The U.S. Fish and Wildlife (USFWS) has revised its Mitigation Policy and Endangered Species Act Compensatory Mitigation Policy. These two policies influence how the USFWS will consider and address mitigation goals and standards. The revised policies adopt Obama-era policies that were enacted in 2016 and later repealed in 2017, with some modifications based on previous legal challenges. Project proponents and species conservation bank sponsors seeking to use or create mitigation will have new standards and obligations under these revised policies. The USFWS will apply these revised policies to determine what types of actions qualify as mitigation.
In practice, the new policies will make the species mitigation process similar to the Compensatory Mitigation for Losses of Aquatic Resources (33 Code of Federal Regulations Parts 325 and 332, and 40 Code of Federal Regulations Part 230) (73 Federal Register 19594, April 10, 2008).
REVISED MITIGATION POLICY
- Serves as an umbrella policy under which the USFWS may take a hierarchical approach to address mitigation, issuing more detailed policies and guidance documents covering specific activities.
- Maintains the current mitigation goal of no net loss but integrates the concepts of the 2016 mitigation policies that were repealed in 2017.
- Establishes fundamental mitigation principles — namely “nexus and proportionality” — with the intent of applying mitigation that has clear, proportional, and effective linkage between conservation and effects of the action at appropriate landscape scales.
REVISED ENDANGERED SPECIES ACT COMPENSATORY MITIGATION POLICY
- Establishes compensatory mitigation, processes, standards, and execution, creating new obligations for qualified compensatory mitigation.
- Adopts the revised Mitigation Policy issued in May 2023, specifically the mitigation principles on “nexus and proportionality” with the “essential nexus” between an action’s effects and compensatory mitigation, and mitigation proportional to the action’s effects.
- Reiterates the principle on “nexus” that “mitigation measures must have a clear connection with the anticipated effects of the action and be commensurate with the scale and nature of those effects.”
SWCA CAN HELP
Reach out to your project manager or one of SWCA’s regulatory specialists for more information, insights, and strategies to keep your projects on track.