U.S. Fish and Wildlife Service Mitigation Policy Updates

Alexus Kelley News

June 2, 2023

The U.S. Fish and Wildlife Service (USFWS) has recently issued two interrelated policies that will shape the approach to addressing damage to regulated natural resources. These policies, the Mitigation Policy and the Endangered Species Act (ESA) Compensatory Mitigation Policy (ESA Mitigation Policy), came into effect on May 15, 2023.

The Mitigation Policy is applicable in all cases where the USFWS can pursue mitigation for damages and aims to effectively offset impacts on fish, wildlife, and ecosystems. It establishes a framework of mitigation principles, emphasizing the objective of maintaining the overall quantity, quality, and functionality of resources, while aiming for no net loss in the resources and their values, services, and functions resulting from proposed actions. This represents a lower threshold than a previous goal that sought a conservation gain.

The ESA Mitigation Policy focuses more on practical actions, outlining compensatory measures such as conservation banking. USFWS officials anticipate that the ESA Mitigation Policy will enhance clarity, improve consistency, and promote compensatory mitigation strategies at a landscape scale, in line with the ESA’s goals.

How does the ESA Mitigation Policy affect you – our ERO clients?

This policy will (1) provide greater clarity on applying compensatory mitigation to actions subject to ESA compliance requirements, (2) improve consistency and predictability in the implementation of the ESA by standardizing compensatory mitigation practices, and (3) promote the use of compensatory mitigation at a landscape scale to help achieve the purposes of the ESA. The ESA Mitigation Policy also modifies the mitigation standard from a net benefit to a no net loss in the resources and their values, services, and functions resulting from proposed actions. The ESA Mitigation Policy also provides multiple mitigation mechanisms for offsetting adverse project impacts on affected species, such as proponent-responsible mitigation, conservation banks, and in-lieu fee programs.

ERO is a leader in developing innovative mitigation plans for threatened, endangered, and at risk species for large and small projects. For example, ERO developed the highly successful Compensatory Mitigation Plan for the Chatfield Storage Reallocation Project, and smaller avian conservation plans for eagles and other migratory birds throughout Colorado. ERO put together these plans following the same mitigation principles and practices described in the ESA Mitigation Policy. We develop our mitigation plans at the local level with the goal of achieving landscape-scale conservation objectives with a focus on ecosystem services and functions. Please feel free to contact your ERO project manager or info@eroresources.com if you have any questions. 

Helpful links for more information:
The new mitigation policy can be accessed here: https://www.fws.gov/sites/default/files/policy/pdfs/FWS-ESA-Compensatory-Mitigation-Policy.pdf