Breaking News: Dramatic Endangered Species Act Mitigation Reform?
Rumors swirling around Washington D.C. indicate that the Department of the Interior (“DOI”) may release a statement rescinding the fairly recently published USFWS Service-Wide Mitigation policy and Endangered Species Act-Compensatory Mitigation Policy, without replacing either policy. Further, the agency may also take the position that, in the absence of further congressional directive, the DOI is not authorized under the ESA to require any compensatory mitigation at all.
Indeed, Joseph Balash, Assistant Secretary of Land and Minerals Management at the DOI recently stated that the Bureau of Land Management did not have the authority to impose compensatory mitigation on project proponents and would no longer do so.
The momentum behind this action and direction of the agency is unlikely to change under DOI’s current leadership. Whether the announcement will also include an explicit statement that the DOI is not congressionally authorized to require compensatory mitigation is still unclear, and the agency may withhold that position until it has developed a Solicitor’s Opinion to support such a statement.
If true, this announcement will send shock waves across the country and will almost assuredly elicit cheers from project proponents, as well as spur years of litigation from environmental groups. Stay tuned.