Department of Interior Seeks A More Inclusive and Effective Mitigation Policy

The Department of Interior is attempting to establish a department wide mitigation strategy that will protect natural resources as the US prepares for an expected rise in development projects on public land. The new strategy aims to streamline the mitigation process with better coordination between the different sectors involved.

16 December 2013 | When the US Department of the Interior (DOI) was created in 1849, wetlands were considered “wastelands” to be drained and exploited in the name of manifest destiny, and “mitigation” was largely a medical term for pain relief.

Today, the DOI oversees a staggering 20% of the country’s territory and supplies the bulk of the water for 17 Western US states. It also leases out land for oil, gas, and shale exploitation while simultaneously overseeing both the Fish and Wildlife Service (FWS), which protects nearly 2,000 threatened or endangered species, and the National Park Service, which manages 59 parks and hundreds of “national trails, heritage areas, and sacred sites that intertwine public, tribal, and private land ownership.”

To balance the conflicting mandates of conservation and exploitation, it gradually embraced the new definition of mitigation that includes the “preservation, enhancement, restoration or creation (PERC)” of areas destroyed in the name of progress. By law, such mitigation is a last-resort measure that should only be used sparingly. Done right, it can lead to better, more contiguous habitat for endangered species; done wrong, it can be a sham.

Doing it right means doing it in a coordinated fashion across departments and agencies, but programs have often evolved differently in different departments within the DOI. Furthermore, programs that were innovative at their inception weren’t designed to handle the massive wind farms and other energy projects – both sustainable and not – currently underway. In May, President Obama ordered all federal agencies to review their compensatory mitigation activities, and in September, Interior Secretary Sally Jewell signed Secretary’s Order 3330, which says that the DOI will review its existing policies, procedures, practices, guidance, and statutory and regulatory requirements to identify those that should be changed or newly developed.

“The many demands placed upon these lands and resources require us to have a clear vision of how to mitigate the impacts of all development and infrastructure activities on the Federal lands and natural and cultural resources the Department is entrusted to manage,” she wrote.

What Does the Order Mean?

The DOI offsets or compensates for unavoidable impacts made to ecosystems from development. This involves an extensive planning process that tries to identify areas with fewer natural resource conflicts. If there is a conflict, however, the department works to minimize negative impacts and offsets what can’t be avoided.

The effects of climate change will be a priority of the new approach. A focus will be on mitigation efforts that improve the resilience of our nation’s resources in the face of climate change, the order reads.

Other focuses of the new strategy include integration of mitigation in the planning and design phases and ensuring the durability of those measures. Transparency and consistency throughout the process is another core element.

Creating Effective Mitigation

The DOI’s Energy and Climate Change Task Force will be directing the process. Because it’s to be a department-wide strategy, representatives from each agency or bureau make up the Task Force. This approach should maximize collaboration and coordination within the DOI. The Task Force’s first step will be to perform a comprehensive review of existing regulations relating to mitigation such as the National Environmental Policy Act and the Endangered Species Act (ESA). This will also involve input from agencies outside the DOI like the Army Corps of Engineers and the Department of Agriculture.

Once the Task Force completes the review, they will then identify necessary revisions to current policies as well as create a draft for policies or practices needed for the new strategy.

A Key Role for FWS

The Fish and Wildlife Service is expected to play a central role in crafting this strategy. It has trust responsibilities for migratory birds, threatened and endangered species, interjurisdictional fish species, certain marine mammals, National Wildlife Refuges and national fish hatcheries. In fact, the FWS is also revising its 1981 Mitigation Policy and developing a new Endangered Species Act Compensatory Mitigation Policy. These efforts will likely support the Department’s mitigation strategy.

Like the DOI’s strategy, the FWS framework will address existing threats like climate change and will attempt landscape-level mitigation planning but will remain flexible for any future regulations that may need to be incorporated. The Service is also expected to embrace the principles of Strategic Habitat Conservation to promote fish and wildlife conservation at larger, landscape scales.

The purpose of the ESA is to conserve threatened and endangered species and the habitats upon which they depend. The National Oceanic and Atmospheric Administration National Marine Fisheries Service, and the FWS (jointly, the Services), share responsibility for implementing the ESA. Development projects that may adversely affect listed species or critical habitat are addressed either through section 7 of the ESA, if the project is funded, authorized or carried out by a Federal agency, or pursuant to section 10, if the project is private action with no Federal nexus. Compensation measures to offset project impacts to listed species, such as buying credits from a conservation bank or paying into an in-lieu fee fund, may be an important tool to promote conservation of these species.

How to Proceed

The new proposals will provide clarification on the relationship of the FWS Mitigation Policy to multiple authorities and programs administered by the FWS beyond those addressed in the 1981 Policy.The framework will also include new guidance on conservation banking, which first entered the federal lexicon in 2003 and was modeled after the policy guidelines that California passed in 1995.

In order to create an all-encompassing framework, multiple groups will be involved in the revision process. The FWS has assembled an in-house team with participants from all Regions and multiple programs including Refuges, the Office of the Science Advisor, the Migratory Birds program and Ecological Services.

The revision process is very much in its early days. The FWS expects it to be completed within a two year period.

As for the DOI-wide strategy, the Task Force has 90 days to complete the internal review of mitigation regulations and then must submit a draft, which outlines their findings and lays out a plan for implementing the new strategies and potential changes to Secretary Jewel.

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