USFWS Updated Mitigation Policy and ESA Compensatory Mitigation Policy
In May 2023, the U.S. Fish and Wildlife Service (USFWS) released an updated Mitigation Policy (Policy) and its first Endangered Species Act (ESA) Compensatory Mitigation Policy (ESA CMP). The policies provide USFWS personnel guidance in delivering recommendations and requirements to resource agencies and project proponents in hierarchy of preference for mitigation sequence including avoidance, minimization, and compensation for adverse impacts of development projects on listed plant and wildlife species and habitats.
The Policy, which builds upon the original version published in 1981, continues an overall USFWS goal of ‘no net loss’ for maintaining the current status of resources anticipated to be affected by a proposed project. The ESA CMP tailors the scope and purpose of Policy directly to the achievement of appropriate compensatory mitigation for all unavoidable adverse impacts to listed, proposed, and at-risk species and their habitats. Here are a few key points and/or nuances of the policies for consideration:
- Per the Policy, mitigation measures must have a clear connection (i.e., nexus) with the anticipated effects of the action to natural resources and habitat and be commensurate (i.e., proportional) with the scale and nature of those effects.
- To further enhance the use of best available science, the Policy now specifically includes social and natural sciences as well as Traditional Ecological Knowledge (also known as Indigenous Knowledge) when making mitigation recommendations and decisions.
- The ESA CMP states a preference for compensatory mitigation projects to be located within priority conservation areas identified in existing landscape-scale conservation plans that are consistent with the goals outlined by the ESA.
- The ESA CMP advises that metrics used for ecological functions and services to be ‘science-based, quantifiable, consistent, repeatable, and related to the conservation goals for the species.’
Overall, the 2023 Policy and the new ESA CMP provide valuable, synergistic guidance in protecting natural resources while still allowing responsible development projects to move forward.
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