What Happened
The U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) issued final rules that change federal interagency consultations under Section 7 of the Endangered Species Act (ESA). Key among these rule changes is a new compensatory mitigation provision that allows the Services to prescribe compensatory mitigation or offsets deemed “reasonable and prudent” for minimizing the impact of incidental take on listed wildlife. Other changes loosen interpretation of the “reasonably certain to occur” standard for identifying effects of an action subject to analysis. Read the final rule.
Why It Matters
The new compensatory mitigation provision upends decades of prior practice and regulatory interpretation and may add cost, time, and complexity to the consultation process.
- The Services now have discretion to decide when offsets are necessary, as well as the amount and form of those offsets, as a mandatory term and condition of an incidental take statement.
- Offsets, if prescribed, would be subject to the recently finalized ESA Compensatory Mitigation Policy that specifies benchmarks and performance criteria to ensure that mitigation is effective and durable.
- The Services note that offsets should be in place before the impact-causing action proceeds.
- Service-prescribed offsets may include actions outside of the action area evaluated in consultation.
The…
