Presidential Memorandum Promotes Pre-Project Mitigation and Restoration Banking: Implications for Energy Projects and Related Development

On November 3, 2015, U.S. President Barack Obama issued a Presidential Memorandum (Memorandum) that potentially opens the door to agency attempts to expand mitigation obligations beyond what is required under law while also having the potential to have significant and positive net benefits for the development of energy projects. The Memorandum encourages advance (i.e., pre-project) restoration measures, including mitigation banking, by both public and private entities. [1] It directs federal agencies to adopt a clear and consistent approach, such as guidance and regulations, to further this goal. Agencies affected include the United States Forest Service (USFS), the United States Fish & Wildlife Service (USFWS), the Bureau of Land Management (BLM) and the Department of Interior (DOI) — projects involving review by these agencies, including energy and other types of proposed development, may be affected. These agencies will be expected to draft handbooks, guidelines, policies and regulations to implement advance mitigation measures.

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