The framework provided in the 2008 Final Rule for Mitigation has been largely responsible for the success of banking. The Rule created the stability needed for private investment to fund banks. Since projects require many years of investment and work in order to produce approved credits to sell, investors needed a level of confidence that enforcement would be predictable and trustworthy.
The hierarchy in the Rule put banks at #1, In-Lieu-Fee (ILF’s) at #2, and Permittee Responsible Mitigation (PRM’s) at #3. The intent is clear that banks were to be the first choice for environmental offsets. It was the hierarchy, coupled with the timeline for bank approvals, that brought a flood of private investment to projects aimed at environmental protection. In Army Corps districts where the provisions of the 2008 Rule are being successfully implemented, a robust banking standard is thriving. And the environment we all share is benefitting.
The use of bank credits represents a “net temporal gain” to the environment since the environmental values are created ahead of the impacts they will offset. A Duke University study in 2019 (Doyle, 2019) explained “Because of the temporal lag alone, ILF Programs should be a last resort as a mechanism for compensatory mitigation.” It also states that, “…if bank credits are available, then permittees should be expected and/or required to purchase those credits rather than use credits advanced to an ILF Program. This hierarchy is codified in the 2008 Mitigation Rule for CWA mitigation, and should continue to be enforced. A similar hierarchy should be ensured for ESA mitigation.”
Recent studies, including those done by the Army Corps itself, show that bank permitting timelines currently average more than three years. And while this problem is not new, there are current actions underway intended to help streamline and improve responsiveness for these permits.
The Water Resources Development Act of 2022 (WRDA), among other items, directs the “Comptroller General of the United States to conduct, and submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate, a report on the results of a study on performance metrics for, compliance with, and adequacy in addressing project impacts of, potential mechanisms for fulfilling compensatory mitigation obligations pursuant to the Federal Water Pollution Control Act.”
The Government Accountability Office (GAO) will deliver a report to the committees within 18 months of the Act.
Only by the efficient processing of mitigation banking permits (MBIs) can we hope to begin effectively meeting the goal of ‘no net loss’ for our Nation’s waterways.