[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
THE IMPOSITION OF NEW REGULATIONS THROUGH THE PRESIDENT'S MEMORANDUM
ON MITIGATION
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
Wednesday, February 24, 2016
__________
Serial No. 114-33
__________
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Jeff Denham, CA Debbie Dingell, MI
Paul Cook, CA Ruben Gallego, AZ
Bruce Westerman, AR Lois Capps, CA
Garret Graves, LA Jared Polis, CO
Dan Newhouse, WA Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Darin LaHood, IL
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Lim, Democratic Chief Counsel
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
LOUIE GOHMERT, TX, Chairman
DEBBIE DINGELL, MI, Ranking Democratic Member
Doug Lamborn, CO Jared Huffman, CA
Raul R. Labrador, ID Ruben Gallego, AZ
Bruce Westerman, AR Jared Polis, CO
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Vacancy
Alexander X. Mooney, WV Raul M. Grijalva, AZ, ex officio
Darin LaHood, IL
Rob Bishop, UT, ex officio
CONTENTS
----------
Page
Hearing held on Wednesday, February 24, 2016..................... 1
Statement of Members:
Dingell, Hon. Debbie, a Representative in Congress from the
State of Michigan.......................................... 3
Prepared statement of.................................... 4
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 1
Prepared statement of.................................... 2
Statement of Witnesses:
Bean, Michael, Principal Deputy Assistant Secretary, U.S.
Fish and Wildlife Service, U.S. Department of the Interior. 10
Prepared statement of.................................... 12
Questions submitted for the record....................... 16
Ferebee, Brian, Associate Deputy Chief, National Forest
System, U.S. Department of Agriculture..................... 19
Prepared statement of.................................... 20
Questions submitted for the record....................... 22
Goldfuss, Christy, Managing Director, Council on
Environmental Quality, The White House..................... 5
Prepared statement of.................................... 6
Questions submitted for the record....................... 9
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 51
White House, ``Presidential Memorandum: Mitigating Impacts on
Natural Resources from Development and Encouraging Related
Private Investment.'' November 3, 2015. Submitted by
Committee Staff............................................ 47
OVERSIGHT HEARING ON THE IMPOSITION OF NEW REGULATIONS THROUGH THE
PRESIDENT'S MEMORANDUM ON MITIGATION
----------
Wednesday, February 24, 2016
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:06 p.m., in
room 1334, Longworth House Office Building, Hon. Louie Gohmert
[Chairman of the Subcommittee] presiding.
Present: Representatives Gohmert, Labrador, Westerman,
Hice, LaHood, Bishop; Dingell, and Polis.
Mr. Gohmert. This hearing will come to order. I would like
to start by thanking our witnesses for being here to answer
questions on the President's Memorandum entitled, ``Mitigating
Impacts on Natural Resources from Development and Encouraging
Related Private Investment.''
STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. As we all know, this President has not been
shy with his use of, as he says, his telephone and his pen. His
liberal use of those implements, and his willingness to play
fast and loose with executive authority, necessitates a close
inspection of his policies made outside the legislative
process.
In this particular case, the President issued a memo
directing the Departments of Defense, Interior, Agriculture,
the EPA, the National Oceanic and Atmospheric Administration,
and all agencies within them to develop a ``clear and
consistent approach'' to mitigate the impacts of the projects
they approve. Such a goal is not particularly troubling at all;
but I believe we have broad consensus that when an impact is
made to our natural resources, the party responsible has the
obligation to reclaim the site of development in a
conscientious manner.
However, the Administration has not shown much, if any,
desire to actually develop our resources. We have made
tremendous strides in the production of energy in the past
decade, not because of this President, but in spite of his
policies, and, most importantly, the blessing of viable energy
options on state and private land.
At the earliest moments of this Administration, we were
blind-sided with the cancellation of leases important to the
sustainability of rural communities, a number of which are in
my district. Shortly thereafter, we saw a 20-year moratorium on
the development of some of this Nation's highest grade uranium,
when all of the science, and some might even say a consensus,
said it was safe to produce. Political pressure won; and, yet
again, the country and rural communities lost out.
These are just two examples of a pattern that has brought
us here today with less than a year remaining in this
president's no-energy policy. It isn't to say I am suspicious
when this Administration says they have a new way to increase
the efficiency of permitting and development, but I honestly
have no reason to take them at face value. It is too bad that
our instinctual reaction is to look for ulterior motives; but
after 7 years of disappointment, disingenuity, and failure, it
is warranted.
Today, we have invited three witnesses from the
Administration. Not only are we permitting them to sit on their
own Federal panel, apart from non-Federal witnesses, as they
consistently request, but they are the only witnesses.
It is important to note that the regulations needed to
carry out the policies of this Memorandum are currently being
written, but it is fair for us to ask in which direction they
are headed and how the policies will be implemented. That being
the case, we look forward to hearing from our constituents as
these new policies become public in the coming months, to see
if what is produced is consistent with what this qualified
panel explains.
I would like to see policies that promote efficient
development of our natural resources and provide for their
appropriate mitigation, but what this Congress cannot accept is
another unilateral expansion of the executive branch and the
influence of land managers outside their own fiefdoms.
[The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Hon. Louie Gohmert, Chairman, Subcommittee on
Oversight and Investigations
I'd like to start by thanking our witnesses for being here to
answer questions on the President's Memo entitled ``Mitigating Impacts
on Natural Resources from Development and Encouraging Related Private
Investment.'' As we all know, this President has not been shy with his
use of, as he puts, ``the telephone and the pen.'' His liberal use of
those implements, and his willingness to play fast and loose with
executive authority necessitates a close inspection of his policies
made outside of the legislative process.
In this particular case, the President issued a memo directing the
Departments of Defense, the Interior, Agriculture, the EPA, the
National Oceanic and Atmospheric Administration; and all agencies
within them to develop a ``clear and consistent approach'' to mitigate
the impacts of the projects they approve.
Such a goal isn't particularly troubling. I believe we have broad
consensus that, when an impact is made to our natural resources, the
party responsible has the obligation to reclaim the site of development
in a conscientious manner.
However, this Administration hasn't shown much, if any, desire to
actually develop our resources. We have made tremendous strides in the
production of energy in the past decade; not because of this President,
but in spite of his policies, and, most importantly, the blessing of
viable options on state and private land.
At the earliest moments of this Administration, we were blind-sided
with the cancellation of leases important to the sustainability of
rural communities. Shortly thereafter, we saw a 20-year moratorium on
the development of some of this Nation's highest grade uranium when all
of the science, and some may even say a consensus, said it was safe to
produce. Political pressure won; and, yet again, the country and rural
communities lost. These are just two examples of a pattern that has
brought us here today with less than a year remaining in this
president's no-energy policy.
It isn't to say I'm suspicious when this Administration says they
have a new way to increase the efficiency of permitting and
development, but I honestly have no reason to take them at face value.
It's too bad that our instinctual reaction is to look for ulterior
motives; but, after 7 years of disappointment and failure, it is
warranted.
Today, we have invited three witnesses from the Administration. Not
only are we permitting them to sit on their own Federal panel, apart
from non-Federal witnesses as they consistently demand; but they are
the only witnesses. It's important to note that the regulations needed
to carry out the policies of this Memorandum are currently being
written, but it is fair for us to ask in which direction they are
headed and how the policies will be implemented. That being the case,
we look forward to hearing from our constituents as these new policies
become public in the coming months to see if what is produced is
consistent with what this qualified panel explains.
I'd like to see policies that promote efficient development of our
natural resources and provide for their appropriate mitigation, but
what this Congress cannot accept is another attempt to increase the
unilateral expansion of the executive branch and the influence of land
managers outside of their fiefdoms.
I thank the witnesses and look forward to their testimony.
______
Mr. Gohmert. So, I look forward to your testimony today.
At this time, I recognize the Ranking Member, Mrs. Dingell,
for her opening statement.
STATEMENT OF THE HON. DEBBIE DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mrs. Dingell. Thank you, Mr. Chairman, and thank you to our
witnesses for taking the time to be with us today.
While I am pleased that the subcommittee is holding its
first hearing in nearly 7 months--I missed you, Mr. Chairman, I
think we have to do more work together--I am somewhat perplexed
that we are examining the Presidential Memorandum on
Mitigation, a simple restatement of an important conservation
tool that has facilitated over $3 billion in investment in
conservation initiatives, and that has had the support of both
Democratic and Republican administrations.
My background and experience in the private sector has made
me a believer in public-private partnerships, and has taught me
the value that mitigation can bring both to businesses and the
environment. My business experience also made me a strong
believer in corporate responsibility, and I know that we can
undertake important development projects while also protecting
our environment. During my time at General Motors, we underwent
many mitigation projects that ensured our natural resources
were protected while development projects moved forward at the
same time.
Mitigation is a solution, not a problem. Companies and
developers have a choice: they could completely scrap a project
because it conflicts with important environmental statutes, or
they can offset the impact of their activities. These policies
are not just supported by Democrats. They are widely supported
by the business community and by Republican administrations.
A quick look at the numbers helps illustrate this support.
Today, there are over 140 private endangered species
conservation banks and over 1,500 private Clean Water Act
banks. The Army Corps of Engineers has found that the use of
mitigation banks has led to a more than 50 percent improvement
in the timeliness of issuing permits. It is hard to argue with
these results.
I have to say that I am somewhat baffled by the perspective
offered here on the other side of the aisle today, because I
see the Presidential Memo as a restatement of what we are
already doing, but with an emphasis on greater coordination
between the Federal agencies. This is something that all of us
support, including the business community and previous
Republican administrations. Why wouldn't we want to ensure that
different Federal agencies have consistent mitigation policies?
I am looking forward to hearing confirmation from our
witnesses today that the Presidential Memorandum does not
create any new regulations or claim any new statutory
authorities, but rather is an attempt to make the process run a
bit smoother by identifying a set of consistent standards to
improve existing mitigation practices. My colleagues on the
Majority side seem to have the opposite impression. I hope
today we set the record straight, and we can all maybe agree on
the same thing, Mr. Chairman.
Thank you, and I yield back the balance of my time.
[The prepared statement of Mrs. Dingell follows:]
Prepared Statement of the Hon. Debbie Dingell, Ranking Member,
Subcommittee on Oversight and Investigations
Thank you for the recognition, Chairman Gohmert, and thank our
witnesses for taking the time out of your busy schedules to be here
today.
While I am pleased that this subcommittee is holding its first
hearing in nearly seven months, I am somewhat perplexed that we are
examining the Presidential Memorandum on Mitigation--a simple
restatement of an important conservation tool that has facilitated over
$3 billion in investment in conservation initiatives and that has had
the support of both Democratic and Republican administrations.
My background and experience in the private sector has made me a
believer in public-private partnerships and has taught me the value
that mitigation can bring both to businesses and the environment. My
business experience also made me a strong believer in corporate
responsibility, and I know that we can undertake important development
projects while also protecting our environment. During my time at
General Motors, we underwent many mitigation projects that ensured our
natural resources were protected while development projects moved
forward at the same time.
Mitigation is a solution, not a problem. Companies and developers
have a choice--they could completely scrap a project because it
conflicts with important environmental statutes, or they can compensate
for their activities. These policies are not just supported by
Democrats--they are widely supported by the business community, and I'm
telling you that from experience.
A quick look at the numbers helps illustrate this support. Today,
there are over 140 private endangered species conservation banks, and
over 1,500 private Clean Water Act banks. And the Army Corps of
Engineers has found that the use of mitigation banks has led to a more
than 50 percent improvement in the timeliness of issuing permits. It is
hard to argue with these results.
I have to note that there seems to be a disagreement between the
different sides of the aisle today, because I see the Presidential Memo
as a restatement of what we're already doing but with an emphasis on
greater coordination between Federal agencies--something that the
business community also supports. Why wouldn't we want to ensure that
different Federal agencies have consistent mitigation policies?
I am looking forward to hearing confirmation from our witnesses
today that the Presidential Memorandum does not create any new
regulations or claim any new statutory authorities, but rather is an
attempt to make the process run a bit smoother by identifying a set of
consistent standards to improve existing mitigation practices. My
colleagues seem to have the opposite impression and I am looking
forward to setting the record straight.
Mr. Chairman, thank you for the courtesy, and I yield back the
balance of my time.
______
Mr. Gohmert. I thank the Ranking Member. At this time I
will now introduce our witnesses.
Ms. Christy Goldfuss is the Managing Director of the White
House Council on Environmental Quality; Mr. Michael Bean is the
Principal Deputy Assistant Secretary for U.S. Fish, Wildlife,
and Parks at the Department of the Interior; and finally, Mr.
Brian Ferebee is the Associate Deputy Chief of the National
Forest System at the U.S. Forest Service.
Let me remind the witnesses that, under our Committee
Rules, oral statements must be limited to 5 minutes, but your
entire written statement will appear in the hearing record.
When you begin, the lights on the witness table will turn
green. When you have 1 minute remaining, the yellow light will
come on. Your time will have expired when the red light comes
on, and I would ask you to please conclude your statement at
that time.
Your written statement will be made a part of the record,
regardless of whether you finished or not.
The Chair now recognizes Ms. Goldfuss for her opening
testimony.
STATEMENT OF CHRISTY GOLDFUSS, MANAGING DIRECTOR, COUNCIL ON
ENVIRONMENTAL QUALITY, THE WHITE HOUSE
Ms. Goldfuss. Chairman Gohmert, Ranking Member Dingell, and
members of the subcommittee, thank you for this opportunity to
appear before you today to discuss this Administration's work
on mitigation. I am really excited to discuss this policy,
because we do see this as a good government approach.
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 the life we live
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.
The Presidential Memorandum on Mitigation signed on
November 3, 2015, reinforces the important point that
development and environmental protection go hand in hand.
Mitigation, which is the practice of avoiding, minimizing, and
compensating for environmental impacts, and only compensating
when all else is avoided, is necessary to protect and preserve
our land, water, and wildlife. Specifically, this Memo
encourages good government actions and better coordination
across Federal agencies to produce faster permitting times and
stronger environmental outcomes.
The Memo is not a regulation or new requirement. Rather, it
encourages agencies to, within their existing legal
authorities, ensure consistent standards and institutionalize
best practices that reduce the time and cost required to
complete permitting and review.
This Administration is not the first to recognize the
importance of advanced planning to compensate for negative
impacts to our environment. For more than 45 years, both
Democratic and Republican administrations have sought to
improve government policies that both encourage development and
strengthen environmental outcomes. In fact, some of our
country's most significant advancements in restoration and
mitigation policies have come from Republican leaders committed
to protecting America's natural resources.
Notably, I would like to point to an Earth Day speech in
2004, when President George W. Bush set an ambitious goal to
move beyond the ``no net loss'' policy for wetlands to ensure
that, as a whole, wetland areas would, instead, increase.
Beyond the obligations to protect our natural resources for
future generations, key pillars of good government are
consistency and efficiency. Building on this Administration's
commitment to ensuring efficient permitting, CEQ facilitated an
inter-agency dialog to identify best practices with the goal of
establishing compatible policies across all agencies that
manage natural resources within their existing statutes.
Why the focus? We know Federal mitigation policies produce
results. For example, when compensatory mitigation is required,
the Army Corps of Engineers has found that the use of
mitigation banks leads to a more than 50 percent reduction in
permitting times. Yet, more importantly, it is only in very
limited circumstances that any restoration or compensation is
required, as projects are now better designed to avoid those
impacts all together.
As a result of these efforts to build on existing policies
and ensure efficiency across the Federal Government, the Memo
articulates a common policy through a set of eight core
principles to be interpreted and incorporated into agency
policies. These principles are all outlined in my written
testimony, so I won't go through them now.
Decades after the first mitigation policies were created,
we are continuing to find innovative ways to effectively avoid,
minimize, and compensate for damages to natural resources.
Building on the President's commitment to good government and
the unprecedented steps that this Administration has taken to
protect our land, water, and wildlife for future generations,
the Memo provides a more streamlined process and reduced
permitting times, while improving environmental outcomes.
Chairman Gohmert, Ranking Member Dingell, and members of
the committee and subcommittee, I appreciate the opportunity to
testify before you today, and look forward to answering your
questions.
[The prepared statement of Ms. Goldfuss follows:]
Prepared Statement of Christy Goldfuss, Managing Director of the
Council on Environmental Quality
Chairman Gohmert, Ranking Member Dingell, and members of the
subcommittee, thank you for the opportunity to appear before you today
to discuss this Administration's work on the Presidential Memorandum
entitled, ``Mitigating Impacts on Natural Resources from Development
and Encouraging Related Private Investment,'' which I will refer to as
the Mitigation PM.
Mitigation--the practice of avoiding, minimizing, and compensating
for environmental impacts--and specifically this Presidential
Memorandum, are good government actions to coordinate approaches across
Federal agencies to produce faster permitting times and stronger
environmental outcomes. To develop the Mitigation PM, the White House,
through The Council on Environmental Quality (CEQ), coordinated with
the resource agencies to pull together commonly accepted, high-level
principles for mitigating impacts on natural resources. The result of
that effort is the Presidential Memorandum issued on November 3, 2015.
The Presidential Memorandum is not a regulation or new requirement.
Rather it encourages agencies to, within their legal authorities, have
consistent standards for mitigation and to institutionalize best
practices that reduce the time and cost required to complete permitting
and review.
This Administration is not the first to recognize the importance of
advanced planning for mitigating adverse impacts to our environment.
For more than 45 years, both Democratic and Republican administrations
have sought to improve government policies to encourage development
while simultaneously promoting strong environmental outcomes.
mitigation as good government
This Administration has prioritized streamlining and reducing
timelines for permitting across all agencies. The Administration has
worked to create more certainty and predictability for businesses,
while delivering better social and environmental outcomes in that
process. The President's Executive Order No. 13604, ``Improving
Performance of Federal Permitting and Review of Infrastructure
Projects'' (EO) issued in March of 2012 and the Presidential Memorandum
of August 31, 2011, ``Speeding Infrastructure Development through more
Efficient and Effective Permitting and Environmental Review'' (PM),
directed the Council on Environmental Quality (CEQ) to coordinate
efforts to improve the performance of Federal agencies in reviewing
major projects. In that role, CEQ has been working with agencies to
institutionalize best practices that reduce the time and cost required
to complete permitting and review.
The interagency dialog convened around infrastructure permitting
identified the need for consistent natural resource mitigation policies
across agencies to permit projects effectively. Those discussions
facilitated much of the development of the Mitigation PM and indicated
consensus that the Administration should incorporate long-standing best
practices of avoiding, minimizing, and compensating for natural
resource damages across the Administration. In particular, the PM
presents the opportunity to spur investment in conservation or wetland
banking, so that compensatory mitigation is readily accessible to
businesses who are permitting projects.
We know Federal mitigation policies produce results. That's why,
since 2008, businesses and agencies have proactively sited and designed
projects to avoid impacting wetlands, When compensatory mitigation is
required, the Army Corps of Engineers has found that the use of
mitigation banks leads to more than a 50 percent improvement in
permitting speed compared to situations where the permittees plan and
implement their own off-site mitigation.
development of the presidential memorandum on mitigation
Building off of the infrastructure permitting conversations, CEQ
facilitated a dialog among agencies to develop the best practices
across agency authorities and missions, with the goal of establishing
compatible mitigation policies. The conversations aimed to harmonize
agency efforts by coalescing around a set of common, well-accepted
principles, which could be incorporated across different and, at times,
conflicting agency policies. By analyzing lessons learned through the
implementation of the infrastructure permitting EO and PM and the
decades of implementing existing mitigation policies, agencies
identified barriers associated with mitigation that, if addressed,
could make infrastructure permitting work better. The result of those
efforts is the Mitigation PM, which articulates a common policy through
a set of core mitigation principles and common terms that will be
interpreted and incorporated into agency policies.
Eight of the core principles identified through the process and
outlined in the PM are:
Using a mitigation hierarchy--to avoid, minimize, and only
then compensate for any remaining impacts;
Using large-scale plans, when available, and analysis to
assist in identifying the impacts of proposed projects;
Establishing a net benefit, or at least a no net loss goal
for the management of natural resources;
Giving preference to advance compensation mechanisms;
Considering the extent to which beneficial environmental
outcomes are demonstrably new;
Increasing public transparency and establishing measurable
performance standards;
Addressing the long-term durability of mitigation
measures; and
Ensuring consistent implementation.
In addition to streamlining policy and producing environmental
benefits, an Administration-wide mitigation policy aims to drive the
development of private markets to achieve natural resource policy
objectives. Where the Administration can incentivize investment in our
natural resources and set clear government standards to define when
such investments have met their mark, we create the opportunity for the
private sector to deliver public benefit potentially better and faster
than government. As noted before, in cases where compensatory
mitigation is needed and private sector wetland and stream mitigation
banks can provide those offsets in advance, permitting can be 50
percent faster.
To encourage investment, the Administration has worked to recognize
the risks that investors take and understand the importance of
certainty and predictability in private investment. That is why the
Mitigation PM's focus on quantifying impacts, giving a preference for
mitigation in advance of impacts and producing consistent standards
across Federal agencies to create certainty for investors. The private
sector's role in providing mitigation has grown under existing
policies. Since 2008, the number of mitigation banks providing stream
mitigation credits has more than doubled and the number of mitigation
banks providing wetland credits has increased by 52 percent. The
clarity the Mitigation PM provides will continue to expand
opportunities for the private sector and deliver faster permitting for
permittees.
bipartisan history of mitigation
As noted before, mitigation is not a new idea and mitigation
policies have been implemented for decades by Republican and Democratic
administrations. The concept of mitigation dates back to the 1930s. In
1970, CEQ first defined mitigation in guidance and in 1978, CEQ
established a comprehensive definition of mitigation, which continues
to be used. In 1981, a wildlife mitigation policy was put in place by
the U.S. Fish and Wildlife Service for all non-endangered wildlife and
a White House task force directed agencies to take steps to streamline
and speed Clean Water Act permitting. The 1982 amendments to the
Endangered Species Act allowed non-Federal applicants to impact listed
wildlife after, creating Habitat Conservation Plans that avoided,
minimized, and offset their impacts with beneficial actions elsewhere.
President George H.W. Bush declared a national goal of `no net
loss' of wetlands and later took steps to build that goal into our
Clean Water Act policies, including action taken to establish a
definition of `no net loss.' Wetland mitigation policies continued to
evolve through a series of actions under President Clinton.
George W. Bush's administration launched a series of actions
associated with wetland, endangered species, and public lands
mitigation. An endangered species banking policy--a bank is a site, or
suite of sites, where resources (e.g., wetlands, streams, and habitat)
are restored, established, enhanced, and/or preserved for the purpose
of providing compensatory mitigation for impacts--was created in 2003.
Today there are more than 140 approved endangered species banks.
Under the Clean Water Act in 2008, a joint rule from the Army Corps
and EPA, which was directed by Congress, created similar high standards
for different types of compensatory mitigation. With this compensatory
mitigation policy, the regulations created a clear preference for
restoration in advance of any harm to the environment, providing a
faster and more effective means of permitting, dramatically expanding
the private market of mitigation banks, and helping agencies meet their
restoration goals. Today, there are more than 1,500 approved Clean
Water Act mitigation bank sites across the country.
conclusion
Decades after the first mitigation policies were created, we are
continuing to find innovative ways to effectively avoid, minimize, and
compensate for natural resource damages through market-based tools. The
Presidential Memorandum continues the good government practice of
mitigation by encouraging alignment of agencies' policies to provide a
more streamlined process and reduce permitting time, while improving
environmental outcomes.
Chairman Gohmert, Ranking Member Dingell, and members of the
committee, I appreciate the opportunity to testify before you today and
look forward to answering your questions.
______
Questions Submitted for the Record to Christy Goldfuss, Managing
Director, Council on Environmental Quality
Questions Submitted by Chairman Gohmert
Question 1. The Administration has stated that one goal of this
mitigation policy is consistency across agencies regarding mitigation.
However, officials from CEQ and the Department of Interior told
committee staff during a recent briefing that each agency will define
the parameters of mitigation policy in each of their respective
regulations. Are you concerned that each agency writing its own
parameters or definitions could result in inconsistent parameters or
definitions?
Answer. No. The Memorandum establishes a set of core principles
that should be reflected across the policies of each agency, while
still allowing agencies to develop and implement such policies
consistent with each agencies individual statutory and regulatory
mandates.
Question 2. The Presidential Memorandum directs agencies adhere to
the mitigation hierarchy of avoidance, minimization, and then
compensation, while also telling agencies to ``give preference to
advance compensation mechanisms.'' Does this signify a re-ordering of
the hierarchy that will emphasize compensation over avoidance and
minimization?
Answer. No, the Memorandum re-enforces the long standing mitigation
hierarchy of avoidance, minimization, and then compensation. The
preference for advance compensation mechanisms means a preference for
offsetting foreseeable harmful impacts to natural resources in advance,
when avoidance and minimization cannot be achieved.
Question 3. The memorandum calls for ``large-scale plans and
analysis'' to inform the identification of areas where development may
be appropriate or ``where natural resource values are irreplaceable.''
Does the Administration's budget request include this direction and
what is the estimated cost?
Answer. The Memorandum does not call for large-scale plans and
analysis. Where those plans or analyses are available, it calls for
agencies to take advantage of information that could be helpful to
avoidance, minimization or compensatory mitigation. We believe agencies
often do so already, but sometimes seek to develop new plans rather
than relying on existing information, or that Federal agencies do not
always look for information in non-Federal resources. In particular,
state plans can be valuable in many circumstances and the Memorandum
includes language that encourages Federal agencies to look for useful
information in such non-Federal plans. A positive example of this is
the use of state Greater Sage Grouse plans in informing Bureau of Land
Management plans finalized in 2015.
Question 4. The Presidential Memorandum directs agencies to ``take
advantage of available Federal, state, tribal, local, or non-
governmental large-scale plans'' to guide decisionmaking for
mitigation, including avoidance of irreplaceable natural resources.
Could you provide examples of non-governmental organizations that could
provide such information?
Answer. There are likely quite a number of such plans. During the
development of the Memorandum, CEQ was aware of private sector plans
that already exist and contain useful information about mitigation
priorities, plans and analyses, but we note that the Presidential
Memorandum does not require reliance on any specific resource.
Two examples of a successful existing plan is NiSource Inc.'s large
habitat plan, which covers 15,000 miles of pipeline in 14 states and
The Nature Conservancy's ``Energy by Design'' mapping that has been
produced under contract from the Jonah Interagency Mitigation and
Reclamation Office in Wyoming. Both examples of plans that appear to
contain helpful information that could be used to assist agencies in
identifying how proposed projects may impact natural resources, as well
as to guide better decisionmaking for mitigation.
Question 5. The Forest Service was given 180 days to develop
guidance in response to this Memorandum. Why were they given only 180
days?
Answer. USDA worked closely with the White House and our other
interagency partners on the topic of mitigation, starting with the
Administration's work in making infrastructure permitting process
faster and more transparent. This commitment was developed with USDA;
we are not aware of any concerns they expressed that the timeline was
too fast or slow.
Questions Submitted by Ranking Member Dingell
Ms. Goldfuss did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Question 1. Is it the Administration's position that the private
sector and public sector should compete to provide compensatory
mitigation ``products'' ?
1a. If so, should every provider be held to the same substantive
and procedural requirements?
1b. How do you prevent the so-called ``race to the bottom'' where
providers compete on price by cheapening the quality of their products?
Question 2. The Department of Justice and Department of the
Interior have filed papers with the Federal district court in Texas
describing serious failings in the lesser prairie chicken conservation
program. According to the government's filings, no core area
``stronghold'' habitat has been permanently conserved. None of the
connecting corridors between strongholds have been permanently
protected.
2a. Is the lesser prairie chicken program a model for what the
Administration hopes to do for sage-grouse or other species?
2b. Why is that program so troubled? What needs to be fixed?
Question 3. Is the U.S. taxpayer subsidizing compensatory
mitigation for the energy industry, mining companies or others by
allowing developers or conservation bankers to get ``credit'' for
mitigation that is paid for by the NRCS or other government programs?
3a. How can you prevent double-counting?
3b. For example, how do you know that the lesser prairie chicken
program isn't claiming ``credit'' for conserving areas that already
have protection under NRCS's program in the same areas?
______
Mr. Gohmert. Thank you. At this time, the Chair recognizes
Mr. Bean for his testimony.
You have 5 minutes.
STATEMENT OF MICHAEL BEAN, PRINCIPAL DEPUTY ASSISTANT
SECRETARY, U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF
THE INTERIOR
Mr. Bean. Chairman Gohmert, Ranking Member Dingell, members
of the subcommittee, thank you for this opportunity to testify
today concerning the Department's policies and practices
relating to mitigation and the recent Presidential Memorandum
on that subject.
The Department is committed to facilitating responsible
economic development, both on public lands and elsewhere, while
protecting and conserving both natural and cultural resources.
Effective mitigation practices are key to accomplishing those
dual goals.
As my written statement describes in more detail, the
Department and its constituent agencies--but particularly the
Fish and Wildlife Service--have been given congressionally-
directed mitigation responsibilities as far back as 1934 with
enactment of the Fish and Wildlife Coordination Act. This Act
requires that wildlife conservation receive equal consideration
with other features of water resource development programs.
The Fish and Wildlife Service issued a formal mitigation
policy in 1981. The purpose of that policy was to guide the
implementation of the services and mitigation responsibilities
under the Coordination Act, the National Environmental Policy
Act, and other laws. It remains in effect today.
As my written testimony also details, the experience gained
by our sister agencies, the U.S. Army Corps of Engineers and
the Environmental Protection Agency, under section 404 of the
Clean Water Act, has been very informative for the Department's
ongoing efforts to improve its own mitigation policies. The
mitigation rule published by those two agencies in 2008, in the
Bush administration, dealt thoughtfully and constructively with
a broad array of mitigation issues. It improved the
transparency and predictability of mitigation decisions.
Based on the Department of the Interior's own mitigation
experience, and that of its sister agencies, Interior Secretary
Sally Jewel issued a secretarial order in the fall of 2013 on
improving mitigation practices and policies of the Department.
In that order, the Secretary directed the Department and each
of its bureaus to follow a common set of principles for its
mitigation decisions, and to use a landscape-scale approach to
guide the siting of compensatory mitigation efforts.
Mr. Gohmert. Excuse me. Would you mind moving that
microphone to where you are speaking into it more directly?
That would be very helpful. Thank you.
Mr. Bean. OK, thank you.
The Department policy issued last fall is one of many steps
to be completed in response to the Secretarial Order. That
policy set forth a number of principles to guide mitigation
decisions. Among them were the sequence of avoidance first,
then minimization of impacts, and finally, compensation for
unavoidable impacts should generally be followed. Another was
that all mechanisms for compensatory mitigation should be held
to the same standards. Yet another was that beneficial impacts
of mitigation should endure at least as long as the impacts
being mitigated.
Rather than break new ground, these and other principles
represent best practices gained from decades of experience, and
can be found in policy documents dating back to prior
administrations.
Consistent with Secretarial Order 3330 and departmental
policy, the Department's bureaus are revising their mitigation
policies to ensure that they are responsive to emerging best
practices and compatible with similar policies being developed
by sister agencies and states. The departmental policy was
issued contemporaneously with the issuance by the President of
a Memorandum.
That Memorandum is consistent with and reinforces the
mitigation work already ongoing at the Department, encourages
private investment and restoration for mitigation purposes, and
provides expanded mitigation options for development interests.
The Memo was designed to ensure consistency and transparency as
agencies across the Federal Government develop mitigation
measures. The Department is committed to working
collaboratively and sharing its experience in developing
mitigation measures that provide certainty and predictability
to project proponents.
The Department is continuing its work with partner
agencies, including the Department of Agriculture, to share and
adopt a common set of best practices to create a regulatory
environment that allows us to build the economy while
protecting healthy ecosystems.
In sum, Mr. Chairman, the dual goals of advancing safe and
responsible development, while promoting the conservation of
America's lands and natural resources for generations to come,
can be furthered through intelligent mitigation policies. The
Department is working to ensure mitigation is supplied
consistently, predictably, and effectively, so that permit
applicants and developers can proceed with projects that
achieve their needs, while protecting our Nation's valuable
natural and cultural resources.
Thank you for your interest. I look forward to answering
your questions.
[The prepared statement of Mr. Bean follows:]
Prepared Statement of Michael Bean, Principal Deputy Assistant
Secretary for Fish and Wildlife and Parks, U.S. Department of the
Interior
Chairman Gohmert, Ranking Member Dingell, and members of the
subcommittee, I am Michael J. Bean, Principal Deputy Assistant
Secretary for Fish and Wildlife and Parks at the Department of the
Interior (Department). It is my pleasure to testify before you today
regarding the Department's policies and practices relating to
mitigation and the recent Presidential Memorandum on Mitigating Impacts
on Natural Resources from Development and Encouraging Related Private
Investment.
The Department is committed to facilitating responsible economic
development, both on public lands and elsewhere, while protecting and
conserving the natural and cultural resources that Americans cherish.
Development and conservation are both essential to support a vibrant
and sustainable economy. For decades, the Department has sought to
achieve responsible, balanced development through the application of
mitigation--seeking to first avoid or minimize adverse impacts to
resources of concern though careful siting and innovative design
features, and then to compensate for residual impacts to those
resources though corresponding offsets. In partnership with other
Federal agencies and states, the Department has deployed innovative
mitigation measures to address some of our most significant resource
challenges including large-scale oil and gas development, solar energy
generation, and most recently, the conservation of the greater sage
grouse. The Department has issued policy direction to ensure that
mitigation efforts follow consistent principles and standards
throughout its programs and across all lands, and guidance so that the
Department can better support responsible economic development, in a
manner consistent with both our conservation mission and as the
effective steward of many public lands and resources.
background: a brief history of mitigation policy and practice
The Department has far-reaching management responsibilities across
our Nation's lands and waters. The Department serves as the steward for
20 percent of the Nation's lands, oversees the responsible development
of over 20 percent of U.S. energy supplies, is the largest supplier and
manager of water in the 17 western states, and maintains relationships
with over 500 federally-recognized tribes. Over 400 units of the
National Park System preserve and protect nearly 27,000 historic
structures and more than 700 cultural landscapes as well as nearly
100,000 archeological properties. The Department also oversees national
trails, heritage areas, and sacred sites that intertwine public,
tribal, and private landownership. No less important, the Department is
charged by law to conserve nearly 1,600 endangered and threatened
species, and all of the Nation's migratory bird species.
Given the inherent and sometimes difficult conflicts associated
with the Department's responsibilities for both facilitating
development and conserving the natural and cultural resources of the
Nation's lands and waters, effective mitigation of the impacts of
development is critical in enabling the Department to fulfill its
statutory mandates. Those statutory mandates go back many decades. For
example, the Fish and Wildlife Coordination Act of 1934 included
requirements that were the first formal expressions in law of a duty to
minimize the negative environmental impacts of major water resource
development projects and to compensate for those impacts that
remained--giving birth to the core ideas of what we now label as
environmental mitigation.
The Coordination Act was a response to an era of big dam building
and reflected a concern for the impact of those dams on salmon and
other anadromous fish. As originally enacted in 1934, it required
consultation with the Bureau of Fisheries (as the Fish and Wildlife
Service was then known) prior to the construction of any dam to
determine if fish ladders or other aids to migration were necessary and
economically practical to minimize impacts on fish populations. It
required as well the opportunity to use the impounded waters for
hatcheries to offset impacts that could not otherwise be avoided.
The duties imposed by the Coordination Act were reinforced and
expanded by the National Environmental Policy Act of 1969 (NEPA). Under
NEPA and its implementing regulations, all Federal agencies have a duty
to assess the impacts of the major actions they propose to undertake
and to consider reasonable alternatives to reduce or eliminate those
impacts. The U.S. Fish and Wildlife Service, as the Federal agency
charged by Congress in the Fish and Wildlife Act of 1956 with the
responsibility for management, conservation and protection of fish and
wildlife resources, routinely recommends mitigation measures to other
Federal agencies through the NEPA process.
The experience gained in implementing the Coordination Act and NEPA
informed the promulgation by the Service of a formal mitigation policy
in 1981, a policy still in effect today. The following year, in 1982,
Congress gave a significant new mitigation responsibility to the
Service when it amended the Endangered Species Act (ESA) to authorize
permits allowing the taking of endangered species incidental to
otherwise lawful activities. Before it may issue such a permit,
however, the Service must find that the permit applicant has developed
a conservation plan that will mitigate the impacts of such taking ``to
the maximum extent practicable.'' These habitat conservation planning
provisions of Section 10 of the ESA have proven sufficiently flexible
to provide the basis for permitting both small, single-landowner
development projects and broader regional conservation plans
encompassing multiple projects undertaken by multiple landowners or
project proponents.
Contemporary understanding of mitigation has thus benefited from
decades of scientific advances and experience implementing the National
Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and
other laws, in particular the Clean Water Act (CWA), Section 404 of
which requires a permit from the Army Corps of Engineers for the
discharge of dredged or fill material in wetlands and other waters of
the United States.
improving mitigation effectiveness
Early mitigation efforts had a mixed record of success. That so
many of the anadromous fish populations of the Pacific Northwest are
now in danger of extinction is compelling evidence that the fish ladder
and hatchery solution to the challenge of big dams did not prevent
dramatic resource losses. In addition, an extensive literature \1\
documents the frequent failure of early wetland compensatory mitigation
efforts due to poor siting, inadequate monitoring, lack of long-term
assurances, and other problems. The Corps of Engineers and the
Environmental Protection Agency dealt constructively and broadly with
these issues in a widely praised mitigation rule issued in 2008 by the
previous administration.
---------------------------------------------------------------------------
\1\ Compensating for Wetland losses under the Clean Water Act,
National Research Council (2001).
---------------------------------------------------------------------------
That 2008 rule articulated many of the principles that have been
subsequently incorporated into the Department's policies, improving
consistency, transparency and predictability on how mitigation measures
will be applied. For example, the 2008 mitigation rule ensures a level
playing field among providers of compensation by holding all forms of
compensatory mitigation to equivalent standards regardless of whether
the compensation is provided by a mitigation bank, an in-lieu fee
program, or by the permit applicant. The 2008 rule also focuses on how
and where compensatory mitigation is planned, implemented, and managed
to improve its ecological success and sustainability. The Department's
policy, and bureau policies in development, will reflect and build upon
this extensive history of mitigation as applied under Section 404 of
the Clean Water Act.
In the fall of 2013, Secretary Jewell released Secretarial Order
3330, Improving Mitigation Policies and Practices of the Department of
the Interior. Secretary Jewell directed the Department and each of its
bureaus to follow a common set of principles for its mitigation
decisions and to use a landscape-scale approach to guide the siting of
compensatory mitigation efforts.
The Departmental policy issued last fall was one of many steps to
be completed in response to Secretary's Order 3330, reaffirming the
Department's authority to require and determine the scope of
compensatory mitigation; establishing a goal for the conservation
outcomes of mitigation investments; enumerating standards when
implementing landscape-scale mitigation approaches; and, outlining
responsibilities of bureaus and offices in fulfilling the goals
established in SO 3330. Furthermore, consistent with Secretarial Order
3330 and the Departmental Policy, the Department's bureaus are also
working to revise and finalize their mitigation policies to ensure they
are responsive to emerging best practices and compatible with similar
policies being developed by sister agencies and states.
The Departmental policy was issued contemporaneously with issuance
by the President of a Presidential Memorandum, Mitigating Impacts on
Natural Resources from Development and Encouraging Related Private
Investment. This Memorandum is consistent with and reinforced the
mitigation work already ongoing at the Department, encourages private
investment in restoration and public-private partnerships, and helps
foster opportunities for businesses or non-profit organizations with
relevant expertise to successfully achieve restoration and conservation
objectives across all lands. The Memorandum was designed to ensure
consistency and transparency as agencies across the Federal Government
develop mitigation measures. The Department is committed to working
collaboratively and sharing its experience in developing mitigation
measures that provide certainty and predictability to project
proponents. The Department is continuing its work with partner
agencies, including the Department of Agriculture and the Environmental
Protection Agency, to share and adopt a common set of best practices to
create a regulatory environment that allows us to build the economy
while protecting healthy ecosystems.
As previously noted, concurrent with the release of the
Presidential Memorandum, the Department issued formal policy and
guidance to its bureaus and offices to best implement mitigation
measures associated with legal and regulatory responsibilities and the
management of Federal lands, waters, and other natural and cultural
resources under its jurisdiction, using the best available science and
landscape-scale approaches. The Departmental policy is intended to
improve permitting processes and help achieve beneficial outcomes for
project proponents, impacted communities and the environment. By
implementing this policy, the Department will effectively avoid,
minimize, and compensate for impacts to Department-managed resources
and their values, services, and functions; provide project developers
with added predictability and efficient, timely environmental reviews;
improve the resilience of our Nation's resources in the face of climate
change; encourage strategic conservation investments in land and other
resources; increase compensatory mitigation effectiveness, durability,
transparency, and consistency; and better utilize mitigation measures
to help achieve our goals.
When assessing appropriate mitigation options, the Department
relies upon a long established general mitigation hierarchy--first
seeking to avoid impacts, then minimizing them, and then compensating
for unavoidable impacts that could impair resource functions or values.
The Department works proactively with project proponents to assist them
in designing and siting projects so that proposed projects can have
fewer adverse impacts to resources of concern. For example, for broad-
scale siting, the BLM's Land Use Plan decisions, Rapid Ecoregional
Assessments, and many geospatial files provide a means to identify
areas, at a landscape scale, with little to no resource conflicts and
where siting may result in fewer potential impacts. By avoiding adverse
impacts in the first place, there is no less need to take further
action to minimize or compensate for such impacts. As another example,
the U.S. Fish and Wildlife Service's voluntary Wind Energy Guidelines
provide a structured, scientific process for addressing wildlife
conservation concerns at all stages of land-based wind energy
development. They provide developers with resources to evaluate risk
and make siting and operational decisions, resulting in fewer projects
planned in high risk areas. They also incorporate best management
practices to assist wind energy developers in minimizing impacts to
wildlife resources.
Frequently, however, it is not practical to avoid adverse impacts
altogether. In these cases, the Department works with project
proponents to minimize impacts by altering design features and
implementing best management practices. Finally, the Department may
consider implementing compensatory mitigation to benefit important,
scarce, and sensitive resources when adverse impacts are expected to
remain. Compensatory mitigation is not considered until after all
appropriate and practicable avoidance and minimization measures have
been applied, consistent with the general mitigation hierarchy and the
2008 Mitigation Rule. Together, cooperative work with the applicant and
the implementation of the mitigation hierarchy can lead to successful
development projects with improved outcomes for local communities, the
project proponent, and the environment.
deploying effective mitigation
The principles and approaches described above have been
instrumental in achieving effective mitigation outcomes. For example,
the Department has mitigated project impacts by responsibly siting
solar development through the Western Solar Plan, which established
Solar Energy Zones for development, identified key design features, and
called for regional mitigation strategies to direct compensatory
investments. In March 2014, the BLM released the first of these
regional mitigation strategies for the Dry Lake Solar Energy Zone in
Nevada. This strategy supported the BLM's first ever competitive offer
of public lands for solar energy development, a sale that brought in
$5.8 million in high bids from project developers. By identifying
mitigation responsibilities upfront, the BLM provided increased
certainty to project developers and increased the efficiency of its
public review of these projects. Just recently, employing this
mitigation approach, the Bureau completed this review and approved the
three projects within 10 months, less than half the amount of time
approval took under the previous project-by-project system.
Innovative mitigation approaches are also helping the Department
and 11 western states conserve greater sage-grouse habitat and support
sustainable economic development across the West. This past September,
the U.S. Fish and Wildlife Service concluded that the iconic rangeland
bird did not warrant protection under ESA, due to the collective
efforts by the states, partner agencies, and other partners. The U.S.
Forest Service and BLM issued Records of Decisions finalizing 98 land
use plans to outline a framework for sage-grouse conservation,
including required mitigation for certain impacts to greater sage
grouse habitat and the commitment to collaboratively develop mitigation
strategies with states and partner agencies across the sagebrush
landscape. These collaborative strategies will identify and direct
mitigation investments to protect and restore sage-grouse habitat in
areas of highest value. A similar cooperative partnership in Wyoming
has led to the approval of the first greater sage-grouse mitigation
bank earlier this year.
Similarly, a recent landmark agreement among the U.S. Fish and
Wildlife Service, the BLM, and Barrick Gold of North America in Nevada
established a conservation bank that allows the mining company to
accumulate credits for successful mitigation projects that protect and
enhance greater sage-grouse habitat on the company's ranch lands. As a
result, Barrick gained certainty that the credits from early
conservation actions can be used to offset impacts to habitat from the
company's planned future mine expansion on public lands. The Barrick
agreement sets an important precedent for public-private mitigation
partnerships and a model for the development of advance mitigation
strategies at the Federal and state levels. Moreover, the agreement is
particularly noteworthy because it uses a transparent and repeatable
methodology to measure both project impacts and the benefits of
compensatory actions to offset them.
fostering private investment
There are opportunities for private investment to play an important
role in expanding mitigation options, reducing mitigation costs, and
improving mitigation effectiveness. For example, as long ago as the
1980s, entrepreneurial investors began to recognize that it might be
possible to anticipate and meet future mitigation needs under the Clean
Water Act associated with future transportation projects, commercial
development, or other activities. By restoring or enhancing wetlands in
advance of such projects, they hoped to be able to offer project
proponents a mitigation alternative in the form of purchasing credits
earned for such anticipatory measures. From this recognition the
concept of mitigation banking was born. In brief, a mitigation bank is
a location-appropriate site where natural resources (typically wetlands
or endangered species) are conserved (sometimes after being displaced
at a separate location) and managed in perpetuity for the purpose of
suitably offsetting unavoidable impacts to the same types of resources
elsewhere.
Mitigation banking has come to play a very important role in the
administration of the Clean Water Act. More than 1,400 mitigation banks
have been approved by the Army Corps of Engineers. Details regarding
each of these banks, as well as related ``in-lieu fee'' mitigation
programs are available on the Army Corps of Engineers RIBITs Web site
(RIBITS stands for Regulatory In-lieu fee and Banking Information
Tracking System). According to a 2015 study by the Army Corps'
Institute for Water Resources, 41 percent of the projects for which
compensatory mitigation was required during the period 2010 to 2014 met
those mitigation requirements through the purchase of bank credits.
Another 11 percent did so by using credits from in-lieu fee mitigation
programs. Thus, project proponents clearly perceive these forms of
compensatory mitigation to be preferable to the traditional approach in
which the permittee carries out its own compensatory mitigation action.
Although there are many fewer endangered species mitigation banks, such
banks are becoming increasingly common for compliance with ESA as well.
Building on the Department's commitment to mitigation and public-
private partnerships, and as a part of the President's Build America
Investment Initiative, Secretary Jewell announced the establishment of
the Natural Resources Investment Center (Center) to spur partnerships
with the private sector to develop creative financing opportunities
that support economic development goals while advancing our resource
stewardship mission. The Center will facilitate this effort by building
on current activity to incentivize private investments in the
infrastructure and conservation of water, species, habitat, and other
natural resources. The Center will use market-based tools and
innovative public-private collaborations to increase investment in
water conservation and critical water infrastructure, as well as
promote investments that conserve important habitat in a manner that
advances efficient permitting and meaningful landscape-level
conservation.
The Center will harness the expertise of the Department's bureaus,
including the Bureau of Reclamation, U.S. Fish and Wildlife Service,
Bureau of Land Management, National Park Service, Bureau of Indian
Affairs and U.S. Geological Survey, and will tap external private
sector experience to deliver on its objectives. The Center would be a
critical tool for outreach and ingenuity, ensuring that the policy
frameworks and projects the Department is undertaking not only
accommodate the various market forces at play, but act as incentives
for market investment in restoration and conservation.
conclusion
In closing, Mr. Chairman, advancing safe and responsible
development and promoting the conservation of America's Federal lands
and natural and cultural resources for generations to come is a shared
responsibility for all of us. The Department is working to ensure
mitigation is applied consistently, predictably, and effectively, so
that permit applicants and developers can proceed with projects that
achieve their need while protecting our Nation's valuable natural and
cultural resources.
Thank you for your interest and for the opportunity to testify
today, I am happy to answer any questions.
______
Questions Submitted for the Record to Michael Bean, Principal Deputy
Assistant Secretary, U.S. Fish and Wildlife, U.S. Department of the
Interior
Questions Submitted by Chairman Gohmert
Question 1. Once your agency's regulations for the implementation
of the Memorandum go into effect, will those projects who are in the
midst of the permitting process be required to resubmit or revise their
project plans to meet the ``net benefit/no net loss'' standard
retroactively?
Answer. As directed by the Memorandum, the U.S. Fish and Wildlife
(Service) and Bureau of Land Management (BLM) are revising and
developing mitigation policies. Neither agency is undertaking
rulemaking related to this issue.
Section 3.3 of the Service's proposed revised mitigation policy
(March 8, 2016; 81 FR 12380-12403) states:
``This policy does not apply retroactively to completed actions
or to actions specifically exempted under statute from Service
review. It does not apply where the Service has already agreed
to a mitigation plan for pending actions, except where: (a) new
activities or changes in current activities would result in new
impacts; (b) a law enforcement action occurs after the Service
agrees to a mitigation plan; (c) an after-the-fact permit is
issued; or (d) where new authorities, or failure to implement
agreed-upon recommendations warrant new mitigation planning.
Service personnel may elect to apply this policy to actions
that are under review as of the date of its final
publication.''
If the Service has agreed to a mitigation plan, and none of the
exceptions listed above apply, the Service will not request that
project proponents submit revised project plans to be consistent with
the revised policy.
The BLM released interim policy on mitigation in 2013, which
encompasses many of the same principles as the Memorandum. Even though
the BLM maintains the discretion to consider revised or additional
mitigation requirements at most points in the permitting process, in
order to uphold the statutes and regulations that guide its actions,
the BLM anticipates that only a small minority of projects that they
authorize would receive renewed attention on mitigation due to the
Memorandum or the finalized BLM mitigation policy. In these rare cases,
the BLM would not require the project proponent to revise their plans;
rather, it is likely that the BLM would analyze different mitigation
requirements in action alternative(s) in the applicable National
Environmental Policy Act (NEPA) analysis.
Question 2. If a project has been approved, begun construction or
operation, and has mitigation measures in place already by the time
agency rules and regulations are enacted, will those mitigation
measures have to be revised or supplemented to meet the ``net benefit/
no net loss'' standard?
Answer. Under the Service's proposed revised mitigation policy, if
a project has been approved and mitigation measures are in place, the
Service would not revise or supplement a project's mitigation measures
unless one of the exceptions applies, as described in section 3.3 of
the proposed policy (described above in response to Question 1).
For the BLM, if a project has been approved and mitigation measures
are in place, mitigation measures would not be revised or supplemented
for that authorization. If additional authorizations are necessary for
a project, then there is a possibility that new mitigation measures
would be required, subsequent to applicable NEPA analysis.
Question 3. The Memorandum requires agencies to ``set measurable
performance standards'' to assess the effectiveness of mitigation. How
will you implement this, and what kind of performance standards are
your agencies likely to enact?
Answer. The Service's proposed revised mitigation policy states
that mitigation options delivered through any compensatory mitigation
mechanism should include, among other things, performance standards to
determine whether the measure has achieved its intended outcome.
Compensatory mitigation recommendations and requirements will include a
provision for the development of a mitigation plan or equivalent that
specifies: measurable objectives; effectiveness monitoring; additional
adaptive management actions as may be indicated by monitoring results;
and reporting requirements. In this context, agencies will establish
measurable objectives and use monitoring to assess if those objectives
are being met. Adaptive management will be used to adjust the
mitigation as needed to meet the specified objectives, and agencies
will track the effectiveness of the mitigation through reports
submitted by those carrying out the mitigation.
The proposed revised mitigation policy is intended to be an
umbrella policy under which the Service may issue more detailed
policies or guidance documents covering specific activities in the
future. For example, as specified in section 4(c) of the Memorandum,
the Service will finalize a policy focused on compensatory mitigation
processes under the Endangered Species Act. Standards presented in that
policy, when published for public comment, will align with standards in
the Memorandum and the proposed revised mitigation policy.
For the BLM, performance standards are an important part of
ensuring that mitigation is effective in achieving its outcomes.
Performance standards help the BLM interpret monitoring data on
mitigation measure to know if the outcomes are being achieved. These
performance standards will vary by resource and by project and will
generally be based on the BLM's understanding of the impacts to the
resource that warranted mitigation and the desired condition for the
resource. The performance standards will typically be identified
through NEPA analysis, decision documents, and/or in the term and
conditions of land use authorizations.
Question 4. The Memorandum states that ``agencies should give
preference to advance compensation . . . prior to harmful impacts of a
project.'' Many times third parties get involved in these situations
and litigate permits from ever existing. What will paying up front,
before any impact even occurs, do to provide certainty for an
organization seeking a permit?
Answer. Mitigation implemented in advance of impacts through the
use of mitigation banks is based on demonstrated achievement of project
goals and therefore reduces the risk and uncertainty inherent in
compensatory mitigation. Mitigation that is successfully implemented in
advance of impacts provides ecological and regulatory certainty that is
rarely matched by a proposal of mitigation to be accomplished
concurrent with, or subsequent to, the impacts of the actions. It is
for these reasons that the 2008 compensatory mitigation rules under the
Clean Water Act give preference to the use of mitigation bank credits
over other forms of mitigation. Timely and high-quality compensatory
mitigation provides greater assurances that mitigation will be
successful and reduces legal risks. In addition, in authorizing
mitigation using shared common principles, agencies act with greater
consistency, which also reduces litigation risks.
Questions Submitted by Ranking Member Dingell
Question 1. Your testimony emphasizes the Department's desire to
promote competition among different providers of mitigation offsets,
and to have a level playing field for all the providers.
1a. What problems have you encountered in creating fair markets so
far?
Answer. A critical barrier to creating consistent and equivalent
markets for compensatory mitigation for resources managed by the
Department has been the lack of comprehensive policy and guidance in
this area. While the Department has always been committed to hold
mitigation providers to equivalent standards and ensure a level playing
field, doing so has been challenging without comprehensive policy or
guidance to our field staff.
Applications for permits and authorizations typically come into
specific field offices. While these offices work to ensure mitigation
requirements are consistent across other field offices in similar
ecosystems or landscapes, further policy and guidance will be helpful.
The Department has spearheaded several actions to create more
consistency and equivalency when permitting, including work to
establish consistent mitigation policies across bureaus, particularly
the Fish and Wildlife Service and the Bureau of Land Management, and
efforts to use landscape-scale planning (such as sage grouse
conservation, Solar Energy Zones, among others). Planning at landscape-
scales allows bureaus to work with stakeholders and industry to
transparently identify likely impacts of future projects, and better
characterize the rules-of-the-road for compensatory mitigation
requirements. Such work is then used to help make more transparent
decisions at the project scale, and promote markets for mitigation
providers that are fairer, more accessible, and less risky.
1b. Are there specific steps you anticipate taking to make sure
that your program doesn't create de facto monopolies for particular
agencies or investors or organizations?
Answer. The Department's mitigation policies are all directed at
creating equivalent markets for mitigation providers and ensuring the
best compensatory mitigation possible for impacted resources. The
Department recently released a Departmental Manual (DM) on Implementing
Mitigation at the Landscape-scale (600 DM 6), which states ``to
implement effective and consistent compensatory mitigation measures,
bureaus and office should: (a) hold all mechanisms for compensatory
mitigation (e.g. mitigation banks, in-lieu fee programs, permittee-
responsible mitigation, and others) to high, and equivalent standards .
. .''
Using equivalent standards reinforces the policy that the
Department is not in the business of bolstering one type of
compensatory mitigation provider over another. Rather we are most keen
on developing a level playing field for all mitigation providers, and
in ensuring the best compensatory mitigation possible for impacted
resources.
The DM further elaborates on the equivalency between compensatory
mitigation providers by stating that all providers must, at a minimum,
be held to 13 identified standards. The use of stated standards
furthers the equivalency, consistency, and efficiency of the permit
process. These standards are also identical to the standards identified
and used by the highly regarded mitigation framework developed by the
Army Corps of Engineers and the Environmental Protection Agency for
Section 404 of the Clean Water Act (CWA 404). Any forthcoming
mitigation policies from the Department's bureaus and offices will also
use these standards.
1c. Should government agencies or private investors or NGOs or
maybe other parties be given some kind of preference in order to make
the market competitive or to ensure the most successful conservation
results or should everyone play by the same rules?
Answer. As noted above, all mitigation providers should play by the
same rules and we will use consistent, equivalent standards to ensure a
level playing field. With that said, Department and bureau policies do
provide a stated preference for mitigation conducted in advance of
project impacts (known as `advance mitigation'). If bureaus can
document actions by mitigation providers that deliver an additional
benefit to targeted resources (through restoration and/or protection),
such actions can be certified as a mitigation credit. These credits can
then be sold to project developers in need of such restoration and/or
protection, in advance of allowable impacts from their projects. Any
mitigation provider who can deliver advance mitigation (and adhere to
the aforementioned standards) is eligible for this type of preference.
The Department and bureau policies provide a preference to this
form of compensatory mitigation, as advance mitigation benefits (1) the
impacted resource by reducing or eliminating the time lag between the
impact and the uplift, and (2) the project developers by allowing them
to purchase credits rather than conduct the compensatory mitigation
themselves, thereby saving time and money. Again, this model of a
stated preference for advanced mitigation is consistent with the
mitigation requirements of CWA 404.
______
Mr. Gohmert. Thank you very much.
At this time, Mr. Ferebee, you are recognized for 5
minutes.
STATEMENT OF BRIAN FEREBEE, ASSOCIATE DEPUTY CHIEF, NATIONAL
FOREST SYSTEM, U.S. DEPARTMENT OF AGRICULTURE
Mr. Ferebee. Chairman Gohmert, Ranking Member Dingell, and
members of the committee, thank you for the opportunity to
discuss the efforts of the Forest Service to mitigate the
recent Presidential Memorandum on Mitigation.
The Forest Service's goal is to enable responsible economic
development on National Forest System lands, while protecting
natural and cultural resources. Our laws, including the Organic
Act and the Multiple-Use Sustained-Yield Act, authorize the
Agency to appropriately minimize effects from the use of
National Forest System lands and to sustain goods and services
the public receive from those lands.
The Forest Service currently works with proponents and the
public to identify and mitigate impacts to a broad range of
resources from activities on National Forest System lands. We
first look to avoid impacts, then minimize impacts, and
finally, to compensate residual impacts to the important
resources. This is known as implementing the mitigation
hierarchy. We proactively work with proponents in the design
and siting phase in order to reduce adverse impacts to
resources.
If adverse impacts can be avoided, no further mitigation
actions are necessary. However, sometimes it is not practical
or possible to avoid adverse impacts, and we work with
proponents to minimize impacts to the extent practicable. Only
at that point, do we consider compensatory mitigation to
address remaining impacts to important or sensitive resources.
In that case, the Agency identifies appropriate mitigation
actions through project review and engagement with other
Federal agencies, states, tribes, the proponent, and the
public.
We have found that proactive work with the proponent in the
implementation of the mitigation hierarchy can lead to
successful projects with improved outcomes for local
communities, the proponent, and the National Forest System.
While individual units of the Forest Service have been
successful in developing and implementing proponent-driven
projects that involve compensatory mitigation, the Forest
Service, overall, does not have as much experience as other
agencies. The Presidential Memo calls for the Forest Service to
develop policy on mitigation. The direction provides an
opportunity for my agency to learn from past experiences and
develop a consistent systematic approach to mitigation in the
future.
As public input is important when developing new policies
and procedures, we will engage our stakeholders, including the
proponents, as we move forward.
We are also focusing on learning from those with extensive
expertise in this area, including Federal agencies, states,
tribes, and non-profits. A new Agency policy will help us make
our implementation of the full suite of mitigation options more
consistent, predictable, and effective.
Thank you for the opportunity to present this testimony to
you today, and I look forward to answering any of your
questions.
[The prepared statement of Mr. Ferebee follows:]
Prepared Statement of Brian Ferebee, Associate Deputy Chief, National
Forest System, U.S. Department of Agriculture
Thank you for the opportunity to discuss the efforts of the
Department of Agriculture, specifically the Forest Service, to
facilitate responsible economic development on National Forest System
(NFS) lands while protecting the natural and cultural resources that
Americans enjoy. The Forest Service has sought for many years to avoid
or minimize impacts of projects on NFS land through careful siting and
innovative design features. These steps include measures to reduce and
compensate for the effects of hydropower projects on fish and wildlife
and clearing agreements with electric utilities to reduce the risk of
fires within utility corridors. Our best practices incorporate criteria
to avoid and minimize adverse impacts, to the extent possible, and
consider compensation to address residual impacts to provide certainty
and transparency to our partners. The Forest Service is working to
develop a science-based agency policy to provide a consistent approach
to mitigation. A mitigation policy following established and consistent
principles and standards throughout our programs will continue to
enhance responsible economic development on public lands in accordance
with our multiple use mandate.
background
The Forest Service manages 193 million acres of national forests
and grasslands in 44 states and Puerto Rico. The Forest Service manages
occupancy and use of the NFS lands. In so doing, NFS lands support the
production of goods and services that create jobs and promote economic
development in communities across most of the 50 states. Activities on
Forest Service lands contribute more than $36 billion to America's
economy and support nearly 450,000 jobs.\1\
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\1\ USDA Forest Service, March 2013. Chief Tidwell comments before
the House Committee on Agriculture, Subcommittee on Conservation,
Energy and Forestry, March 13, 2013; and National Visitor Use
Monitoring Results USDA Forest Service National Summary Report (data
collected FY 2007 through FY 2011).
---------------------------------------------------------------------------
Under the Organic Administration Act of 1897 and the Multiple-Use
Sustained-Yield Act of 1960, the Secretary of Agriculture has the
authority and responsibility to protect and manage the renewable
surface resources of the National Forest System for outdoor recreation,
range, timber, watershed, and wildlife and fish purposes. In defining
multiple use and sustained yield, Congress called for ``harmonious and
coordinated management of the various resources, each with the other
without permanent impairment of the productivity of the land'' and for
``achievement and maintenance in perpetuity of a high-level annual or
regular periodic output of the various renewable resources of the
National Forests without impairment of the productivity of the land.''
\2\ In the National Forest Management Act, Congress required the Forest
Service to develop land management plans, which provide for multiple
uses and the diversity of plant and animal communities, and that
permits and contracts for the use of National Forest System lands be
consistent with those land management plans.\3\ These laws and
associated regulations authorize the agency to minimize effects on
surface resources, as appropriate, for occupancy and use of NFS lands.
---------------------------------------------------------------------------
\2\ Multiple-Use Sustained-Yield Act of 1960, Public Law 86-517.
\3\ National Forest Management Act, 16 U.S.C. Sec. 1604(g)(3), (i).
---------------------------------------------------------------------------
Executive Order 13604 (March 28, 2012), titled Improving
Performance of Federal Permitting and Review of Infrastructure
Projects, requires all Federal agencies to take all steps within their
authority, consistent with available resources, to execute Federal
permitting and review processes with maximum efficiency and
effectiveness, ensuring the health, safety, and security of communities
and the environment while supporting vital economic growth. Mitigating
impacts on natural resources is an integral part of this streamlining
process.
On November 3, 2015, President Obama issued a Presidential
Memorandum titled ``Mitigating Impacts on Natural Resources from
Development and Encouraging Related Private Investment.'' The
Memorandum set a national policy 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. The Memorandum
will be implemented through agency policies addressing adverse impacts
on natural resources by avoiding and minimizing impact, and then
compensating for those impacts that do occur. The objective of these
efforts is to ensure clarity, improved transparency, and consistency
for proposed activities affecting landscapes. The Forest Service
intends to promote uniform mitigation practices. Those efforts include
improving information sharing and mitigation support tools by working
with other Federal agencies, states, tribes, and partners to identify
and share information in order to define natural resources baselines
and monitor the effectiveness of mitigation actions.
Building on past experience with mitigation, in June the Chief of
the Forest Service directed agency staff to develop a working group and
explore a Forest Service mitigation framework, consistent with other
agencies.
The Forest Service currently works with project proponents and the
public to identify and mitigate impacts to the broad range of resources
on NFS lands. Where Congress has issued explicit direction for the
protection of certain resources, including wetlands, endangered
species, cultural resources, national parks, and air quality, the
Forest Service works closely with partner agencies to ensure that
appropriate mitigation is identified and implemented. For proposed
projects on NFS lands, the Forest Service identifies appropriate
mitigation actions during project design based on agency policy,
applicable land management plans, and through review and engagement
with states, tribes, and the public. When assessing appropriate
mitigation options, the Forest Service first seeks to avoid impacts,
then minimize them, and then compensate for such impacts where
avoidance is not practicable. The Forest Service seeks compensation for
unavoidable impacts that could impair the productivity of the land and
the values it sustains. The Forest Service works proactively with
proponents in designing and siting projects in order to propose
projects with reduced adverse impacts to resources. If adverse impacts
can be avoided, no further actions to minimize or compensate are
necessary. At times, it is not practical or possible to avoid adverse
impacts altogether. In these cases, the Forest Service works with
project proponents to minimize impacts by modifying project design
features. Finally, the Forest Service may consider compensatory
mitigation. Proactive work with the project proponent and affected
communities, and the implementation of the mitigation hierarchy, can
lead to the implementation of successful development projects where the
priorities of all citizens are considered.
implementing effective mitigation
For decades the Forest Service has used mitigation to allow
responsible development to proceed while minimizing damage to
resources. For example, the Agency worked cooperatively with Washington
State Department of Transportation, Federal Highways, and a number of
other Federal and state agencies and tribes to mitigate the
redevelopment of Interstate 90 through the Okanogan-Wenatchee National
Forest. The goals of the project were to improve safety, reduce
avalanche closures, stabilize slopes, increase capacity, replace
pavement, and enhance wildlife connectivity. Through collaborative
efforts with the agencies, tribes, and the public, mitigation was
incorporated into the project design. This included wildlife and
aquatic crossings, minimizing the highway footprint, preserving habitat
through acquisition of land in critical wildlife corridors, restoring
wetland, floodplain, and upland forest, and long-term wildlife
monitoring.
Similarly, the Forest Service has worked with the Boeing Company,
the city of Charleston (SC), the U.S. Army Corps of Engineers, the
Nature Conservancy and the Open Space Institute to purchase and restore
a large inholding in the Francis Marion-Sumter National Forest. This
purchase and restoration will compensate for wetlands filled by Boeing
at the Charleston airport in order to construct an airplane painting
plant. This is an example of how compensatory mitigation can produce
jobs as well improve the health and resiliency of natural resources.
The Forest Service is currently working to create a mitigation
policy that incorporates best practices and is compatible with similar
policies developed by other Federal agencies and states. We intend to
issue initial direction as described in the Presidential Memorandum
this year with the goal of refining it in subsequent years.
conclusion
The Forest Service has a proven track record of using sound science
and data in applying mitigation to support responsible development,
conserve and restore important resources, and move forward with efforts
to make our implementation of the full suite of mitigation options more
consistent, predictable, and effective. Thank you for the opportunity
to present this testimony, and I would be glad to answer any questions.
______
Questions Submitted for the Record to Brian Ferebee, Associate Deputy
Chief, National Forest System, U.S. Department of Agriculture
Questions Submitted by Chairman Gohmert
Question 1. Once your agency's regulations for the implementation
of the Memorandum go into effect, will those projects who are in the
midst of the permitting process be required to resubmit or revise their
project plans to meet the ``net benefit/no net loss'' standard
retroactively?
Answer. The Forest Service has actively incorporated mitigation in
its decisionmaking for many years, primarily through avoidance and
minimization. The Agency has not had a formal national policy
clarifying its intent and approach to mitigation. Currently, the Agency
is developing such a policy and will release a draft for public
comment. The Agency anticipates that the draft policy will provide that
projects for which the Agency has formally initiated the decisionmaking
process before the policy is finalized will not be affected by the
policy unless the proponent chooses to modify the proposal to an extent
that would necessitate restarting the process. Therefore, the Agency
anticipates that its policy will be designed to operate prospectively
and not affect projects or activities with existing contracts, permits
or other legal instruments.
Question 2. If a project has been approved, begun construction or
operation, and has mitigation measures in place already by the time
agency rules and regulations are enacted, will those mitigation
measures have to be revised or supplemented to meet the ``net benefit/
no net loss'' standard?
Answer. Currently, the Forest Service actively incorporates
mitigation in its decisionmaking and project approval process. In its
draft policy, the Agency anticipates clarifying that projects that the
Agency has approved before the policy is finalized would not be
affected by the policy unless the proponent chooses to make
modifications that would require a new Agency approval.
Question 3. The Memorandum requires agencies to ``set measurable
performance standards'' to assess the effectiveness of mitigation. How
will you implement this, and what kind of performance standards are
your agencies likely to enact?
Answer. The Forest Service is reviewing its existing authorities,
regulations, and policies in light of the Presidential Memorandum and
developing a formal mitigation policy. We will also be engaging with
the public to get input. As part of this process, the Agency will be
identifying its approach to assessing the effectiveness of mitigation
and the development of performance standards. The Forest Service has
used performance standards in many contexts for some time, including in
implementation of the 2012 land management planning rule. We anticipate
that the performance standards for mitigation would be similar to those
in the 2012 planning rule.
Question 4. The Memorandum states that ``agencies should give
preference to advance compensation . . . prior to harmful impacts of a
project.'' Many times third parties get involved in these situations
and litigate permits from ever existing. What will paying up front,
before any impact even occurs, do to provide certainty for an
organization seeking a permit?
Answer. The Forest Service is reviewing its existing authorities,
regulations, and policies in light of the Presidential Memorandum and
developing a formal mitigation policy. We will also be engaging with
the public to get input. As part of this process, the Agency will be
identifying its approach to advance compensation.
That being said, the Forest Service anticipates that mitigation for
most projects will be addressed through the first two steps in the
mitigation hierarchy--avoidance and minimization. For many years, the
Agency has worked with proponents, other agencies with jurisdiction,
and the public up front to identify and mitigate impacts from proposed
projects consistent with existing authorities and valid existing
rights. For those large proponent-driven projects that result in
residual impacts to critical resources, some type of compensatory
mitigation may be appropriate. In those cases, utilizing an advance
compensation mechanism could help streamline the decisionmaking
process. For example, in cases where compensatory mitigation is needed
and private sector wetland and stream mitigation banks can provide
those offsets in advance, U.S. Army Corps of Engineers data shows
permitting averages 50 percent faster than compensatory actions taken
on the site by the permittee themselves.
The Forest Service has participated in a number of multi-agency
projects where up front coordination and planning has resulted in
streamlined approvals. A recent, high-profile example, would be the
redevelopment and enhancement of the Interstate 90 corridor across
Snoqualmie Pass discussed in our written testimony. The Forest Service
worked cooperatively with Washington State Department of
Transportation, Federal Highway Administration, and a number of other
Federal and state agencies and tribes to mitigate the unavoidable
impacts from the redevelopment of Interstate 90 through the Okanogan-
Wenatchee National Forest. Through collaborative efforts with the
agencies, tribes, and the public, mitigation was incorporated into the
project design and the project is currently being implemented.
Question 5. How is the Forest Service responding to the
Memorandum's requirement to produce new guidance for regulations within
180 days, and what is the status of your task?
Answer. The Forest Service is reviewing its existing authorities,
regulations, and policies in light of the Presidential Memorandum and
developing a mitigation policy. We will also be engaging with the
public to get input. The Forest Service anticipates that it will be
able to propose a mitigation policy for public comment late this
spring.
Question 6. How does the Forest Service view this mission to
support private investment in restoration? The memo directs the Forest
Service to ``strengthen mitigation polices.'' How is the Forest Service
deficient in current policies?
Answer. For many years, the Forest Service has engaged in voluntary
and contractual partnerships with tribes, states, Federal agencies,
nonprofits, businesses, and communities to promote and achieve mutual
goals and build skills, knowledge, and relationships that provide the
foundation for future work together. Coordination and communication
with partners has been at the forefront of Forest Service response to
its land management mission. Collaborative efforts, including
supporting private investment in our National Forests and Grasslands,
is a cornerstone in the Forest Service's successful management. The
Forest Service has practiced avoidance and minimization--the first two
steps in the mitigation hierarchy--in local unit administrative
activities and in authorizing uses of National Forest System lands. In
addition, for large infrastructure development projects (e.g.,
powerlines, pipelines, major dams, etc.), the Agency has also
occasionally included compensatory mitigation--the last step in the
mitigation hierarchy--when there were unavoidable residual impacts to
critical resources. However, the Agency has not had a national
mitigation policy. The Presidential Memorandum has helped the Agency
begin to develop a more systematic approach to mitigation with the goal
of improving efficiency and clarity in decisionmaking while maintaining
the multiple uses and sustained yield of goods and services from
National Forest System lands.
Question 7. Does the Forest Service see a need to increase
participation in advance compensation or compensatory mitigation in
order to fulfill its mission? Could you explain how this memo impacts
the sort of projects that the Forest Service permits?
Answer. For decades the Forest Service has used mitigation to allow
responsible development to proceed while minimizing damage to resources
and sustaining the yield of goods and services the public expects from
National Forest System lands. The Forest Service has generally focused
on the first two steps of the mitigation hierarchy (avoid and
minimize). Compensatory mitigation has occasionally been used for
large-scale, proponent driven projects when there are unavoidable
impacts to critical resources. For these types of projects, the Forest
Service generally works with other Federal or state agencies (e.g.,
Federal Highway Administration or a state department of transportation
for a highway project, FERC for a pipeline). The Agency does not
anticipate changing this approach with a new national policy.
______
Mr. Gohmert. Thank you, Mr. Ferebee. At this time, I will
begin the questions for 5 minutes.
Ms. Goldfuss, the Memo in issue here today tells agencies
to use landscape and watershed-scale planning when considering
mitigation. How do you plan to define what constitutes Federal
landscape or watershed?
Ms. Goldfuss. Thank you, Mr. Chairman, for the question.
Let me just start out by saying that it is not the intention of
the Memo to define these actions. A memo is a tool to organize
the activity across existing statutes.
Mr. Gohmert. OK. Well----
Ms. Goldfuss. There are several stages----
Mr. Gohmert [continuing]. The question was how were we
going to define it?
Ms. Goldfuss. That would be a question that my colleagues
could answer for you, because it will be based on their
existing statutes.
Mr. Gohmert. So, you send out the Memo, and you use the
terms, ``landscape'' and ``watershed''; and you are going to
let everybody who gets the Memo define those the way they want
to, seriously?
Ms. Goldfuss. A Presidential Memo is a non-binding
agreement. This is simply the President's communication with
his agencies on what he sees as priorities.
Mr. Gohmert. Well, see, that is one of the concerns that
some of us have. Normally, and especially from someone that has
handled felony cases for years, we want specificity in the law,
so we know the limits of the government, the limits of where it
is going. When we see vague, ambiguous language, or words that
have not been defined in the law, and there seems to be an
abundance of those type of words, it seems like sometimes, in
this Administration, people are looking for words that have
never been legally defined, so that the sky can be the limit.
That is one of the concerns here with the use of
``watershed'' and ``landscape.'' Whose landscape are we talking
about? What extent of landscape are we talking about? And, the
fact that you would lay it off on the other agencies causes me
even more concern, because, holy cow, you are not being finite
in what you are designating in your Memo should be done.
When you leave it to each agency to just brainstorm and
come up with what you think the watershed or the landscape--
what does it feel like today? Maybe one agency feels one way
one day, and differently the next. I would suggest that if you
are going to use language that is vague, ambiguous, and not
otherwise legally defined, then somebody needs to define it
before you send instructions out to the agencies.
Was the purpose, Ms. Goldfuss, to make it intentionally
obtuse, so that people would use their own definition and,
perhaps, go beyond the normal Federal limits?
Ms. Goldfuss. No, a Presidential Memo cannot do that. In
this case, there are several different statutes, like FLPMA and
the Forest Management Planning Rules----
Mr. Gohmert. OK, but in any of those statutes do they use
the term ``Federal landscape'' or ``watershed'' in describing
what should be considered for mitigation?
Ms. Goldfuss. The statutes have definitions that vary. It
is up to each agency to look at their own statutes and
regulations for those definitions.
Mr. Gohmert. So, when this Memo is constructed, you are
telling me you do not want to be bound by any statutes or laws;
you want to just go ahead and start fresh and create a new
horizon? That is what it sounds like. That is really scary for
people that are concerned about the over-reach of the
government.
Ms. Goldfuss. It is just not possible to use a memo like
this to have that over-reach. It is bound by existing laws that
Congress passed, and that these agencies institute the
regulations to carry it out. So, it is not possible, and a memo
does not have that binding legal authority that you are----
Mr. Gohmert. The Memo calls for ``large-scale plans and
analysis'' to inform the identification of areas where
development may be appropriate or ``where natural resources
values are irreplaceable.'' Does the Administration's budget
request include this direction? What is the estimated cost?
Ms. Goldfuss. I cannot answer that for you, I am sorry. I
can take that back and see what we have.
But that definition of irreplaceable is----
Mr. Gohmert. Well, who came up with those words?
Ms. Goldfuss. Yes. And once again, this is a memo directed
to our agencies----
Mr. Gohmert. Who came up with the words, is the question.
Ms. Goldfuss. Oh, who came up with the words?
Mr. Gohmert. Who came up with the words?
Ms. Goldfuss. Well, CEQ, along with the agencies, our role
is to coordinate across these agencies to see what their best
practices are. And through that work, which really started in
an effort to streamline infrastructure permitting, we have been
convening the agencies for quite some time. As we went through
that process, we learned a lot about what are the best
practices, and that is what we put in this Memo.
Mr. Gohmert. So----
Ms. Goldfuss. So, that is where the words came from.
Mr. Gohmert [continuing]. They are the ones that previously
used the terminology I have been asking about. You got it from
these other agencies, put it in your Memo, and nobody has
accurately defined that. Is that what I am hearing?
Ms. Goldfuss. Once again, I would say it is up to each
agency that has a mitigation policy----
Mr. Gohmert. Well, that was not the question.
Ms. Goldfuss [continuing]. To define the terms based on
their statues.
Mr. Gohmert. It is where the language came from. My time
has expired for this round. At this time I would recognize the
Ranking Member for questions.
Mrs. Dingell. Thank you, Mr. Chairman. I want to go back to
what you were talking about in a little while, but I want to
get some things on the record.
Someone asked Mr. Bean some questions. I do think that we
all agree that we want to see all of the agencies work together
better; and, I think there is a strong foundation of law that
this Memorandum was based on. So, I want to ask some questions
so we can see where we are getting.
In general, Mr. Bean, will the need for mitigation from the
development of natural resources on public lands result in a
project being stopped?
Mr. Bean. No, it will not. It will facilitate----
Mrs. Dingell. Can you speak louder, so we can all hear you,
please?
Mr. Bean. Sorry. The answer is no. It will facilitate
projects going forward.
Mrs. Dingell. So it actually could speed something up?
Mr. Bean. Yes. Yes, ma'am.
Mrs. Dingell. In general, does the use of mitigation best
practices, in a natural resource management context, as called
for in the Presidential Memorandum, increase or decrease the
chances that a project will have an adverse ecological impact?
Mr. Bean. It decreases those changes by minimizing and
avoiding those impacts.
Mrs. Dingell. Does the use of mitigation best practices
increase or decrease the chances that a species gets listed
under the Endangered Species Act as threatened or endangered?
Mr. Bean. It should decrease that chance because, again, it
avoids or minimizes adverse impacts that would otherwise
contribute to endangerment.
Mrs. Dingell. Does the use of mitigation best practices
increase or decrease certainty for developers, mining
companies, oil and gas companies, and other resource users?
Mr. Bean. The purpose and intended effect of this is to
increase certainty, increase predictability, and increase
transparency.
Mrs. Dingell. Does the use of mitigation best practices
increase or decrease costs and time associated with uncertainty
and lack of flexibility for developers, mining companies, oil
and gas companies, and other resource users?
Mr. Bean. As I believe you indicated in your opening
statement, it has been shown to decrease time and cost in the
Clean Water Act context under the section 404 permits.
Mrs. Dingell. When industry is expected to mitigate impacts
to natural resources from development on public lands, does
that increase or decrease the chances taxpayers will be left
with the bill for restoring those lands and other resources?
Mr. Bean. It decreases the chance and adheres to the
polluter-pays principle.
Mrs. Dingell. So, Mr. Bean and others there, if I am
hearing right, mitigation is not a road block to the
development of our public resources at all; it is a tool to
help ease that development and balance it with conservation
goals. Mitigation creates a certainty for developers, it
decreases the likelihood of an Endangered Species Act listing,
and it decreases damage to lands, while protecting taxpayers
and the public lands that they cherish.
This sounds like a win-win to me for everybody, for the
environment, for the developers and the business community, and
a win for the American people. So, let me go to another
question.
Mr. Bean, the Department of Justice and the Department of
the Interior have filed papers with a Federal district court in
Texas describing failings in the lesser prairie chicken
conservation program. According to the filings, no Corps area
of stronghold habitat has been permanently conserved. None of
the connecting corridors between strongholds have been
permanently protected. Why is that, and what needs to be fixed?
Mr. Bean. Representative Dingell, I do not have the facts
at my disposal for that question, but I would note one thing
about that lesser prairie chicken conservation plan, which the
state of Texas and four other states are party to. I would note
that that plan incorporates many of the principles reflected in
the President's Memorandum. It is a landscape-scale plan, by
which I mean it encompasses the entirety of the range of the
lesser prairie chicken across those five states, it provides a
consistent transparent science-based methodology for
determining mitigation requirements, mitigation is to be done
in advance of impacts, mitigation is to be durable with those
impacts, and it aims to achieve a net conservation gain in the
form of an increased lesser prairie chicken population.
So, the states of Texas, Oklahoma, Kansas, Colorado, and
New Mexico are using the very same principles that are
reflected in the President's Memorandum in that particular
example.
Mrs. Dingell. Thank you. I don't have enough time to get my
question in and get an answer to it, so I will yield back and
go ahead in a little while, Mr. Chairman.
Mr. Gohmert. All right. I thank the Ranking Member. At this
time the Chair recognizes the gentleman from Idaho, Mr.
Labrador, for 5 minutes.
Mr. Labrador. Thank you, Mr. Chairman.
Ms. Goldfuss, thanks for being here. The Presidential
Memorandum directs agencies to give preference to advance
compensation. Can you please tell me how that might affect
statutes like the Endangered Species Act or the Marine Mammal
Protection Act, that provide for mitigation, but have not
historically been interpreted to mandate the use of
compensation?
Ms. Goldfuss. Yes. I will once again say that, in the
context of those statutes which we look to the agencies to
implement--and certainly my colleagues can add to this, but
advance mitigation--we have seen in the case of the 2008
regulations that the Army Corps and EPA put out on mitigation
that, by requiring, or not requiring, but asking for----
Mr. Labrador. But I am asking about advance compensation.
Ms. Goldfuss. Advance, yes. So, the advance compensation
part is the piece that allows for the markets to have certainty
and some sort of clarity that there is space for them to set up
public-private partnerships.
In all of the work that we have done around those 2008
regs, working with industry and then coordinating with the
agencies to see what has created this space for mitigation
banking to pop up over these years, it is really those tenants
of making sure that the advance mitigation happens beforehand
that allows the markets to come in and really step up to the
plate.
Mr. Labrador. Thank you. With respect to the sage grouse,
the FWS and the BLM avoided a listing by amending the resource
management plans. My question is how the large-scale plan
described in the Memo relates to these new RMPs containing the
special restrictions for sage grouse? What assurance is there
that this will not undo the work that is being done on the
ground or add another layer of requirements on top of the
already-existing RMPs?
Ms. Goldfuss. This will not change those plans. This is
about how the agencies implement their mitigation policies. So
if, in the course of their usual work, they amend those plans,
that may be a question better suited for my colleagues.
Mr. Labrador. Does the Memo intend to direct the agencies
to seek advance compensation for potential impacts to sage
grouse under the RMPs?
Ms. Goldfuss. Once again, it is up to the agencies to
determine how they will----
Mr. Labrador. So the answer is it could, correct?
Ms. Goldfuss. It is up to them. It is literally in the
context of those existing statutes, they will make the
determination of how to apply.
Mr. Labrador. So you are changing the plan in some way.
Mr. Bean, what is the definition of ``harmful effects'' ?
Mr. Bean. I don't know of any special definition. I would
turn to a dictionary to answer that question.
Mr. Labrador. Isn't that kind of dangerous, to put out a
memo that has something that is undefined? Is this an objective
standard, or a subjective standard?
Mr. Bean. Well, I think it is----
Mr. Labrador. Like what I consider harmful may be different
than what you consider harmful.
Mr. Bean. I will acknowledge that we may have a different
view of harmful. I think the experience gained since 1981, when
the Fish and Wildlife Service has had a mitigation policy in
place----
Mr. Labrador. What does that experience tell us the
definition of ``harmful effect'' is?
Mr. Bean. [No response.]
Mr. Labrador. You do not have one. That is the point I am
trying to make. You do not have a definition for that.
Mr. Bean. There is no definition, per se.
Mr. Labrador. Well, that is----
Mr. Bean. In practice, there is a clear pattern and trend
to show that that is the case only when there is a serious
threat to the well-being of a species or its habitat.
Mr. Labrador. OK. So, will there be a process for those
disagreements to be resolved? If you and I disagree on the
definition of ``harmful effect,'' who is going to make the
ultimate determination?
Mr. Bean. The Fish and Wildlife Service is in a position,
in some cases, of recommending to other agencies the mitigation
that is appropriate, pursuant to the NEPA or Coordination Act
process. In that case, the other agency----
Mr. Labrador. So, an administrative agency is going to make
a decision based on an undefined term. Is that what you are
telling us?
Mr. Bean. I would not----
Mr. Labrador. Thank you.
Mr. Bean [continuing]. Characterize it that way, no.
Mr. Labrador. Yes, that is exactly what is happening. The
Memorandum also uses the term ``natural resource damage.'' Can
you provide some examples of Forest Service activities that may
be considered natural resource damages?
Mr. Bean. You want the Forest Service to answer that?
Mr. Labrador. You, Mr. Bean, on what your agency would
consider natural resource damages.
Mr. Bean. Natural resource damages, I believe, refers to
those damages caused by oil spills or chemical spills for which
recovery by state and Federal trustees is permissible under
law.
Mr. Labrador. Mr.--is it Ferebee?
Mr. Ferebee. Yes.
Mr. Labrador. How would you define that term?
Mr. Ferebee. The Forest Service speaks in terms of adverse
impacts to resources. We would define that by activities that
could affect the productivity of the resources in a way that
the Forest Service would no longer be able to provide goods and
services for the American public under the Multiple-Use
Sustained-Yield Act, which is what was required.
Mr. Labrador. Ms. Goldfuss, who will determine which
resources are important, scarce, or sensitive? Are these terms
defined in statute?
Ms. Goldfuss. There are many statutes that are covered. I
would point you to Federal land----
Mr. Labrador. Are they defined? Are they defined in the
statute?
Ms. Goldfuss. Each of these statutes will have varying
definitions, which is why we do not use or seek to define in
the Presidential Memorandum. Instead, this is the way the
President sets out goals for his agencies, who have existing
statutes that were passed by Congress and regulations that
apply to then follow through on those pieces.
Mr. Labrador. But are those definitions in the statutes? I
know they have goals, but are there----
Ms. Goldfuss. There is a long list of statutes, and I do
not have all those definitions.
Mr. Gohmert. All right. Time has expired. The Chair
recognizes the gentleman from Colorado, Mr. Polis, for 5
minutes.
Mr. Polis. Thank you so much, Mr. Chairman. I am excited
here to have this hearing regarding compensatory mitigation. As
everybody knows, this is a mainstream item. It is not some
fringe wish list item.
Of course, it is good for the environment, but it is also
great for development, the economy, and has been used for
decades under Republican and Democratic administrations. It is
based on the fundamental premise of economics, and that is
compensation for unfunded externalities. Decades ago
development would be stopped if a project negatively impacted a
natural resource. Mitigation offers a new creative option that
can protect resources and compensate for externalities, as
well.
Now, the Memorandum we are discussing today is not a
rewrite of public land use. It is certainly not a new rule.
Rather, it just solidifies and provides more consistency and
predictability to efforts that are already underway--generally,
the approach that we want to hear from our private-sector
partners. Instead of a patchwork approach, this will improve
the implementation of mitigation through a comprehensive
approach. And, it is very important to improve coordination
between our public and private entities.
This Memorandum does not mandate that Federal agencies
require more compensatory mitigation, no. It, rather,
identifies consistent standards and principles to provide for
better predictability over existing mitigation practices.
My first question is for Ms. Goldfuss. Animal habitats,
private landowners that are paid a free-market price for a
scarce resource, investors with a reasonable degree of
certainty get a return on their investment, and industry will
use this mitigation in the marketplace--those are all key
stakeholders who benefit from this policy. Do you agree that
free-market investment tied to high standards for mitigation
delivers better and more predictable outcomes?
Ms. Goldfuss. Yes. And we have seen that play out in the
mitigation banking schemes that have come out through the 2008
regulations that were carried out between the Corps and EPA. It
is really an exciting area for investors, and is one of the
communities that we spoke to a lot as we coordinated with our
agencies, but then also worked with outside industry folks that
are experts in this area.
Mr. Polis. Mr. Bean, I would like to ask about a topic that
is near and dear to the hearts of this committee: sage grouse.
We have held hearings on sage grouse; it is a hot-button issue
in my home state of Colorado.
I also think it is a good example of how mitigation can
work. Last year, the Fish and Wildlife Service found the
greater sage grouse not warranted for listing under the
Endangered Species Act because several Federal agencies came
together with states and private landowners in an unprecedented
conservation effort to plan for its long-term protection and
recovery.
I wanted to ask you if mitigation factored into those
plans, and whether it played a constructive role in helping the
Service reach its decision to avoid listing on the Endangered
Species Act?
Mr. Bean. Yes, sir, it did. Each of those plans includes an
appendix that deals with mitigation. Several of the states have
been very progressive in developing mitigation programs of
their own.
I would cite, in particular, Nevada, which has a very
sophisticated and comprehensive mitigation program for sage
grouse. Colorado, your state, is working on a so-called habitat
exchange, which is a form of mitigation banking. And, Wyoming
and Montana are working on similar programs. All of those were
part of the many pieces of the puzzle that led the Fish and
Wildlife Service to conclude that listing was not warranted,
and that, in fact, the bird did not need the protection of the
Endangered Species Act.
Mr. Polis. Back to you, Ms. Goldfuss. I understand the
guidance builds on existing practices for over a century of
requiring mitigation for development. I was wondering--the
mitigation banking has mostly been conducted on private land.
How do we incentivize private-sector investment in additional
mitigation banks on private and public lands? And I was
wondering if you have any examples you could point to of
successful incentivization programs.
Ms. Goldfuss. Yes. Let me start out--first of all, thank
you for the question on how this would impact public lands.
Both of my colleagues might be able to add here. Really, the
success in mitigation banking has been focused on private
lands, and that is what led to a lot of the principles that are
in the Memorandum. And there is an open question about how this
will--certainly in sage grouse plans--but the actual investment
piece, how that works on public lands.
Just recently, the Department of the Interior launched a
Natural Resources Finance Center that will help harness some of
the expertise of the finance community to figure out what the
policies are and what the financial mechanisms could be that
would allow some of this money and sort of the mitigation
banking concept that we see on private lands, how that can
apply on public lands.
So, a lot of that approach of public-private partnership
that these principles are designed to really give that
certainty to investors, we are hoping to see what the next step
is on public lands in that area.
Mr. Polis. My final question to Mr. Ferebee, who will not
have too much time to answer. I represent a district with over
65 percent Federal land. I wanted to ask. How do our local
communities stand to benefit from the smarter approach to
mitigation that is put forward in this Memo?
Mr. Ferebee. While the Forest Service has experience with
compensatory mitigation, we have never had a national policy.
So, we believe there will be predictability with a national
policy, consistency with a policy, and we will be a little bit
more efficient and effective when we work with our Federal
partners, state partners, as well as the private sector.
Mr. Polis. Thank you. I yield back.
Mr. Gohmert. Thank you. At this time the Chairman of the
Full Committee, the gentleman from Utah, Chairman Bishop, is
recognized for 5 minutes.
The Chairman. Thank you. Mr. Ferebee, if I could I ask you
a question. According to CEQ's testimony, this Memo is not a
regulation and it is not a new requirement. I don't really know
what it is, then, but it is not a memo or a new regulation.
But as you develop policies in your agencies to be
responsive to this Memo, will the public be able to distinguish
this non-regulation from an actual regulation in the way it is
going to be enforced?
Mr. Ferebee. Yes. Thanks for the question. The Forest
Service, of course, is in the process of developing a national
policy. What we hope to come from that is a better
understanding of where the Forest Service sits around using the
mitigation hierarchy.
The vast majority of our projects that have a potential to
affect resources really get addressed in the first two steps,
both in avoidance and minimization. So, we see a smaller subset
of projects falling in around compensatory mitigation. I think
that will be clear as we work through this national policy and
how we plan to engage.
The Chairman. But it is not a regulation. That is what you
are going to do, internally.
Mr. Ferebee. Correct.
The Chairman. So, you are not going to do it because she
gave you a piece of paper, you are going to do this internally.
Mr. Ferebee. We are going to do it internally, because we
think it is----
The Chairman. But the paper itself--does the paper give any
other clarification than that, or does it have to be activated
by you?
Mr. Ferebee. It has to be activated by----
The Chairman. So, if I trust you, and you are a good guy,
then this can be positive for people?
Mr. Ferebee. Yes.
The Chairman. And if I do not trust you and you are a bad
guy, this could be negative for people.
Mr. Ferebee. One could view it that way, correct.
The Chairman. Well, I was listening to a multiple choice
test given to Mr. Bean earlier in this hearing, and he failed.
Ms. Goldfuss, let me ask you a question, then. If you were
still at the agency level, would you accept this type of a
directive as a suggestion or would you work to implement this
exactly as it was delivered by the President?
Ms. Goldfuss. Well, if I were still at an agency I would
say we look for the goals and, really, what the priorities for
the Administration are.
The Chairman. C is----
Ms. Goldfuss. And then we work under----
The Chairman. C is not an option.
Ms. Goldfuss [continuing]. Our existing statutes. My
previous agency was the Park Service, and we worked under the
Organic Act, and that would determine how we implemented this
guidance.
The Chairman. So, you wouldn't necessarily go with what was
delivered to you. You would use your own discretion.
Ms. Goldfuss. The agencies have to use their own discretion
based on the statutes that they need to----
The Chairman. At which case the Memo becomes pretty
superfluous, doesn't it?
Ms. Goldfuss. The memo is a management tool that the
President uses to communicate with his heads of the agencies.
The Chairman. That is really kind of cool, except they have
that management tool already. They do not need another memo to
do what they are already doing. If the Memo had significance,
they would have to change what they are doing, but they already
have the flexibility to do it. Therefore, the Memo is
insignificant.
Let me go to another area quickly with you before I run out
of time. No, keep your microphone on, this is to you.
Ms. Goldfuss. Sorry.
The Chairman. On Monday, my governor met with the President
about a national monument designation in Utah. And the
President's words to him were, ``My instruction to my cabinet
has always been, you check with the governors in localities
that are impacted. If they have ideas about how to achieve a
mission in a more flexible way, we should exercise it.''
So, the question I have, is CEQ actively working on a
national monument proposal for Bears Ears in San Juan County in
my state?
Ms. Goldfuss. I cannot talk about any specific proposals
that we are working on out of CEQ or out of the Administration
with regard to national monuments. I can say that was a very
positive exchange between the Governor and the President, and
he did point to great lines of communications----
The Chairman. You are not saying yes or no, you are just
saying you can't tell me, right?
Ms. Goldfuss. I am--we have met with you, Mr. Chairman, and
Mr. Chaffetz on your proposal. We are aware that you have
proposed maps, and we have seen those, but we have made no
comment on that proposal at this time.
The Chairman. But your answer is still, ``I am not going to
tell you,'' right? There is no yes or no.
Let me throw out a couple of things at you just to think
about as you are driving home, like new memos, you have plenty
of time to do that.
We did send you a draft of our proposal on January 14, and
then Mr. Chaffetz and I requested a meeting on February 11. We
have seen no comments back from you on our proposal for that--
Bears Ears, specifically.
Ms. Goldfuss. Yes.
The Chairman. And we have also not been able to have a
chance to meet with you since that February 11 designation. I
would certainly hope you would organize that, if we could.
But let me also say one other thing. Every other monument
that has been used or abused by this Administration, as they
have been designated, has had at least one member of their
delegation who publicly supported this idea. You found one
person dumb enough to do it. On this particular proposal, there
is nobody in the Federal delegation that supports a monument.
The Governor does not support a monument. There is no State
Senator or State Representative from this area that supports a
monument. The only elected Navajo at the state or county level
is in this area, and she opposes a national monument. In fact,
the chapters who reside in Utah from the Native Americans, they
oppose a national monument.
I would certainly hope that you would keep the standard
that you have in the past at least that high, and not try and
lower it for the state of Utah; because the opposition is
almost unanimous. You have to go to a couple of back-benches in
the legislature before you can find somebody that is even
somewhat positive to this. And, since you have been having
meetings with these groups, I hope you would keep that basis in
mind, especially when the President says, ``If there is a more
flexible way, you work with the locals, and you do it.''
In fact, that has always been one of the things you have
touted in the past.
I apologize for going over 21 seconds. I want to hear the
next multiple-choice questions.
Mr. Gohmert. Well, at this----
Ms. Goldfuss. Congressman, I just want to say that I
apologize that we have not been able to sit down with you since
February 11, but I know that we can take it back and figure out
a time to schedule, because it was----
The Chairman. I know you are waiting to meet with us with
bated breath.
Ms. Goldfuss. We did have a good meeting, though.
The Chairman. No, you had a good meeting.
[Laughter.]
The Chairman. See you next time.
Mr. Gohmert. We will not ask for a definition of the word
``good.''
[Laughter.]
Mr. Gohmert. But instead we will recognize the former
Arkansas Razorback football player, Mr. Westerman, for 5
minutes.
Mr. Westerman. Thank you, Mr. Chairman, and thank you,
panel, for being here.
Ms. Goldfuss, you made a statement reminiscent of Teddy
Roosevelt that I will say I actually wholeheartedly agree with,
that we should be good stewards of our natural resources, and
leave them in a better condition than we found them in for the
next generation.
However, Roosevelt was a conservationist who believed that
our resources were there for our use, and we were to manage
them as good stewards. In all due respect, from what I see from
our current Administration, there is a great contrast in
Roosevelt's brand of conservation and this Administration's
model of preservation and a total hands-off approach.
So, if we cut to the chase, this Memo and plan looks to me
like it could be used as an impediment for any use and
management of our resources, which would prohibit us from being
able to have any kind of conservation efforts.
The famous mathematician, physicist, and philosopher,
Pascal, once said that words arranged differently have
different meanings, and meanings arranged differently have
different effects. There are a lot of problems with some of the
words that are in this Memo. And, I know you have said that the
Memo does not really mean anything, that the agencies can
figure out what they mean; but the Memo talks about a resource
of irreplaceable character, and that minimization and
compensation may not be adequate forms of mitigation. Could you
help me understand what is meant by irreplaceable character?
Ms. Goldfuss?
Ms. Goldfuss. Sorry. Let me say, when it comes to
``irreplaceable'' in the section of the Memo that addresses
this, specifically, when we look at the hierarchy. First, when
you have a project, you try to avoid any impacts. Then, the
next step, if you cannot avoid impacts to the resources, your
hope is that you can minimize the impact to those resources.
The last case, when you have no choice but your project
must damage the resource, then you compensate. So, in this
particular section of the PM, what we reference are areas of
special value. And that is defined differently by the statutes
that each of the agencies are designated to implement.
Mr. Westerman. So, when we talk about----
Ms. Goldfuss. So, we are saying irreplaceable----
Mr. Westerman [continuing]. Irreplaceable, are we talking
about mitigation? How do you mitigate something that is
irreplaceable?
Ms. Goldfuss. In that case, we say where it is
irreplaceable, at a minimum, this is where we get to the ``no
net loss.'' No net loss would mean we want to at least have
strong mitigation. And then, if at all possible, even greater
environmental value by the area that is restored.
So, you have to offset your damage, if it is of a high
value----
Mr. Westerman. Can you provide some examples of something
that has irreplaceable character?
Ms. Goldfuss. This Memo is not about defining those pieces.
That is up to the agencies and their existing statutes. So----
Mr. Westerman. You wrote a memo that you don't know what
the memo means?
Ms. Goldfuss. We know which statutes it applies to, and
which agencies, and they are under obligation, under the
statutes that Congress passes for them, to institute their
regulations that define many of these terms.
Mr. Westerman. Could the category of irreplaceable include
minerals or other similar resources?
Ms. Goldfuss. Congressman, I am not going to get into all
the different definitions of what is irreplaceable.
Mr. Westerman. Well, how are we supposed to understand, if
you wrote the Memo, and you don't know what it means?
Ms. Goldfuss. Well, we know which statutes it applies to,
and that in each of those statutes there are varying
definitions of what these agencies carry out as their land
management responsibilities. And that is when we talk about a
landscape-scale approach.
So, what are the areas across the landscape that you want
to avoid because the impacts would be so great to the water
quality or quantity? What are the impacts that you want to
avoid?
Mr. Westerman. Right, I----
Ms. Goldfuss. And that is where the agencies look at
their----
Mr. Westerman. I worked in the private sector and I
understand what wetland mitigation is. I understand how that
works. I understand how you can replace habitat. But how do you
mitigate something that is irreplaceable? My concern is that if
you leave this definition wide open, then anything can become
irreplaceable. There is no way to mitigate it. And then you are
back to preservation, and you are not using your resources, you
are just taking a hands-off approach.
So, Mr. Bean and Mr. Ferebee, how would your agencies
intend to define what is considered irreplaceable?
Mr. Bean. Well, I have referred several times already this
afternoon to a 1981 policy of the Fish and Wildlife Service, a
35-year-old policy still in effect today. It uses the term
``irreplaceable resources.'' It has used that term for 35
years. The experience to date is if a resource is deemed to be
irreplaceable, the Service recommends avoidance. Don't harm it.
There are relatively few resources that are of that
character, but----
Mr. Westerman. So, you could----
Mr. Bean [continuing]. There are some.
Mr. Westerman. It would mean a hands-off approach if it was
deemed irreplaceable?
Mr. Bean. The recommendation for the Fish and Wildlife
Service would be to avoid impacts to an irreplaceable
resource----
Mr. Westerman. And Fish and Wildlife, the Forest Service,
and other agencies will determine what irreplaceable means,
because we really don't know right now?
Mr. Bean. Well, actually, if we consult a dictionary----
Mr. Westerman. And I have used all my time, Mr. Chairman.
Mr. Bean. Sir, we can determine what it is. To replace is
to restore to a former place, position, or condition, or to
supply an equivalent for. So, an irreplaceable resource is one
that cannot be restored to a former place or position. That is
a standard dictionary definition. When we use terms, we intend
them to have the meaning normally ascribed in the dictionary.
That is what it means.
Mr. Gohmert. The time of the gentleman has expired. I will
recognize the gentleman from the land and party of Lincoln, Mr.
LaHood, for 5 minutes.
Mr. LaHood. Thank you, Mr. Chairman, and I want to thank
the witnesses.
In reviewing this Memorandum and the mitigation plan, I
have heard in the questioning here this morning the number of
times that you have talked about using the discretion, taking
it under advisement on the implementation of this. And, I was
looking at the Department of the Interior Department Manual. I
guess it is 600DM6. And under 6.6, which is titled,
``Principles,'' the manual talks about, ``Such use includes
authority to decline authorization of projects if applicants
cannot adequately mitigate impacts to levels required to
achieve established goals.''
And when I look at that, it seems to me that you can object
any plan or project, based on what is in that language, if it
does not achieve your goals. That, to me, seems to conflict
with what you are saying here. Can you talk about that?
Mr. Bean. Yes. I think the purpose of that is to clearly
spell out that there are some circumstances in which, if the
mitigation that the applicant is prepared to provide is
insufficient, the option exists to deny the permit or deny the
authorization request. The Service does not do that often, but
it has the authority to do that, and has used that authority
sparingly.
Mr. LaHood. And, when you say that authority, that
authority is based on that provision I just read if it does not
meet the goal, correct?
Mr. Bean. I would say it pre-exists what is in that
departmental manual language that you read. Yes, sir.
Mr. LaHood. Then why would you need to have this language
in there?
Mr. Bean. The purpose of the departmental manual language
was really to codify, to collate, to bring into one place, the
principles, the policies, and the practices with respect to
mitigation in the Department.
Mr. LaHood. Yes. I guess, with all due respect, it seems
that that language--again, that is in this manual--is kind of
an umbrella policy for anything. You could say that about any
time it is denied or approved it could be under that auspices.
Is that fair to say?
Mr. Bean. That would be fair to say, but one would have to
be blind to the history of implementation over the last several
decades in which permit denials have been exceedingly rare.
Mr. LaHood. Let me move to another area here. Under this
Memorandum, your agencies are directed to write regulations to
implement the new ``net benefit no net loss standard for
mitigation.'' Yet, this standard is not found in the laws that
govern Federal land use, such as the Federal Land Policy and
Management Act, which requires projects to cause ``no
unnecessary or undue degradation of the lands and their
resources'' to be approved.
I guess, in looking at this, does that mean that this Memo
has effectively raised the bar for what it takes to get a
permit beyond the standards set forth in law by Congress? I
guess that is to you, Ms. Goldfuss.
Ms. Goldfuss. Thank you for the question. We do not see it
as raising the bar. We see this as coordinating the best
practices that the agencies have used, as we have learned, CEQ,
under the President's guidance, coordinated with agencies
around infrastructure permitting. And many of these mitigation
polices came about through that work that we did with the
agencies.
So, this was already underway. We have seen what works. We
have seen what cut permitting times in half underneath the 2008
regulations that the Corps and EPA carried out. So, it is
through those successes that we have worked across with the
other land management agencies to see if this will work for
them.
Mr. LaHood. What assurances can you give that this does not
raise the bar?
Ms. Goldfuss. This is the President's communication with
his agencies. So, it is up to them. I guess I would ask you--
Raise the bar on what?
Mr. LaHood. Well, I mean, in looking at the clear language
of the law there, and what it says----
Ms. Goldfuss. This is not a law, this is a memo to the
agencies.
Mr. LaHood. I understand that. But in looking at what it
takes to get a permit, it looks like it goes beyond the
standards set forth by Congress.
Ms. Goldfuss. That is not possible. It is not legal. It
would not be possible for the Memo to go beyond existing
statute.
Mr. LaHood. I guess I wish I had more confidence in that.
Looking at the Federal Land Policy and Management Act, or
other statutes that require Federal lands to be managed for
multiple uses--but when I look at this Memorandum, it would
allow for only the approval of uses that meet the level of
``net benefit, no net loss.'' I guess, therefore, doesn't this
policy represent a movement away from the multiple use
principles that have guided Federal land and water management?
Ms. Goldfuss. No, not at all. Once again, FLPMA stands.
Land management policy stands for each of these agencies. And,
in fact, when we lay out this hierarchy of first avoid impacts,
then mitigate whatever impacts you have, that means, basically,
at the end of the day, you have both. You have a strong
environmental outcome, and you have faster permitting times.
Our goal here has been to do both. And through our
infrastructure permitting work that we have done with the
agencies, we have seen that we can do both. So first, pick a
smart place to build your project. Then, if you have no other
choice but you are going to impact resources, then offset them
somewhere else so that we can still have water quality, and we
can still have strong land that we can leave for future
generations.
Mr. LaHood. I get----
Ms. Goldfuss. That is the goal.
Mr. LaHood. And last, in the end, though, the provision I
mentioned at the beginning, if it does not achieve the goal,
there is still discretion there to reject it or accept it.
Ms. Goldfuss. That is all based on existing statute. This
Memo does not change that.
Mr. LaHood. Thank you.
Mr. Gohmert. All right, thank you. The gentleman's time has
expired. At this time, I will begin a second round.
Mr. Bean, you had indicated earlier the importance of
consistency and transparency. So, in the name of transparency,
would you tell us what stakeholders that your agency
collaborated with during the development of this Memorandum,
and what stakeholders you will consult with as you develop the
regulations to implement the mitigation policy?
Mr. Bean. The Fish and Wildlife Service is currently
working to revise its 1981 policy. It is also working to revise
its 2003 policy on compensatory mitigation under the Endangered
Species Act. And, it is also working to finalize proposed
policy with respect to pre-listing mitigation credits for
endangered species. In each of those cases, the Service will--
in one case already has--put out for public comment its
proposed revisions, or its proposed policies.
Mr. Gohmert. OK. So far you have not answered my question
at all. What stakeholders did your agency consult with----
Mr. Bean. In developing these policy proposals that will be
out for public review?
Mr. Gohmert. Yes.
Mr. Bean. I am not aware of any outreach in particular to
stakeholders for those policies. Those were internally
generated proposals that now go through a public notice and
comment process. We will hear from stakeholders.
Mr. Gohmert. So----
Mr. Bean. We have already heard from stakeholders with
respect to the pre-listing mitigation----
Mr. Gohmert. Are you telling us that in preparation of the
development of this Memorandum, that you did not consult with
any stakeholders?
Mr. Bean. I referred to three policy proposals: one, a
revision of the 1981 general mitigation policy; two----
Mr. Gohmert. But I am talking about specific stakeholders
that you consulted with about----
Mr. Bean. For those three policies?
Mr. Gohmert [continuing]. Revising those----
Mr. Bean. No. For those three policies, I am not aware of
any.
Mr. Gohmert. So you feel like there is enough expertise
within your agency that you can just come out with memorandum
and policy without consulting any of the people involved, any
of the stakeholders, any of the landowners----
Mr. Bean. No, I would not----
Mr. Gohmert [continuing]. Any of the----
Mr. Bean. I would not say that. I would say----
Mr. Gohmert [continuing]. State and local government, that
you can come up with a policy that will not improperly or
adversely affect them unnecessarily by consulting just the
people----
Mr. Bean. No, I would not say that, sir.
Mr. Gohmert [continuing]. In the little bureaucratic
office?
Mr. Bean. What I would say is the Service would look to 35
years of experience of existing policy in determining what
revisions are appropriate. It would look to the experience of
the Corps of Engineers and EPA and their 2008 policy to learn
what has worked well for them. So, all of that information----
Mr. Gohmert. So, again, you are telling me all Federal
agencies, but you are not telling me anybody--not state, local,
landowners--that you have consulted with about something that
is going to have a powerful and potentially devastating effect
on people as you go forward with your policies.
Let me move over. Ms. Goldfuss, again, in following up on
Mr. Bean's mention of transparency. We know, for example,
historically, that John Adams told Thomas Jefferson, ``You do
the first draft of the Declaration of Independence, you are the
best writer we've got.'' He did, he did it alone, and he gave
it to John Adams. John Adams was blown away it was so good.
Apparently, he made no changes, they both showed it to Benjamin
Franklin. Franklin made some interlineations, and I understand
they may actually have the original that he wrote on.
With regard to this Memo, who was it that did the first
draft?
Ms. Goldfuss. I am not sure I can share exactly the first
person. I will say we have many stakeholders through the
process that we did talk to around the Memorandum. Also, in the
infrastructure permitting----
Mr. Gohmert. OK, so----
Ms. Goldfuss [continuing]. Capacity we have worked with----
Mr. Gohmert. Then maybe you can share with us which
stakeholders you consulted.
Ms. Goldfuss. One of the most interesting pieces of what
has come out of this mitigation banking setup is how the states
are engaging. One example is Barrick Gold, who has a very
interesting proposal, where they have their very own mitigation
bank. So, they are conserving species on their own land, and
then, as they expand their gold mine, they will be able to take
credit for the species that they are restoring elsewhere.
It is those industries that have been successful, and this
is not philanthropy, this is----
Mr. Gohmert. Do you have specifics, there----
Ms. Goldfuss [continuing]. Real return on investment, in
terms of what we have seen with mitigation----
Mr. Gohmert. But specifically, who were the stakeholders
you consulted?
Ms. Goldfuss. This was a long process, so I cannot say off
the top of my head every single stakeholder we talked to. But
we spoke to states, we spoke to industry, we spoke to----
Mr. Gohmert. And you cannot tell me anybody specifically?
Ms. Goldfuss [continuing]. Many types of organizations.
Mr. Gohmert. But----
Ms. Goldfuss. Well, I just mentioned Barrick Gold as one of
the organizations.
Mr. Gohmert. Oh, OK, OK.
Ms. Goldfuss. We have spoken to oil and gas companies that
I know the Agency has worked with to see what has worked for
them as well.
But really, it is industry that has found this mitigation
banking works well for them, conservation banking works well
for them. They are the----
Mr. Gohmert. Specific industry, did you say, or just
industry in general, everybody?
Ms. Goldfuss. Barrick Gold is a gold mining company.
Mr. Gohmert. I know, you have mentioned----
Ms. Goldfuss. There are other companies. Then there are oil
and gas companies, small----
Mr. Gohmert. Well, that is pretty vague. Environmental
groups, what environmental groups?
Ms. Goldfuss. It may surprise you, but there is sometimes
concern from environmental groups that this will lead to more
development. So, they are not necessarily the largest
proponents of this. We have worked with some organizations that
themselves own land or are part of mitigation banking efforts.
Mr. Gohmert. All right. I am shocked. Shocked, I tell you.
And with that I will yield 5 minutes to the Ranking Member,
Mrs. Dingell.
Mrs. Dingell. Thank you, Mr. Chairman. Actually, I have
been on the other side of it, when the environmental groups
were not happy with mitigation, so I can be a witness to that
happening.
I am worried about much of the criticism we have heard
today about the Memo being vague. I feel like if it was
specific, you can bet we would hear the criticism that it is
too prescriptive. It is too vague. If Obama sinks, he is a
witch; if he floats, he is a witch. I think we have a little of
that today, and it bothers me.
Mr. Chairman, I am going to ask unanimous consent to enter
the following documents into the record: a peer-reviewed study
on the economic benefits of compensatory mitigation; a letter
of support for the President's Mitigation Memo from several
conservation groups; and a series of individual statements of
support from the President's Mitigation Memo.
[No response.]
Mr. Gohmert. Without objection.
Mrs. Dingell. Thank you, Mr. Chairman. And I want to read
to you a letter from the National Mitigation Banking
Association, when this Memorandum came out, said, ``This
Presidential Memorandum strikes the right balance between
economic development and restoring the Nation's natural
resources endowment.''
And then later in it, ``With this new policy we expect to
double the pace of private investment from the 2014 rate of
85,000 acres per year to 200,000 acres per year within the next
5 years.''
So, for the record, I wanted to read that. And I would just
enter that into the record.
Mr. Gohmert. Without objection.
Mrs. Dingell. Thank you.
But I would also say that the Presidential Memo's
guidelines rest on a solid foundation of existing law and
policy, which I think is not coming through, such as the
FLPMA's mandates to provide for multiple use, sustained yield,
and avoid unnecessary and undue degradation of public land
resources, as well as NEPA's requirement for Federal agencies
to identify impacts and consider ways to avoid, minimize, and
offset them through mitigation. This foundation makes a
rulemaking unnecessary.
I think what this Memorandum is trying to do is to bring
agencies that are all working on the same project together, and
get everybody rowing--you know, if you are in the boat, getting
everybody rowing in the same direction based on existing law.
So, I think the President was trying to show leadership,
something you keep saying he wants to do; but when he does, you
are never happy.
Let me go back to something I was talking to Mr. Bean about
a few minutes ago.
Mr. Bean, I want to go back to one of the questions in the
previous series and ask you to expand a little. You mentioned
that mitigation reduces the chance of damage to environmentally
sensitive land and waters. That seems counter-intuitive,
because mitigation is only necessary when adverse impacts
cannot be avoided.
Can you explain the different ways that that works? And is
the Dry Lake Solar Energy Zone in Nevada that you mention in
your written testimony an example of how it might work?
Mr. Bean. Let me be clear about some frequently confused
terminology. Mitigation refers to avoidance, minimization, and
compensatory actions. It is not limited to just compensatory
actions. So the standard hierarchy, if you will, is first
avoid, to the extent practicable; then minimize to the extent
practicable; and whatever remains is then to be compensated for
with compensatory measures.
That is the reason that projects that initially have some
substantial detrimental impacts upon the environment can be
altered, can be sited differently, can be modified in various
ways to reduce those impacts; and to the extent there are
remaining negative impacts, those can then be offset. That is
how mitigation works.
And it is the role of banking and other similar efforts to
deal with that last step, that compensatory mitigation step.
Mrs. Dingell. Thank you.
Ms. Goldfuss, we keep getting all this criticism of the
Presidential Memo. My reading and studying of it says that the
guidance builds on existing practices of 100 years of requiring
mitigation for development. How does this improve on the status
quo?
Ms. Goldfuss. This improves on the status quo by setting
out the market conditions that allow for good public-private
partnership. That advanced action, setting out how you are
going to mitigate your impacts up front, allows industry to set
up a credit process, so that someone can protect a land, a
wetland, or a stream, ahead of time. Then, when a mining
company comes in and needs to move forward with their project
in that wetland, they can get the credit and move forward with
their project, which speeds up the permitting times.
As you mentioned, these are long-standing statutes that
build on a balanced approach that gives us both stronger
environmental outcomes and faster permitting times. That is the
goal, and the hierarchy and the statutes behind this go back to
the 1930s.
Mrs. Dingell. Thank you, Mr. Chairman. My time is up.
Mr. Gohmert. Thank you. The gentleman from Idaho is
recognized for 5 minutes.
Mr. Labrador. Thank you, Mr. Chairman. I will just follow
up on that comment. You keep saying, ``these long-standing
statutes.'' Can you give me a list of--for example, I think it
was Mr. Westerman who asked you what the term ``irreplaceable
character'' is, and you said that there is a list of statutes.
Where is that in the statutes, ``irreplaceable character'' ?
Ms. Goldfuss. [No response.]
Mr. Labrador. The term----
Ms. Goldfuss. Each of the statutes? The agencies will have
to define it, based on the statutes. We have several----
Mr. Labrador. Well, I want the term.
Ms. Goldfuss [continuing]. And I can list for you----
Mr. Labrador. This is ridiculous, what you are saying. The
term has to be defined. We did not give you authority to just
come up with a term. We gave you authority to define what we
gave you authority to do. What you are doing, is you are trying
to tell us and tell the American people what a certain term
means without any definition; that is just going to give you
open-ended analysis of what you can do or you cannot do.
We give you the authority, it is not the other way around.
So can you tell me in the statute where that term is defined?
Ms. Goldfuss. Well, as Mr. Bean pointed out previously,
there is an ``irreplaceable'' term in the Endangered Species
Act. There is other terminology----
Mr. Labrador. Irreplaceable----
Ms. Goldfuss [continuing]. And ``irreplaceable'' is
defined--exactly how does Fish and Wildlife define it? I know
you know it off the top of your head.
Mr. Bean. The term ``irreplaceable'' is used in the 1981
Fish and Wildlife Service mitigation policy. It has been in use
for 35 years. It is not in the statute, it is in the existing
policy of 35 years----
Mr. Labrador. That is policy, that is not----
Mr. Bean [continuing]. Dating back----
Mr. Labrador [continuing]. The statute. We are the ones who
are supposed to define it, not you.
I want a list in the statute where ``irreplaceable
character'' is defined. Is that in the statute? Yes or no.
Mr. Bean. As far as I know, the answer is no.
Mr. Labrador. OK.
Mr. Bean. But there are other terms----
Mr. Labrador. I want the term that we asked about already.
We also asked you about ``important, scarce, or sensitive.'' Is
that in the statute?
Mr. Bean. It is in the Federal Land Policy Management Act,
yes, sir.
Mr. Labrador. So it is not in the statute?
Mr. Bean. I think it is important--yes, it is in the
statute.
Mr. Labrador. And it is defined in the statute?
Mr. Bean. No, I am afraid Congress used those words without
defining them.
Mr. Labrador. OK. That is our fault, and we can agree on
that. That is something that I want to change. But you are
using terms--has that term been defined by the courts at any
time?
Mr. Bean. I don't know the answer to that question, sir.
Mr. Labrador. OK. That is the problem that I have with
this, is that we are actually going through this analysis that
is so subjective instead of objective. You can define it any
way you want, and then I can define it any way I want. I do
think it is up to us, as Members of Congress, to define these
terms. But the more you extend these terms, and the more you go
out there, it is going to be more difficult for us to have any
control of what is happening, which is actually--the people
elected us, not you.
So here is another question. Does landscape include non-
Federal property?
Mr. Bean. My understanding is it could, depending upon the
resource involved. For example, I mentioned the lesser prairie
chicken. The landscape relevant to the conservation of that is
primarily non-Federal property.
Mr. Labrador. There is now some concern that impacts of
Federal land off of Federal lands would now require mitigation,
assuming a nexus with a Federal permit. What is the intent of
this Memo with regard to impacts that are not on Federal land
or Federal property?
Anybody can answer this question.
Ms. Goldfuss. All right. The Memo does not apply to non-
Federal entities. The Memo, as we have said over and over
again, applies only to existing statute.
Where we have seen success, and some of what we have
learned, has specifically been on private land, where you have
investors or industry buying property that they restored to a
higher level to then offset their damages elsewhere. That is
how you get the mitigation banking idea, is that they restore
the property to offset their damage.
That is mostly done on private land, because you have to
have an asset. That sort of is your value behind the credit, if
that makes sense.
Mr. Labrador. OK. The Memorandum states that the new
standard of a net benefit or a minimum no net loss should be
applied to resources that are important, scarce, or sensitive.
Explain again where you obtained that criteria from.
Ms. Goldfuss. Net benefit and no net loss are terms. Net
benefit has been around, and I believe was first defined, under
George H.W. Bush. Then, the idea of moving beyond net benefit,
specifically related to wetlands, something I referenced in my
oral testimony, is an idea that we have seen around for quite
some time, and George W. Bush referenced.
Mr. Labrador. OK. I believe it was the no net loss that was
used by Bush. Are they found in any other resource management
statutes, or this was just something the Bush administration
changed?
Ms. Goldfuss. These are goals that are set out for the
agencies that, when they are in these situations where
resources are going to be degraded, the goal is to then offset
so you have no net loss of wetlands or, in some of the rarest
situations, you actually have a benefit.
Mr. Labrador. Right, thank you. I yield back.
Mr. Gohmert. Thank you. Just one more brief line.
Mr. Ferebee, memos are supposed to be with regard to
legislation and clarifying matters of legislation that are in
effect, or if there is some deficiency that has been gleaned
from the enforcement of existing legislation. And I am curious.
Do you know what deficiency in the Forest Service existed that
may have necessitated this Memorandum?
Mr. Ferebee. Thank you, Mr. Chairman, for the question. The
Forest Service sees the value of what the Memo is asking the
Forest Service to do by really establishing a mitigation
framework, so that we can be more consistent when we engage and
operate with proponents so they can really understand----
Mr. Gohmert. So, the Forest Service was not being specific,
you were just generally vague in the way that the Forest
Service was doing their job, so you needed somebody to come in
with a vague memorandum to tell you how to do it?
Mr. Ferebee. I would not----
Mr. Gohmert. Is that what you are saying? Because the
question was, ``What was the deficiency in the Forest Service
that necessitated this Memo? ''
Mr. Ferebee. Without a national framework or national
policy, how we approached mitigation project to mitigation
project varied.
Mr. Gohmert. So, all these years we did not have an
adequate framework for mitigation? That is what you are saying?
Mr. Ferebee. I would say we used the mitigation framework
differently in different situations. So, what the Agency----
Mr. Gohmert. The Forest Service used different mitigation
in different mitigation situations?
Mr. Ferebee. An example would be, as we talked about, the
steps in the mitigation process would be avoidance first,
minimization second, and then compensatory mitigation third. We
could have situations, quite honestly, where folks went to
compensatory mitigation first, for an example.
So, the Forest Service stating its position in the
framework of how to use the mitigation framework is what we
wanted to accomplish, which we think helps in our relationships
with other Federal and state agencies and the tribes, when we
are working on projects jointly. We think it helps our
employees to understand how we want to go about implementing
the mitigation framework.
Mr. Gohmert. So that I understand, the Forest Service then,
because you were unable to be consistent when it came to
mitigation, did you request this Memorandum from CEQ?
Mr. Ferebee. The Forest Service had begun the process of
starting to establish conversations around the values and the
need for a national policy.
Mr. Gohmert. I am not sure I understand. Were you seeking
guidance and basically asking for a memo like this?
Mr. Ferebee. I would not suggest the Forest Service was
seeking guidance. But the Forest Service does see value in what
the Memorandum----
Mr. Gohmert. Well, but that----
Mr. Ferebee [continuing]. Is attempting to accomplish.
Mr. Gohmert. Seeing value is a whole different issue. I am
trying to understand what necessitated the Memo, and you are
telling me your mitigation practices were inconsistent. So, I
am wondering if that spurred you on to request of CEQ that they
give you a memo that you could use because the Forest Service
was just not doing a good job of consistency in mitigation. Is
that what we are finding out here?
Mr. Ferebee. No. What I am sharing with you is, after the
Forest Service looked at our practices, engaged with our
proponents, looked at what was going on in other state and
Federal agencies, we thought there was an opportunity with a
national policy to bring a little bit more consistency,
predictability, efficiencies, and effectiveness----
Mr. Gohmert. OK, so you did request the Memo.
Mr. Ferebee. No, as I indicated previously, the Forest
Service had begun conversations around this need prior to the
Memo.
Mr. Gohmert. OK. So you began conversations prior to the
Memo, which led to the need for the Memo. Is that what you are
saying?
Mr. Ferebee. I cannot speak to the need of the Memo, other
than I can share with you the value we see coming out of what
the Memo----
Mr. Gohmert. I am just trying to figure out what spurred
this on, and what deficiency in your agency might have spurred
this on and also, as I asked, whether or not you sought or
asked for guidance through a memo like this. And you said you
did not ask for it.
Mr. Ferebee. No, the Forest Service had conversations and,
as I indicated previously, we acknowledged that there were some
opportunities to become a little bit more effective and
efficient with how we handled proponent-driven projects----
Mr. Gohmert. OK, so you----
Mr. Ferebee [continuing]. When it comes to mitigation----
Mr. Gohmert [continuing]. Notified CEQ, ``We are just not
doing a good job of consistency on mitigation, so give us
something that will help us, because we cannot police ourselves
without a new memo'' ? I really want to know what it was that
spurred this thing on.
Mr. Ferebee. All I can share with you is what the Agency
believes is the value that comes from the Memo of which we had
initiated----
Mr. Gohmert. But that is the value----
Mr. Ferebee [continuing]. Conversations prior----
Mr. Gohmert [continuing]. After you get the Memo. I am
talking about what led up to it.
Mr. Ferebee. I am not in a position to articulate exactly
why the Memo was really generated, other than to say the Forest
Service had been in conversations. And as a part of those
conversations, we acknowledged there was opportunity to become
a little bit more efficient and effective when it comes to
mitigation.
Mr. Gohmert. Thank you. I ask the Ranking Member be
recognized for 5 minutes.
Mrs. Dingell. Thank you, Mr. Chairman. I guess I would just
like to say that I think the Memo came out of leadership,
because I think we are always saying we wish we saw better
coordination between the agencies. The Department of Defense is
a very different department than the Department of the
Interior. How do you take the existing foundation and goals and
put everybody in the boat and all rowing in the same direction?
That is what I viewed this as being.
I would like to add and ask that the record be kept open a
little longer, just for all the members of the committee and
the subcommittee, the number of mitigation banks in their
district which will show where restoration is happening at no
expense to the taxpayers. The Chairman will find that he has 12
mitigation banks in his district. I have none. I have to figure
out why I don't have any.
I want to go back, Mr. Bean, to the second half of my
question that you did not get to, which is one of the major
successes we have seen with this approach is the Dry Lake Solar
Energy Zone in Nevada, where permitting times for projects were
cut in half. What other opportunities do you see to replicate
this experience? And isn't that what this is really about?
Mr. Bean. Yes, that is what this is about. And, in fact, to
address that line of questioning that the Chairman was just
pursuing a moment ago--this came about in large part because
the Administration's perception that for large projects like
transmission projects that cross multiple jurisdictions--across
Forest Service land, across BLM land, across private land,
across state boundaries--permitting time was too long,
permitting complexity was too great; there was a need to
address mitigation as a contributor to that permitting time and
permitting complexity.
So, this Memorandum, I believe, grew out of a perception
that we can do a better job permitting these large-scale
projects that cross multiple jurisdictions by coordinating our
response to mitigation by coordinating how we approach
mitigation. I think you are absolutely right, and the Dry Lake
example is a good example of the benefits from this approach to
mitigation.
I would also point out with respect to the mitigation banks
that you mentioned a moment ago, a good many of them in
virtually every state are sponsored by and operated by state
transportation departments. That is because they look ahead to
their need to build out a road system in the decades coming.
They anticipate that they will affect wetlands in building
those roads, and they need to have mitigation in place so that
when it comes time to build the roads, they can simply draw
down on credits from a bank.
It has been a supremely effective way to put in place a
mechanism of advance compensation that allows permit decisions
and construction activities on highways to proceed quickly.
Mrs. Dingell. Thank you, Mr. Bean.
Mr. Chairman, I am going to yield back the balance of my
time. I think we have subjected these witnesses to enough
today.
Mr. Gohmert. OK.
Mrs. Dingell. I think they are trying to do a good job.
They work hard.
Mr. Gohmert. I thank the Ranking Member specifically, and
thank our witnesses for being here today.
Members of the committee may have additional questions that
they would submit to you in writing. Under Committee Rule 4(h),
the hearing record would be held open for 10 business days for
these responses, and if there are additional questions, we need
to get the answers within 10 days.
Seeing that, if there is no further business?
[No response.]
Mr. Gohmert. Hearing none, without objection, the committee
stands adjourned. Thank you.
[Whereupon, at 3:31 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
THE WHITE HOUSE
OFFICE OF THE PRESS SECRETARY
FOR IMMEDIATE RELEASE
NOVEMBER 3, 2015
Presidential Memorandum: 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
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 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.
(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.
(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 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.
BARACK OBAMA
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
-- Ecosystem Partners, ``White House Releases Mitigation
Policy Encouraging Private Investment.'' EIP News.
November 3, 2015. Submitted by Rep. Dingell.
-- Bob Wick, ``New White House policy commits to protect
irreplaceable resources and sets `no net loss'
standard for other important resources.''
Wilderness.org. November 4, 2015. Submitted by Rep.
Dingell.
-- Defenders of Wildlife, ``The Obama Administration,
Department of Interior Reinforce Conservation in
Agency Decision-Making.'' November 3, 2015.
Submitted by Rep. Dingell.
-- Wetlands Research Assoc., ``Presidential Memorandum Issues
Support for Mitigation Banking and New Policy
Guidelines.'' January 22, 2016. Submitted by Rep.
Dingell.
-- List of Mitigation and Conservation Banks in the District
of Subcommittee Chairman Gohmert by USACE. Accessed
on February 24, 2016.
-- List of Mitigation and Conservation Banks in the District
of Full Committee Chairman Bishop by USACE.
Accessed on February 24, 2016.
-- Letter from the American Bird Conservancy addressed to
Subcommittee Chairman Gohmert and Subcommittee
Ranking Member Dingell. Dated February 22, 2016.
-- Letter from the National Parks Conservation Association
addressed to Subcommittee Chairman Gohmert and
Subcommittee Ranking Member Dingell. Dated February
23, 2016.
-- Letter from the Wilderness Society, the Nature
Conservancy, and the Environmental Defense Fund
addressed to Subcommittee Chairman Gohmert and
Subcommittee Ranking Member Dingell. Dated February
24, 2016.
-- Memorandum from the National Mitigation Banking
Association expressing support for the President's
Memorandum, ``Presidential Memorandum: Mitigating
Impacts on Natural Resources from Development and
Encouraging Related Private Investment.'' Dated
February 24, 2016. Submitted by Ranking Member
Dingell.
-- Bendor, Todd, T. William Lester, Avery Livengood, Adam
Davis, and Logan Yonavjak, ``Estimating the Size
and Impact of the Ecological Restoration Economy.''
PLOS ONE 10.6 (2015). June 17, 2015. Submitted by
Ranking Member Dingell.
-- Statement of Ed Arnett in response to the oversight
hearing titled, ``The President's Imposition of New
Environmental Mitigation Requirements.'' February
24, 2016.