ILF Workbook Contains Potentially Damaging and Misleading Language

During the past year, the National Environmental Banking Association (NEBA) became aware of some problematic language in the draft In-Lieu Fee Program Instrument Review Workbook that indicated that released in-lieu fee (ILF) credits were considered equivalent to mitigation bank credits under the mitigation hierarchy.

NEBA raised these concerns with the EPA Office of Water, and the Workbook language was amended to more accurately state the relationship between actual mitigation bank credits and released in-lieu fee credits under the mitigation hierarchy. However, NEBA continues to be concerned that the Workbook language does not adequately reflect the precedence of mitigation banking credits over released in-lieu fee credits under the 2008 Mitigation Rule.

This week, the Board of NEBA sent a letter to the Acting Chief of Regulatory for the U.S. Army Corps of Engineers in response to concerns that language within the workbook is non-compliant with the 2008 Final Mitigation Rule and more recently, U.S. Congressional support to the Rule.

"The discretion to establish equivalency between released ILF credits and mitigation credits clearly does not exist in the 2008 Compensatory Mitigation Rule and mitigation hierarchy without first meeting the strict criteria mandated in the Rule," writes John-Paul Woodley, Chairman of NEBA.

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