Last month, EPA Administrator Scott Pruitt and Army Assistant Secretary R.D. James took prompt and important action to address concerns regarding the lack of compensatory mitigation being required for Corps permits in Alaska. Former Administrator Pruitt and Secretary James signed a Memorandum of Agreement (MOA) on June 15, 2018.
It is nice to see such effective leadership on this issue. The MOA provides a new framework for consistent application with built-in flexibility in identifying a suite of options that can be used to mitigate for permitted project impacts in Alaska. This will strengthen the regulatory program goal of “no net loss” by offsetting impacts as a result of Corps permits. The MOA provides the needed predictability for the regulated public as well as for mitigation providers, with a practical and flexible approach to mitigation that recognizes the uniqueness of the Alaska region.
Of most importance, both EPA and the Army recognized the need to have a sustainable regulatory program in Alaska, with issued Corps permits that can be upheld when challenged through the courts. This should reduce the risk to upcoming large infrastructure investments in the region.
Ideally it is always best if a Corps District takes ownership of the problem and develops a solution working with both the agencies and the public. I am a little surprised that the Alaska District didn’t develop such a commonsense and flexible mitigation approach on its own, recognizing the concerns over lack of mitigation with inconsistent application of the 404 program with the rest of the nation. But that’s what Army and EPA Headquarters are there for, to review concerns over the regional policy implementation and to analyze how that implementation affects the rest of the program. The result gives direction and guidance to Corps Districts to ensure a fair, efficient, and effective regulatory program.
The new guidance is carefully worded to place the mitigation requirement on large projects, rather than to simply add more mitigation to all permits that would burden small projects. It also uses the watershed approach, which can be applied by increasing the scale of the approach from small to large, since ultimately everything flows downstream with impacts occurring at the headwaters ultimately affecting the rivers, bays, and oceans downstream. The MOA specifically includes out-of-kind and preservation compensatory options and specifies needed flexibility for the Alaska region.
I am also glad to see the inclusion of a compensatory mitigation option on public lands, with so many good but unfunded projects already studied and ready to go at the local level. This should provide far-reaching benefits for the region.
This new guidance also provides more assurance on regulatory program compensatory mitigation needs for mitigation and restoration providers (mitigation bankers and in-lieu fee entities), which I expect to lead to more investment in Alaska with increased creation and restoration projects being constructed, reducing the risk and uncertainty for their mitigation investments while facilitating the permitting program’s efficiency.
Linda Morrison Senior Advisor
A member of the Dawson team since 2013, Linda served as Assistant Secretary of the Army’s liaison to the Corps of Engineers and the Office of Management and Budget for the Civil Works National Program and in the Regulatory Program for the Corps both at the District level and Headquarters.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.