[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

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
       
       
       
       
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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\
---------------------------------------------------------------------------
    \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.