Landowners Bank on Conservation: The U.S. Fish and Wildlife Service's Guidance on Conservation Banking

摘要

While the guidance addresses many key questions, there are others on which it is silent. For example, the guidance applies only to banks established on private, tribal, state, or local lands; it neither addresses nor precludes conservation banks on federal lands. Likewise, it is silent on the question of whether conservation banks can be established outside of the United States to offset impacts to species occurring in the United States. For cross-border species such as the black-capped vireo and California coastal gnatcatcher, habitat beyond U.S. borders may be essential to recovery. Since international banks could offer both a mitigation alternative to U.S. developers and a conservation benefit to species occurring in the United States, the question of their permissibility as a mitigation strategy under the ESA is likely to arise. By providing greater procedural and substantive clarity to conservation banking, the guidance may increase the use of this new tool. Because some recently approved banks do not appear to conform to the guidance, however, it may raise the bar to such efforts. Properly done, conservation banking offers the potential to improve endangered species conservation, and furnish important incentives for at least some landowners to participate in conservation efforts. It is not a panacea, nor is likely to be perfect, but it does not have to be. If it can accomplish enduring mitigation more successfully than the approach that produced a short-lived fence on a secluded Chesapeake Bay beach, it will be a useful addition to the endangered species conservation toolbox.