AGC Urges FWS to Scrap Mitigation Policies that Go Above and Beyond the Law

On Jan. 5, AGC urged the U.S. Fish and Wildlife Service (FWS) to remove the goal of “net conservation gain” from the Service’s Mitigation Policy and Endangered Species Act (ESA)–Compensatory Mitigation Policy, finalized in late 2016.  AGC asserts that that the “improvement” goal is not supported under the ESA; the goal fails to provide a clear limit on how much mitigation is necessary and blurs the line between recommendations and requirements.
Construction project proponents already address species and habitat concerns throughout the project’s life, implementing avoidance and mitigation measures at great cost. The net gain goal only adds further delays and additional costs to construction projects without legal justification.
The FWS initially issued the 2016 mitigation policies in response to an Obama-era presidential memorandum that encouraged agencies to promote restoration or enhancement of natural resources, i.e., “net gain.”  A few months after the Service finalized the policies, President Trump issued an order to rescind the memorandum, directing agencies to reexamine their actions (regulations, orders, guidance, policies) for any barriers that unnecessarily obstruct the development and delivery of energy resources.
The Department of Interior (DOI) has acted swiftly to implement President Trump’s order.  Under DOI direction, FWS has accepted comment on its mitigation policies and also plans to review and revise the regulations for listing endangered and threatened species, as well as regulations for designating critical habitats.  A proposed rule is expected this month.  Separately, on Dec. 22, 2017, DOI rescinded two Bureau of Land Management mitigation documents and ordered the review of two others.
For more information, contact Melinda Tomaino at [email protected]or (703) 837-5415.

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