Regulatory creep: when federal ‘voluntary payments’ become mandatory
BY GARY MOWAD – 07/05/16
A little-known effort by the United States Fish and Wildlife Service (USFWS) is underway to force private companies to pay mitigation for perfectly legal impacts to migratory birds and their habitat. A wonky system of “voluntary payments” to offset authorized and lawful impacts to bird habitat has become a de facto requirement for the agency’s approval of certain development projects.
Though this effort is classic bureaucratic, inside the Beltway baseball politics, it reeks of the kind of regulatory creep that so many in Washington and the country at large have condemned. As the former Deputy Chief for the United States Fish and Wildlife Service Office of Law Enforcement, I believe it is important that decision makers in Washington are made aware of this problem.
First, some background. I recently read comments submitted to the Federal Energy Regulatory Commission (FERC) by USFWS regarding the Rover Pipeline, a 710-mile interstate natural gas pipeline project that will run through Ohio, West Virginia, and Michigan. FERC recently released its draft Environmental Impact Statement (DEIS) for the Rover Pipeline, and in turn called on other federal agencies to submit comments.
In its comments on the DEIS, the USFWS “recommends that Rover provide compensatory mitigation for removed [migratory bird] habitat” suggesting that Rover make “voluntary payments” to the USFWS totaling tens of millions of dollars. Further, USFWS has insisted on Rover’s compliance with this request before the project is fully approved. FERC may be unknowingly facilitating the USFWS’s improper requests for mitigation for perfectly legal impacts to migratory birds.
Requests of this nature by the USFWS fall outside any congressionally approved authority. Further, they are not required by any statute, regulation, or executive order. USFWS’s recommendation that Rover make these payments is tantamount to coercion. This issue has been reviewed by no less than five of the most prominent environmental attorneys in the country, all of whom conclude that this federal agency is working outside of any regulatory jurisdiction. To be perfectly clear, migratory bird habitat is not protected and may be impacted or destroyed by private sector projects.
Having spent over 25 years with the USFWS, I support a thorough review of all infrastructure projects, with due diligence paid to regional and national regulations. However, I cannot in good conscience stand by while the USFWS attempts to abuse their authority at the expense of private companies like Rover. I saw this type of overzealous regulatory request many times over my career. Well-intentioned biologists often want the law to be more restrictive than its congressional intent or implementing regulations. Fortunately, the Special Agents within the USFWS, Office of Law Enforcement, were usually able to control overeager biologists.
As FERC takes the public’s input into consideration while preparing the final Environmental Impact Statement, I hope the Commission fully recognizes that USFWS’s recommendation is a clear overreach. At best, USFWS’s recommendation represents a simple misunderstanding of FERC’s authority. At worst, USFWS is actually attempting to abuse that authority through coercing funds from private companies.
I continue to believe that our country’s wildlife must be protected and their concerns properly balanced with the need for private development projects. When an agency requires mitigation payments for otherwise lawful actions before required clearances are given, these “voluntary payments” are no longer voluntary. I worry that an inappropriate precedent of industry coercion could be set. If the USFWS wants mitigation payments for impacts to migratory bird habitat, it should go through the Federal Rule Making process to change the law accordingly. Simply coercing mitigation payments from the private sector represents the worst form of government abuse of authority.