New DOI Strategy for Mitigation Offers Some Promise and Many Unanswered Questions

On April 10, 2014, Secretary of the Interior Sally Jewell released the Department of the Interior’s (DOI’s) new strategy to implement mitigation policies and practices that will more effectively encourage infrastructure development while protecting natural and cultural resources: A Strategy for Improving the Mitigation Policies and Practices of the Department of the Interior (DOI Report). DOI’s overarching goal is to identify high-value resources and conservation priorities on a regional basis so that developers can plan projects more effectively from the outset (so as to avoid and minimize impacts to such resources), and to help developers more readily identify high value compensatory mitigation opportunities (if necessary to compensate for unavoidable resource impacts).

In theory, this will help to streamline the environmental review and permitting process, especially for large, complex projects (such as roads, railways, transmission lines, pipelines, and mines). In practice, the numerous policies and guidelines that DOI will be preparing over the next few years to implement this Strategy could result in greater burdens on development projects, as DOI appears poised to impose new mitigation obligations without a clear legal basis for doing so. In addition, regionally-based, landscape-scale planning and selection of compensatory mitigation will need to be reconciled with current laws, regulations, and policies governing compensatory mitigation, which often favor mitigating in close proximity to a project’s impacts. Of course, effectively integrating compensatory mitigation for small projects into a more landscape-scale strategy may raise practical implications as well.

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Topics:  Department of the Interior, Economic Development, Infrastructure

Published In: Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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