United States: Fish And Wildlife Service Walks Away From Net Conservation Gain Standard In Compensatory Mitigation Policies

On July 30, the United States Fish and Wild Service ("USFWS") published notices in the Federal Register withdrawing the USFWS Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy ("ESA-CMP"). Both of these policies were published in late 2016, at the tail end of the Obama Administration.

The USFWS Mitigation Policy was intended as an umbrella policy to govern the Agency's approach to mitigation and to further a "landscape-scale" approach to integrate mitigation planning into broader regional strategies to achieve the goal of "net conservation gain" or a minimum of no net loss of natural resources. The ESA-CMP was the first policy issued under the umbrella of the USFWS Mitigation Policy. It covered mechanisms that compensate for the impacts of development activities on endangered or threatened species as well as species at risk of being listed.

On November 6, 2017, the USFWS requested comments regarding the two policies. In response to those comments and in furtherance of the Trump Administration's deregulatory goals, the USFWS has determined that it is not appropriate to retain the "net conservation gain" standard. The ESA-CMP is being withdrawn in tandem with the USFWS Mitigation Policy because the net conservation gain standard is prevalent throughout.

According to the notices, the decision to withdraw the mitigation policies also was influenced by constitutional takings concerns. Specifically, the USFWS indicates the net conservation standard calls into question whether there is a sufficient nexus between the government's demand and a project's harmful effects pursuant to Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013). The USFWS posits that the standard goes beyond mitigating actual or anticipated harm to forcing participants to pay to address harms they did not cause.

The notices were published in the Federal Register on July 30, 2018, and the withdrawals of the mitigation policies are immediately effective. All policies that were superseded by the 2016 Mitigation policy will be reinstated, including the January 23, 1981 USFWS Mitigation Policy.

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