Proposed Updates To Fish And Wildlife Service Mitigation Policy
If you’ve ever spent a quiet afternoon fishing on a lake or kayaking past the greenery of a salt marsh, you’ve likely encountered programs and projects that the U.S. Fish and Wildlife Service (FWS) oversees. FWS protects and manages our nation’s numerous fish and wildlife resources and uses conservation practices to give everyone in our nation the opportunity to enjoy those resources. FWS first introduced their Mitigation Policy in 1981, which was comprised of “recommendations on mitigating the adverse impacts of land and water developments on fish, wildlife, plants, and their habitats.” The need for revisions to the decades-old policy stems from climate change, new conservation science, and the increasing loss of habitats for many organisms protected by the FWS. The draft policy was available for public comment from March to May 2016, and since then, the agency has been making revisions to their policy. A hearing on September 22 by the Senate Environment and Public Works Subcommittee on Fisheries, Water, and Wildlife reviewed the proposed changes.
Mr. Michael Bean (Principal Deputy Assistant Secretary, Fish and Wildlife and Parks, Department of the Interior) claimed the proposed changes are meant to make mitigation measures more predictable, transparent, and effective. They also include a goal of no net loss of resources from proposed actions as well as landscape-scale approaches to mitigation. Subcommittee Chairman Dan Sullivan (AK) expressed his disapproval of the policy changes and expressed concern that the proposed revisions will create another layer of the project review process, thereby slowing the permitting process for projects that already take years. Chairman Sullivan stated that it takes an unacceptable length of time to receive a permit to build a bridge — an average of six years. Mr. Bean assured the chairman that the proposed revisions are intended to address these permitting delays.
While the hearing did not specifically focus on how the Mitigation Policy will impact oceans, Ranking Member Sheldon Whitehouse (RI) brought up ocean acidification, where increasing amounts of carbon dioxide in the atmosphere are being absorbed by the ocean, making the ocean more acidic and affecting many marine organisms and processes. Ranking Member Whitehouse asked Mr. Bean if FWS is examining the impacts of ocean acidification on species, to which Mr. Bean responded that while it is an increasingly serious issue, the National Oceanic and Atmospheric Administration (NOAA) has main jurisdiction over marine creatures. However, Mr. Bean assured the senator that if ocean acidification begins to affect any species or resources they have jurisdiction over, his agency will “take that into account as part of our overall science-based solutions.”
Chairman Sullivan also took issue with the “no net loss” measure of the Mitigation Policy, claiming that FWS does not have the authority to set this limitation. Mr. Bean defended the proposed measure by referencing Section 10 of the Endangered Species Act (ESA), which allows that the Department of the Interior (of which FWS is a part of) to approve “take” permits (permits to capture, kill, or collect threatened or endangered species) if “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking.” FWS believes that “maximum extent practicable” indicates that mitigation measures should help both the habitat and population of species. Other witnesses were split over FWS’ authority, with Joshua Kindred (Alaska Oil and Gas Association) and Ryan Yates (Chairman, National Endangered Species Act Reform Coalition) agreeing with Senator Sullivan while of Dr. Jamison Colburn (Professor of Law, Penn State University) sided with Mr. Bean.
Ranking Member Whitehouse and other committee Democrats supported the proposed FWS policy due to the need to update long-overdue mitigation measures that are crucial to help defend the nation’s wildlife against the adverse impacts of climate change. Chairman Sullivan was less supportive and ended the hearing with the hope that FWS will take into account the hesitations that were brought forward.