Coalition Comments on Proposed Revisions to Mitigation Policy Jun 13, 2016 Comment Letters Agency: U.S. Fish and Wildlife Service Subject: NESARC Comments on the Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy Coalition members: Full list on NESARC website Letter excerpt: NESARC is concerned that the Mitigation Policy assumes a level of FWS authority that is inconsistent with the organic statutes which bind and direct the agency. Before any implementation, FWS must clarify and harmonize the interplay between the authorizations given to FWS under a particular statute and the application of this Mitigation Policy. The Mitigation Policy is not an independent grant of authority. Therefore, FWS must explicitly state within the Mitigation Policy that, in all instances, the imposition of any mitigation measures is constrained by the scope of authority provided by the applicable statute and cannot exceed FWS’ underlying statutory authority. NESARC is particularly concerned with FWS’s proposal to abandon present policies and apply this Mitigation Policy to actions undertaken pursuant to the Endangered Species Act (“ESA”). The ESA establishes specific standards and requirements for the scope and nature of any avoidance, minimization and mitigation measures that may be imposed by FWS. Further, the ESA requires specific analysis and evaluation of impacts to listed species and designated critical habitat. These statutory requirements cannot be overridden or undermined by the application of a general FWS Mitigation Policy. Accordingly, FWS should reinstate its previous position that the Mitigation Policy does not apply to threatened or endangered species under the ESA. To the extent that FWS believes additional clarity is needed, FWS should develop a separate, specifically tailored guidance document to address mitigation issues in the ESA context in place of the proposed general Mitigation Policy. NESARC also is concerned that the Mitigation Policy fails to explain the statutory basis or provide guidance on implementation of certain elements. For example, the Mitigation Policy fails to recognize that FWS cannot recommend or require “no action” or the “avoidance of all impacts” unless it has the specific statutory authority to do so. Further, FWS fails to identify the mechanism or procedures that are to be used to coordinate with other Federal agencies and seek implementation of the Mitigation Policy. Download coalition comment letter
