Board of Directors
___________________
Wayne White
President
Michael Sprague
Vice President
Donna Collier
Treasurer
Randy Vogel
Secretary
Doug Lashley
Immediate Past President
___________________
Stephen Collins
Director At Large
Adam Davis
Director At Large
Pamela Fetterman
Director At Large
Ben Guillon
Director At Large
Travis Hemmen
Director At Large
Russ Krauss
Director At Large
Will McDow
Director At Large
James Parker
March 15, 2016
Re: Mitigation Hierarchy
To whom it may concern:
The National Mitigation Banking Association (“NMBA”) represents businesses
and non-profits who invest in advanced compensatory mitigation in the form of
Wetland Mitigation Banks, Stream Mitigation Banks, and Conservation Banks
with the ultimate goal of providing a timely, cost effective, “environment first”
way to replace lost wetland, stream, and habitat functions.
In the Federal Compensatory Mitigation for Losses of Aquatic Resources; Final
Rule 2008 (Rule) some 113 pages, including the preamble, give weighty
consideration to development and implementation of a mitigation hierarchy.. The
Authors drew from scientific studies as well as other governmental studies in
developing the hierarchy. The Authors considered not only the environmental
benefits, but also the potential for efficiencies and streamlining in the permitting
and compliance processes performed by various federal resource agencies. Use
of credits from mitigation banks was considered the first option in this mitigation
hierarchy. The preamble to the rule is very clear on this point. Page 19605 of the
rule states “In this final rule, we have established a preference for mitigation bank
credits, since mitigation banks must have an approved mitigation plan and other
assurances in place before credits can be provided to permittees --.” The NMBA
believes that the application of the hierarchy to satisfy compensatory mitigation
requirements under Section 404 of the Clean Water Act and Section 10 of the
Rivers and Harbors Act is appropriate and is fully supportive thereof. The
following are quotes from the Rule Federal Register (33 CFR Parts 325 and 332;
40 CFR Part 230, P. 19673):
Director At Large
Don Ross
Director At Large
Randy Wilgis
Director At Large
Headquarters
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(b) Type and location of compensatory mitigation.
(1) When considering options for successfully providing the required
compensatory mitigation, the district engineer shall consider the type and
location options in the order presented in paragraphs (b)(2) through (b)(6) of
this section…
(2) Mitigation bank credits. When permitted impacts are located
within the service area of an approved mitigation bank, and the bank has
the appropriate number and resource type of credits available, the
permittee’s compensatory mitigation requirements may be met by securing
those credits from the sponsor…
(3) In-lieu fee program credits. Where permitted impacts are located
within the service area of an approved in-lieu fee program, and the sponsor
has the appropriate number and resource type of credits available, the
permittee’s compensatory mitigation requirements may be met by securing
those credits from the sponsor…
(4) Permittee-responsible mitigation under a watershed approach. Where
permitted impacts are not in the service area of an approved mitigation
bank or in-lieu fee program that has the appropriate number and resource
type of credits available, permittee- responsible mitigation is the only
option….
(5) Permittee-responsible mitigation through on-site and in-kind mitigation. In
cases where a watershed approach is not practicable, the district engineer
should consider opportunities to offset anticipated aquatic resource impacts by
requiring on-site and in-kind compensatory mitigation…
(6) Permittee-responsible mitigation through off-site and/or out-of-kind
mitigation. If, after considering opportunities for on-site, in-kind
compensatory mitigation as provided in paragraph (b)(5) of this section, the
district engineer determines that these compensatory mitigation opportunities
are not practicable, are unlikely to compensate for the permitted impacts, or
will be incompatible with the proposed project, and an alternative,…
We understand mitigation proposals originate from project applicants seeking permits
and the Corps can only evaluate what is proposed by those applicants. However, the use
of the Hierarchy was so important to the Corps that in one of the few post rule
communications a permit decision template was created and provided for use in all Corps
Districts to assure, amongst other things, application of the hierarchy in the permitting
process. A copy of the permit decision template is attached for your consideration, and
we request that this template be incorporated into the permitting process.
In conclusion the hierarchy as written in the Rule is a well-reasoned, important part of
insuring the “No Net loss” policy, and the NMBA supports the use of the hierarchy in
determining how compensatory mitigation will be provided in all permit decisions. We
request that it be followed as envisioned and established in the rule. We also fully support
the completion of the permit decision template to document the use of the hierarchy and
justify any deviations.