Mitigating Impacts on Natural Resources From Development and Encouraging Related Private Investment, 68743-68747 [2015-28466]

Agencies

• Executive Office of the President

[Federal Register Volume 80, Number 215 (Friday, November 6, 2015)]
[Presidential Documents]
[Pages 68743-68747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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