03/23/2020 - Regulatory Rollback

Department of the Interior’s Compensatory Mitigation Policies

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Compensatory mitigation policies at the Department of the Interior (DOI) sought to balance natural resource development and conservation by requiring that any environmental harm caused by the use of public lands be completely offset by environmentally-protective actions, such as payments for land restoration in other areas. Through compensatory mitigation, DOI could seek a net gain, or no net loss, to natural resources when it issued permits for commercial uses of public lands. For example, an oil company drilling on public lands could pay to protect off-site habitat as a form of compensatory mitigation for the harm caused to habitat at the drilling site.

Without compensatory mitigation, DOI mitigation policies can only serve to minimize the harm to natural resources caused by the use of public lands.

Current Status

Jul. 30, 2018 The Fish and Wildlife Service (FWS) withdraws its previous general mitigation policy which provided a framework for implementing compensatory mitigation practices. The withdrawal of the policy strips the goal of no net loss or net benefit to natural resources in FWS actions. It reinstates the 1981 mitigation policy, which does not permit compensatory mitigation and only calls for minimization of harm to natural resources.

Jul. 30, 2018 FWS rescinds the Endangered Species Act (ESA) Compensatory Mitigation Policy, thus prohibiting the use of mandatory compensatory mitigation by FWS in ESA compliance. The new policy still allows for voluntary, non-monetary, compensatory mitigation.

Dec. 6, 2018 DOI issues Instruction Memorandum No. 2019-018. The memo sets out a policy whereby the BLM may not require compensatory mitigation from public land users except where explicitly required by existing federal or state law. Voluntary compensatory mitigation by public land users is still permitted.

History

Jan. 23, 1981 FWS promulgates its first mitigation policy, which is aimed at avoiding or minimizing and compensating for harm to public resources. The policy excludes mitigation under the Endangered Species Act (ESA).

May 2, 2003 FWS publishes a guidance memo with instructions on using conservation banks – a type of off-site compensatory mitigation for endangered species impacts.

Oct. 31, 2013 DOI issues Secretarial Order 3330, Improving Mitigation Policies and Practices of the Department of the Interior. The Order seeks to establish a department-wide mitigation policy using compensatory mitigation for unavoidable impacts in public land use.

Nov. 3, 2015 President Obama releases a presidential memorandum calling for agencies to create mitigation policies that utilize compensatory mitigation to achieve a “net benefit goal or, at a minimum, a no net loss goal” for important, scarce, or sensitive natural resources.

Nov. 21, 2016 FWS publishes an update to its general mitigation policy, replacing the 2003 guidance memo. The new policy provides a framework for using compensatory mitigation to achieve a net benefit or no net loss to protected animals, plants or habitats in all FWS actions.

Dec. 21, 2016 DOI Office of the Solicitor publishes a memo, which concludes that the Federal Land Policy Management Act authorizes the use of compensatory mitigation by BLM, including compensatory mitigation that results in a net conservation benefit.

Dec. 22, 2016 BLM releases a handbook and manual providing guidance on the use of compensatory mitigation in all BLM actions.

Dec. 27, 2016 FWS publishes the ESA Compensatory Mitigation Policy. The policy expands on the general mitigation policy by requiring the use of compensatory mitigation for all FWS actions involving ESA compliance, and by providing guidance to other agencies on how they should use compensatory mitigation under the ESA.

Trump Era

March 28, 2017 President Trump issues an executive order repealing President Obama’s presidential memorandum on agency mitigation policies. The order also instructs agencies to review any existing mitigation policies for burdens on energy development.

March 29, 2017 The Secretary of the Interior issues Order No. 3349, calling for review of all DOI mitigation policies.

Jun. 30, 2017 DOI Office of the Solicitor withdraws its previous memo authorizing general use of compensatory mitigation by BLM under the Federal Land Policy Management Act. The new memo argues that compensatory mitigation can only be authorized on a case-by-case basis.  Part of the justification for the withdrawal is that the upcoming review of BLM’s mitigation policies would make the previous memo irrelevant.

Nov. 6, 2017 FWS requests comments on whether to retain or remove its goal of net conservation gain or no net conservation loss with respect to its general mitigation policy and its ESA Compensatory Mitigation Policy.

Dec. 22, 2017 The Secretary of the Interior issues Order No. 3360, rescinding Secretarial Order 3330 and the previous BLM handbook and manual that provided guidance on BLM’s use of compensatory mitigation.

Jul. 24, 2018 DOI issues Instruction Memorandum No. 2018-093, which states that BLM must not require compensatory mitigation from public land users except “where the law specifically requires.” The policy still allows for voluntary compensatory mitigation.

Jul. 30, 2018 FWS withdraws its previous general mitigation policy which provided a general framework for implementing compensatory mitigation practices. The withdrawal of the policy strips the goal of no net loss or net benefit to natural resources in all FWS actions. It reinstates the 1981 mitigation policy, which only calls for minimization of harm.

July 30, 2018 FWS rescinds the ESA Compensatory Mitigation Policy, thus prohibiting the use of mandatory compensatory mitigation by FWS in ESA compliance. The new policy still allows for voluntary, non-monetary, compensatory mitigation.

Dec. 6, 2018 DOI issues Instruction Memorandum No. 2019-018, which supersedes Instruction Memorandum No. 2018-093. The new policy is largely the same, but clarifies that BLM should still require compensatory mitigation for public land users where it is explicitly required by state or federal law.

Dec. 13, 2018 The Western Governors’ Association publishes a policy resolution in response to the DOI’s stripping of compensatory mitigation policies. The resolution calls for federal agencies to develop compensatory mitigation practices that align with state goals, stating that “compensatory mitigation plays an important role in fish and wildlife management and conservation.”