Many different state and federal laws protecting the environment and natural resources require entities to apply for and secure permits, licenses, and other governmental approvals as a condition of undertaking certain activities. For example, there are various federal and state laws that apply to the protection of wetlands and threatened or endangered species, among them the federal Clean Water Act (CWA, codified at 33 U.S.C. §1251 et seq.) and the federal Endangered Species Act (ESA, codified at 16 U.S.C. §1531 et seq.).
These laws and their accompanying regulations set forth, among other things, the process that prospective permittees must follow in preparing and submitting permit applications, the criteria against which the relevant permitting agency will review those applications, and the various conditions and other requirements that must be included in any final permit issued by the agency.
With respect to wetlands and threatened or endangered species, respectively, the CWA and ESA share the common requirement that permits for impacts to these natural resources must contain adequate mitigation measures. Mitigation measures are the plans and actions that developers and other permittees must implement to reduce or offset their impacts in order to receive the benefit of the permit for which they applied.
This kind of regulatory mitigation generally proceeds through a three-step sequence: permit applicants must attempt to avoid their impacts to the protected resource, then minimize those impacts and finally compensate for the residual, unavoidable impacts. NFWF’s IDEA department engages primarily at the compensation step, in circumstances where a permittee is required to pay funds as part of compensating for its impacts to the regulated natural resources. In these cases, IDEA works with permitting agencies, permittees, and other stakeholders to manage, invest, and disburse mitigation funds as intended for the benefit of impacted species, habitats, and resources.
Managed by a senior team that includes experienced environmental law practitioners, IDEA is particularly well-suited to administer mitigation funds consistent with all applicable legal and regulatory requirements. Some of the key federal permitting regimes giving rise to mitigation funds under management by IDEA include:
Endangered Species Act (ESA)
When the activities of an entity result in incidental takes of species listed by ESA, the appropriate permitting agency works with the permittee to develop a Habitat Conservation Plan, and ultimately issue an Incidental Take Permit, to mitigate the impact to the species.
Clear Water Act, Section 404
When construction, mining, transportation, agricultural, or other development activities result in the discharge of dredged or fill material into wetlands, Section 404 of the Clean Water Act requires a permit to be obtained before the activity resulting in the discharge can proceed.
Federal Energy Regulatory Commission (FERC)
The Federal Energy Regulatory Commission (FERC) is responsible for the issuance of licenses for hydropower projects, which may include provisions to protect, mitigate or enhance relevant environmental resources.
Bureau of Land Management (BLM)
In cases where an entity desires to use public (federal) land for a development project, the entity generally must apply to BLM for the issuance of a Right-of-Way (ROW). Typical projects for which ROWs are sought include wind and solar energy projects, oil and natural gas pipelines, power transmission lines, and construction related to communication installments. ROWs are primarily authorized by BLM under the Federal Land Policy and Management Act (FLPMA) and the Mineral Leasing Act of 1920 (MLA).