Montana’s Aquatic Resources at Stake – MARS

Federal Public Notices first proposed a stream mitigation project and a wetland project NWO-2011-01760-MTH for the new Montana ILF program called ‘MARS’.  The project proposals noticed were not in compliance with the 2008 Mitigation Rule and were inconsistent with the published state-wide Montana Stream Mitigation Procedure (SMP).

Here were some of the concerns expressed by government officials, environmental groups, and others to the public notices referenced above from the US Army Corps of Engineers:

1. The mitigation projects were preservation only according to the Public Notices.  This despite requirements under the 2008 Rule which states "When a permittee proposes to use preservation to provide compensatory mitigation, § 332.3(h)(2) [§ 230.98(h)(2)] requires that the preservation be done, to the extent appropriate and practicable, in conjunction with aquatic resource restoration, establishment, and/or enhancement activities."
2. The projects featured new and unfamiliar concepts. Among them something called a Channel Migration Easement which would generate huge numbers of valuable credits (mitigation credits) for putting an easement restricting development over even one side of a stream.  In exchange for an easement, the first project on 5,300 feet of one side of a channel would receive 83,210 stream credits by a simple deed restriction on the floodplain according to information provided by the U.S. Army Corps of Engineers.
3. Management planning was suspect.  Environmental mitigation has a 40+ year history in the United States.  Best practices have been adopted over time and of course, generally have been driven by good science.  Livestock exclusion from wetlands has been held as one standard intended to protect (in-perpetuity) high-quality mitigation wetlands from damage.  Notably, the property owners (or a lessee) on the proposed first wetland project site intended to graze the wetland areas under easement.
4. There would be no net benefit for simply preserving the status quo on streams or wetlands in their already degraded state.  Therefore, there would be no ecological uplift or ecological benefit and therefore no real mitigation.
5. Inclusion for the 12 elements required of all mitigation projects under the 2008 Mitigation Rule were not heeded here according to the U.S. Army Corps notice.  For example, there was no monitoring and no defined performance standards for the projects.  Notably, a standard requirement for ‘adaptive management plan’ was referenced, however the plan was specified as only ‘in the event it is needed'.

Today, partnered with The Nature Conservancy (TNC), the program sits atop a mountain of credits.  Exactly 600,000 stream credits and more than 500 wetland credits have been pre-released by the U.S. Army Corps of Engineers to the program.  The program boasts more advanced stream credits than all other entities currently in mitigation except for only 3 other Programs in the US: TNC’s Ohio ILF with over 900,000 stream credits, West Virginia’s ILF with over 1.4 million stream credits and The Kentucky Department of Fish and Wildlife Resources with 1.79 million stream credits. 

MARS has established themselves almost overnight as the only game in Montana. Here are the numbers as of May 1, 2019:

MARS ILF Advance Credit Ledger Summary 5.1.2019
MARS ILF Stream Credit Summary
Advanced Credits (P Rel)	600,000.00
Advanced Credits (P Wdr)	-9,955.80
MARS ILF Wetland Credit Summary
Advanced Credits (P Rel)	520.00
Advanced Credits (P Wdr)	-49.45