The U.S. Fish and Wildlife Service (FWS) published draft revisions on March 8, 2016 to its 1981 Mitigation Policy for mitigating the impacts of development projects to natural resources.  See Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy, 81 Fed. Reg. 12380 (Mar. 8, 2016) (Proposed Revisions). 

The Proposed Revisions come in the wake of President Obama’s November 3, 2015 Presidential Memorandum on federal mitigation policies.  The Proposed Revisions purportedly implement the president’s direction in the Memorandum as it pertains to the FWS while also comporting with the U.S. Secretary of the Interior’s Order No. 3330 titled “Improving Mitigation Policies and Practices of the Department of the Interior,” issued October 31, 2013 and the Departmental Manual Chapter on implementing Mitigation at the Landscape-Scale, issued October 23, 2015.

Updated Framework for Applying Mitigation Measures

The FWS has explained that the Proposed Revisions are intended to broaden the scope of the mitigation policy to address all resources over which the FWS has the authority to recommend mitigation and to provide an updated framework for applying mitigation measures to maximize their effectiveness.  In addition to responding to the Memorandum, developments in threats to resources, advancements in conservation science and changes in the context of resource conservation motivated the development of the Proposed Revisions.  Specifically, the FWS notes accelerated loss of habitat due to land use changes, the effects of climate change, the development of adaptive management as the preferred science-based conservation approach, and the increased focus on conservation at appropriate landscape scales rather than specific habitats as prompts for the Proposed Revisions.

Specific changes to the 1981 Mitigation Policy include all of the following:

• Incorporating all statutes and regulations—including the Endangered Species Act (ESA), not incorporated in the 1981 Mitigation Policy—that provide the FWS with authority to require or recommend mitigation
• Establishing guiding principles for mitigation across all FWS programs
• Establishing a landscape-based, regional approach to mitigation

The FWS states in the announcement of the Proposed Revisions that it intends to develop program-specific policies and guidance to effectuate the intent of the Proposed Revisions.  Specifically, the FWS states that it anticipates publishing a policy for compensatory mitigation under the ESA to provide operational detail for implementing the Proposed Revisions.

The actual effect of the Proposed Revisions, and any additional program-specific policies that the FWS may promulgate, remains to be seen.  The Proposed Revisions’ explicit reference to the ESA and focus on landscape-scale mitigation will likely promote the growing trend of far-reaching conservation efforts.  This will likely impact the scope and scale of future development projects.  The extent to which the Proposed Revisions comport with policies that other federal agencies have implemented, or will implement, to comply with the Memorandum—and the resulting extent to which federal agencies take a common approach to mitigating the impacts of development on resources—will become clear as policies are fully developed and, more importantly, implemented. 

The FWS will accept comments to the Proposed Revisions until May 9, 2016.

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