CHAPTER 6 MEETING THE PROMISE OF THE GOLDEN AGE OF MITIGATION

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 6
MEETING THE PROMISE OF THE GOLDEN AGE OF MITIGATION
Deborah L. Mead ²
National Conservation Banking Coordinator
U.S. Fish and Wildlife Service
Falls Church, VA
Jessica Wilkinson ¹
Senior Policy Advisor, Mitigation
The Nature Conservancy
Washington, DC

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DEBORAH L. (DEBLYN) MEAD is a biologist with the U.S. Fish and Wildlife Service in Falls Church, Virginia. She has held various positions within the Service's Endangered Species Program the last 20 years. While in the Sacramento Field Office, she was instrumental in the development and implementation of their very successful conservation banking program in California. In her current position at the headquarters office, she works on a variety of Endangered Species Act issues and serves as the National Conservation Banking Coordinator. Before joining the Fish and Wildlife Service, Deblyn worked for the U.S. Geological Survey on water contaminant studies in the Klamath Basin (California and Oregon) and for a private consulting firm assessing impacts and designing mitigation for energy projects in the western U.S. Entomology is her biological area of expertise and she has taught several community college courses in entomology and general biology. Deblyn holds a bachelor's degree in zoology from the University of California, Davis, and a master's degree in ecology and systematic biology from San Francisco State University.

JESSICA WILKINSON is Senior Policy Advisor for Mitigation in The Nature Conservancy's External Affairs department. She also supports the Development by Design program, one of the Conservancy's global priorities. In these capacities she works with the leaders on mitigation within the Conservancy - domestically and internationally - to develop, coordinate, and implement the organization's strategy for advancing the conservation potential of mitigation through policy and practice. Before joining TNC, Wilkinson was a Senior Policy Analyst and Director of the Wetlands Program at the Environmental Law Institute in Washington, D.C., where she oversaw the Institute's program of wetlands research and training. Jessica received her Master's of Environmental Management from Yale University, School of Forestry and Environmental Studies and a BA in Environmental Science from Barnard College, Columbia University.

1. Context and challenges

The concept of mitigation - the avoidance and minimization of project impacts and compensation for remaining unavoidable impacts - is likely rooted in the concept of environmental sustainability. With the advent of "globalization" environmental systems are intimately linked in ways that we are only beginning to appreciate.³ The failure of today's civilizations to balance development and conservation has the potential to affect all of earth and its people. A recent study found that the impacts of urban and agricultural expansion, conventional and unconventional oil and gas, coal, solar, wind, biofuels and mining development, cumulatively place at risk 20% of the remaining global natural lands by mid-century.⁴

Finding the means and measures to make informed and responsible decisions on where to allow impacts to resources and how to mitigate losses associated with those impacts is becoming imperative. Mitigation is increasingly viewed as a mechanism for balancing development and conservation with the goal of leaving the environment no worse off than before impacts, as is evidenced by a rapid rise in the adoption of mitigation policy around the globe.⁵

As we discuss below, the past four years have seen a remarkable burst of mitigation policy development in the U.S. So what are the conditions that have led to this flurry of activity? We posit that the catalyst for these efforts is a combination of factors, including the long-standing desire for the U.S. to achieve energy independence,⁶ state commitments to increase the

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portion of their energy from renewable sources,⁷ efforts to jumpstart the economy after 2008 through infrastructure projects, and the desire to balance an "all-of-the-above" energy strategy with conservation considerations. Mitigation has come to be viewed as a tool to support development and conservation. And yet, for mitigation to realize this promise, more than just policy changes are needed.

Below we provide a historical context for mitigation policy and describe an evolution in the way mitigation is applied in the U.S., with a focus on mitigation for impacts to species and their habitat (as distinct from an exhaustive discussion of mitigation for impacts to wetlands and streams or other resources). We summarize some of the recent and significant new and revised mitigation policies. Examples of recent successes and innovative approaches are offered. We conclude with a discussion of some of the measures needed to ensure that the promise of the "Golden Age of Mitigation" is realized.

2. The evolution of mitigation policy

a. Short History

NEPA and Procedural Mitigation

The National Environmental Policy Act⁸ (NEPA) incorporates mitigation as part of a procedural review. One of the fundamental objectives of NEPA is the "resolution of environmental problems."⁹ The statute requires federal agencies to look for solutions to environmental problems through the disclosure and evaluation of alternatives and mitigation measures.¹⁰ Agencies disclose findings through Environmental Assessments or a detailed Environmental Impact Statement and are required to identify and include all relevant and reasonable mitigation measures that could improve the action. The focus and implementation of NEPA has changed considerably over its more than 45-year history.¹¹

The Council on Environmental Quality's implementing regulations under NEPA define mitigation as a sequence, where mitigation begins with avoidance of impacts; followed by minimization of the degree or magnitude of impacts; rectification of impacts through repair, restoration, or rehabilitation; reducing impacts over time during the life of the action; and lastly,

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compensation for impacts by providing replacement resources.¹² Effective mitigation through this ordered approach starts at the beginning of the NEPA process, not at the end.

Requiring or Recommending Mitigation as a Condition for Environmental Harm

Loss of wetlands in the U.S. went unregulated until passage of the Clean Water Act in 1972.¹³ Over the course of the next twenty years, the agencies overseeing implementation of the wetland program of the Act (U.S. Army Corps of Engineers and U.S. Environmental Protection Agency) evolved and mitigation became a cornerstone of the agencies' program.¹⁴ This dramatic shift from condoned destruction of a natural resource to a requirement for compensation of its loss was not immediate.¹⁵ Not until implementing regulations were amended in 1986 was mitigation included as an important aspect of the review and balancing process in the issuance of Department of the Army permits.¹⁶

Similarly, destruction of and the intent to eradicate some species (e.g., gray wolf and Utah prairie dog) in the U.S. was initially subsidized through government programs until wildlife protection laws were enacted, specifically the Endangered Species Act (ESA).¹⁷ Through the Act, Congress found and declared that various species of fish, wildlife, and plants (endangered and threatened species) in the U.S. are of esthetic, ecological, educational, historical, recreational, and scientific value to the nation and its people¹⁸ and charged federal agencies with the task of conserving these species and the ecosystems upon which they depend.¹⁹ Although the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) are charged with administering the ESA, all federal agencies are directed to use their authorities to conserve endangered and threatened (listed) species.²⁰

Regulatory requirements under NEPA and other statutes such as the Fish and Wildlife Coordination Act²¹ (FWCA) encourage the use of the mitigation hierarchy. The FWCA authorizes the USFWS, NMFS, and State agencies responsible for fish and wildlife resources to investigate all proposed Federal undertakings and non-Federal actions needing a Federal permit or license that would affect a stream or other body of water and make recommendations regarding

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mitigation. The USFWS issued Mitigation Policy in 1981²² to assist federal action agencies in anticipating USFWS recommendations on mitigating the adverse impacts of land and water developments on fish, wildlife, and their habitats and plan for mitigation measures early in their planning processes. This policy encouraged "predevelopment compensation actions" as a mitigation measure (i.e., "banking of habitat value for the express purpose of compensation for unavoidable future losses"), giving banking a thumbs-up for species and their habitats as an appropriate vehicle for meeting compensatory mitigation requirements.

The primary policy that promoted compensatory mitigation for species was Conservation Banking Guidance issued by the USFWS in 2003.²³ This policy set standards for compensatory mitigation for species, particularly those related to long term assurances based on lessons learned from ecological failures of early wetland mitigation banks.²⁴ In 2008, the USFWS also issued Recovery Crediting Guidance.²⁵ Recovery Crediting outlined a procedure for incorporating sections 7(a)(1) and 7(a)(2) of the ESA to achieve "net benefit" for the species. Section 7(a)(1) requires all Federal agencies to utilize their authorities to carry out programs for the conservation of listed species.²⁶ Section 7(a)(2) requires all Federal agencies to ensure that their actions (i.e., activities or programs of any kind that are authorized, funded, or carried out, in whole or in part, in the United States or upon the high seas) are not likely to jeopardize the...