Legality of US conservation mitigation policy questioned
WASHINGTON, Oct. 12, 2016 - The U.S. Fish and Wildlife
Service (FWS) may not have the authority to ensure that mitigation for land use
– compensation for resources that would be destroyed – achieve a “net
conservation benefit,” as envisioned by the Obama administration in recently
proposed policies.
That’s the opinion of Kerry McGrath, an attorney with Hunton
& Williams in Washington who conducted a webinar for the National Agricultural
Law Center earlier this week. McGrath discussed the administration’s mitigation
policies for streams and wetlands, and, as
proposed by FWS on Sept. 2, for endangered species. The species mitigation
policy proposal carries a comment deadline of Oct. 17, but FWS has received a
handful of requests for an extension, including from the American Farm Bureau
Federation.
The renewed focus on mitigation results from a memorandum
issued by President Obama last November, in which he said agencies “should
establish a net-benefit goal or, at a minimum, a no-net-loss goal for natural
resources the agency manages that are important, scarce, or sensitive.”
That memo also said agencies “should give preference to
advance compensation mechanisms” – in other words, ways to compensate for
harmful impacts before they occur.
But McGrath, looking to provide advice on potential areas
for comment, said there is “limited statutory authority” for requiring advance
compensation or a net benefit. She also noted that since a policy is not a
rule, “legally it could be a little difficult” to challenge, as it is not
“final agency action.”
In a FAQ
document released with its September proposal, FWS acknowledged that under
the Endangered Species Act, “there is no mandatory obligation to improve or
maintain the current status of affected resources” and said its “preference” is
that landowners provide compensatory mitigation before anything happens on the
land in question. Another key element of the policy is a preference for
“consolidating compensatory mitigation on the landscape,” such as conservation
banks, areas set aside that contain habitat for the affected species.
But
McGrath said that unlike wetlands mitigation banks, which have steadily grown
in number over the past 25 years – there are now close to 2,000 nationwide
– there are fewer than 150 conservation banks covering 170,000 acres.
“Wetland mitigation banking is the most established.”
McGrath said. “They’re permitting wetland mitigation banks faster than people
really need – not that they’re always in areas you need.”
Although FWS has listed conservation banks as an attractive
option for landowners, McGrath said that as a “relatively new concept,” there
aren’t enough of them to provide the number of conservation credits needed.
“You might be in an area where there aren’t enough credits …
so sometimes it’s kind of necessary and it can be a lot cheaper to do your own
mitigation,” she said.
In addition to a dearth of conservation banks, McGrath said
that there are no “established metrics” for how to use conservation credits. The
process is “not really standardized, especially for species.”
Another potential pitfall is that FWS might implement the
policy as if it has the legal authority to do so. “There’s certainly the
concern that these goals … will be treated by service staff as binding
requirements,” she said.
One potential business opportunity for farmers is setting up
their own wetlands mitigation or conservation bank, McGrath said. But be
prepared for a lot of paperwork. “It’s a permitting process on steroids,” she
said, mentioning transaction costs and “not a lot of flexibility.” One
unanswered question is whether other uses, such as cattle grazing, would be
allowed.
“The answer is not very clear,” she said. “I’ve seen
different answers from different Army Corps (of Engineer) districts on cattle
grazing.”
In
testimony before the Senate
Environment and Public Works Committee last month, Ryan Yates, with the
National Endangered Species Act Reform Coalition, said the service’s “landscape
scale approach is overly expansive and fails to consider the role of states and
local jurisdictions in species conservation. The service cannot incorporate
landscape scale mitigation into permitting decisions or authorizations without
explicit statutory authority, which requires such a broad ecological approach.”
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