No Mitigation? No Problem. BLM Issues Policy Statement on Compensatory Mitigation Changes
As of July 24, the BLM has taken an updated position on the issue of compensatory mitigation. The BLM states in a new policy: “Except where the law specifically requires, the BLM must not require compensatory mitigation from public land users.” The BLM will still, in limited circumstances, consider voluntary proposals for compensatory mitigation, but will no longer accept monetary payment to mitigate the impacts of a proposed action. While the BLM still has an obligation to ensure that projects do not result in “unnecessary or undue degradation” under the Federal Land Policy and Management Act of 1976, beyond such unnecessary or undue degradation scenarios, all compensatory mitigation proposals will be on a voluntary basis only. To enforce this policy, the BLM will not be allowed to explicitly or implicitly suggest that project approval is contingent on “voluntary” compensatory mitigation.
However, this policy does not affect the ability of a state or non-federal party to continue to require and enforce mandatory compensatory mitigation as authorized under state law. The policy also does not affect compensatory mitigation measures that may be required by federal laws other than the Federal Land Policy and Management Act.
The policy will reach retroactively; it requires all state, district, and field offices to identify any existing mandatory compensatory mitigation programs and report them to the Deputy Secretary for “appropriate action.” While the policy is effective immediately, for NEPA documents that are near completion (i.e. the EIS is in the final stages of review) implementation of the policy may be modified for the circumstances so as not to delay approval of the projects.