Endangered Species Law & Policy

On March 8, 2016, the U.S. Fish and Wildlife Service (Service) announced (pdf) proposed revisions to its Mitigation Policy that has guided Service recommendations on mitigating the adverse impacts of development on fish, wildlife, plants, and their habitats since 1981.  The revised policy provides a framework for achieving a net gain in conservation outcomes, or at a minimum, no net loss of resources and their values, services, and functions resulting from proposed actions.

The Mitigation Policy serves as over-arching guidance applicable to all actions for which the Service has specific authority to recommend or require the mitigation of impacts to species and/or critical habitat.  The Service indicated that it revised the Mitigation Policy due to: (1) the acceleration of habitat loss and subsequent loss of ecosystem function since 1981; (2) threats that were not fully evident in 1981, such as climate change, the spread of invasive species, and outbreaks of epizootic diseases; (3) substantial advancement in the science of fish and wildlife conservation in the past three decades; (4) substantial changes to the federal statutory, regulatory, and policy context of conservation since 1981; and (5) a need to clarify the Service’s definition and usage of mitigation in various contexts, including the conservation of species listed as threatened or endangered under the Endangered Species Act, which was expressly excluded from the 1981 Mitigation Policy.  If adopted, the proposed revisions would broaden the scope of the Mitigation Policy to address all resources for which the Service has authorities to recommend or require mitigation for impacts to resources.  The revisions also provide an updated framework for applying mitigation measures that will maximize their geographic effectiveness at multiple geographic scales.

The proposed revisions are, in part, intended to implement directives from the Presidential Memorandum on Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment (November 3, 2015).  That memorandum directed all federal agencies that manage natural resources to avoid and minimize damage to natural resources and to effectively offset remaining impacts, consistent with the principles declared in the memorandum and existing statutory authority.  Under the memorandum, all federal mitigation policies must clearly set forth a net benefit goal or, at a minimum, a no net loss goal for natural resources, wherever doing so is allowed by existing statutory authority and is consistent with agency mission and established natural resource objectives.

Comments on the proposed revisions will be accepted until May 9, 2016.