The U.S. Fish and Wildlife Service (FWS) issued a final federal Endangered Species Act (ESA) Compensatory Mitigation Policy, effective December 27, 2016, its first comprehensive treatment of compensatory mitigation in all its various forms (including conservation banks, in-lieu fee programs, habitat credit exchanges, and permittee-responsible mitigation) under its endangered species program. (81 Fed. Reg. 95316 (2016).) The policy generally calls for using a “landscape approach” to inform mitigation choices and “aspiring to meet the goal to improve (i.e., a “net gain”) or, at minimum, to maintain (i.e., “no net loss”) the current status of affected resources” to the extent allowed by applicable statutes. The new policy will guide the FWS in requiring and recommending mitigation when it and other federal agencies permit projects.

As the ESA affords the FWS little authority to require compensatory mitigation and the new policy establishes goals, not legally binding rules, the ultimate effect of the policy generally will depend on how the FWS presses its recommendations and how other federal agencies and applicants respond to them.

(David Ivester)