Mitigating Impacts on Natural Resources From Development and Encouraging Related Private Investment

The referenced Executive Memorandum coupled with a Department of Interior Secretarial Order 3330, “Improving Mitigation Policies and Practices of the Department of the Interior,” issued in October 2013, appears to be setting the stage for some problematic (conflicting) land management policies in the future as noted by the excerpt from a Marten Law BLOG post "The President’s Environmental “Net Benefit Goal” – The White House Sets a New Approach to Mitigation"

The White House instructs the agencies to develop individual policies incorporating this new “net benefit” standard to avoid, minimize and compensate for natural resource losses.[4] Along with the “net benefit goal” and mitigation hierarchy, the President’s memorandum underscores an emphasis on landscape-scale planning, habitat mitigation banks, and advance conservation measures.[5]

The agencies are to “adopt a clear and consistent approach” for incorporating the mitigation hierarchy (i.e. avoid, minimize, and compensate).[6] In addition to incorporating the net benefit goal, agency policies should take advantage of available large-scale plans and analysis, and give preference to “advance compensation mechanisms that are likely to achieve clearly defined environmental performance standards prior to the harmful impacts of a project.”[7] The policy also requires agencies to consider environmental analysis prepared by third parties including non-governmental agencies. The new policies are to be completed generally within one-to-two years after the date of the memorandum.[8]

Three areas illustrate how the White House Memorandum runs up against and anticipates the limitations of existing agency legal authority. First, section 4(d) directs each federal natural resource trustee agency to develop guidance describing “the considerations for evaluating whether, where, and when restoration banking or advance restoration projects would be appropriate.” But section 5(c) cautions that this direction is “inapplicable to the litigation or settlement of natural resource damage claims.” This exemption appears to recognize that CERCLA limits natural resource trustees to spending recovered damages only “to restore, replace, or acquire the equivalent of “ damaged or lost natural resources, rather than aiming for a new net benefit to such resources.[9] The policy seems to be directed toward early identification of advance restoration projects to influence natural resource damage assessments in advance of the formal CERCLA process.

Second, federal lands managed by the Bureau of Land Management (“BLM”) under the Federal Land Policy and Management Act (“FLPMA”) are subject to a similar neutral rather than affirmative mitigation standard. FLPMA requires BLM to “to prevent unnecessary or undue degradation of the [public] lands.”[10] BLM’s authority therefore is to impose conditions on uses sufficient to “prevent degradation unnecessary to, or undue in proportion to,” the authorized use.[11] This “do no harm” standard appears to be directly at odds with the new affirmative “net benefit goal.”

Third, section 4(c) of the memorandum directs the U.S. Fish and Wildlife Service (“FWS”) to finalize a policy that applies to compensatory mitigation associated with its responsibilities under the Endangered Species Act (“ESA”). The FWS policy is to “provide clarity to and predictability for agencies” and other stakeholders that “take action to conserve species in advance of potential future listing” under the ESA.[12] This directive raises the question of whether the Administration is seeking to avoid a repeat of the legal issue that led to vacatur of the ESA listing for the lesser prairie chicken. See Permian Basin Ass’n, et al. v. U.S. Dep’t of Interior, et al., 2015 WL 5192526 (W.D. Tex. Sept. 1, 2015). The court in Permian Basin Petroleum Association determined that FWS misapplied its own Policy for Evaluation of Conservation Efforts when Making Listing Determinations (“PECE Policy”)[13] by concluding, among other things, that not listing the species under the ESA would reduce industry participation and enrollment in the range-wide conservation plan.[14]

Source: Marten Law

John Stewart
Vice President, BlueRibbon Coalition