U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

98–877 PDF 2016

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 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Dan Newhouse, WA 

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 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Wm. Lacy Clay, MO 

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 

Rau ́l R. Labrador, ID 

Bruce Westerman, AR 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Alexander X. Mooney, WV 

Darin LaHood, IL 

Rob Bishop, UT, ex officio 

Jared Huffman, CA 

Ruben Gallego, AZ 

Jared Polis, CO 

Wm. Lacy Clay, MO 

Vacancy 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

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 

(1) 

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 blindsided 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 

2 

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 noenergy 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 noenergy 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 

3 

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 

4 

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. 

5 

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. 

6 

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. 

7 

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, wellaccepted 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. 

8 

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. 

9 

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. 

10 

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 

11 

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 

12 

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 

13 

1 Compensating for Wetland losses under the Clean Water Act, National Research Council 

(2001). 

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. 

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 

14 

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 Departmentmanaged 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 landbased 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. 

15 

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. 

16 

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 

17 

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 

18 

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 deVerDate Mar 15 2010 08:03 Dec 21, 2016 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\OVERSIGHT & INVESTIGATIONS\02-24-16\98877.TXT DARLEN
19 

velopers 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 

20 

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). 2Multiple-Use Sustained-Yield Act of 1960, Public Law 86–517. 

3 National Forest Management Act, 16 U.S.C. § 1604(g)(3), (i). 

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

Under the Organic Administration Act of 1897 and the Multiple-Use SustainedYield 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. 

21 

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 

22 

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 

23 

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 

24 

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? 

25 

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. 

26 

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 polluterpays 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 

27 

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 

28 

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 wellbeing 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—— 

29 

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 

30 

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. 

31 

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 nonregulation 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 

32 

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 

33 

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. 

34 

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. 

35 

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-yearold 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—— 

36 

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 

37 

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 

38 

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. 

39 

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? 

40 

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.’’ 

41 

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 

42 

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—— 

43 

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 nonFederal 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 

44 

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? 

45 

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—— 

46 

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. 

47 

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 

48 

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. 

49 

(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 nongovernmental 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. 

50 

(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 landuse 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. 

51 

(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 DecisionMaking.’’ 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. 

52 

—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. 

Æ