The U.S. Fish and Wildlife Service (FWS) proposed revisions to its Mitigation Policy on March 8, 2016. This policy was last updated in 1981. The Policy guides FWS on appropriate mitigation for adverse impacts of proposed actions on fish, wildlife, plants, and their habitats. FWS initiated the revisions to the Policy to reflect changes in conservation challenges and practices since 1981, including accelerating loss of habitats, effects of climate change, and advances in conservation science. The proposed revisions aim to apply a landscape-scale approach to achieve 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 net gain goal is consistent with a November 2015 Presidential Memorandum on Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment, which requires that all federal mitigation policies 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.
The revisions establish relevant definitions and opportunities for the usage of mitigation in various contexts, including allowing for mitigation of impacts to species listed as threatened or endangered under the Endangered Species Act. Such mitigation was expressly excluded from the 1981 Mitigation Policy, which pre-dated the 1982 amendments to the Act that authorized incidental take permits.
The proposed revisions also incorporate the concept of a mitigation hierarchy. Two stated preferences are for advance compensatory mitigation and compensatory mitigation in relation to landscape strategies and plans. Overall, the proposed revisions provide updates to existing policy that are more consistent with current ESA reviews and permits, recognize existing mitigation options and provide a platform for broadening the use of market mechanisms to provide mitigation. The policy explicitly recognizes various types of mitigation, including proponent responsible mitigation; the use of mitigation and conservation banks, and the creation of in lieu fee funds. Mitigation can be used to address all resources for which the Service has authority to review.
Comments on the proposed revisions will be accepted until May 9, 2016. The proposed revisions are available here.