On December 27, 2016, the U.S. Fish and Wildlife Service (FWS or the Service) issued the final Endangered Species Act (ESA) Compensatory Mitigation Policy (the Policy). 81 FR 95316. The Policy is the first comprehensive treatment of compensatory mitigation under ESA authority to be issued by the FWS following previous piece-meal and disjointed policies.
The Compensatory Mitigation Policy was developed after the November 2015 Presidential Memorandum: Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment was issued, and implements the Secretary of the Interior’s Order 3330, Improving Mitigation Policies and Practices of the Department of the Interior (issued October 31, 2013), as well as A Strategy for Improving the Mitigation Policies and Practices of The Department of the Interior (announced April 10, 2014). The FWS issued a final revised Mitigation Policy (81 FR 83440) in November 2016 intended to be an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued. The Compensatory Mitigation Policy published in December is one of the sub-policies issued under this broader Service strategy and specifically targets compensation in mitigation planning under the ESA.
The Policy reflects a shift from project-by-project approaches to the use of landscape-scale compensatory mitigation. It addresses, among other things, market-based compensatory mitigation mechanisms such as permittee-responsible mitigation, conservation banking, and in-lieu fee programs. As in the proposal, the Policy includes a strong preference for advance or pre-impact mitigation, despite some stakeholders’ comments that such mitigation is not always practicable, feasible, or preferable.
The Policy emphasizes the FWS’ goal to strive for a “no net loss” or a “net gain” for protected species, despite comments from stakeholders that there is no requirement under the ESA to achieve such an outcome. According to the Service, while Sections 7 and 10 of the ESA do not require “no net loss” or “net gain” benchmarks, the statute allows the Service to set “enhanced” mitigation goals such as those promulgated in the new Policy.
The Compensatory Mitigation Policy is effective as of December 27, 2016 and the FWS is expected to follow up the Policy with comprehensive guidance. Because the Policy is final and effective, it is unclear whether and how the new Administration could seek to pull it back. A copy of the Policy is available here.