incorporating those conservation plans into the ESA. And numerous regulations for take of threatened fish permit take by anglers so long as the angler has complied with state law in their activities.

These rules, and others, form a rich history of 4(d) rules that incentivize conservation and deconflict the ESA. There are many opportunities to do more. For example, the U.S. Fish and Wildlife Service and National Marine Fisheries Service could make it standard practice to make state conservation programs and laws the basis for 4(d) exemptions, simply by stating that take of the species will be allowed provided that it is consistent with state law. This simple approach would effectively convey management authority over a listed threatened species to the states, while keeping the species listed, and therefore subject to other ESA protections such as critical habitat and Section 7 consultation.

A more nuanced, complex approach would be to use 4(d) rules to incrementally delegate management authority to states when certain recovery benchmarks are met. This would be more immediately deasible, and if aligned with a state management plan, could provide a roadmap to recovery. The promise of increased authority and flexibility would incentivize states to invest in conservation. As species recover, federal protections could be loosened, but again, the species would remain listed until fully recovered. This approach is incentive based, not punitive. It offers maximum flexibility to tailor a 4(d) rule that prioritizes species recovery, but recognizes the needs of states, landowners, and others in the regulated community. It permits states the opportunity to prove, prior to delisting, the effectiveness of their management plan, and make changes if necessary. And it can serve as an insurance policy against delisting litigation, as litigation over a delisting would most likely have no effect on the species’ management.

These approaches are already feasible under the ESA today. They need only for the U.S. Fish and Wildlife Service and National Marine Fisheries Service to exercise the discretion they already possess when developing 4(d) protective regulations for threatened species. These possibilities can be leveraged even further if the agencies make a concerted effort to downlist endangered species to threatened when appropriate, granting more species the management flexibility of threatened status.

Peregrine falcon. Frank Doyle/U.S. Fish and Wildlife Service National Digital Library.