American Oil and Gas Reporter - June 2016 - 111

permit applications . . . is underscored
by the ESA's legislative history," API
and IPAA say. "A draft version of the
ESA contained a requirement that habitat
conservation plans (HCPs) yield a benefit
for species by 'promot[ing] the conservation of listed species or critical habitat.'
Congress, however, elected to require
only that the HCP 'minimize and mitigate'
the impacts of a taking 'to the maximum
extent practicable.' Accordingly, the legislative history of the ESA confirms that
Congress never intended that the service
could require mitigation that produces a
'net conservation gain.'"
The proposed revision's goals of net
conservation gain and no net loss also
are inconsistent with the Marine Mammal
Protection Act, the groups say, arguing
that the act allows for the incidental
taking of small numbers of marine mammals, if the taking will have a negligible
impact on the species, or if the total
taking will not have an unmitigable
adverse impact.
The proposed policy imposes a host
of burdensome and duplicative requirements on USFWS, and leaves significant
decisions to the discretion of individual
government workers, the industry comments add. "Given that (USFWS) is sued
frequently for failing to meet its obligations
under the ESA, the service cannot realistically assume responsibility for overseeing
mitigation efforts as envisioned in the
draft policy," API and IPAA say.
According to the two groups:
* The draft policy dramatically and
improperly expands USFWS's authority
over unlisted fish and wildlife, relying
on a broad definition that effectively
allows it to require mitigation of any impacts to the natural environment.
* The policy would discount and discourage measures to avoid and minimize
impacts to species and their habitats by
prioritizing compensatory mitigation. Efforts
to avoid and minimize impacts often result
in significant costs to land users, but the
draft policy's unwavering focus on mitigating
all residual impacts ignores land users'
efforts to avoid and minimize impacts.
* The policy is unworkable and ambiguous. It inappropriately expands USFWS's oversight of federal actions by allowing the service to "veto" development
projects. The draft policy also will delay
development by requiring that mitigation
be implemented before impacts occur,
and will lead to compounding and redundant mitigation requirements among
several regulatory authorities, so that mitigation requirements will bear no relationship to a project's actual impact.
* The policy does not comply with
procedural requirements for substantive

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American Oil and Gas Reporter - June 2016

Table of Contents for the Digital Edition of American Oil and Gas Reporter - June 2016

Contents
American Oil and Gas Reporter - June 2016 - Cover1
American Oil and Gas Reporter - June 2016 - Cover2
American Oil and Gas Reporter - June 2016 - Contents
American Oil and Gas Reporter - June 2016 - 4
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American Oil and Gas Reporter - June 2016 - Cover3
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