Late in 2015, the Obama Administration issued a Presidential Memorandum directing various federal agencies to incorporate resource mitigation banking into the programs administered by these agencies (see related blog post). On Tuesday, March 8, 2016, the U.S. Fish and Wildlife Service (the “Service”) issued a proposed revision to its mitigation policy applicable to all Service programs related to wildlife and other resources. Once effective, it will serve as an umbrella policy under which the Service may issue more detailed guidance covering specific programs provided they are consistent with the overall policy.
The overarching goal of the proposed policy focuses on the preservation of high quality habitat while providing for predictable and effective landscape scale compensatory mitigation for impacts to lower quality resources. The Service emphasizes the goal of net conservation gain with a minimum requirement of no net loss of affected resources.
The Service will continue to recognize the accepted mitigation sequence which requires project proponents to take all appropriate and practicable measures to avoid and minimize adverse impacts before compensating for remaining losses. However, the Service will also recognize that impacts to certain resources are likely to be more effectively addressed through compensatory mitigation rather than avoidance.
Importantly, the Service intends to strongly encourage project proponents to avoid resource losses through advance mitigation and further recognizes that the purchase of mitigation credits at properly approved and managed mitigation banks is an appropriate mitigation alternative. The proposed policy establishes a framework under which the Service would review and approve mitigation bank proposals. In-lieu fee mitigation is a secondary option if mitigation credits are not available.
The Service’s proposed policy is an important step forward. As it is finalized and implemented, the policy is likely to provide significant opportunities for natural resource mitigation bankers and in-lieu fee program sponsors.