What is Mitigation?

Different people have different definitions of "Mitigation" in the context of natural resource management, endangered species protection, and wetland permitting.

Technical Definitions

Technically, Mitigation (as defined by CEQ and DOI) includes avoidance, minimization, and compensatory mitigation.  

The mitigation hierarchy also adopts an inclusive definition of mitigation that includes a range of mitigation options.  The mitigation hierarchy is a framework that was formalized by IFC in 2012.  While there are many complexities in implementation, at its core the hierarchy offers a conceptually simple range of mitigation strategies, ranging from preventive (avoiding and minimizing) to remediative (restoring and offsetting).  

Mitigation hierarchy framework.(Source:  Exponent)

Popular Usage

However, many professional resources, including the USFWS webpage on Mitigation, simply define Mitigation as "projects or programs that help offset negative impacts to natural resources, such as a stream, wetland, and species-at-risk."  This definition excludes by omission any preventive mitigation.

Clarification

As usual, EPIC has a great resource summarizing the different types of mitigation, as well as synonyms that are often used.  According to EPIC, avoidance and minimization are called "conservation measures".  Only if a project is likely to cause take are compensatory mitigation measures proposed under 7(a)(2) consultation.  Compensatory mitigation, which is usually simply called "mitigation" in popular usage, is also called offset measures.

Table from EPIC report linked above.

In conclusion, mitigation can be a confusing concept, even for professionals.  Government agencies are trying to specify compensatory mitigation when that is the subset of mitigation they mean, but even in official publications they often use the simple term mitigation.  When someone says Mitigation they are usually talking about compensatory mitigation, or offsets.  However, when talking about the mitigation hierarchy, other preventive conservation measures such as avoidance and minimization could also be included.  

Mitigation Banking Could Transform the Endangered Species Act

 The Clean Water Act (CWA) --despite its ambiguities-- has the important provision of acre-for-acre wetland mitigation. In other words, the CWA ensures No Net Loss of protected wetlands.

The Endangered Species Act (ESA) --despite controversies over Critical Habitat-- has no automatic provision of no net loss of protected species habitats. Instead, it relies on bespoke mitigations on a project-by-project basis. Most projects are approved with incompletely mitigated impacts to species and their habitats. The result is continual loss of habitat.

Current proposed changes to habitat mitigation could help make ESA more like CWA, moving the ESA toward No Net Loss of habitat. The result would be improved regulatory certainty for projects, mitigation banking opportunities for conservation investors, and better outcomes for listed species.

Environmental Policy Innovation Center's Becca Madsen has more excellent & detailed analysis.

Wetland, Stream, and Species Mitigation Banks

With the November 3, 2015 Presidential Memorandum "Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment," mitigation banking has been getting more press.

Back in 2008 the US Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) issued the 2008 Compensatory Mitigation Rule governing compensatory mitigation for activities authorized by Corps permits.  Each division of USACE has published Regional Compensatory Mitigation and Monitoring Guidelines.

Mitigation banks are restoration and conservation sites that preserve, enhance, or create important ecological functions that may be impacted elsewhere.  For example, since 2008 wetland banks can invest in the for-profit creation of new wetlands; developers can purchase credits in the bank to mitigate any impacted wetlands in the same watershed as the proposed development.

There are now over 2000 mitigation banks in the U.S.

USACE  runs the RIBITS website, which is their Regulatory in-lieu fee and bank information tracking system.

This map from RIBITS shows the distribution of mitigation banks in the continental U.S.  Some USAE districts already have dozens to hundreds of banks in operation, whereas some, such as the Albuquerque USACE district, have none.

This figure, courtesy of Kevin Janni, shows the distribution of mitigation banks and HUC watersheds in Texas for the Fort Worth and Galveston USACE districts.  Each bank may only be used to offset development within the same watershed.  Due to differing application processes and timelines for different USACE district, some districts have many more banks than others.

Mitigation banks are evaluated based on the quality of the wetlands created, using rapid assessments such as NMRAM.

The 2016 Mitigation Banking Conference will be held in Texas, May 10-13.

NEPA Impacts Now Require Mitigation

President Obama has recently issued an important new Memorandum directing Federal agencies to employ mitigation banks to offset impacts to natural resources.

The directive re-emphasizes that agencies should seek to avoid any negative environmental impacts first, then minimize impacts, and finally, only seek compensatory offsets for harm that still occurs if necessary.  Within the limits of existing law, agencies should set ‘no net loss’ and ‘net benefit’ goals that apply to more natural resources.   (CEQ Blog Post)

The following analysis of the impacts of this memorandum are from the law office of Holland and Hart:

"We have entered a new regime in federal natural resource management, one that brings to mind Aldo Leopold’s observation that “Conservation . . . is a positive exercise of skill and insight, not merely a negative exercise of abstinence or caution.” In time, we will have a better sense of what the new regime will mean in practical terms. For now, the natural resource community will want to focus on the various agencies’ efforts to implement the directives. Across the federal government, for months to come, new rules and policies will be under development with implications for an enormous range of decisions affecting natural resources “that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.”

These directives deserve considerable attention from those active in the natural resource law and policy arenas. There are new rules of the road for resource agency decisions subject to NEPA review, and they may significantly influence implementation of ESA and other resource protection laws. Federal resource planning efforts will likely change to include substantial consideration of “net gain/no net loss” benchmarks. Most fundamentally, the new directives seem likely to change the transactional environment facing developers seeking federal approvals for: infrastructure projects; energy, water, and mineral development; or other activities potentially impacting federal natural resources.

Agencies’ permitting and compliance decisions involve significant elements of subjectivity and uncertainty. The permitting process is often defined by bargaining over the allocation of risk between an agency wary of potentially unforeseen resource impacts and a developer or resource user wary of potentially unforeseen costs or delays. The Presidential and DOI directives can be seen as ratifying and calling for even greater effort by resource agencies to minimize or eliminate the risk of unforeseen impacts on natural resources. In effect, the agencies are being told to bargain harder, demand greater assurances, and accept little or no risk of adverse impacts when rendering decisions potentially affecting natural resources.

The directives raise the bar, but are not entirely one-sided. They encourage agencies to promote conservation banking, stewardship contracts, and other financial-incentive-based tools that generate “credits” that developers can use to offset adverse impacts of proposed projects. The internal logic of the directives appears to be that the new, higher standards for resource mitigation—net gain, or at least no net loss—are realistically achievable because any project’s unavoidable adverse impacts can be offset with conservation credits.

The agencies’ mandate to bargain harder will create difficulties for almost all resource users. To begin with, baseline resource information often lacks the empirical certainty that would make it obvious how to get to a net gain or no net loss. And what is a “net gain”? How big must that be? More challenging, the directives call for “durability” in mitigation, meaning that the quantitative and qualitative relationship of impact to compensation should endure so long as the impact continues. But natural resources change over time. Even resources that once seemed static are now recognized to be mobile as temperature, precipitation, fire, and other variables change across the landscape. The new directives will particularly frustrate those resource users who are not inclined to anticipate nor internalize within their project planning and business judgments the agencies’ resource management goals. Whatever the agencies were bargaining for yesterday, they’ll soon be bargaining for more.

There is something encouraging here for those resource users who approach the regulatory environment with a transactional mindset. The directives’ embrace of compensatory mitigation means that, once the directives have had time to be incorporated into agency procedures, there should be a predictable regulatory “solution” for a project potentially posing the risk of adverse resource impacts. In theory, the ultimate decision about whether - and on what terms - to approve a permit or other authorization should be somewhat less vulnerable to an agency official’s reluctance to countenance unavoidable adverse resource impacts. This is particularly so if the agencies do, in fact, embrace the use of mitigation banks and other credit-generating tools.

The other potential winners from the directives will be private investors in mitigation banks and similar financial structures that produce resource “credits” to exchange for impacts.