CAPR Public Comment on US Fish and Wildlife ESA Compensatory Mitigation Policy Rulemaking

All persons can provide comments to the USFW on the Rulemaking until January 5. 

The link to provide comment to the Federal Fish and Wildlife Service is here:

Here is the comment submitted by CAPR.

Citizens’ Alliance for Property Rights

Comment on ESA Compensatory Mitigation Policy Implementation. Document # FWS-HQ-ES-2015-0126

The ESA bears no statutory obligation to improve or maintain the status of affected resources.   Often terms in the law are lamentable for their tendency for misinterpretation, conflicting interpretations, and litigation, and need definite clarification; such as: “potential”, "foreseeable future", "significant portion of the range," "jeopardy", "reasonable and prudent alternatives/measures," "maximum extent practicable" as relating to mitigation plans, policies, and species.  More definite language must be included in rule-making to prevent and protect the public from litigation, and from inconsistent or overly-broad agent determinations.  These terms create the circumstance where the impossible burden on property rights caused by a policy of net gain is insurmountable, and require a public benefit be borne by certain private individuals.

In implementing policy to encourage US Fish and Wildlife staff to work with applicants to implement net gain/no net loss conservation, the judgement of applications will no longer be standardized, and outside pressures and threats of litigation can be applied, skewing the process and outcome of plans.  The USFW must identify actual recovery and numerical goals for healthy species populations before, and at the time of any proposed rule or plan involving listing a species.  Recovery plans should be drafted, completed, approved, and signed before a listing or critical habitat is designated.  The proposed rule does not define if net conservation gain will be unilaterally and only measured on a numerical basis or under what circumstances the Service will make a qualitative judgment as to the level of mitigation that achieves this standard. If the Service uses a conservation gain approach to require mitigation that does not use the measure of nexus and proportionality to properties affected when determining impacts to species or habitat, the Service’s application of a net conservation gain standard could result in regulatory taking.

The US Fish and Wildlife Service must have transparency and a focus on species recovery and de-listing.  To promote this, essentially necessary ESA litigation and settlement reform should be a focus of the agency.  ESA data and science must be publicly available for review prior to a listing or habitat plan, and documentation describing how the data and science are the best available, how that data applies to a given plan or program, and is accurate and reliable, must be provided to the public.

Secretaries of the Interior and Commerce should under certain circumstances reevaluate any critical habitat or listing decision where evidence provided by local government shows the listing will cause significant economic harm.  Critical habitat economic analyses should be required prior to the time of any proposed listing and must include the analyses provided by local government and existing businesses.  This will create a regulatory environment that is more accountable, will comply with the Data Quality Act, and thus will avoid arbitrary and capricious nullification, and litigation.

Thank you,

Cindy Alia, Citizens’ Alliance for Property Rights

December 20, 2017