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Focus on Regulation

DOI Energy and Climate Task Force to Develop Mitigation Strategies for Projects on Federal Lands

Secretary of the Interior Sally Jewell’s first Secretarial Order, S. 3330, directs DOI’s Energy and Climate Task Force to prepare a comprehensive mitigation strategy for development projects on federal lands.  In a speech on October 31, Secretary Jewell first announced the new mitigation directive when she shared her vision of the Administration’s conservation agenda with an audience at the National Press Club.  Many of her themes had a familiar ring, including outreach to young people and volunteers; and resolution of “the inherent tensions that can exist with development and conservation.”

Secretary Jewell announced the issuance of her first Secretarial Order, to foster mitigation of development impacts on public lands “at a landscape level through strategic conservation and restoration”.  So-called “compensatory mitigation” has its origins in a George H.W. Bush commitment to “no net loss of wetlands.”  To implement “no net loss”, the Environmental Protection Agency and the Army Corps of Engineers agreed in 1990 that unavoidable harmful discharges into the waters of the United States, when permitted under section 404 of the Clean Water Act, would be conditioned upon replacement of lost wetlands and aquatic resource functions. 

Since then, the requirement of compensatory mitigation has grown to include upland habitat conservation, mitigation and conservation “banking”, advance (in lieu of project-specific) mitigation, and payments in lieu of mitigation.  In each instance, the mitigation requirement is imposed through the exercise of state or federal regulatory authority, such as the Clean Water Act, the Endangered Species Act or California’s Environmental Quality Act (CEQA).  Perhaps the most demanding statement of federal mitigation policy is found in the Compensatory Mitigation for Losses of Aquatic Resources Final Rule, adopted by EPA and the Corps in 2008 to further implement section 404.

 In her speech, Secretary Jewell took note of California’s expansive Desert Renewable Energy Conservation Plan, which is intended to facilitate energy development on public land in the Mojave Desert.   In Secretarial Order No. 3330, the Secretary has asked the Department’s Energy and Climate Change Task Force, which is to be chaired by Deputy Secretary-designate Michael Connor to (1) evaluate existing mitigation practices and policies and (2) draft a strategy for additional policies and practices, emphasizing landscape-level planning. The Task Force is required to submit its report within 90 days, following consultation with agencies within and outside of the Department.  The Task Force  also is asked to assess the role of partnerships such as Landscape Conservation Cooperatives, which work with the Fish and Wildlife Service at the state level to promote landscape-scale conservation planning.

The Secretary is not alone in her belief that large-scale mitigation programs can facilitate infrastructure development while protecting significant natural areas and cultural sites.  In S. 601, the Senate’s Water Resources Development Act of 2013, there is provision for a new Water Infrastructure Finance and Innovation program (WIFIA), including federal loans for habitat acquisition as an component of project development. And institutional investors have been attracted to privately-funded mitigation banks, from which “credits” can be drawn to meet developers’ mitigation obligations.