The White House has issued a Presidential Memorandum to several federal agencies regarding policies and principles for mitigating environmental impacts from land and water-disturbing activities. Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment was published in early November and incorporates a new “net benefit goal” expectation for mitigation in federal projects or projects requiring approval by these federal agencies. The President also set a backstop goal for mitigation of “no net loss for natural resources the agency manages that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.” In addition to the “net benefit goal” the guidance focuses on landscape-scale planning, habitat mitigation banks, and advance conservation measures.

The memorandum encourages private sector investment in mitigation by directing consistent agency policies that promote clear, navigable procedures to increase certainty for the regulated community and mitigation “bankers” and to provide greater security for long-term entrepreneurial investments, while at the same time providing larger scale mitigation planning and benefits. The memorandum also requires, “to the extent appropriate and practicable,” agencies to consider available watershed or regional studies prepared by governmental and non-governmental agencies to better direct mitigation and where development could occur (or not occur) to result in fewer natural resource impacts.

The guidance directs each agency to develop an approach for incorporating a mitigation hierarchy to “avoid and then minimize harmful effects to land, water, wildlife, and other ecological resource (‘natural resources’) cause by land- or water-disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.” The President also expresses a preference for mitigation measures that provide restoration prior to a project’s impacts occurring. The guidance was addressed to the Secretaries of Defense, Interior and Agriculture and the Administrators of the Environmental Protection Agency and National Oceanic and Atmospheric Administration. It will now be incumbent upon each of these agencies to carry out the President’s directive within the scope of their respective, existing legal authority.