Endangered Species Law & Policy

On May 15, 2023, the U.S. Fish and Wildlife Service (Service) issued two mitigation policies: one titled “Mitigation Policy” and another titled “Endangered Species Act Compensatory Mitigation Policy.” The Mitigation Policy provides a framework to inform Service mitigation procedure and policy, while the Endangered Species Act (ESA) Compensatory Mitigation Policy provides guidance on implementation of the ESA through compensatory mitigation mechanisms. The Service states that both policies are intended as guidelines for Service personnel to follow when providing species and habitat mitigation guidance to agencies and project proponents, and are not legally binding.

Mitigation is defined in the Mitigation Policy as “measures taken to avoid, minimize, and compensate for those impacts” resulting from proposed actions that adversely affect federally endangered, threatened, or at-risk species. The Mitigation Policy sets forth “fundamental principles” to guide the Service, including a mitigation hierarchy, an overall goal of “no net loss” of resources, and a “landscape approach” objective, among others. The Mitigation Policy also emphasizes “considering the broader ecological context of both impacts and mitigation opportunities.”

The ESA Compensatory Mitigation Policy defines “compensatory mitigation” as “compensation or offsets for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied, by replacing or providing substitute resources or environments through the restoration, establishment, enhancement, or preservation of resources and their values, services, and functions.” Included in the ESA Compensatory Mitigation Policy are the principles from the Mitigation Policy, standards for compensatory mitigation, and guidance on how to use compensatory mitigation through implementation of the ESA. The ESA Compensatory Mitigation Policy provides details on where, when, and how to apply compensatory mitigation, including conservation banks, in-lieu fee programs, and habitat-based mitigation.

The Mitigation Policy supersedes the policy that had been in place since 1981, and the ESA Compensatory Mitigation Policy clarifies prior guidance issued in 2003 and 2008. A previous mitigation policy and an ESA compensatory mitigation policy were issued by the Obama administration in 2016, but the Trump administration subsequently withdrew them in 2018, reinstating the 1981, 2003 and 2008 policies and guidance.