A recently released Presidential Memorandum will likely spur new policies related to development and natural resources, possibly impacting public agencies, developers and the like. “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment,” released by The White House on Nov. 3, recognizes, among other things, that we have “a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.”

To pursue this objective, the Memorandum directs five specific federal agencies, including the Department of Interior and the Environmental Protection Agency, to adopt policies that avoid and minimize harmful effects to land, water, wildlife and other ecological resources caused by development. Specifically, it directs the federal agencies to:

• Adopt clear and consistent policies for the avoidance and minimization of, and compensatory mitigation for, impacts stemming from federal projects.
• Give preference to advance compensation methods, including mitigation bank-based approaches, because doing so “lowers long-term risks to the environment and reduces timelines of development.”
• Use large-scale plans to identify areas where development is most appropriate, where high natural resource values result in the best locations for protection and restoration, and where natural resource values are irreplaceable.
• Set measurable performance standards at the project and program level to assess whether mitigation is effective and clearly identify the party responsible for all aspects of required mitigation measures.
• Ensure consistent implementation of its policies and standards across the nation and hold all compensatory mitigation mechanisms to equivalent and effective standards when implementing their policies.

The Memorandum further establishes certain deadlines within which each listed agency must finalize a mitigation policy. For example, within one year of the date of the Memorandum, the Department of Interior, through the U.S. Fish & Wildlife Service, must finalize a policy that applies to compensatory mitigation associated with its responsibilities under the Endangered Species Act.

While the reach of the Memorandum remains uncertain, it deserves considerable attention from public agencies, project developers and those involved in the field of resource conservation. As a result of the Memorandum, federal agencies will be required to develop and/or revise mitigation policies to reflect the new policies. Thus, the agencies will likely seek public comment in the future on the proposed policies, and interested parties will want to work closely with legal counsel to determine whether to submit a comment letter.