Western Caucus Denounces FWS’s Overreaching Compensatory Mitigation Policy

Western Congressional Caucus

Dec 23, 2016: WASHINGTON, D.C. – Congressional Western Caucus Chairman Paul A. Gosar, D.D.S. (AZ-04) and Executive Vice-Chairman Scott Tipton (CO-03) issued the following statements in response to the U.S. Fish and Wildlife Service (Service) announcing the agency’s final Endangered Species Act (ESA) Compensatory Mitigation Policy (CMP):

“Despite losing control of the House, Senate and White House on his watch, President Obama still doesn’t seem to get the message that the American people have rejected his extremist environmental agenda. By desperately seeking to enact almost 100 midnight regulations during the last few weeks of a lame duck presidency, Obama has selfishly put his own legacy ahead of the well-being of hard-working Americans,” said Chairman Gosar. “The Service’s final CMP is the direct result of a lawless directive issued by President Obama in November 2015. With help from his extremist environmental allies, the president has blatantly abused his executive power to instruct federal agencies to unilaterally rewrite environmental laws originally passed by Congress. The Service’s new CPM will have devastating consequences for local communities and job creators while causing significant regulatory confusion. You can add this misguided policy to the growing list of midnight regulations that Congress and the Trump Administration will expunge early in the 115th Congress.”

“This final rule further muddies the regulatory waters, creating unnecessary burdens, confusion and delays in the permitting process for everything from responsible, job-creating energy development projects to important environmental conservation projects,” said Vice-Chairman Tipton. “It’s consistent with the Administration’s final push to do everything possible to make life difficult for rural Americans to earn a living.”

Background:

The “Presidential Memorandum” on mitigation seeks to provide new instructions and guidance for all federal agencies within the Executive Branch. The Fish and Wildlife Service proposed changes to the agency’s mitigation policy on March 7, 2016 as a result of this memo.

In June of 2016, Chairman Gosar and Vice-Chairman Tipton joined nine of his colleagues in contacting Dan Ashe, Director of the U.S. Fish and Wildlife Service, to raise serious concerns and request an extension of the comment period for proposed revisions to the Service Mitigation Policy. That letter can be found HERE.

Last November 3, 2015 President Obama issued another significant Memorandum to the Departments of Agriculture, Defense and Interior, the Environmental Protection Agency (EPA), and the National Oceanic and Atmospheric Administration (NOAA) requiring sweeping changes to their policies regarding mitigation of natural resource impacts from approved projects and activities. Specifically, the new policy requires agencies considering permitting of projects to incorporate a standard of ensuring a “net benefit” or at minimum “no net loss” of important, scarce, or sensitive natural resources before a permit can be issued.

The Memorandum mandates federal agencies to design policies to require more compensatory mitigation, including advance compensation prior to project approval and mitigation banking methods facilitated by environmental groups and other non-governmental entities that participate in the banking business.

The Memorandum appears to create sweeping new statutory authority through unilateral executive action, and represents a substantial re-write of public land use and water policy by the Obama Administration. The new “net benefit” standard exceeds statutory standards set in law by Congress, and represents a substantial raising of the threshold that will likely result in the rejection of a host of economic and energy-related projects that would otherwise have been approved under the law, and potentially increase the cost and regulatory burden for those projects that are already permitted.

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