Solid Ground: Using Mitigation to Achieve Greater Predictability, Faster Project Approval, and Better Conservation Outcomes

Date01 January 2019
AuthorJessica Wilkinson, Lynn Scarlett, Philip Tabas, and Brent Keith
Solid Ground: Using Mitigation to
Achieve Greater Predictability,
Faster Project Approval, and
Better Conservation Outcomes
by Jessica Wilkinson, Lynn Scarlett, Philip Tabas, and Brent Keith
Jessica Wilkinson, Lynn Scarlett, and Brent Keith are in policy and government relations at e Nature
Conservancy. Philip Tabas is a senior advisor with e Nature Conservancy, North America region.
I. Meeting the Needs of Species, People,
and Places
A wind developer seeking to build turbines on private
lands that will aect the federally listed India na bat and
bald eagles; a landowner building a new beach house on
sand dunes where the listed Alaba ma beach mouse lives;
a natural gas company seeking to develop a new pipeline
across both federal and private lands.
In all of these cases, mitigation—shorthand for avoid-
ing impacts to important species and habitat, minimizing
impacts, and then providing osets for the remaining,
residual impacts—is a va luable tool for developers and
federal agencies to comply with the requirements of the
National Environmental Policy Act (NEPA), a variety of
federal statutes that regulate impacts to important wildlife
species and habitat, and/or public land management stat-
utes requiring that uses of public lands are balanced with
protection and conser vation.1
Mitigation makes practica l sense for companies with a
long view of their future—those that are part of the fab-
ric of local communities and those that wa nt to be good
neighbors. For such companies, it makes practical sense to
clean up after themselves, to demonstrate accountability
for their actions, and to give back.
1. 42 U.S.C. §§4321-4370h, ELR S. NEPA §§2-209. roughout, we use
the term “mitigation” to denote the full range of actions that can be taken
to address project impacts. ese actions are outlined in NEPA regulations
as avoidance, minimization, rectication, reduction or elimination, and
compensation. In the Clean Water Act §404 context, “mitigation” is used
as shorthand for a three-step process (avoidance, minimization, and com-
pensatory mitigation), and these steps are carried out sequentially. In the
Endangered Species Act context, “mitigation” is used synonymously with
the term “compensatory mitigation.” Because of this confusing terminology,
we use “mitigation” to mean the full range of methods to address impacts
(i.e., NEPA) and use “compensatory mitigation” when we mean eorts to
oset impacts through restoration and protection eorts.
Mitigation can also sign icantly accelerate project deliv-
ery and reduce overall project costs. Building mitigation
measures into a project’s design facilitates a faster project
review process because it can lead to fewer conicts with
regulators and the public, opens up greater opportunities
for synchronized permitting a nd environmental review,
and diminishes the likelihood of litigation (see Figure
1). Including mitigation in projects also gives developers
greater certainty a nd peace of mind, as it ensures there
will be fewer surprises that can delay project delivery and
imperil nancing. Indeed, the current Administration has
recognized these benets.2
Signicantly, mitigation can also help advance conser-
vation of habitats and species. is can resu lt in fewer regu-
latory burdens and constraints in t he future—fewer species
listed as threatened and enda ngered under the Endangered
Species Act (ESA),3 fewer and less expansive designated
critical habitats, and fewer species and habitats identied
as sensitive in federal land use plans.
e benets aorded by commonsense mitigation pol-
icy, however, are now less available to developers due to
the actions of the U.S. Department of the Interior (DOI)
under the Donald Trump Administration. Below, we out-
line the authorities to utilize mitigation provided by the
DOI’s existing statutes and policies, describe how mitiga-
tion supports the benets outlined above, outl ine the cur-
rent state of play in mitigation policy, and, nally, describe
why we need to return to a balanced policy f ramework that
2. Secretarial Order No. 3360, Rescinding Authorities Inconsistent With
Secretary’s Order 3349 (Dec. 22, 2017),
sets/2018/01/05/document_gw_04.pdf; U.S. D   I-
, F R: R   D   I A-
 T P B D E (2017) [hereinafter
B R],les/uploads/inte-
3. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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