Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36469 

for individuals with disabilities remain 

available; and (iii) interoperability and 

compatibility with an enumerated list of 

applications and functionalities 

determined to be key to consumers and 

competitors. One replacement service 

must satisfy all the criteria to retain 

eligibility for automatic grant. The 

Commission also determined that 

information about the price of the legacy 

service and the proposed replacement 

service should be provided as part of the 

application. To reduce burdens on 

carriers, the Commission (1) adopted a 

more streamlined approach for legacy 

voice discontinuances involving 

services that are substantially similar to 

those for which a Section 214 

discontinuance meeting the adequate 

replacement criteria has previously been 

approved, and (2) now allows Section 

214 discontinuance applications to be 

eligible for automatic grant if the 

applicant seeks to discontinue a legacy 

voice service operating at speeds lower 

than 1.544 Mbps that either has zero 

customers in the relevant service area 

and no requests for service in the last 30 

days, or if the applicant plans to 

grandfather existing customers of the 

service while ceasing to accept new 

customers. The Commission estimates 

that there will be five respondents 

submitting 25 applications/responses 

related to these revisions. The 

Commission also estimates that these 

revisions will result in a total of 1,575 

annual burden hours and a total annual 

cost of $27,900. The Commission 

estimates that the total annual burden 

and annual cost of the entire collection, 

as revised, is 1,923 and $27,900, 

respectively. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary, Office of the Secretary. 

[FR Doc. 2018–16198 Filed 7–27–18; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Chapter I 

[Docket No. FWS–HQ–ES–2015–0165; 

FXES11140900000–178; FF09E33000] 

Endangered and Threatened Wildlife 

and Plants; Endangered Species Act 

Compensatory Mitigation Policy 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Policy; withdrawal. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce we 

are withdrawing the Endangered 

Species Act (ESA) Compensatory 

Mitigation Policy, published December 

27, 2016 (ESA–CMP). In our document 

of November 6, 2017 we requested 

additional public comments regarding 

the policy’s overall mitigation planning 

goal of net conservation gain. We are 

now withdrawing this policy. The 

Service does not have authority to 

require ‘‘net conservation gain’’ under 

the ESA, and the policy is inconsistent 

with current Executive branch policy. 

Except as otherwise specified, all 

policies or guidance documents that 

were superseded by ESA–CMP are 

reinstated. 

DATES: Withdrawal effective on July 30, 

2018. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation, are available on the 

internet at http://www.regulations.gov at 

Docket Number FWS–HQ–ES–2015– 

0165. 

FOR FURTHER INFORMATION CONTACT: 

Craig Aubrey, U.S. Fish and Wildlife 

Service, Division of Environmental 

Review, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803, telephone 

703–358–2442. 

SUPPLEMENTARY INFORMATION: The ESA– 

CMP (81 FR 95316, December 27, 2016) 

was developed to ensure consistency 

with existing directives in effect at the 

time of issuance, including former 

President Obama’s Memorandum on 

Mitigating Impacts on Natural Resources 

From Development and Encouraging 

Related Private Investment (November 

3, 2015). Under the memorandum, all 

Federal mitigation policies were 

directed to clearly set a net-benefit goal 

or, at minimum, a no-net-loss goal for 

natural resources, wherever doing so is 

allowed by existing statutory authority 

and is consistent with agency mission 

and established natural resource 

objectives. The Presidential 

Memorandum was subsequently 

rescinded by Executive Order 13783, 

‘‘Promoting Energy Independence and 

Economic Growth’’ (March 28, 2017). 

The ESA–CMP also described its 

consistency with the Secretary of the 

Interior’s Order 3330 on Improving 

Mitigation Policies and Practices of the 

Department of the Interior (October 31, 

2013), which established a Departmentwide mitigation strategy to ensure 

consistency and efficiency in the review 

and permitting of infrastructuredevelopment projects and in conserving 

natural and cultural resources. The 

Secretary’s Order was subsequently 

revoked by Secretary of the Interior’s 

Order 3349 on American Energy 

Independence (March 29, 2017). It 

directed Department of the Interior 

bureaus to reexamine mitigation 

policies and practices to better balance 

conservation strategies and policies 

with job creation for American families. 

In light of the revocation of the 2015 

Presidential Memorandum and 

Secretary’s Order 3330, on November 6, 

2017, the Service requested comment on 

the ESA–CMP, along with the ServiceWide Mitigation Policy (81 FR 83440, 

November 21, 2016), specifically 

‘‘regarding whether to retain or remove 

net conservation gain as a mitigation 

planning goal within our mitigation 

policies.’’ Mitigation Policies of the U.S. 

Fish and Wildlife Service; Request for 

Comment (82 FR 51382, 51383, 

November 6, 2017). The comment 

period for this request ended on January 

5, 2018. 

Under Supreme Court precedent, the 

Takings Clause of the Fifth Amendment 

of the United States Constitution limits 

the ability of government to require 

monetary exactions as a condition of 

permitting private activities, 

particularly private activities on private 

property. In Koontz v. St. Johns River 

Water Management District, 570 U.S. 

595 (2013), the Supreme Court held that 

a proposal to fund offsite mitigation 

proposed by the State of Florida as a 

condition of granting a land-use permit 

must satisfy the test established in 

Nollan v. California Coastal 

Commission, 483 U.S. 825 (1987), and 

Dolan v. City of Tigard, 512 U.S. 374 

(1994). Specifically, ‘‘a unit of 

government may not condition the 

approval of a land-use permit on the 

owner’s relinquishment of a portion of 

his property unless there is a ‘nexus’ 

and ‘rough proportionality’ between the 

government’s demand and the effects of 

the proposed land use.’’ Id. at 599. 

Compensatory mitigation raises serious 

questions of whether there is a sufficient 

nexus between the potential harm and 

the proposed remedy to satisfy 

constitutional muster. 

Further, because by definition 

compensatory mitigation does not 

directly avoid or minimize the 

anticipated harm, its application is 

particularly ripe for abuse. At times the 

nexus between a proposed undertaking 

and compensatory mitigation 

requirements is far from clear. These 

concerns are particularly acute when 

coupled with a net conservation gain 

goal, which necessarily seeks to go 

beyond mitigating actual or anticipated 

harm to forcing participants to pay to 

address harms they, by definition, did 

not cause. 

In light of the change in national 

policy reflected in Executive Order 


daltland on DSKBBV9HB2PROD with RULES
36470 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

13783 and Secretary’s Order 3349, the 

comments received by the Service, and 

concerns regarding the legal and policy 

implications of a net conservation gain 

goal, the Service has concluded that it 

is no longer appropriate to retain a net 

conservation gain standard in the 

Service’s overall mitigation planning 

goal within the ESA–CMP. Because the 

net conservation gain standard is so 

prevalent throughout the ESA–CMP, the 

Service is implementing this conclusion 

by withdrawing it. 

Summary of Comments and Responses 

Executive Order 13783—‘‘Promoting 

Energy Independence and Economic 

Growth’’ (March 28, 2017)—rescinded 

the Presidential Memorandum on 

Mitigating Impacts on Natural Resources 

from Development and Encouraging 

Related Private Investment. The 

Secretary of the Interior subsequently 

issued Secretarial Order 3349 on 

American Energy Independence (March 

29, 2017), which directed Department of 

the Interior (DOI) bureaus to reexamine 

mitigation policies and practices to 

better balance conservation strategies 

and policies with job creation for 

American families. Pursuant to 

Secretarial Order 3349, we published a 

notice on November 6, 2017 (82 FR 

51382) requesting additional public 

comments specifically addressing the 

advisability of retaining or removing 

references to net conservation gain as a 

mitigation planning goal within our 

mitigation policies. In addition, in 

carrying out Executive Order 13777, 

‘‘Enforcing the Regulatory Reform 

Agenda,’’ DOI published a document 

with the title ‘‘Regulatory Reform’’ in 

the Federal Register of June 22, 2017 

(82 FR 28429). The document requested 

public comment on how DOI can 

improve implementation of regulatory 

reform initiatives and policies and 

identify regulations for repeal, 

replacement, or modification. This 

notice addresses comments that DOI has 

received in response to the regulatory 

reform docket that relates to the 

Service’s use of mitigation. 

During the combined comment 

periods, for the ESA–CMP we received 

approximately 335 public comment 

letters, including comments from 

Federal, State, and local government 

entities; industry; trade associations; 

conservation organizations; 

nongovernmental organizations; private 

citizens; and others. The range of 

comments varied from those that 

provided general statements of support 

or opposition to the draft and final 2016 

ESA–CMP, to those that provided 

extensive comments and information 

supporting or opposing the draft and 

final 2016 ESA–CMP. 

We considered all of the comments 

we received in the comment period 

beginning November 6, 2017 (82 FR 

51382), and following the DOI’s 

‘‘Regulatory Reform’’ Federal Register 

announcement (June 22, 2017, 82 FR 

28429); we respond to the substantive 

comments below. 

A. Authority To Include Net 

Conservation Gain or No Net Loss 

Under the ESA 

Comment (1): One commenter stated 

there were constitutional limits on 

requiring mitigation, referencing the 

Koontz v. St. Johns River Water 

Management District case decided by 

the U.S. Supreme Court, 570 U.S. 595 

(2013). This commenter noted that any 

compensatory mitigation measures must 

have an essential nexus with the 

proposed impacts and be roughly 

proportional, or have a reasonable 

relationship between the permit 

conditions required and the impacts of 

the proposed development being 

addressed by those permit conditions. 

Response: The Service agrees that the 

Koontz case, as well as predecessor 

cases including, but not limited to, 

Nollan v. California Coastal 

Commission, 483 U.S. 825 (1987), and 

Dolan v. City of Tigard, 512 U.S. 374 

(1994), raise serious constitutional 

concerns about the viability of some 

elements of compensatory-mitigation 

programs. These concerns are 

particularly acute for offsite 

compensatory-mitigation programs and 

programs that seek a net conservation 

gain. Offsite compensatory-mitigation 

programs raise concerns regarding an 

appropriate nexus between the 

anticipated impact and the mitigation 

requirement. As mitigation moves 

further away from the direct impacts of 

a project, the risk that the connection 

between required compensation and the 

initial project becomes more attenuated 

increases. Further, by seeking to err on 

the side of mitigating above and beyond 

the impacts of the specific project at 

issue, the net conservation gain 

standard raises inherent concerns about 

proportionality, as well as the 

appropriate nexus between project 

impacts and mitigation methods, 

particularly where mitigation is in 

essence being used to rectify past, 

unrelated harms. We, like all agencies, 

must implement our authorities 

consistent with any applicable case law 

as appropriate. Consideration of the 

Constitutional standard set forth in 

Koontz is one reason, though not the 

only reason, that the Service is 

withdrawing its previous Mitigation 

Policy and ESA–CMP. In light of the 

Koontz case and any other relevant 

court decisions, the Service, in using its 

previous guidance (e.g., 2003 guidance 

on the establishment, use, and operation 

of conservation banks (68 FR 24753, 

May 8, 2003) and 2008 recovery 

crediting guidance (73 FR 44761, July 

31, 2008)), will make sure that any 

statutorily authorized mitigation 

measures will have a clear connection 

(i.e., have an essential nexus) and be 

commensurate (i.e., have rough 

proportionality) to the impact of the 

project or action under consideration. 

Comment (2): Many commenters 

addressed the mitigation planning goal 

of improving (i.e., a net gain) or, at 

minimum, maintaining (i.e., no net loss) 

the current status of affected resources. 

A number of commenters supported the 

goal while a number of commenters 

opposed the inclusion of a net 

conservation gain. Of commenters 

opposed to net conservation gain, their 

specific reasons included: 

(a) The Service lacks the statutory 

authority to implement the net 

conservation gain goal for mitigation 

planning; 

(b) the net conservation gain goal 

imposes a new standard for mitigation 

and that mitigation requirements should 

be commensurate with the level of 

impacts; 

(c) concern about the costs associated 

with achieving net conservation gain; 

(d) questions about the ability to 

achieve net conservation gain and how 

it would be measured; 

(e) the ESA–CMP does not provide the 

methodology to assess or measure the 

net conservation gain; and 

(f) net conservation gain is 

incompatible with the standards of ESA 

sections 7 and 10. 

Also, several commenters asserted 

that a mitigation planning goal of no net 

loss is inconsistent with the ESA and 

exceeds our authorities under the ESA. 

Response: The ESA requires neither 

‘‘net conservation benefit’’ nor ‘‘no net 

loss,’’ and the Service has not previous 

required a ‘‘net benefit’’ nor ‘‘no net 

loss’’ while implementing the ESA. 

Under the ESA, the standard for section 

7 is that a ‘‘Federal agency shall, in 

consultation with and with the 

assistance of the Secretary, insure that 

any action . . . is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of habitat.’’ 

(§ 7(a)(2)); under section 10 the 

requirement is ‘‘to the maximum extent 

practicable, minimize and mitigate the 

impacts of such taking’’ 

(§ 10(a)(2)(B)(ii)). As one court has 


daltland on DSKBBV9HB2PROD with RULES
Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36471 

noted, ‘‘[t]he words ‘maximum extent 

practicable’ signify that the applicant 

may do something less than fully 

minimize and mitigate the impacts of 

the take where to do more would not be 

practicable. Moreover, the statutory 

language does not suggest that an 

applicant must ever do more than 

mitigate the effect of its take of species.’’ 

National Wildlife Federation v. Norton, 

306 F. Supp. 2d 920, 928 (E.D. Cal. 

2004); see also Union Neighbors United, 

Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 

2016) (holding that the obligation to 

minimize and mitigate to the maximum 

extent practicable was satisfied by a 

plan that the Service found to fully 

offset the impact of the proposed 

taking). Since what is ‘‘practicable’’ may 

not fully offset proposed take, the 

‘‘maximum extent practicable’’ standard 

is inconsistent with both a general net 

conservation gain and no-net-loss 

mitigation objective. Nothing in the ESA 

requires that the Service apply a net 

conservation gain or no net loss 

standard. 

Those commenters supporting the 

goal generally asserted, among other 

points, that the Service has the authority 

to require compensatory mitigation, 

found the measures to be clear, and 

thought the policy encouraged 

consistent implementation. While we 

appreciate these comments, for the 

reasons described above, we are not 

persuaded. 

As noted above, because the concepts 

of ‘‘net conservation gain’’ and ‘‘no net 

loss’’ were central to and embedded 

throughout the policies, modifying the 

policies would likely have caused 

significant confusion. This fact, together 

with the more recently issued Executive 

and Secretarial Orders that questioned 

‘‘net gain,’’ lead to our decision here to 

withdraw the ESA–CMP. 

B. Landscape-Scale Approach 

Comment (3): Several commenters 

described their concerns with the 

implications of the ESA–CMP’s 

landscape-scale approach including: 

(a) There is no statutory authority for 

taking a landscape-scale approach; 

(b) Including a landscape-scale 

approach would lead to the Service 

seeking mitigation for impacts beyond a 

project under review, including impacts 

that happened in the past or in 

unrelated locations; 

(c) A general concern that a 

landscape-scale approach would mean 

Federal overreach, including disregard 

for the plans, processes, and resource 

interests of States, Tribes, and local 

governments. 

Response: We agree with commenters 

that proponents’ and action agencies’ 

responsibilities include the provisions 

of relevant authorities and that those 

responsibilities do not extend to 

impacts unrelated to their action. 

Requiring mitigation to impacts 

unrelated to a proponent’s action would 

likely conflict with the ‘‘essential 

nexus’’ required under Koontz for 

property development (see Comment 1 

above). Accordingly, any effort to apply 

a landscape-scale approach to 

mitigation must ensure that there is an 

essential nexus between the proposed 

activity and the contemplated 

mitigation and that mitigation is not 

being imposed to correct for past 

impacts by other actors. 

C. Authority To Include Candidate or 

At-Risk Species 

Comment (4): Several commenters 

stated that the Service has no statutory 

authority under the ESA to include 

candidate or at-risk species in 

compensatory-mitigation mechanisms. 

Response: The commenter is correct 

that the Service cannot require the 

inclusion of compensatory mitigation 

for impacts to at-risk and candidate 

species. Including candidate or other atrisk species in mitigation would be 

voluntary on the part of the Federal 

agency or applicant, which may, if the 

species is listed, streamline future 

reinitiation of consultation or 

amendments to habitat conservation 

plans (HCPs). Under section 10 of the 

ESA, although the applicant voluntarily 

develops its HCPs in consultation with 

the Service, the applicant ultimately 

decides which candidate or non-listed 

at-risk species it desires to include in its 

HCP. Many applicants voluntarily 

include at-risk species in their HCPs to 

receive ‘‘no surprises’’ assurances and 

preclude the need to amend the 

associated incidental take permit, 

should the species become listed in the 

future. This is consistent with ESA goals 

of recovering listed species and, ideally, 

avoiding the need to list species because 

threats to them have been addressed. 

Furthermore, applicants may include 

candidate or other at-risk species to 

address State or other local 

requirements (e.g., California’s Natural 

Community Conservation Planning Act). 

But in all cases, considerations of nonESA-listed species are voluntary on the 

part of the Federal agency or applicant. 

National Environmental Policy Act 

(NEPA) 

We have analyzed the withdrawal of 

this policy in accordance with the 

criteria of the National Environmental 

Policy Act, as amended (NEPA) (42 

U.S.C. 4332(c)), the Council on 

Environmental Quality’s Regulations for 

Implementing the Procedural Provisions 

of NEPA (40 CFR parts 1500–1508), and 

the Department of the Interior’s NEPA 

procedures (516 DM 2 and 8; 43 CFR 

part 46). Issuance of policies, directives, 

regulations, and guidelines that are of 

an administrative, financial, legal, 

technical, or procedural nature, or 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase may be categorically excluded 

under NEPA (43 CFR 46.210(i)). We 

have determined that a categorical 

exclusion applies to withdrawing this 

policy. 

Paperwork Reduction Act of 1995 

This policy withdrawal does not 

contain any new collections of 

information that require approval by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

OMB has reviewed and approved the 

information collection requirements for 

applications for incidental take permits, 

annual reports, and notifications of 

incidental take for native endangered 

and threatened species for safe harbor 

agreements, candidate conservation 

agreements with assurances, and habitat 

conservation plans under OMB Control 

Number 1018–0094, which expires on 

March 31, 2019. We may not conduct or 

sponsor and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175 ‘‘Consultation and 

Coordination with Indian Tribal 

Governments,’’ and the Department of 

the Interior Manual at 512 DM 2, we 

have considered possible effects on 

federally recognized Indian tribes and 

have determined that there are no 

potential adverse effects of withdrawing 

this policy. Our intent with 

withdrawing these policies is to reduce 

confusion of mitigation programs, 

projects, and measures, including those 

taken on Tribal lands. We will work 

with Tribes as applicants proposing 

mitigation as part of proposed actions 

and with Tribes as mitigation sponsors. 

Authority 

The multiple authorities for this 

action include the: Endangered Species 


daltland on DSKBBV9HB2PROD with RULES
36472 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

Act of 1973, as amended (16 U.S.C. 1531 

et seq.); Fish and Wildlife Coordination 

Act, as amended, (16 U.S.C. 661– 

667(e)); and National Environmental 

Policy Act (42 U.S.C. 4371 et seq.). 

Dated: July 24, 2018. 

Gregory J. Sheehan, 

Principal Deputy Director, U.S. Fish and 

Wildlife Service. 

[FR Doc. 2018–16171 Filed 7–27–18; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Chapter I 

[Docket No. FWS–HQ–ES–2015–0126]; 

[FXHC11220900000–156–FF09E33000] 

U.S. Fish and Wildlife Service 

Mitigation Policy 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Policy; withdrawal. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce we 

are withdrawing the Mitigation Policy 

published November 21, 2016, which 

guides Service recommendations on 

mitigating the adverse impacts of land 

and water developments on fish, 

wildlife, plants, and their habitats. In 

our document of November 6, 2017, we 

requested additional public comments 

regarding this policy’s overall mitigation 

planning goal of net conservation gain. 

We are now withdrawing this policy as 

it is no longer appropriate to retain the 

‘‘net conservation gain’’ standard 

throughout various Service-related 

activities and is inconsistent with 

current Executive branch policy. Until 

further notice, all policies that were 

superseded by the 2016 Mitigation 

Policy are reinstated, including the Fish 

and Wildlife Service Mitigation Policy 

(46 FR 7644–7663) published in the 

Federal Register on January 23, 1981. 

DATES: Withdrawal effective on July 30, 

2018. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation, are available on the 

internet at http://www.regulations.gov at 

Docket Number FWS–HQ–ES–2015– 

0126. 

FOR FURTHER INFORMATION CONTACT: 

Craig Aubrey, U.S. Fish and Wildlife 

Service, Division of Environmental 

Review, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803, telephone 

703–358–2442. 

SUPPLEMENTARY INFORMATION: The 

Mitigation Policy (81 FR 83440, 

November 21, 2016) was developed to 

ensure consistency with directives in 

effect at the time of issuance, including 

former President Obama’s Memorandum 

on Mitigating Impacts on Natural 

Resources From Development and 

Encouraging Related Private Investment 

(November 3, 2015). Under the 

memorandum, all Federal mitigation 

policies were directed to clearly set a 

net-benefit goal or, at minimum, a nonet-loss goal for natural resources, 

wherever doing so is allowed by 

existing statutory authority and is 

consistent with agency mission and 

established natural resource objectives. 

The Presidential Memorandum was 

subsequently rescinded by Executive 

Order 13783, ‘‘Promoting Energy 

Independence and Economic Growth’’ 

(March 28, 2017). 

The Mitigation Policy also described 

its consistency with the Secretary of the 

Interior’s Order 3330 on Improving 

Mitigation Policies and Practices of the 

Department of the Interior (October 31, 

2013), which established a Departmentwide mitigation strategy to ensure 

consistency and efficiency in the review 

and permitting of infrastructuredevelopment projects and in conserving 

natural and cultural resources. The 

Secretary’s Order was subsequently 

revoked by Secretary of the Interior’s 

Order 3349 on American Energy 

Independence (March 29, 2017). It 

directed Department of the Interior 

bureaus to reexamine mitigation 

policies and practices to better balance 

conservation strategies and policies 

with job creation for American families. 

In light of the revocation of the 2015 

Presidential Memorandum and 

Secretary’s Order 3330, on November 6, 

2017, the Service requested comment on 

the Mitigation Policy, as well as the 

Endangered Species Act— 

Compensatory Mitigation Policy (81 FR 

95316, December 27, 2016), specifically 

‘‘regarding whether to retain or remove 

net conservation gain as a mitigation 

planning goal within our mitigation 

policies.’’ Mitigation Policies of the U.S. 

Fish and Wildlife Service; Request for 

Comment (82 FR 51382, 51383, 

November 6, 2017). The comment 

period for this request ended on January 

5, 2018. 

Under Supreme Court precedent, the 

Takings Clause of the Fifth Amendment 

of the United States Constitution limits 

the ability of government to require 

monetary exactions as a condition of 

permitting private activities, 

particularly private activities on private 

property. In Koontz v. St. Johns River 

Water Management District, 570 U.S. 

595 (2013), the Supreme Court held that 

a proposal to fund offsite mitigation 

proposed by the State of Florida as a 

condition of granting a land-use permit 

must satisfy the test established in 

Nollan v. California Coastal 

Commission, 483 U.S. 825 (1987) and 

Dolan v. City of Tigard, 512 U.S. 374 

(1994). Specifically, ‘‘a unit of 

government may not condition the 

approval of a land-use permit on the 

owner’s relinquishment of a portion of 

his property unless there is a ‘nexus’ 

and ‘rough proportionality’ between the 

government’s demand and the effects of 

the proposed land use.’’ Id. at 599. 

Compensatory mitigation 

requirements in particular raise serious 

questions of whether there is a sufficient 

nexus between the potential harm and 

the proposed remedy to satisfy 

constitutional muster. Further, because 

by definition compensatory mitigation 

does not directly avoid or minimize the 

anticipated harm, its application is 

particularly ripe for abuse. These 

concerns are particularly acute when 

coupled with a net conservation gain 

standard, which necessarily goes 

beyond mitigating actual or anticipated 

harm to forcing participants to pay to 

address harms they, by definition, did 

not cause. 

In light of the change in national 

policy reflected in Executive Order 

13783 and Secretary’s Order 3349, the 

comments received by the Service, and 

concerns regarding the legal and policy 

implications of compensatory 

mitigation, particularly compensatory 

mitigation with a net conservation gain 

policy, the Service has concluded that it 

is no longer appropriate to retain 

references to or mandate a net 

conservation gain standard in the 

Service’s overall mitigation planning 

goal within each document. Because the 

net conservation gain standard is so 

prevalent throughout the Mitigation 

Policy, the Service is implementing this 

conclusion by withdrawing the 

Mitigation Policy. 

Summary of Comments and Responses 

Executive Order 13783—‘‘Promoting 

Energy Independence and Economic 

Growth’’ (March 28, 2017)—rescinded 

the Presidential Memorandum on 

Mitigating Impacts on Natural Resources 

from Development and Encouraging 

Related Private Investment. The 

Secretary of the Interior subsequently 

issued Secretarial Order 3349 on 

American Energy Independence (March 

29, 2017), which directed Department of 

the Interior (DOI) bureaus to reexamine 

mitigation policies and practices to 

better balance conservation strategies 

and policies with job creation for 

American families. Pursuant to 

Secretarial Order 3349, we published a 


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