Species Mitigation Policies Are Totally Back!
The year was 1981… Reagan was in office, MTV premiered with Video Killed the Radio Star, purple & teal was a great wardrobe choice, and the U.S. Fish and Wildlife released its Mitigation Policy. Folks probably don’t realize it, but that’s the mitigation policy that’s been in force since 2018, when the Trump Administration rescinded the Obama era 2016 FWS and Endangered Species Act (ESA) mitigation policies.
Today, we see a long-awaited announcement of new FWS and ESA mitigation policies (official publication expected May 15). Huzzah! While it is mainly bringing back the 2016 policies, it is refreshingly modern compared to 1981.
The full policy text is not out yet, but the announcement notes the following major changes:
No net loss is the goal. Net conservation gain was a main concern voiced in the comments of the proposed 2016 policies
Nexus and proportionality is a new thing. The policies will “reinforce that appropriate mitigation measures must have a clear connection with the anticipated effects of the action [i.e., nexus] and be commensurate with the scale and nature of those effects [i.e., proportionality].” The preamble cites several court cases being the catalyst for this new focus.
Finally, the announcement emphasizes that it’s policy, not a Rule. “The Mitigation Policy and ESA Compensatory Mitigation Policy are non-binding, do not establish legally binding rules, and are internal Service policies intended only to improve the internal management of the Service.”
We will follow up soon after the official publication.
