Energy companies will save money, regulators will lose leverage and some federal agencies will march to different drummers under the Bureau of Land Management's newly announced end to compensatory mitigation.
Outlined in a memo posted online late yesterday afternoon, BLM's new policy of forgoing compensatory mitigation sets the agency apart from the Army Corps of Engineers, for which mitigation remains a vital permitting tool (E&E News PM, July 24).
From 2010 through 2014, the Army Corps issued about 56,400 written authorizations nationally per year under its permit authorities, approximately 10 percent of which required compensatory mitigation.
Now, while the corps can continue seeking similar mitigation from permit applicants, BLM cannot.
"Mandatory compensatory mitigation is a practice that raises serious policy concerns, and has been viewed in some instances as little better than extortion," Interior Department spokeswoman Faith Vander Voort said today. "Going forward, the BLM will no longer require compensatory mitigation from project proponents. If they so choose, project proponents may still voluntarily complete compensatory mitigation."
Echoing the tenor of industry concerns, the BLM memo declares that "at times, the nexus between a proposed public land use and compensatory mitigation requirements is far from clear" and that "nevertheless, project proponents have [had] every economic incentive to go along with these compensatory mitigation plans, if forced upon them."
"In no circumstance may BLM agree to accept a monetary contribution for the implementation of compensatory mitigation," the memo states, adding that "BLM must not explicitly or implicitly suggest that project approval is contingent upon proposing a 'voluntary' compensatory mitigation component."
Republican Sen. Lisa Murkowski of Alaska, chairwoman of the Senate Energy and Natural Resources Committee, called the shift "another step toward establishing a regulatory environment that will allow the responsible use of our public lands and produce better outcomes for fish and wildlife."
Conservation advocates decried the moves.
"Compensatory mitigation is an important tool in the toolbox for ensuring that companies that use our public lands make up for any damage they leave behind," Tracy Stone-Manning, the National Wildlife Federation's associate vice president for public lands, said in a statement. "It is a common sense practice that should not be tossed aside."
In an interview today, former Interior solicitor Hilary Tompkins likewise called compensatory mitigation a "tool" that BLM has repeatedly used.
Conservation groups have cited, as an example, the Jonah Energy Year-Round Development Project, approved by a BLM field office in Wyoming. The measures "addressed impacts to greater sage-grouse and big game" and allowed "waiver of lease stipulations that would have otherwise limited the times during which drilling could occur," the conservationists advised Interior Secretary Ryan Zinke last September.
Though published online at about 4 p.m. yesterday with only some tailored fanfare, the memo signed by BLM Deputy Director Brian Steed reflects a major policy shift that's been telegraphed for more than a year.
The legal case for the prior policy of BLM seeking compensatory mitigation was articulated in a December 2016 opinion by Tompkins, then Interior's solicitor, while other Obama administration officials have testified to the efficacy of mitigation.
"Developers in New Mexico also contribute to a cooperative fund for landscape restoration, an effort widely touted by industry, sportsmen and local governments," BLM official Ted Murphy noted at a joint Senate committee hearing in 2015.
Murphy also cited a BLM and Fish and Wildlife Service agreement with Barrick Gold of North America, which allowed the mining company to accumulate credits for projects that protect greater sage grouse habitat on private lands to offset impacts from mine expansion on public lands.
Trump administration officials, though, quickly suspended the Obama-era legal opinion on Feb. 6, 2017, and Zinke made clear his unhappiness with compensatory mitigation.
Zinke called the idea "un-American" last year and likened it in a talk to the Global Energy Institute to a program "where you have to pay $20 million, $90 million, $35 million here to get a permit across because you have to buy off some other" nonprofit.
On June 30, 2017, a Trump appointee withdrew Tompkins' opinion altogether.
"The BLM is reviewing whether and how to revise its Mitigation Manual and Handbook," Principal Deputy Solicitor Daniel Jorjani noted, adding that "BLM's authority to implement a particular type of mitigation is dependent on the factual circumstances and the legal and regulatory authority for a specific authorization."
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