Also New Proposed Policy to ‘Mitigate’ Construction Impacts to Federally-Listed Species
The U.S. Fish and Wildlife Service (FWS) recently released a National Listing Workplan outlining its planned approach to review and address the backlog of pending Endangered Species Act (ESA) listing petitions and critical habitat decisions for species over the next seven years. FWS also proposed an ESA-specific compensatory mitigation policy that aims to implement a recent Presidential Memorandum that speaks to how federal agencies should, in their environmental reviews and permitting, address impacts on natural resources caused by construction and development.
Prioritizing the Service's Listing Work
Currently, more than 550 species are pending for consideration for listing under the ESA. FWS’ National Listing Workplan uses the Service’s latest “methodology” – published in July 2016 – for prioritizing pending ESA status reviews (i.e., the scientific process FWS uses to determine whether a species warrants federal protection). Click here for a related AGC article and click here for FWS’ website on prioritizing the Service’s listing work.
Specifically, the Workplan covers the “highest priority” cases, including the 30 species currently on the ESA “candidate list” (meaning the Service determined that a proposal to list the species as endangered or threatened is warranted), 320 “status reviews” for species that have been petitioned for federal protections, 11 species for which the Service is undertaking voluntary status reviews to determine whether they are warranted for listing, and one court order. A species’ inclusion in this Workplan does not mean that the species is going to be listed as a threatened or endangered species under the ESA. The Service’s rulemaking process requires public comment and scientific peer review before any action is finalized.
Notably, the ESA allows the public to petition the federal government for species protections or file suit to force adherence to ESA deadlines. Citizen actions have increased in recent years (the Center for Biological Diversity and Wild Earth Guardians have been center stage), thereby overwhelming FWS resources with multi-species petitions – and ultimately resulting in high-profile legal settlements. FWS proposed revisions in May 2015 to its petition process that may reduce the number of petitioned species in coming years. These revisions would require petitioners to submit information one species at a time and include a “certification” that state input was sought before anything is sent to FWS.
New Trends in Compensatory Mitigation Address All Natural Resource Impacts (Not Just Water)
AGC has been monitoring how other federal agency programs (outside of Clean Water Act Section 404 permitting – wetland/stream mitigation) may emerge or evolve due to the Nov. 2015 Presidential Memorandum: Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment. As previously reported by AGC, that memo broadens the federal government's decades-old “no net loss” wetlands policy to include any natural resource and encourages agencies to replace affected resources even before construction begins.
For example, in March 2016, FWS proposed revisions to its 1981 Mitigation Policy. These revisions include new “net conservation benefit goals” that would give the Service significant discretion to impose mitigation requirements through Endangered Species Act (ESA) Section 7 consultation, Section 10 incidental take permits and National Environmental Protection Act (NEPA) processes.
Soon afterwards, in September 2016, FWS published an ESA-specific draft Compensatory Mitigation Policy that adopts the FWS mitigation principles proposed in March 2016. The new ESA-specific mitigation policy represents a government-wide shift from a project-by-project approach to a landscape-scale approach to planning and implementing compensatory mitigation. It sets standards and minimum criteria for mitigation providers and permittees. The policy encourages consolidated mitigation mechanisms and places an emphasis on advance (or concurrent) mitigation. Click here for more information.
The Service acknowledges it lacks statutory authority to require mitigation. The mitigation principles are presented as “goals” but industry remains concerned that they could be treated as binding requirements. In that regard, FWS could hold up projects until applicants agree to certain mitigation – even though there is a lack of established metrics for credits. Also, if FWS staff applies the final policy to actions currently under review, it may cause delay and interruptions.
AGC will continue to monitor these developments and report on significant happenings to AGC members. For more information, contact AGC’s Leah Pilconis at pilconisl@agc.org.