80 FR 68743 - Mitigating Impacts on Natural Resources From Development and Encouraging Related Private Investment
Executive Office of the President
Federal Register Volume 80, Issue 215 (November 6, 2015)
Page Range
68743-68747
FR Document
2015-28466
Federal Register, Volume 80 Issue 215 (Friday, November 6, 2015)
[Federal Register Volume 80, Number 215 (Friday, November 6, 2015)]
[Presidential Documents]
[Pages 68743-68747]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-28466]
Presidential Documents
Federal Register / Vol. 80, No. 215 / Friday, November 6, 2015 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 68743]]
Memorandum of November 3, 2015
Mitigating Impacts on Natural Resources From
Development and Encouraging Related Private Investment
Memorandum for the Secretary of Defense[,] the
Secretary of the Interior[,] the Secretary of
Agriculture[,] the Administrator of the Environmental
Protection Agency[, and] the Administrator of the
National Oceanic and Atmospheric Administration
We all have a moral obligation to the next generation
to leave America's natural resources in better
condition than when we inherited them. It is this same
obligation that contributes to the strength of our
economy and quality of life today. American ingenuity
has provided the tools that we need to avoid damage to
the most special places in our Nation and to find new
ways to restore areas that have been degraded.
Federal agencies implement statutes and regulations
that seek simultaneously to advance our economic
development, infrastructure, and national security
goals along with environmental goals. As efforts across
the country have demonstrated, it is possible to
achieve strong environmental outcomes while encouraging
development and providing services to the American
people. This occurs through policies that direct the
planning necessary to address harmful impacts on
natural resources by avoiding and minimizing impacts,
then compensating for impacts that do occur. Moreover,
when opportunities to offset foreseeable harmful
impacts to natural resources are available in advance,
agencies and project proponents have more options to
achieve positive environmental outcomes and potentially
reduce permitting timelines.
Federal agencies can, however, face barriers that
hinder their ability to use Federal resources for
restoration in advance of regulatory approval of
development and other activities (e.g., it may not be
possible to fund restoration before the exact location
and scope of a project have been approved; or there may
be limitations in designing large-scale management
plans when future development is uncertain). This
memorandum will encourage private investment in
restoration and public-private partnerships, and help
foster opportunities for businesses or non-profit
organizations with relevant expertise to successfully
achieve restoration and conservation objectives.
One way to increase private investment in natural
resource restoration is to ensure that Federal policies
are clear, work similarly across agencies, and are
implemented consistently within agencies. By
encouraging agencies to share and adopt a common set of
their best practices to mitigate for harmful impacts to
natural resources, the Federal Government can create a
regulatory environment that allows us to build the
economy while protecting healthy ecosystems that
benefit this and future generations. Similarly, in non-
regulatory circumstances, private investment can play
an expanded role in achieving public natural resource
restoration goals. For example, performance contracts
and other Pay for Success approaches offer innovative
ways to finance the procurement of measurable
environmental benefits that meet high government
standards by paying only for demonstrated outcomes.
Therefore, by the authority vested in me as President
by the Constitution and the laws of the United States
of America, and to protect the health of our economy
and environment, I hereby direct the following:
Section 1. Policy. It shall be the policy of the
Departments of Defense, the Interior, and Agriculture;
the Environmental Protection Agency; and
[[Page 68744]]
the National Oceanic and Atmospheric Administration;
and all bureaus or agencies within them (agencies); to
avoid and then minimize harmful effects to land, water,
wildlife, and other ecological resources (natural
resources) caused by land- or water-disturbing
activities, and to ensure that any remaining harmful
effects are effectively addressed, consistent with
existing mission and legal authorities. Agencies shall
each adopt a clear and consistent approach for
avoidance and minimization of, and compensatory
mitigation for, the impacts of their activities and the
projects they approve. That approach should also
recognize that existing legal authorities contain
additional protections for some resources that are of
such irreplaceable character that minimization and
compensation measures, while potentially practicable,
may not be adequate or appropriate, and therefore
agencies should design policies to promote avoidance of
impacts to these resources.
Large-scale plans and analysis should inform the
identification of areas where development may be most
appropriate, where high natural resource values result
in the best locations for protection and restoration,
or where natural resource values are irreplaceable.
Furthermore, because doing so lowers long-term risks to
our environment and reduces timelines of development
and other projects, agency policies should seek to
encourage advance compensation, including mitigation
bank-based approaches, in order to provide resource
gains before harmful impacts occur. The design and
implementation of those policies should be crafted to
result in predictability sufficient to provide
incentives for the private and non-governmental
investments often needed to produce successful advance
compensation. Wherever possible, policies should
operate similarly across agencies and be implemented
consistently within them.
To the extent allowed by an agency's authorities,
agencies are encouraged to pay particular attention to
opportunities to promote investment by the non-profit
and private sectors in restoration or enhancement of
natural resources to deliver measurable environmental
outcomes related to an established natural resource
goal, including, if appropriate, as part of a
restoration plan for natural resource damages or for
authorized investments made on public lands.
Sec. 2. Definitions. For the purposes of this
memorandum:
(a) ``Agencies'' refers to the Department of
Defense, Department of the Interior, Department of
Agriculture, Environmental Protection Agency, and
National Oceanic and Atmospheric Administration, and
any of their respective bureaus or agencies.
(b) ``Advance compensation'' means a form of
compensatory mitigation for which measurable
environmental benefits (defined by performance
standards) are achieved before a given project's
harmful impacts to natural resources occur.
(c) ``Durability'' refers to a state in which the
measurable environmental benefits of mitigation will be
sustained, at minimum, for as long as the associated
harmful impacts of the authorized activity continue.
The ``durability'' of a mitigation measure is
influenced by: (1) the level of protection or type of
designation provided; and (2) financial and long-term
management commitments.
(d) ``Irreplaceable natural resources'' refers to
resources recognized through existing legal authorities
as requiring particular protection from impacts and
that because of their high value or function and unique
character, cannot be restored or replaced.
(e) ``Large-scale plan'' means any landscape- or
watershed-scale planning document that addresses
natural resource conditions and trends in an
appropriate planning area, conservation objectives for
those natural resources, or multiple stakeholder
interests and land uses, or that identifies priority
sites for resource restoration and protection,
including irreplaceable natural resources.
[[Page 68745]]
(f) ``Mitigation'' means avoiding, minimizing,
rectifying, reducing over time, and compensating for
impacts on natural resources. As a practical matter,
all of these actions are captured in the terms
avoidance, minimization, and compensation. These three
actions are generally applied sequentially, and
therefore compensatory measures should normally not be
considered until after all appropriate and practicable
avoidance and minimization measures have been
considered.
Sec. 3. Establishing Federal Principles for Mitigation.
To the extent permitted by each agency's legal
authorities, in addition to any principles that are
specific to the mission or authorities of individual
agencies, the following principles shall be applied
consistently across agencies to the extent appropriate
and practicable.
(a) Agencies should take advantage of available
Federal, State, tribal, local, or non-governmental
large-scale plans and analysis to assist in identifying
how proposed projects potentially impact natural
resources and to guide better decision-making for
mitigation, including avoidance of irreplaceable
natural resources.
(b) Agencies' mitigation policies should establish
a net benefit goal or, at a minimum, a no net loss goal
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. When a resource's value is
determined to be irreplaceable, the preferred means of
achieving either of these goals is through avoidance,
consistent with applicable legal authorities. Agencies
should explicitly consider the extent to which the
beneficial environmental outcomes that will be achieved
are demonstrably new and would not have occurred in the
absence of mitigation (i.e. additionality) when
determining whether those measures adequately address
impacts to natural resources.
(c) With respect to projects and decisions other
than in natural resource damage cases, agencies should
give preference to advance compensation mechanisms that
are likely to achieve clearly defined environmental
performance standards prior to the harmful impacts of a
project. Agencies should look for and use, to the
extent appropriate and practicable, available advance
compensation that has achieved its intended
environmental outcomes. Where advance compensation
options are not appropriate or not available, agencies
should give preference to other compensatory mitigation
practices that are likely to succeed in achieving
environmental outcomes.
(d) With respect to natural resource damage
restoration plans, natural resource trustee agencies
should evaluate criteria for whether, where, and when
consideration of restoration banking or advance
restoration projects would be appropriate in their
guidance developed pursuant to section 4(d) of this
memorandum. Consideration under established regulations
of restoration banking or advance restoration
strategies can contribute to the success of restoration
goals by delivering early, measurable environmental
outcomes.
(e) Agencies should take action to increase public
transparency in the implementation of their mitigation
policies and guidance. Agencies should set measurable
performance standards at the project and program level
to assess whether mitigation is effective and should
clearly identify the party responsible for all aspects
of required mitigation measures. Agencies should
develop and use appropriate tools to measure, monitor,
and evaluate effectiveness of avoidance, minimization,
and compensation policies to better understand and
explain to the public how they can be improved over
time.
(f) When evaluating proposed mitigation measures,
agencies should consider the extent to which those
measures will address anticipated harm over the long
term. To that end, agencies should address the
durability of compensation measures, financial
assurances, and the resilience of the measures'
benefits to potential future environmental change, as
well as ecological relevance to adversely affected
resources.
[[Page 68746]]
(g) Each agency should 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.
(h) To improve the implementation of effective and
durable mitigation projects on Federal land, agencies
should identify, and make public, locations on Federal
land of authorized impacts and their associated
mitigation projects, including their type, extent,
efficacy of compliance, and success in achieving
performance measures. When compensatory actions take
place on Federal lands and waters that could be open to
future multiple uses, agencies should describe measures
taken to ensure that the compensatory actions are
durable.
Sec. 4. Federal Action to Strengthen Mitigation
Policies and Support Private Investment in Restoration.
In support of the policy and principles outlined above,
agencies identified below shall take the following
specific actions.
(a) Within 180 days of the date of this memorandum,
the Department of Agriculture, through the U.S. Forest
Service, shall develop and implement additional manual
and handbook guidance that addresses the agency's
approach to avoidance, minimization, and compensation
for impacts to natural resources within the National
Forest System. The U.S. Forest Service shall finalize a
mitigation regulation within 2 years of the date of
this memorandum.
(b) Within 1 year of the date of this memorandum,
the Department of the Interior, through the Bureau of
Land Management, shall finalize a mitigation policy
that will bring consistency to the consideration and
application of avoidance, minimization, and
compensatory actions or development activities and
projects impacting public lands and resources.
(c) Within 1 year of the date of this memorandum,
the Department of the Interior, through the U.S. Fish
and Wildlife Service, shall finalize a revised
mitigation policy that applies to all of the U.S. Fish
and Wildlife Service's authorities and trust
responsibilities. The U.S. Fish and Wildlife Service
shall also finalize an additional policy that applies
to compensatory mitigation associated with its
responsibilities under the Endangered Species Act of
1973. Further, the U.S. Fish and Wildlife Service shall
finalize a policy that provides clarity to and
predictability for agencies and State governments,
private landowners, tribes, and others that take action
to conserve species in advance of potential future
listing under the Endangered Species Act. This policy
will provide a mechanism to recognize and credit such
action as avoidance, minimization, and compensatory
mitigation.
(d) Within 1 year of the date of this memorandum,
each Federal natural resource trustee agency will
develop guidance for its agency's trustee
representatives describing the considerations for
evaluating whether, where, and when restoration banking
or advance restoration projects would be appropriate as
components of a restoration plan adopted by trustees.
Agencies developing such guidance will coordinate for
consistency.
(e) Within 1 year of the date of this memorandum,
the Department of the Interior will develop program
guidance regarding the use of mitigation projects and
measures on lands administered by bureaus or offices of
the Department through a land-use authorization,
cooperative agreement, or other appropriate mechanism
that would authorize a project proponent to conduct
actions, or otherwise secure conservation benefits, for
the purpose of mitigating impacts elsewhere.
Sec. 5. General Provisions. (a) This memorandum
complements and is not intended to supersede existing
laws and policies.
(b) This memorandum shall be implemented consistent
with applicable law, and subject to the availability of
appropriations.
(c) This memorandum is intended for the internal
guidance of the executive branch and is inapplicable to
the litigation or settlement of natural resource damage
claims. The provisions of section 3 this memorandum
encouraging
[[Page 68747]]
restoration banking and advance restoration projects
also do not apply to the selection or implementation of
natural resource restoration plans, except to the
extent determined appropriate in Federal trustee
guidance developed pursuant to section 4(d) of this
memorandum.
(d) The provisions of this memorandum shall not
apply to military testing, training, and readiness
activities.
(e) Nothing in this memorandum shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the
head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(f) This memorandum is not intended to, and does
not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any
party against the United States, its departments,
agencies, or entities, its officers, employees, or
agents, or any other person.
(g) The Secretary of the Interior is hereby
authorized and directed to publish this memorandum in
the Federal Register.
(Presidential Sig.)
THE WHITE HOUSE,
Washington, November 3, 2015
[FR Doc. 2015-28466
Filed 11-5-15; 8:45 am]
Billing code 4310-10-P