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New Report Offers Best Practices to Improve Third-Party Compensatory Mitigation Review Process

August 2020

(Washington, D.C.): Healthy wetlands benefit our environment and economy in a number of ways, from providing habitat to wildlife and fisheries, to improving water quality, to offering opportunities for recreation. The Clean Water Act (CWA) requires certain impacts to be compensated, and each year, thousands of acres of wetlands and streams are restored, enhanced, and protected to satisfy the Act’s compensatory mitigation requirements. But the success of compensatory mitigation projects relies on a robust review and approval process that ensures that the protections in federal regulations are implemented in practice on the ground and that compensation projects effectively offset permitted impacts. Improving Compensatory Mitigation Project Review, a new report from Environmental Law Institute (ELI), identifies a number of challenges in the implementation of review and approval—from both the agencies’ and providers’ points of view—as well as best practices that may inform future implementation.

Designing third-party compensatory mitigation projects can present complex issues requiring thorough understanding of aquatic resource functions and a well-grounded, interdisciplinary use of science. In 2008, EPA and the U.S. Army Corps of Engineers issued the federal compensatory mitigation regulations that, among other things, promoted timely decisions on third-party mitigation activities. “Although the 2008 rule has generally improved the review and approval process,” explains lead author Rebecca Kihslinger, “we found that there are still a number of recurring substantive issues, such as site selection, credit determination, site protection, and long-term management, and management challenges that are causing delays in the review and approval process.”

The report makes a number of observations and recommendations, including:

  • Review and approval of banks, in-lieu fees, and projects often exceed the regulatory time frame, but delays often occur due to known causes—some of which, like poor communication, lack of templates, lack of project management strategies, and data gaps, can be addressed with process/management improvements.
  • The Interagency Review Team (IRT) process is very effective at evaluating compensatory mitigation actions, but it could be improved with little or moderate investment, including proactive scheduling and organization of IRT meetings, better use of remote meeting techniques, regularly scheduled policy meetings, scheduling of opportunities for site visits, and implementation of proven project management techniques.
  • Efficiencies in the review process can be gained via project management tools applied to the review process, such as detailed schedules with tracking tools; best management practices to aid providers on project submissions; and additional training on the regulatory process and substantive issues.
  • Thoughtfully designed standard operating procedures and templates make it easier for providers and IRTs to achieve a common understanding and can result in timely project approvals.

In preparing the report, ELI worked with a panel of experts to conduct a wide-ranging analysis of the review and approval processes applied to mitigation banks and in-lieu fee programs and projects across the country. The report offers a number of substantive and procedural ways to improve efficiency while still ensuring a rigorous and thorough review. For example, establishing realistic and agreed-upon schedules at the beginning of the process can help set clear expectations for all parties.

The report is available for free download at: https://www.eli.org/research-report/improving-compensatory-mitigation-project-review.

The report will be featured in an upcoming episode of People Places Planet Podcast. Tune in at www.eli.org/podcasts or find us on your favorite podcast app.

Rebecca Kihslinger is available for interview.