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.
A newly released Government Accountability Office (GAO) report is shining a spotlight on a concern many in the mitigation banking industry have raised for years: inconsistent implementation of the federal compensatory mitigation program across U.S. Army Corps of Engineers districts. Under Section 404 of the Clean Water Act, the Corps requires compensatory mitigation
Read MoreFor too long, environmental policy debates have been framed around a false and unproductive premise: that economic growth and environmental protection are inherently at odds. This mindset is not only outdated—it is actively harmful to both outcomes. Mitigation banking offers a clear path forward. By design, it aligns economic incentives with ecological restoration, proving
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