CLC’s comments on FWS mitigation policy aim to better protect species and habitats

Peter Murrey, Jeff Hyman, and CLC submitted comments on the new Fish and Wildlife Service mitigation policy, urging for more accountability and better protections for threatened species and habitats. This article sums up the proposed mitigation policy and our suggestions for improving it.

Federally protected species or habitats often experience negative impacts through interactions with humans and human development. Federal laws, such as the Endangered Species Act, attempt to counter these impacts through a process called mitigation.

Mitigation aims to offset negative environmental impacts on habitat and species, addressing a negative by creating a positive. A common example is purchasing land that provides habitat for a species that loses habitat through development. But there have been varying interpretations of how this process should work over time, many of which have been legally contested and scientifically questioned. Because Fish and Wildlife Service (“FWS”) is responsible for administering federal mitigation policy for protected species and important habitat (through government projects and permitting private development), their interpretation and on-the-ground implementation of mitigation law is crucial to conservation.

FWS is now proposing a long-overdue update to their mitigation policy (the last one was in 1981). This policy would apply to all the resources FWS manages, including species listed under the Endangered Species Act, Bald and Golden Eagle Protection Act, and Migratory Bird Treaty Act.

The new policy states that “mitigation” is actually a 5-step sequence. This sequence, as applied to a hypothetical project proposing the filling of a stream, is:  

1. Avoid. Find alternative locations/approaches for the project that avoid filling the stream.

2. Minimize. Reduce the length of the stream that must be filled, or only fill the stream halfway.

3. Rectify. Replace the impacted resource in the affected environment upon completion of human activity. For example, recreate the stream in the same location after the project is over.

4. Reduce over time. In the example above, this could include managing for invasive species such as zebra mussels or carp after the stream has been recreated.

5. Compensate. This is similar to #3 (rectifying impacts), but allows for a change in location. So an equivalent length of stream could be created elsewhere.

Here’s where the legal issues begin: according to FWS, minimization is just one element of mitigation, but CLC has argued that language in the Endangered Species Act indicates minimization is actually a separate and higher priority than mitigation. The Act states that in order to receive a permit to take (kill, harass, wound, or harm) a listed species, a developer must, “to the maximum extent practicable, minimize and mitigate the impacts of [the] taking.” Ensuring that developers cause the least damage to species at the outset provides more conservation certainty than mitigation efforts, which can often fail to replace the genetic, aesthetic, and recreational values destroyed by development. CLC’s work protecting the Indiana Bat from a proposed wind power facility relies upon this principle.

The new policy will also take a more comprehensive landscape approach, which reflects an updated understanding of ecological interaction. Rather than being site- or species-specific, the landscape approach looks at how broader ecosystems function together. It analyzes impacts at varying spatial and temporal scales and at varying biological levels of organization (organisms, populations, metapopulations, and species). FWS hopes to achieve a net gain in conservation outcomes, rather than a gain for just one species or site. This is a far more comprehensive approach that could potentially yield real benefits for protected species and landscapes. However, its flexibility and challenges in implementation and accountability are potential weaknesses that should be addressed.

To that end, CLC attorneys Peter Murrey and Jeff Hyman (with legal research and writing assistance from Clinic interns) drafted and submitted five main categories of comments on the proposed policy:

1. A new term for “mitigation” is needed. We urged FWS to replace “mitigation” with a term such as “conservation hierarchy” or “conservation sequencing” to better reflect that the policy encompasses an entire sequence of avoidance, minimization, and compensation measures. Using the term “mitigation” to refer to both the entire sequence and the last stage of the sequence is confusing and can distort the proper order of conservation measures.

2. Minimization must take priority over mitigation. Consistent with our previous legal work on this issue, CLC also argued that FWS should require all practicable avoidance and minimization measures before allowing compensation of impacts to endangered species. An animal saved and allowed to remain in its natural habitat is of more certain environmental value than an animal we hope to foster somewhere else.

3. Public comment must be part of the landscape approach. We suggested that FWS should open up the selection of landscapes to public comment. Input from conservation experts and affected communities is vital to successful implementation and will improve accountability.

4. The policy should be applied on both a species and individual level. Because the Endangered Species Act specifies that applicants must minimize and mitigate all impacts of take, impacts to individuals (not just species- or population-level impacts) must be considered and addressed when permitting private impacts to listed species. This is one of the outstanding issues in the Indiana Bat Case currently awaiting decision at the D.C. Circuit Court of Appeals.

5. An Environmental Impact Study is needed. Lastly, we urged the agency to perform an Environmental Impact Statement to assess the policy’s effects on example species representing common management concerns. Studying the policy’s impacts on species like Indiana’s Whooping Crane or Bald Eagle could yield important information on what the policy’s implementation would look like for multiple management concerns (such as loss of core habitat or limited prey populations).

CLC’s comments were submitted on May 9, 2016. Click here to read them in full.

FURTHER READING

“Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy; Notice.” US Fish and Wildlife Service. 2016.

“U.S. Fish and Wildlife Service Proposed, Revised Mitigation Policy Questions and Answers.” US Fish and Wildlife Service. 2016.