The National Environmental Banking Association (NEBA) has been engaged with the U.S. Environmental Protection Agency (US EPA) and others in work to create Inter-Agency Review Team (IRT) manuals intended to guide the approval of mitigation banks and in-lieu fees. As of this report, the documents are still in draft.
Former NEBA Board Chairwoman, Donna Collier served from the outset on the steering committee creating the manuals, and John Paul Woodley, current NEBA Chairman is engaged today in clarification to language that members feared may not be consistent with the 2008 Mitigation Rule (Rule).
One of the proposed draft workbooks contained language that described released in-lieu fee credits as “equivalent” to mitigation bank credits. While the Rule does provide that released in-lieu fee credits may be used for mitigation in appropriate cases, it does not refer to released in-lieu fee credits as “equivalent” to mitigation bank credits, because they are not. NEBA raised this issue with EPA, pointing out that allowing in-lieu fee programs, which are typically non-profit, tax-exempt entities, to compete directly with private mitigation banks is not in the public interest, and could have a profound negative impact on the mitigation banking industry.
Brian Frazer, acting Director of the Office of Wetlands, Oceans and Watersheds, recently responded to NEBA’s concerns, noting revisions to the manual resultant from NEBA’s engagement. The changes were intended to clarify language that could potentially have caused unneeded confusion about the mitigation hierarchy and mitigation bank credits formalized by the Rule.
Frazer wrote that “The investments in infrastructure under the Bipartisan Infrastructure Law and the Inflation Reduction Act represent once-in-a-generation commitments that will require significantly more compensatory mitigation credits in many areas than are currently available. Collaborative efforts between mitigation providers, regulators, and resource agencies, such as developing tools like these workbooks, will support more efficient processing of mitigation proposals to upgrade our infrastructure and effectively protect our aquatic resources.”
NEBA is continuing to engage and participate in ensuring the forward success of the industry – and its gold-standard for mitigation- answering to some of the nation’s greatest environmental challenges.
“In cases where mitigation bank credits are available, released in-lieu fee credits should be considered for mitigation only if a rigorous scientific and technical analysis shows that departure from the Rule’s mitigation hierarchy is fully justified in the public interest,” Woodley said.
US EPA is hoping to finalize the review workbooks and checklists and make them available for use soon.