On September 16, the Assistant Secretary of the Army for Civil Works (ASA(CW)) released new procedures to address delays in federal mitigation banking reviews. In the announcement, Assistant Secretary of the Army for Civil Works Michael Connor stated, “The 2008 Mitigation Rule stipulates a review timeline of no longer than 225 days for the Corps’ steps in the review process. Recent analysis of Corps data has shown that this timeline is not, on average, being met.”
I am aware of cases where approval times have been extended to longer than 5 years.
The new memorandum seeks to “improve compliance with the mitigation bank and in-lieu fee (ILF) program review timeline [by] providing the U.S. Army Corps of Engineers clarification on certain aspects” of 2008 federal Mitigation Banking Rule.
The memorandum identifies several likely factors impacting delays in processing times. They include sponsor’s time for producing documentation and information; sponsors submitting incomplete information; competing priorities for Corps staff time; discretionary delays by the district engineer during the Interagency Review Team (IRT) review process (e.g., negotiations with IRT members); requests for additional information; time extension requests; review processes that are inconsistent with the 2008 mitigation rule; extensive focus on and review of plans rather than outcomes; and lack of, or not using, tools to standardize and streamline review processes. Existing data do not allow quantifying the delay associated with each potential source of delay.
Here’s my initial sense on how this will likely impact the mitigation banking process:
Improving Compliance with Timelines in the 2008 Mitigation Rule. The rule has timelines for processing the mitigation bank instruments through the Interagency Review Team (IRT). These timelines have not been followed by IRT members and this has extended approval times. The memorandum reinforces that the District Commander is the final approving authority for the mitigation bank instrument and must manage the process in accordance with these timelines.
If IRT members have technical concerns, the Corps should use the elevation procedures in the rule. Further, “The district engineer should, to all extents practicable, minimize the number of review iterations of complete draft instruments and comply with the 2008 Mitigation Rule timeline for credit release decisions of 45 days.”
Tools and Practices in Support of Timeline Compliance The memorandum encourages development of tools to facilitate compensatory mitigation decision-making and improve transparency. These tools can streamline the review process and thus reduce time needed to reach decisions. These include development of national templates for banking instruments and credit release schedules. The memorandum also identifies the need for Standard Operating Procedures (SOP’s) and Rapid Assessment Methods (RAM) for habitat assessment to identify not only permit impacts but also to determine credit values on mitigation banks.
.
This memorandum also reiterates the specific items in the mitigation rule itself that should be used to reduce current approval delays. Also, the memorandum provides no new requirements or rules; it is based on the mitigation bank regulations that contain legally binding requirements.
In my view, the 2008 Mitigation Banking rule is one of the more successful governmental regulations in the past 25 years. The Rule established a process that encouraged private sector investment in the construction of successful wetland mitigation banks which were used to mitigate for unavoidable impacts to waters of the United States (WOTUS). The more successful the bank, the better the habitat, and therefore the higher return on investment.
This memorandum will reinforce the existing procedures and processes in the mitigation rule to reduce delays in getting valuable banks approved in shorter timelines. Establishing high quality mitigation banks that restore and preserve critical aquatic resources is an important aspect of environmental protection today.
Mark Sudol
Senior Advisor
Prior to joining Dawson & Associates, Mark was Chief of the U.S. Army Corps of Engineers Regulatory Program and oversaw the Corps’ regulatory responses to U.S. Supreme Court’s Rapanos and Northern Cook County decisions. He was also senior lead for the team that wrote the Mitigation Banking Regulations.
Comentarios