Brooke Marcus Discusses Proposed Regulation of FWS Habitat Credit Program

Brooke Marcus was quoted in the Law360 article “Feds’ Habitat Credit Program On Deck For First-Ever Regs” (subscription required). The article examines how the U.S. Fish and Wildlife Service (FWS) is—for the first time—in the process of regulating its species conservation banking program so that it offers salable credits to private parties that protect endangered species habitats. This action will force the agency to clear up gray areas that landowners, conservation banks and developers have had to contend with for some time.

The current conservation banking program allows landowners and other private entities to earn conservation credits for protecting a specific animal or plant species habitat that then can be sold to project developers that will have an impact on that species’ habitat in another location. To this end, the FWS recently published a notice of advanced rulemaking in the Federal Register soliciting comments to help it craft a proposed rule that it said will establish objectives, measurable performance standards and criteria for the program.

During the rulemaking process, conservation banks, project developers and conservation groups will likely disagree on how and whether credits can be counted for different environmental benefits.

Commenting for the article, Brooke said, “Conservation banks and other private entities that work with landowners usually end up with the actual credits, along with project developers, and will be pushing the service to make sure any regulations don’t slow down the project approval process or make it harder to attain mitigation projects or mitigation funds. In a perfect world, the proposed rule looks a lot like what’s happening already and just tightens it up a bit.”

She added, “One potential problem, from the banks’ and developers’ perspective, is that traditionally ESA-centered standards tend to be much more protective of species than flexible for projects. So where you have a uniform standard that is cautious about species conservation, it tends to up the standard which then has the potential to increase the cost of mitigation.”