Vol. 23, No. 9 November 10, 2015

Presidential Memorandum: Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment

President Obama is promoting the use of mitigation to offset natural resource impacts and encouraging investment in mitigation banks. The White House released an overview of the initiative in a Presidential Memorandum on November 3, citing moral and economic obligations and stating “American ingenuity has provided the tools that we need to avoid damage to the most special places in our Nation and to find new ways to restore areas that have been degraded.” The Administration is backing the support with a directive to federal agencies to “seek to encourage advance compensation, including mitigation bank-based approaches,” and to encourage investment in advance compensation through policies that are predictable and “wherever possible… should operate similarly across agencies and be implemented consistently within them.”
WSSI’s Julie J. Metz Wetland Bank, the first wetland bank in Virginia
The Presidential Memorandum comes on the heels of the October 2015 report from the Institute for Water Resources, the U.S. Army Corps of Engineers, and the U.S. Environmental Protection Agency, The Mitigation Rule Retrospective: A Review of the 2008 Regulations Governing Compensatory Mitigation for Losses of Aquatic Resources. The entire report is available, as is a four page overview. The review found that permittees have increasingly relied on mitigation banks and in-lieu fees for compensation since 2008, and that permit processing time decreases when these forms of compensation are used. The permit time finding echoes a similar study, in which it was evident that wetland permit processes take twice as long in states that lack viable in lieu fee and mitigation banking programs. If you would like to further discuss this directive or have questions, please contact Mike Rolband or Mark Headly.

The 2008 Corps/EPA Mitigation Rule lists the preference hierarchy for compensation:

1) Wetland bank credits;
2) ILF credits;
3) Permittee-responsible mitigation;
4) On-site permittee responsible mitigation; and
5) Off-site permittee-responsible mitigation.