COMMENTS: Endangered Species Act Compensatory Mitigation Policy

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October 17, 2016

Dan Ashe, Director
U.S. Fish and Wildlife Service
c/o Division of Policy, Performance, and Management Programs
MS: BPHC; 5275 Leesburg Pike
Falls Church, VA 22041-3803

Docket No.: FWS–HQ–ES–2015–0165

Dear Director Ashe:

The Western Governors’ Association (WGA) appreciates the opportunity to comment on the U.S. Fish and Wildlife Service’s (Service) draft Endangered Species Act Compensatory Mitigation Policy (81 FR 61031, September 2, 2016).


Under the U.S. Constitution, states have trust authority over natural resources and wildlife. Consequently, Governors bear management responsibility for all fish and wildlife within their states’ borders. Further, state agencies possess a wealth of knowledge and scientific expertise on the status and distribution of endangered, threatened and at-risk species. Moreover, because of their close working relationships with local governments and landowners, they are in a unique position to assist the Service in implementing the ESA.

For these reasons, 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 coordination with Governors in whose states where DOI lands are situated; and
  • Clearly defined and implemented so proper and reasonable mitigation can be incorporated in project planning.


Section 4.8 of the proposed policy calls for collaboration with affected stakeholders and governments in the development of landscape-scale conservation programs designed to achieve a net gain, or at a minimum, no net loss in conservation for listed and at-risk species. The policy defines at-risk species as candidate species and other unlisted species that are declining and at risk of becoming candidates for listing under the ESA. Under this definition, states retain primary management authority for candidate and at-risk species within their borders.

Western states are proactively engaged in species conservation. Among other things, they develop state and multi-state conservation plans to manage species at the local level. For this reason, we urge the Service to expand and clarify guidance to agency staff on state agencies’ lead role in coordinating compensatory mitigation efforts for at-risk species as defined in the proposed policy.


Pursuant to President Obama’s November 3, 2015, memorandum, Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment (Presidential Memorandum), the Service’s proposed policy calls for a landscape-scale approach to development and conservation planning, including mitigation.

Western Governors recognize that landscape-scale approaches to compensatory mitigation – if designed and implemented appropriately – may promote better project planning and help to achieve species conservation goals and species recovery under the ESA. Accordingly, the Governors support the Service’s efforts to encourage the use of market-based compensatory mitigation programs such as conservation banks and habitat exchanges.

Whether a landscape-scale approach to species management can fulfill this promise will depend, to a significant degree, on how the concept is delineated and implemented by the Service. As the WGA Species Conservation and ESA Initiative identified, the term “landscape-scale” is multi-faceted and can have different meanings to different stakeholders. Questions persist regarding how landscape-scale conservation efforts are defined in terms of scale, scope, funding and scientific consistency. We refer you to the Initiative’s Special Report and Appendix for more context in that regard.


A primary focus of the proposed policy is a goal of “net conservation gain” to guide compensatory mitigation efforts, or, at a minimum, a goal of no net loss in conservation. Western Governors are concerned by the lack of definition provided for the “net conservation gain” goal. For example, the proposed policy does not delineate how the Service will determine that “net conservation gain” has occurred, or is likely to occur.

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

Clearly defining “net conservation gain” will benefit projects that must comply with proposed policy, although the Service recognizes their limited authority to require mitigation under the ESA. It will also benefit Service representatives responsible for implementation of the proposed policy. Substantive consultation with Governors and state representatives regarding the definition will ensure appropriate parameters for compensatory mitigation under the ESA.


Western Governors request that the Service engage in substantive and ongoing consultation with Governors and state regulators to create clarity around landscape-scale compensatory mitigation in the West and the definition of “net conservation gain.” Such an approach would comport with the Governors’ view of what a real and substantive consultative process should entail. (1)


Steve Bullock
Governor of Montana
Chair, WGA

Dennis Daugaard
Governor of South Dakota
Vice Chair, WGA

(1) WGA Policy Resolution 2014-09, Respecting State Authority and Expertise: “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."

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