Last week, the U.S. Fish and Wildlife Service (FWS) released two revised compensatory policies. The Mitigation Policy and the ESA Compensatory Mitigation Policy reject the stringent goal of net conservation gain used by the FWS during the Obama administration. Instead, both policies include the goal of no net loss, which means maintaining the current status of affected resources. While the policies are nonbinding, they will guide how the FWS evaluates compensatory mitigation in the context of incidental take permitting, conservation benefit agreements for candidate species, and ESA Section 7 consultation. Both policies do not apply retroactively to completed actions, but the FWS may elect to apply the Mitigation Policy’s principles to actions under review. Both policies continue to favor advance compensatory mitigation over other mitigation options.

The Mitigation Policy, which replaces the original 1981 Mitigation Policy, establishes fundamental mitigation principles and provides a framework for mitigating the adverse impacts of land and water developments on fish, wildlife, plants, and their habitats. The policy applies to mitigation under the Bald and Golden Eagle Protection Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Clean Water Act, the Federal Power Act, the National Environmental Policy Act, and other statutes (as indicated in Appendix A of the Mitigation Policy). It covers all compensatory mitigation mechanisms, including proponent-responsible mitigation, conservation banking, and in-lieu fee programs. Some key principles of the revised policy include:

  • There must be an “essential nexus” and “proportionality” between an action’s effects and compensatory mitigation.
  • The FWS’ goal is to avoid impacts to high-value habitats.
  • The FWS will use a landscape approach to mitigation by integrating it into a broader ecological context with landscape-level conservation plans. The FWS will also consider climate change and cumulative impacts.
  • In certain circumstances, the FWS will consider research as compensatory mitigation, but only when other reasonable options for mitigation have been fully

The ESA Compensatory Mitigation Policy adopts the basic principles established in the Mitigation Policy and addresses mitigation of losses to ESA-listed, proposed for listing, and at-risk species and their habitats. Some key principles of the policy include:

  • Compensatory mitigation must be in kind for affected species (i.e., the offsets from compensatory mitigation must benefit the same species affected by the action).
  • Project proponents may use compensatory mitigation to minimize the impacts of incidental take on listed species based on habitat or another surrogate (a similarly affected species or ecological conditions).
  • The FWS will give preference to compensatory mitigation projects within priority conservation areas identified in existing landscape-scale conservation plans.

Although the revised policies establish a basic mitigation framework for the agency to follow, the FWS plans to issue additional implementation guidance with further details regarding compensatory mitigation standards and mechanisms.