Unfortunately, recent actions by the U.S. Department of Interior (DOI) have left its agencies without needed policies to explicitly address mitigation for species and habitats.
Mitigation Banks have become increasingly necessary as a regulatory tool in order to maintain aquatic resources regulated under the Clean Water Act and Conservation Banks can be an increasingly vital tool to maintain populations of fish and wildlife and their habitats while still recognizing the unavoidable impacts from development and industry.
The Endangered Species Act (ESA) now under review for proposed changes was enacted “to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved.” Under Sections 7 and 10 of the ESA the “taking” of listed species may be allowed when certain limiting criteria are met. In 2003, the U.S. Fish and Wildlife Service issued a memorandum on Conservation Banking indicating that “activities regulated under Section 7 or Section 10 of the ESA may be eligible to use a Conservation Bank, if the adverse impacts to the species from the particular project are offset by buying credits created or sold by the bank.” More recently the Service issued guidance on a Recovery Credit System to address impacts authorized under Section 7 of the ESA. Section 10 allows the “taking” of listed species after the applicant has demonstrated it “will not appreciably reduce the likelihood of survival and recovery of the species in the wild.”
An overarching mitigation policy, implemented by the Service, is needed to guide the multitude of case-by-case decisions the Service must make on a broad range of aquatic resource and species issues under its various authorities. Such a policy will improve transparency, improve timely processing of permits, and reduce uncertainly (risk) for industry and others.
Mitigation has become the lubricant of hard decision-making in U.S. resource regulation. It is a medium for finding the middle ground between permit issuance and denial. It can provide win-win solutions, or not, depending on the policy framework in which mitigation proposals are received and evaluated. And, if guided by high environmental banking standards, it can assure that the expected ecological outcome in mitigation is realized.
The mitigation banking industry is at a pivotal moment. Regulatory shifts, evolving interpretations of the 2008 Mitigation Rule, and increasing pressure from alternative mitigation programs are reshaping the landscape. In this environment, a unified voice is not just beneficial—it’s essential. That’s where membership in the National Environmental Banking Association (NEBA) makes a difference.
Read MoreAccording to US Army Corps of Engineers (USACE) data, there are more than 8 million Advance Mitigation Credits sitting on the ledgers of the many dozens of In-Lieu Fee (ILF) Programs across the United States today, nearly all of which are exempt from any financial assurance that the mitigation projects will actually be performed.
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