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National Mitigation Banking Association Applauds Draft Mitigation Regulations

March 27, 2006: The National Mitigation Banking Association today announced its support of the efforts of the U.S. Army Corps of Engineers and the Environmental Protection Agency to improve the standards for wetlands mitigation, embodied in the new regulation Compensatory Mitigation for Loss of Aquatic Resources. Required by Congress in legislation enacted in 2003, the draft mitigation regulations now released will improve and strengthen wetland mitigation under the Clean Water Act Section 404 program.

"We look forward to working with the federal agencies and other stakeholders on these regulations to continue to improve wetland mitigation," said Craig Denisoff, president of the association and a principal in Environmental Business Partners of Davis, California. "These regulations can improve the Section 404 program for all participants – the permit applicants, the mitigation providers, the federal agencies, and most importantly, the physical environment."

The Association is pleased that the Draft Mitigation Regulations embrace key principles that will improve wetland mitigation and provide enhanced environmental protection. First, all mitigation will have to meet the same high ecological performance standards that mitigation banks already meet. This includes alternative forms of mitigation such as on-site and "in lieu" fee payments to third parties for future mitigation efforts. Mitigation providers will have to present specific sites and specific mitigation plans, rather than general ideas, to qualify.

Second, consolidated off-site mitigation, provided by mitigation banks, will be reviewed and approved in a timelier manner with new procedures. The proposed new approval process requires public comment, and will help regulatory agencies, the permit applicants, the mitigation providers and the public by establishing clear deadlines for mitigation review.

Third, the federal agencies are serious about requiring that all forms of mitigation, including in-lieu fees and on-site mitigation, meet the same high standards that mitigation banks currently have. This should address the concerns raised by the U.S. General Accounting Office in 2001 over the lack of accountability and failure of in-lieu fees to meet the no net loss standard associated with these quasi-mitigation programs. The Association believes that the proposal to improve the standards associated with in-lieu fees is an important step towards assuring that wetland mitigation is provided in a timely, environmentally sound manner.

Speaking on behalf of the Association, Denisoff said "These new regulations will encourage better and stronger wetland mitigation while reducing the delays in the wetland permit program for everyone. High quality wetland mitigation is the goal of these regulations, a goal everyone can support."

Mitigation banking has been underway in the U.S. since the early 1990’s, with bankers restoring, enhancing, and sometimes creating wetlands in advance, selling credits for them as compensatory mitigation for development sites where wetlands are unavoidably impacted. Mitigation banks are generally large, consolidated wetland or natural habitat properties that have been restored or enhanced to improve the wetland functions.

The practice has grown considerably in the last few years. Today, there are approximately 500 approved wetland mitigation banks spread across 35 states. The National Mitigation Banking Association represents wetland and habitat mitigation bankers, establishing legislative and regulatory policy, and furthering the goals of the wetland mitigation industries.

Contact
Stephen Kaiser, PR counsel
410-467-7800

Peggy Strand, Association counsel
202-344-4699