The Fish and Wildlife Service today killed an Obama administration environmental mitigation policy that aimed to improve or, at a minimum, maintain the status of affected natural resources when considering permits and projects.
The much-anticipated rollback of the "net conservation gain" goal also includes restoring an overall mitigation policy from the Reagan administration.
Echoing a broader critique of government’s power under the Endangered Species Act to demand environmental offsets from energy developers and others, FWS observed that "at times, the nexus between a proposed undertaking and compensatory mitigation requirements is far from clear."
"These concerns are particularly acute when coupled with a net conservation gain goal, which necessarily seeks to go beyond mitigating actual or anticipated harm to forcing participants to pay to address harms they, by definition, did not cause," FWS stated.
The revised Fish and Wildlife Service mitigation policies will be formally published in the Federal Register on Monday.
The changes follow a related move by the Bureau of Land Management, which posted a policy memo Tuesday declaring its own reversal on compensatory mitigation (Greenwire, July 25).
"Going forward, the BLM will no longer require compensatory mitigation from project proponents," Interior Department spokeswoman Faith Vander Voort said in a statement. "If they so choose, project proponents may still voluntarily complete compensatory mitigation."
Taken together, the two Interior agencies’ shift on mitigation represents a victory for Endangered Species Act critics and regulated industries and a blow to environmentalists and some past and present federal officials.
"It’s a useful tool when you need to look beyond the site of activity for energy development," Hilary Tompkins, Interior’s solicitor during the Obama administration, said of compensatory mitigation in an interview. "It’s been used quite a bit by BLM historically."
Tompkins added that "you’re narrowing the scope of tools you have" by forgoing compensatory mitigation.
But Ethan Lane, executive director of federal lands for the National Cattlemen’s Beef Association, called the shift a "welcome move."
"The ‘net conservation gain’ standard has long posed problems for ranchers because it fails to adequately recognize conservation benefit already on the ground," Lane said, praising "FWS’ move away from this ‘moving goalposts’ dynamic."
Mitigation means offsetting harm to species or habitats. This might happen on-site, through the purchase of conservation credits from "mitigation banks" or by paying money to an authorized mitigation program (Greenwire, Nov. 21, 2016).
In 2015, for instance, the Obama administration favorably cited a 23,000-acre wetland bank established in northern Minnesota by Ecosystem Investment Partners. The company said it would restore bogs drained for farming to their original condition and then sell credits to offset wetlands developments elsewhere (Greenwire, Nov. 3, 2015).
During the Obama administration, federal mitigation policies set a net-benefit goal or, at a minimum, a no-net-loss goal for natural resources whenever possible.
As part of the Trump administration’s broader deregulation campaign, FWS said last November it would consider "whether to retain or remove net conservation gain" as a mitigation planning tool.
"Project proponents generally should not be required to mitigate for harms that they do not cause," Vander Voort said in a statement today.
Vander Voort added that withdrawing FWS’s Obama-era mitigation policies "allows the Service to remove the radical ‘net conservation gain’ goal, which inherently sought to mitigate above and beyond the actual impacts of a project, and returns the Service to a policy that worked for 35 years."
The agency received hundreds of comments on the mitigation policy change (Greenwire, Jan. 15).
Energy companies, the Colorado Department of Agriculture and the Associated General Contractors of America, among others, supported the change.
"Unfortunately, a ‘net conservation gain’ goal lacks predictability and potentially conflicts with other federal policies," Southern California Edison wrote, adding that "determining a net conservation gain is subjective and would be left up to the discretion of service staff."
Defenders of Wildlife argued otherwise.
"Simply offsetting impacts isn’t always sufficient to achieve our conservation goals, especially where development affects imperiled wildlife which may never achieve recovery under the status quo," the environmental group stated in its Jan. 5 letter.
In its new reasoning, the Fish and Wildlife Service leaned on a 2013 Supreme Court decision in a Florida case called Koontz v. St. Johns River Water Management District. The court held that agencies requiring off-site mitigation as a condition of granting a permit must show "a ‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed land use."
"By seeking to err on the side of mitigating above and beyond the impacts of the specific project at issue, a net conservation gain standard raises inherent concerns about proportionality, as well as the appropriate nexus between project impacts and mitigation methods," FWS stated.
The agency added that "no statute within the Service’s purview mandates that the Service directly apply a net conservation gain standard."
