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Focus on Regulation

Secretary of the Interior’s Report on Landscape-Scale Mitigation Policy

Secretary of the Interior Sally Jewell has released a Departmental report—including multiple “Near Term Policy Deliverables”—which responds to Secretarial Order No. 3330 (October 31, 2013).  In her Order, the Secretary challenged the Department and its constituent agencies, acting through its Energy and Climate Change Task Force, to “develop a coordinated Department-wide strategy to strengthen mitigation practices”.

The Secretary’s Report, released on April 10, is more an aspirational policy framework than a definitive statement of new direction for mitigation practice across the Department’s several resource management agencies, including the U.S. Fish and Wildlife Service, the Bureau of Land Management, and the National Park Service.  Acknowledging that “the application and effectiveness of the mitigation hierarchy (i.e., avoid, minimize and mitigate) to date has been uneven and difficult to evaluate”, the Report seeks “(t)o address these challenges and improve mitigation practices while accommodating both infrastructure development and the conservation needs of America’s rapidly changing landscapes”.

Considerable attention is paid, appropriately, to innovative mitigation strategies which have emerged as the result of leadership outside the Federal establishment, where states, stakeholder groups and the private sector have contributed to the development of important new tools.  The Report identifies many of these, such as the Western Governors’ Association Crucial Habitat Assessment Tool (CHAT), in a section titled “Signs of Progress”.  Some stakeholders will object to the inclusion of the Range Wide Conservation Plan for the lesser prairie chicken as “proof of concept”, since this five-state collaboration with the private sector, based on CHAT, was largely ignored by the Department in its decision to list the bird as “threatened” under the Endangered Species Act.

The Report also includes a discussion of compensatory mitigation, including mitigation banking and in-lieu fee mitigation, which are being employed increasingly to account for the environmental impacts of infrastructure projects in sensitive areas.  Perhaps because of its focus on public lands and resources, the Report does not account for recent growth in private sector mitigation initiatives, or the utility of markets for ecosystem services to meet mitigation objectives.

The Report is mostly useful as a guide to future actions by which now-diverse agency programs will be brought into conformity with the Secretary’s objectives, including a new Department Manual Mitigation Chapter (Q3, 2014) and long-awaited revisions of Fish and Wildlife Service (Q4) and BLM (Q3) mitigation policies.