U.S. Fish & Wildlife Service Proposes Revisions to Mitigation Policy

U.S. Fish and Wildlife Service (the “Service”) recently proposed revisions to its Mitigation Policy, which has been in place since 1981. March 8, 2016 Fed. Reg. 12380. The Mitigation Policy serves as “over-arching Service guidance applicable to all actions for which the Service has specific authority to recommend or require the mitigation of impacts to fish, wildlife, plants, and their habitat.” This includes development activities with a federal nexus (such as a project requiring a permit from the Army Corps of Engineers), as well as activities that implicate a host of federal statutes including the Clean Water Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act, among others. Although the 1981 Mitigation Policy did not apply to conservation of species protected under the Endangered Species Act (ESA), the new policy eliminates that exclusion and expressly recognizes that effective mitigation is consistent with and advances the objectives of the ESA. The Service expects to issue policy specific to compensatory mitigation under the ESA that aligns with the objectives of the new Mitigation Policy.

The revisions to the Mitigation Policy respond to President Obama’s November 3, 2015 Memorandum: Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment, in which the President sought to encourage private investment in restoration and public-private partnerships, and to clarify and align federal policies to mitigate for harmful impacts to natural resources. The intent of the new Mitigation Policy is to apply mitigation for adverse impacts of development in a strategic manner that recognizes the need for a landscape level approach instead of a project-by-project or single resource approach, and to align mitigation requirements with conservation strategies. The changes reflect the advances in the science of fish and wildlife conservation, as well as the increasing threats of climate change, and have a goal of conservation gain or, at a minimum, no net loss. There is also a commitment to timely and transparent processes that provide predictability and timely environmental reviews.

FWS is accepting public comment on the new Mitigation Policy through May 9, 2016.