October 17, 2016

 U.S. Fish and Wildlife Service
Division of Policy, Performance, and Management Programs
5275 Leesburg Pike
MS: BPHC
Falls Church, VA 22041-3803

RE:  Comments on Draft Endangered Species Act Compensatory Mitigation Policy Docket No. FWS-HQ-ES-2015-0165

To Whom It May Concern:

The Resource Development Council for Alaska, Inc. (RDC) is writing to urge the U.S. Fish and Wildlife Service’s (USFWS) to withdraw the Draft Endangered Species Act (ESA) Compensatory Mitigation Policy (Draft Policy). 

RDC is an Alaskan, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

This unnecessary application of voluntary compensatory mitigation policy will only create additional confusion and uncertainty for project proponents, potentially resulting in delayed operations and increased costs at best. At worst, this Draft Policy could prevent projects from moving forward at all. In a state in critical need of infrastructure, this proposal will negatively impact rural and urban development, furthering the difficult circumstances many Alaska communities endure.

The Draft Policy raises a number of concerns, most notably the assertion made that the USFWS has authority to require compensatory mitigation resulting in a ‘net gain’ or ‘no net loss’ under the ESA. The ESA and its implementing regulations do not require or recommend USFWS enforce compensatory mitigation measures and in fact clearly state as much in the ESA Section 7 Consultation Handbook, which reads: “the objective of incidental take analysis under section 7 is minimization, not mitigation.” The USFWS must ensure that an action is not likely to jeopardize or cause adverse modification and may prescribe measures to minimize — not “mitigate” or “fully compensate” for — the impact of the authorized incidental take.

The Draft Policy acknowledges “the Service’s authority to require compensatory mitigation under the ESA is limited and differs under Sections 7 and 10” and the Service’s “authority to require a ‘net gain’ in the status of listed or at-risk species has little or no application under the ESA.” Nonetheless, the Draft Policy goes on to offer guidelines with the end goal of “net gain” or “no net loss” compensatory mitigation under the ESA. This paradox distorts the USFWS intent for how the Draft Policy would be implemented and suggests that the USFWS would unlawfully require “net gain” or “no net loss” compensatory mitigation of project applicants.

While the USFWS acknowledges that impacts may be voluntarily mitigated under the ESA, the Draft Policy is structured and written as though it will be used by the USFWS to mandate compensatory mitigation to achieve “net benefit” or “no net impact” results.

RDC is concerned that while “voluntary mitigation” is implied, a very possible result of the Draft Policy is that project applicants will be compelled into agreeing to compensatory mitigation that is not legally required under the ESA for fear that approval of their projects will be substantially delayed or effectively denied if compensatory mitigation is not included as part of their proposal.

The Draft Policy also places a strong priority on compensatory mitigation that occurs in advance of impacts. Project proponents cannot reasonably be expected to implement compensatory mitigation in advance of incidental take authorization or development of the proposed project. Requiring mitigation to be implemented before impacts occur would greatly increase timing uncertainty for development proponents and in some cases may contribute to projects not moving forward at all. Moreover, requiring compensatory mitigation be accomplished in advance of impacts will only serve to discourage applicants from proposing voluntary mitigation as part of their projects.

Lastly, the Draft Policy’s reference of climate change projections lacks adequate scientific evidence and is flawed by relying on modeling that cannot meaningfully predict how climate change will impact species and habitat in specific areas and how mitigation may result in specific benefits in those areas.  It is not prudent for the USFWS to rely on speculative climate change projections over lengthy periods of time to accurately predict effects in specific areas and upon specific species.  The current state of the science and modeling of climate change impacts cannot provide reliable predictions of how a particular species may respond to climate change and how mitigation efforts might benefit species affected by climate change. RDC requests that the USFWS not rely on speculative climate change projections in the development of mitigation efforts in any future Draft Policy.

RDC acknowledges that the Draft Policy represents the USFWS’s attempt to implement the recent Executive Office and Department of Interior mitigation policies in the context of the USFWS’s responsibility to administer the ESA.  However, new policy directives apply only to the extent they are consistent with existing laws adopted by Congress. If Congress had intended to require that every impact to listed species be completely offset (or result in a net gain), it would have written such a requirement into the ESA. If the Service or the President desires such a result, the only solution is for Congress to amend the ESA to provide that authority to the Executive Branch. For this reason, RDC again urges the Draft Policy be withdrawn.

Thank you for the opportunity to comment.

Sincerely,

Resource Development Council for Alaska, Inc.