Endangered species mitigation banking: promoting recovery through habitat conservation planning under the Endangered Species Act

Abstract

The Endangered Species Act has fostered considerable controversy surrounding its regulation of privately owned endangered species habitat. Private landowners believe that the law wrongly requires them to bear the burden of providing endangered species habitat on their property. At the same time, conservation of privately owned habitat is critical to the conservation of most endangered species. In order to resolve endangered species conflicts on private lands, the US Fish and Wildlife Service has been promoting the use of ‘habitat conservation plans’ which allow some loss of endangered species habitat in exchange for activities which minimize and mitigate for the loss. These plans have come under increasing criticism from environmentalists and conservation biologists who argue that the plans are contributing to the continued loss of endangered species habitat. This paper proposes that mitigation banking of endangered species habitat may provide a useful tool to resolve endangered species conflicts on private lands while concurrently advancing the recovery of endangered species. Mitigation banking would allow landowners seeking a permit to destroy endangered species habitat to mitigate the loss by buying mitigation credits from other private landowners who restore and/or protect suitable habitat. Mitigation banking has the potential to increase mitigation alternatives for the regulated community while providing a needed economic incentive for other landowners to restore and protect important habitats. From an ecological perspective, mitigation banking could allow for the exchange of fragmented habitats with little long range viability for habitats that are strategically located and can contribute to species’ recovery. The paper concludes with a discussion of several questions that need further analysis in considering banking of endangered species habitat.