May 8, 2021

Volume XI, Number 128

Advertisement

May 07, 2021

Subscribe to Latest Legal News and Analysis

May 06, 2021

Subscribe to Latest Legal News and Analysis

May 05, 2021

Subscribe to Latest Legal News and Analysis

Obama Administration Adopts Wide-Ranging Natural Resource Mitigation Requirements

Earlier today, the Obama Administration adopted an expansive set of mitigation requirements for all its natural resource management agencies. Under the voluntary policy, the Department of Defense, Department of the Interior, Department of Agriculture, Environmental Protection Agency, and National Oceanic and Atmospheric Administration will aim “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 mitigated.

The mitigation policies are intended to “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.”

This policy essentially applies to all natural resources what the Clean Water Act and Executive Order have required of the U.S. Army Corps of Engineers (Corps) with respect to wetland impacts (namely avoidance, minimization and mitigation, with mitigation aiming for no net loss of wetland functions and values). This is an expansive additional set of analyses and mitigation requirements and has the potential to significantly expand these agencies’ permitting obligations and timelines.

Depending on how it is implemented, the policy has the potential to overshadow the procedural environmental review requirement mandated under the National Environmental Policy Act (NEPA) by imposing a substantive environmental action obligation on agencies such as the Bureau of Land Management (BLM), Corps, National Park Service (NPS), and U.S. Forest Service.

The Policy requires each agency to adopt specific manual and handbook guidance implementing the avoidance, minimization and mitigation requirements, most within one year, with the Forest Service adopting them within 180 days. It does not appear that public comment will be required for these guidance documents before they are finalized, although the Forest Service will be adopting a rule within two years, which will follow the typical rulemaking process.

Advertisement
© 2021 Bracewell LLPNational Law Review, Volume V, Number 307
Advertisement
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Lowell Rothschild, environmental compliance, lawyer, Bracewell law firm
Counsel

Lowell Rothschild advises clients on environmental compliance, enforcement, public policy and government relations issues. With a strong background in natural resources and land development, he guides clients through the challenges of energy development, infrastructure projects and mining, including impact analysis, wetlands, mitigation and habitat conservation, as well as associated permitting, internal and external investigations, and litigation.

Prior to joining the firm, Mr. Rothschild was the primary environmental counsel for The Mosaic...

512-494-3616
Kevin Ewing, Energy, environmental, attorney, Bracewell law firm
Partner

Kevin Ewing advises chiefly energy and infrastructure companies concerning natural resources and environmental issues arising from new regulations and agency policies, corporate risk management, and major incidents.  His clients are generally involved in offshore exploration and development, transmission siting, gas pipelines, LNG facilities, and highways.  Kevin is regularly involved in crisis preparedness and response, representing clients before government investigators, in negotiations with federal agencies, and in internal investigations.

...

202-828-7638
Advertisement
Advertisement