COMMENTS: Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy

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June 9, 2016

Dan Ashe, Director
U.S. Fish and Wildlife Service
U.S. Department of the Interior
1849 C Street, N.W., Room 3331
Washington, D.C. 20240

Dear Mr. Ashe:

The Western Governors’ Association (WGA) appreciates the opportunity to comment on the U.S. Fish and Wildlife Service’s (FWS) Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy (81 FR 12379, March 8, 2016).


Western Governors appreciate the effort to establish consistent agency-wide mitigation standards and recognize that landscape-scale mitigation policies – when designed and implemented correctly – can promote better project planning and help achieve species conservation goals. Western Governors also value the Service’s adoption of flexible mechanisms, such as private mitigation banks, that developers and other stakeholders can utilize to accomplish conservation objectives.

Governors bear responsibilities for managing state interests, authorities and property rights within state borders – and of properly managing wildlife, habitat and related resources within the states. For that reason, Western Governors, in a letter dated January 21, 2014, requested that Department of the Interior (DOI) mitigation requirements that may affect state and private land be:

  • developed in cooperation with the Governors in whose states DOI lands are situated; and
  • clearly defined and predictably implemented so proper and reasonable mitigation can be incorporated in project planning.

In October of 2015, WGA’s Staff Advisory Council was briefed by representatives from FWS and other federal agencies. During this session, western states learned that federal agency partners were pursuing new or updated agency-specific mitigation policies consistent with directives in President Obama’s November 3, 2015, memorandum, Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment (the Presidential Memorandum).

State Consultation

The Presidential Memorandum states that federal agency mitigation policies should encourage predictability for non-federal partners. This predictability can best be achieved through early and ongoing consultation with Governors. In WGA Policy Resolution 2014-09, Respecting State Authority and Expertise (attached to these comments and incorporated by reference), “Western Governors support early, meaningful and substantial state involvement in the development, prioritization and implementation of federal environmental statutes, policies, rules, programs, reviews, budget proposals, budget processes and strategic planning.”

Given complexities surrounding landscape-scale mitigation in the West, as well as the potential for inconsistent implementation of revised policy by different FWS offices, Western Governors request FWS engage in substantive and ongoing consultation with Governors and state regulators prior to finalization of the Proposal and during the policy implementation stage.

Section 5.2(a) – (d) of the Proposal states FWS must work in collaboration with other governments, agencies and entities to implement the FWS’ revised mitigation policy. Western Governors request FWS expand this section to identify which FWS representatives will engage in consultation with states, clarify the nature of collaboration and consultation, clarify the processes FWS will use to engage states and the stages at which program review, implementation, collaboration and coordination will occur.

Net Conservation Gain / No Net Loss

A primary focus of the Proposal is a goal of “net conservation gain” to guide agency planning and decisions. (1) This is a change from the current mandate of “no net loss.”

Western Governors are concerned by the significant amount of uncertainty surrounding the “net conservation gain” goal. The proposal does not delineate how FWS will determine that “net conservation gain” has occurred, or is likely to occur. The Proposal also does not identify parameters to ensure the “net conservation gain” principle is applied and implemented consistently throughout the West. Finally, the Proposal does not consider what role – if any – states will have in defining “net conservation gain” or assessing mitigation plans and actions to determine the “net conservation gain.”

This lack of definition is troubling. It creates the possibility of inconsistent application and inability of project proponents to create reliable mitigation plans. Further, the lack of a “net conservation gain” definition could result in ever-escalating agency requirements for satisfaction of this principle.

Definition of “net conservation gain” will benefit projects that must comply with the revised FWS mitigation policy. It will also benefit FWS representatives responsible for consistent implementation of the revised policy. Substantive consultation with Governors and state representatives on the definition will ensure appropriate parameters for mitigation activities in western states.

Western Governors request that the final rule include a definition for “net conservation gain” and the basis on which FWS will assess mitigation plans for net conservation gain outcomes. Western Governors also request that FWS identify the factors to be taken into account in assessing the net conservation gain.


We request FWS engage in substantive consultation with Governors and state regulators before finalizing the Proposal and that the “net conservation gain” principle be better defined – based on ongoing state consultation – in the final rule.


Matthew H. Mead
Governor of Wyoming
Chairman, WGA

Steve Bullock
Governor of Montana
Vice Chair, WGA

(1) Section 4(a) (page 12384) of the Proposal.

cc: Honorable Sally Jewell, Secretary, Department of Interior

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