NESARC Files Comments on FWS Draft Compensatory Mitigation Policy

17 October 2016

WASHINGTON, DC – The National Endangered Species Act Reform Coalition today (NESARC) filed comments with the U.S. Fish and Widlife Service expressing concerns with its draft Endangered Species Act Compensatory Mitigation Policy.

As is outlined in NESARC’s comments, because the Draft Policy is intended to carry out actions under the ESA, it must stay within the statutory authorities and framework of the specific ESA sections through which it will be applied. NESARC believes that the Draft Policy fails this fundamental test.

FWS describes the Draft Policy as guiding the implementation of compensatory mitigation, with a focus on encouraging conservation at the landscape level and setting minimum criteria for mitigation programs to achieve effective and sustainable conservation. In turn, the Draft Policy proposes the use of compensatory mitigation to achieve the goal of a net gain or, at a minimum, no net loss of affected resources. Core elements of the Draft Policy, including the net gain/no net loss standard and preference for landscape level conservation, are inconsistent with the established ESA framework. Furthermore, it is impermissible for FWS to attempt to use other statutes to unilaterally impose a higher set of standards and scope of mitigation than allowed for under the ESA.

NESARC appreciates FWS’s efforts to promote the development of mitigation mechanisms (e.g., conservation banks, in-lieu fee programs, habitat credit exchanges) so that these options are available in cases where mitigation may be required or where an agency or permit applicant may wish to undertake mitigation with respect to its activities. While these mechanisms should not supplant or be prioritized above the ability to utilize permittee-responsible avoidance, minimization or mitigation measures, NESARC believes that providing clear standards for their establishment and operation will be beneficial in creating more mitigation options for the regulated community. Here, in the ESA context, however, FWS has stepped beyond what is permissible under applicable law.

NESARC calls upon FWS to revise its Draft Policy to ensure that compensatory mitigation standards are set and implemented within the scope of the ESA’s authorities.

NESARC’s comments may be accessed here.