Back to Top

15 Key Recommendations to Better Enhance ESA Conservation

Recommendations in Detail

1) Tier protections for species and their habitats based on level of vulnerability. 

The ESA creates some flexibility to tailor protections for threatened species, but additional opportunities to tailor protections based on level of imperilment could facilitate recovery and increase political support for the ESA. Further, protections could be tailored based on the conservation status of each population of a species.  

a) Develop more objective criteria to distinguish between endangered, threatened, and recovered species, and clearly define “recovery.” Without this baseline clarity, attempts to tailor protections based on species vulnerability would likely be highly subjective and more susceptible to political influence.

b) Use the clearer differentiation between the three categories to develop a better system for tailoring protections for each category, including through incentives for federal and nonfederal partners to help conserve species. This can include (1) different protection standards under section 7 based on species vulnerability; (2) using 4(d) rules to require affirmative protections beyond those in section 9(a) that are “necessary and advisable” to conserve the threatened species; or (3) other tiering of protections for vulnerable species that vary deadlines for progress, mitigation requirements, and other based on the level of vulnerability (e.g., similar to tiering nonattainment under the Clean Air Act).

c) Explicitly recognize conservation-reliant species and develop policy or other approaches to better address the need for ongoing management of those species, such as securing assurances for long-term management. If there is currently no path to recovery for a species, allow the Services to regulate individual populations differently based on each population’s level of imperilment (e.g., populations that have met their recovery goals could receive reduced ESA protections). 

d) Develop a better system to identify those at-risk species for which FWS should deprioritize a listing decision because current or upcoming prelisting conservation offers a high likelihood of successfully conserving the species.

e) Refine the “destruction or adverse modification” prohibitions so that they offer varying degrees of habitat protection based on the conservation value of a particular unit of critical habitat (e.g., higher tiered habitat would reflect greater value to recovery). 

2) “No net loss,” “full mitigation,” “net benefit or recovery contribution” standard.

Although the ESA’s goal is to recover species, projects covered by section 7(a)(2) consultations or section 10(a)(1)(B) habitat conservation plans are allowed to harm a species’ recovery prospects. To fix this contradiction, all ESA incidental take authorizations could, at a minimum, require that projects result in “no net loss” to a species’ likelihood of recovery. A higher standard, such as “net benefit” or “recovery contribution,” is also worth considering.

a) Revise the sections 7 and 10 incidental take authorization standards to shift them away from minimizing harm and toward a recovery-oriented standard.

b) Consider whether any exceptions to these higher standards are appropriate (e.g., financial hardship) or whether government financial assistance could help certain landowners meet a no net loss requirement.

3) Provide incentives for species conservation on private, state, and federal lands.

Many listed and at-risk species require habitat improvement or population augmentation measures, yet the ESA itself is silent on incentives. Despite this silence, conservationists have developed regulatory, financial, reputational, and other incentives to conserve species. New or improved incentives tools could include the following.  

a) Leverage private landowners to promote conservation through financial incentives. This includes direct government payments, tax breaks, and payments from species mitigation banking arrangements. Strategies for securing funding could include the creation of a “recovery fund” for private landowners, the issuance of government bonds to pay for species recovery actions, and the diversion of additional Farm Bill funding for species conservation.

b) Induce states to strengthen state species conservation laws and enhance their non-game species programs, such as by providing funding through the Recovering America’s Wildlife Act

c) Streamline section 7 consultations and section 10 agreements where a “net benefit” to species recovery is clear and established up front.

d) Remove or reduce the scope of critical habitat designation on lands that commit to achieving certain species conservation standards (e.g., HCP lands that meet a “net conservation benefit”).

e) Allow landowners to forgo standard ESA regulatory requirements and critical habitat designation if they commit to an incentive-based approach that demonstrates an overall contribution to recovery.

4) Reform the ESA’s incidental take authorization mechanisms and associated tools to promote greater conservation effectiveness.

ESA section 7 consultations, HCPs, CCAs, CCAAs, and safe harbor agreements can be implemented in ways that provide greater and clearer contributions to recovery.     

a) Provide meaningful opportunities for public input before and after take authorization (e.g., currently no public notice/comment on draft biological opinions).

b) Ensure that the Services adequately monitor the effects of authorized take, disseminate monitoring data to the public, and carry out adaptive management.

c) Revise No Surprises policy to require integration of mechanisms and clear metrics that measure and ensure conservation effectiveness, including clear triggers for revising plan to address changed (foreseen and unforeseen) circumstances.

d) Create preference for advance mitigation and or demonstration of effectiveness of mitigation technique before incidental take is authorized.

5) Improve recovery planning, including recovery plan implementation by all relevant federal agencies.

Requiring recovery plans alone is inadequate to ensure progress toward recovery. Implementation of those plans is often where federal agencies fall short. Building stronger requirements for plan implementation would improve the conservation status of many listed species. Other changes to the recovery planning and five-year review process would similarly advance recovery.

a) Amend Section 4(f) to explicitly require implementation of recovery plans, including through deadlines for implementing plan milestones. Require oversight of Services and other jurisdictional federal agencies to ensure progress toward measurable recovery goals, including through new section 7(a)(1) requirement.

b) Adopt periodic species status assessment and reporting requirement on recovery. This includes building into 5-year status reviews meaningful metrics for changes in species recovery progress and requiring the Services to report on those changes in their mandatory Biennial Recovery Reports to Congress.

c) Require recovery plan updates and delistings based on review and update of recovery plans, rather than primarily on the five-factor threat analysis.

d) Adopt more science-based recovery standards. This could include developing default standards for recovery and require a showing of necessity for any deviation from the default. It could also include developing different regulatory approaches for different categories of species based on whether or not the species is expected to recover.

e) Create cooperative federalism permit program to implement, allowing states to assume greater authority over listed species if they can demonstrate a truly adequate program for conserving those species

6) Account and prepare for ecological change in listing, authorization processes, and recovery planning and implementation.

Climate change is a growing threat to many species, but ESA decisions and processes often do not adequately address climate change nor are there effective ESA policies on how to help species adapt to climate change.

a) Clarify listing, reclassification, and delisting decisions to define expansively the “foreseeable future;” integrate climate change more explicitly into vulnerability assessments; and more effectively analyze data on range shifts, behavioral changes, and changes in habitat niche.

b) Sections 7 and 10 incidental take authorizations could periodically reassess how climate change alters a listed species’ risk of extinction. This is particularly true for multi-decade HCPs. Further, while recognizing the need for some regulatory certainty, revise No Surprise assurances to incorporate private incentives and public resources to better adaptively manage for climate change.  

c) Recovery planning and implementation. Develop policy that encourages more proactive species management measures, including assisted migration where necessary for recovery.

7) Improve generation, quality, and public dissemination of ESA data.

This is a catch-all category that captures ideas related to scientific and administrative data under the ESA. The ideas reflect the broad need for the Services to improve how they collect, analyze, and share data, and to more clearly differentiating between science judgments and policy judgments.

a) Revise best available data (BAS) standard. This could include (1) requiring incorporation of any and all credible scientific data throughout the regulatory process, regardless of source; (2) mandating that other federal agencies collect relevant scientific data to support their section 7(a)(1) duty; (3) requiring minimum standards that place the burden on project proponents to conduct the research; and (4) placing limits on how political appointees can interpret the BAS standard.

b) Promote inter-agency coordination to leverage agency scientific expertise and resolve areas of scientific disagreement or uncertainty.

c) Develop expertise and training standards for Services staff and possibly political appointees on applying the BAS standard and addressing scientific uncertainty.  

d) Conduct periodic audits to strengthen independent oversight of the process by which science is incorporated into ESA decisions.

e) Make more data publicly accessible through a clearinghouse with a searchable online portal.

f) Create scientific advisory body for the Services.

8) Protect ecosystems.

In practice, the ESA has been limited in its ability to protect ecosystems and ecological processes. Some conservationists seek to remedy this gap by expanding the ESA’s scope of protections or to advocate for a new law focused on protecting ecosystems.

a) Prioritize protection of biodiversity hotspots under the ESA, including by redistributing funding to those hotspots.

b) Develop better methods of conducting area-wide and multi-species planning under the ESA. This includes better processes for developing large-scale, multi-party, multi-species habitat conservation plans (HCPs).

c) Create new legal authorities to protect vital ecological functions and services, not just individual listed species.

d) Better link ESA to public lands laws, such as by (1) improving coordination with federal land laws, state lands, and invasive species management, particularly over climate change adaptation and by (2) requiring more inter-governmental coordination with state fish and wildlife agencies, tribal governments, and federal mission agencies on project design, data sharing, and implementing conservation actions.

9) Broaden section 9 prohibitions.

The section 9 prohibitions are the main reason many landowners develop ESA conservation plans, including HCPs and CCAAs. Expanding the scope of the prohibitions would ensure more conservation for species.

a) Extend section 9 to protect species habitat independent of the requirement for actual harm or death to species.

b) Extend to plants the existing take prohibition for wildlife.

10) Revise critical habitat designation process.

The value of critical habitat remains a debate issue in the conservation community. Below is a spectrum of ideas on critical habitat reform, starting with those that support a stronger designation process.  

a) Reduce discretion not to designate critical habitat and remove the section 4(b)(2) cost-benefit exclusion mechanism.

b) Add a timeframe or deadlines for revising existing designations to reflect updated recovery criteria/strategies for species.

c) Develop a framework to prioritize designations based on which areas are most needed for recovery.

d) Develop a dynamic definition of critical habitat that reflects the shifting nature of habitat.

e) Shift designation to recovery planning phase and include a time limit on when that designation must occur.

f) Remove designation requirement or make critical habitat informational rather than regulatory.

11) More direct regulation of designated habitat to better promote species conservation.

Critical habitat offers limited benefits to species unless it is legally protected and more closely tied to species recovery goals.

a) Provide stronger protections for critical habitat as part of section 7 consultations. This can include modifying implementation of the adverse modification standard to be a functional bar against degrading habitat (e.g., no net loss of critical habitat acres or functional value), and clarifying the distinction between adverse modification and permissible habitat degradation (e.g., de minimis impacts to critical habitat vs. nontrivial impacts). It can also include new opportunities for off-site mitigation to encourage the Services to apply the adverse modification standard more stringently.

b) Broaden section 9 prohibitions to better protect critical habitat. This can include modifying the definition of take to include adverse effects on primary constituent elements of critical habitat (without need to show actual injury or death).

c) Better integrate recovery planning and critical habitat protection, such as designating heightened protections for critical habitat in areas necessary for recovery, including any private lands and unoccupied habitat.

12) Clarify definition of recovery and improve recovery planning criteria.

Ambiguity over what constitutes recovery has led to inefficiencies and ineffectiveness in recovery planning for some listed species.

a) Strengthen scientific foundation for recovery by (1) better integrating population ecology, conservation genetics, and habitat conservation data with external and climate risk considerations, and (2) requiring survival and reproduction and minimum habitat areas to be taken into account.

b) Revise criteria for recovery, possibly including (1) setting criteria to achieve ecologically effective population sizes, (2) basing criteria on a reverse of the five-factor analysis; and (3) defining threshold for recovery with metrics and amount of tolerable risk over a timeframe (e.g., 95% persistence over 100 years).

13) Revise recovery prioritization scheme to optimize deficient and disparate resources.

The absence of a clearly delineated and effective framework for ranking recovery actions and allocating resources, along with FWS’s general failure to follow its existing recovery prioritization guidance, have limited the overall effectiveness of recovery plan implementation.

a) Develop uniform and explicit system for prioritizing recovery actions with greatest potential to advance species conservation.

b) Adopt ecosystem-wide approach to prioritize recovery of species with greatest potential to improve ecosystem.

14) More scientifically sound metrics for listing.

Reliance on more scientifically sound benchmarks would improve the efficiency and effectiveness of the process for listing species under the ESA.

a) Develop quantitative listing criteria to supplement or replace the current focus on the five threat factors. One option is to specify fact- and science-based thresholds for listing modelled on the criteria adopted by the IUCN.

b) Extend peer review and public comment to decisions not to list a species at the 12-month or proposed listing rule stage.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

15) Provide more and more stable forms of funding.

Limited but also unpredictable resources have been a fundamental impediment on the achievement of the ESA’s conservation goals.

a) Adjust section 10 permit fees to reflect the cost of processing applications.

b) Increase funds provided throughout the regulatory process, including listing, recovery planning, and implementation

c) Change the funding mechanism for the ESA from that of an annual congressionally-approved budget to a dedicated funding scheme, such as a proceeds-based system reliant on a biodiversity trust fund.

d) Promote the creation and use of tax authorities or other legal mechanisms to enable land value capture (i.e. public financing that recovers the incremental increases in private land prices generated by public investments in order to finance species conservation).