American Oil and Gas Reporter - October 2016 - 32

at least $1 billion.
"The REVIEW Act is an important step
in curtailing far-reaching regulations and ensures Washington rule-makers are held
accountable," comments the bill's primary
sponsor, Representative Tom Marino, R-Pa.
Adds co-sponsor, Representative Bob
Goodlatte, R-Va., "When high-impact
regulations are issued and then overturned by the courts, billions of dollars in
unnecessary compliance costs frequently
are passed along to the American people
. . . (because) the costs to cover regulations
still must be paid for by hardworking
Americans while the lawfulness of the new
regulations are being challenged. The
waste imposed by high-impact regulations
that the courts ultimately reject has gone
on for too long."
Internet Lease Sales
HR 5577, which was sponsored by Representatives Garret Graves, R-La., and
Alan Lowenthal, D-Ca., and passed on a

voice vote Sept. 6, amends Section 8 of the
Outer Continental Shelf Lands Act so as
to allow the Department of Interior to "conduct lease sales under this section through
Internet-based, sealed-bidding methods."
The legislation requires DOI to hold at
least one Internet-based lease sale in the
Gulf of Mexico "not later than 18 months
after . . . enactment." It also orders DOI to
"publicly disclose statistical data regarding each lease sale . . . on the day the sale
is executed."
The National Ocean Industries Association hails HR 5577 as a "common-sense
way to incorporate modern technology and
transparency into the offshore lease sale
process."
Noting that BOEM successfully livestreamed its Western Gulf of Mexico
lease sale in August, NOIA adds, "We have
seen repeatedly that Internet-based technologies are cost-effective improvements
that can increase transparency and efficiency in the offshore lease sale process."

The Bureau of Land Management
conducted its first online, onshore lease
sale Sept. 20 (see story page 19).
HR 5577 has been assigned to the Senate Committee on Energy and Natural Resources.
Meanwhile, the Pennsylvania Independent Oil & Gas Association praises
House passage of legislation reaffirming
the rights of mineral owners in the Allegheny National Forest. PIOGA says HR
3881, sponsored by Representative Glenn
Thompson, R-Pa., passed the House 3953 on Sept. 6. The Cooperative Management of Mineral Rights Act "will codify
federal court rulings related to regulating
privately held mineral rights in the ANF,"
according to PIOGA.
The association adds, "Since 2009, federal courts have determined that the U.S.
Forest Service lacks legal authority to restrict access to private mineral rights in the
ANF, and therefore is prohibited from creating new rules."
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USFWS Releases Mitigation Guidelines
WASHINGTON-The U.S. Fish &
Wildlife Service has proposed a compensatory mitigation policy (CMP) to address
the impacts of development on endangered
species that has among its guiding principles, "ensuring that, at a minimum, an action results in no net loss toward achieving conservation outcomes for affected resources, or a net benefit in conservation
outcomes whenever the situation merits
and doing so is allowed by law."
The CMP was announced Aug. 31, and
is a follow-on to a November 2015 order
by President Obama to federal agencies to
update their mitigation policies, as well as
a draft mitigation policy released by USFWS in March, the agency says.
The Independent Petroleum Association
of America says the CMP is intended to
provide "a broad, umbrella policy under
which more detailed USFWS policies or
guidance documents covering specific
activities involving mitigation may be issued."
USFWS adds, "The CMP provides
clear and consistent measures to address
anticipated, but unavoidable adverse impacts of proposed actions on listed species
and other resources of concern. Most
significantly, (the CMP) moves the service from project-by-project mitigation to
strategic mitigation planning at the landscape level. It also sets standards and provides criteria that mitigation programs and
projects can meet to achieve conservation
goals."
USFWS says the CMP replaces previ32 THE AMERICAN OIL & GAS REPORTER

ous policies and guidance documents,
and expands coverage to all compensatory
mitigation mechanisms recommended or
supported by the service when implementing the Endangered Species Act. These include permittee-responsible mitigation,
conservation banking, in-lieu fee programs, habitat credit exchanges, and other third-party mitigation arrangements.
IPAA mentions that it filed comments
in May on USFWS's March draft mitigation policy, "requesting that the service
withdraw the plan unless re-proposed
with significant changes."
The CMP may be found on USFWS's
website by going to https://www.fws.gov/endangered/improving_ESA/CMP.html.
Compensatory Bias?
An analysis by the legal firm Holland
& Hart LLP says the CMP, along with the
USFWS's March draft and the president's November memorandum, view
mitigation "as a three-step process beginning with avoidance, then minimization,
and finally, compensation for remaining
unavoidable impacts."
Holland & Hart says the CMP establishes generally applicable compensatory
mitigation standards (e.g., siting, use of
metrics, additionality, timing and duration,
durability, and use of performance standards). It also:
* Explains the applicability of compensatory mitigation under the ESA;
* Provides guidance on and identifies
preferences for general mitigation process-

es;
* Describes the forms of compensatory mitigation;
* Outlines how compensatory mitigation programs and projects should be established and operated;
* Establishes criteria for use of thirdparty mitigation; and
* Provides guidelines for compliance
tracking.
"For . . . developers considering ways
to optimize mitigation expenditures," Holland & Hart suggests, "a threshold question is likely to be whether USFWS has
proposed a policy that achieves substantive and procedural equivalency across the
various approaches to compensatory mitigation, or instead, is proposing explicit or
implicit biases toward different forms or
providers of compensatory mitigation.
"The challenge facing USFWS and
stakeholders with respect to 'equivalency' among compensatory mitigation approaches is illustrated by the situation surrounding compensatory mitigation for
impacts to the lesser prairie chicken," the
analysis offers. "In that case, USFWS
found itself holding private conservation banks to much more exacting conservation standards than the service applied
to a state-administered compensatory
mitigation program. The disparity has created a significant disincentive to private
conservation investment and rewarded relatively short-term and low-quality conservation expenditures by state wildlife officials."
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American Oil and Gas Reporter - October 2016

Table of Contents for the Digital Edition of American Oil and Gas Reporter - October 2016