U.S. Fish and Wildlife Service releases new and revised policies and regulations

The U.S. Fish and Wildlife Service recently issued several new and revised policies and regulations related to 1) mitigation for actions affecting species listed under the Endangered Species Act and 2) management of species that are candidates for listing.

On December 27, 2016, the Service released a final ESA Compensatory Mitigation Policy (81 FR 83440). The Service states that the “primary intent of the policy is to provide Service personnel with direction and guidance in the planning and implementation of compensatory mitigation, primarily through encouraging strategic planning at the landscape level and setting standards that mitigation programs and projects must meet to achieve conservation that is effective and sustainable” (81 FR 83440).

The policy clarifies existing guidance and covers all compensatory mitigation mechanisms recommended or supported by the Service when implementing the ESA, including permittee-responsible mitigation, conservation banking, in-lieu fee programs, and habitat credit exchanges.

The new ESA Compensatory Mitigation Policy steps down and implements recent federal mitigation policies that reflect a shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation. The Service’s Mitigation Policy was recently revised (81 FR 83440) to address recent conservation challenges and practices, including “accelerating loss of habitats, effects of climate change, and advances in conservation science” and to promote a linkage with conservation strategies at appropriate landscape scales.

More information on the Service’s ESA Compensatory Mitigation Policy and the revised Mitigation Policy is available at https://www.fws.gov/endangered/improving_esa/cmp.html 

On December 27, 2016, the Service also finalized revisions to its regulations concerning Candidate Conservation Agreements with Assurances (81 FR 95053). To participate in a CCAA, non-federal property owners agree to implement specific conservation actions on their land that reduce or eliminate threats to candidate species covered under the agreement. In exchange, land owners receive assurances that they will not be required to undertake any additional conservation actions should the species be federally listed as threatened or endangered.

 

In order to approve a CCAA under the prior regulations, the Service had to conclude that the benefits of the landowner’s conservation actions, when combined with conservation actions on “other necessary properties,” would “preclude or remove any need to list the covered species.”

However, meeting this standard obviously depended on other landowners undertaking additional conservation actions which would be beyond the control of any individual landowner. Therefore, the Service has revised its regulations to remove references to “other necessary properties” and to clarify that a CCAA must provide a “net conservation benefit” to a species. The Service also has made these changes to the agency’s Candidate Conservation Agreement with Assurances Policy (81 FR 95164).