ESA Compensatory Mitigation Draft Policy

October 17, 2016

U.S. Fish and Wildlife Service
Division of Policy, Performance, and Management Programs
5275 Leesburg Pike
MS: BPHC
Falls Church, VA 22041-3803

RE:  Comments on Draft Endangered Species Act Compensatory Mitigation Policy Docket No. FWS-HQ-ES-2015-0165

To Whom It May Concern:

The Resource Development Council for Alaska, Inc. (RDC) is writing to urge the U.S. Fish and Wildlife Service’s (USFWS) to withdraw the Draft Endangered Species Act (ESA) Compensatory Mitigation Policy (Draft Policy). 

RDC is an Alaskan, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

This unnecessary application of voluntary compensatory mitigation policy will only create additional confusion and uncertainty for project proponents, potentially resulting in delayed operations and increased costs at best. At worst, this Draft Policy could prevent projects from moving forward at all. In a state in critical need of infrastructure, this proposal will negatively impact rural and urban development, furthering the difficult circumstances many Alaska communities endure.

The Draft Policy raises a number of concerns, most notably the assertion made that the USFWS has authority to require compensatory mitigation resulting in a ‘net gain’ or ‘no net loss’ under the ESA. The ESA and its implementing regulations do not require or recommend USFWS enforce compensatory mitigation measures and in fact clearly state as much in the ESA Section 7 Consultation Handbook, which reads: “the objective of incidental take analysis under section 7 is minimization, not mitigation.” The USFWS must ensure that an action is not likely to jeopardize or cause adverse modification and may prescribe measures to minimize — not “mitigate” or “fully compensate” for — the impact of the authorized incidental take.

The Draft Policy acknowledges “the Service’s authority to require compensatory mitigation under the ESA is limited and differs under Sections 7 and 10” and the Service’s “authority to require a ‘net gain’ in the status of listed or at-risk species has little or no application under the ESA.” Nonetheless, the Draft Policy goes on to offer guidelines with the end goal of “net gain” or “no net loss” compensatory mitigation under the ESA. This paradox distorts the USFWS intent for how the Draft Policy would be implemented and suggests that the USFWS would unlawfully require “net gain” or “no net loss” compensatory mitigation of project applicants.

While the USFWS acknowledges that impacts may be voluntarily mitigated under the ESA, the Draft Policy is structured and written as though it will be used by the USFWS to mandate compensatory mitigation to achieve “net benefit” or “no net impact” results.