Presidential Memorandum on Mitigation Puts New Emphasis on Avoiding Natural Resources Impacts

On November 3, President Obama issued a memorandum to the heads of several federal environmental and natural resource agencies, directing them to implement a “net benefit goal” for mitigating impacts to natural resources.¹  The memorandum sets forth eight “principles for mitigation,” including a net benefit goal or, at a minimum, a no net loss goal, for natural resources that are important, scarce, or sensitive.  The agencies are directed to apply the principles set forth in the memorandum, including the mitigation hierarchy of avoiding, minimizing and compensating for natural resource losses.

Although the memorandum is primarily focused on mitigation, it also encourages the agencies to consider conservation on a larger scale, and to assess whether certain resources or areas should be protected from development altogether.  First, the memorandum emphasizes landscape-scale planning:

Large-scale plans and analysis should inform the identification of areas where development may be most appropriate, where high natural resource values result in the best locations for protection and restoration, or where natural resource values are irreplaceable.²

Second, the memorandum encourages the federal agencies to designate certain areas as “irreplaceable” if they contain natural resources “requiring particular protection from impacts and that because of their high value or function and unique character, cannot be restored or replaced.”³ If found to contain “irreplaceable resources,” mitigation may not be adequate:

…existing legal authorities contain additional protections for some resources that are of such irreplaceable character that minimization and compensation measures, while potentially practicable, may not be adequate or appropriate, and therefore agencies should design policies to promote avoidance of impacts to these resources.⁴

The White House memorandum can thus be read as encouraging landscape-scale conservation efforts, and the “zoning” of certain “irreplaceable” areas as unsuitable for development.

This aspect of the memorandum can be seen as an endorsement of an approach that some agencies, including the US Environmental Protection Agency (EPA) and the US Fish and Wildlife Service (FWS), are already taking.  For example, EPA took a broad, watershed-scale view in its controversial decision to preemptively “veto” the Pebble Mine development in Alaska under the Clean Water Act.⁵  In addition, the FWS has worked on large-scale conservation plans for many species under the Endangered Species Act, including the greater sage grouse.  Indeed, the recent amendments to federal land management plans for the greater sage grouse have been described as “an unprecedented, landscape-scale conservation effort across the western United States.”⁶

In sum, the White House memorandum may raise the stakes for development, as agencies are encouraged to increase the scale of their reviews, and designate certain resources as “irreplaceable.” While the memorandum is ostensibly focused on mitigation, its emphasis on large-scale planning and impact avoidance may encourage federal land managers and environmental regulators to attempt to carve out certain areas from development altogether.

[1] See Presidential Memorandum, “Mitigating Impacts on Natural Resource from Development and Encouraging Related Private Investment,” Nov. 3, 2015, at Sec. 3

.[2] Id. at Sec. 1

[3] Id. at Sec. 2

[4] Id. at Sec. 1

[5] See "About EPA's Proposal to Protect the Bristol Bay Watershed"

[6] See "Historic Conservation Campaign Protects Greater Sage-Grouse," Sept. 22, 2015