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BLM May, Once Again, Require Compensatory Mitigation

On April 15, the Solicitor the Department of the Interior (Interior) reinstated a 2016 legal opinion concluding that the Federal Land Policy and Management Act gives the Bureau of Land Management (BLM) authority to require mitigation to address impacts to public lands, including compensatory mitigation, from project approvals and other agency decisions.  DOI, M-37075, Withdrawal of M-37046 and Reinstatement of M-37039, “The Bureau of Land Management’s Authority to Address Impacts of its Land Use Authorizations Through Mitigation.”  The Solicitor’s decision to reinstate its 2016 opinion confirms BLM’s authority to require appropriate mitigation measures on public lands or private lands which have a connection to resources on public lands, including measures which might have a net conservation benefit.  This opinion had been withdrawn in 2017.

In reinstating the 2016 opinion, the Solicitor relied in part on Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Jan. 20, 2021), which required federal agencies take actions to “improve public health and protect our environment.”  The Solicitor concluded that this Executive Order required reaffirming BLM’s authority to address impacts of its land management decisions through identifying and requiring appropriate mitigation.

BLM, once again, has clear authority to require compensatory mitigation for site-specific projects, in land use planning, and in other public lands management activities.  Any project requiring BLM authorization, including rights-of way, permits, and other authorizations, may be required to compensate for negative impacts on public lands.  Such compensatory mitigation measures may include paying for restoration or conservation of similar parcels on private lands, purchasing conservation credits from mitigation banks, or conducting onsite mitigation, among other options.

If and as BLM begins to exercise its authority to impose compensatory mitigation requirements, conducting projects that impact public lands may become more expensive.  At the same time, compensatory mitigation may expedite the approval or enhance the acceptability of such projects because negative impacts will be offset by actions benefiting public lands.

Interested stakeholders may wish to keep an eye on whether BLM chooses to re-issue previously developed implementation policies and guidance addressing this issue, including its Mitigation Handbook and Mitigation Manual.

Please contact Matt Adams, Nate Hunt, Sarah Judkins or Bob Randall with any questions.