NMBA Blog

The proposed mitigation rule currently calls for an end to in-lieu fees.http://www.epa.gov/owow/wetlands/pdf/MitRuleNPRM.pdfWe understand that there may be a fall back to allow in-lieu fees. This blog is to get feedback on what sort of requirements in-lieu-fees should have to ensure that the equivlaence required in the 2003 Defense Authoriziation Bill (PL 108-136 Section 314 Paragraph 2694b(b))

Water Resources Development Act Provides Preference for Mitigation Banking.

The Association's efforts to gain Congressional recognition of mitigation banking has resulted in favorable language requiring the Corps of Engineers to give a "first consideration" to available mitigation banks to provide mitigation credits for federally funding water projects. The statutory language is printed below.
The bill now returns for final votes by the House and the Senate, and then Presidential signature. We expect the law to be finally enacted within the next few weeks.
WRDA Conference Report:
Section 2036:
(c) Wetlands Mitigation.-
(1) In General. – In carrying out a water resources project that involves wetlands mitigation and that has impacts that occur within the service area of a mitigation bank, the Secretary, where appropriate, shall first consider the use of the mitigation bank if the bank contains sufficient available credits to offset the impact and the bank is approved in accordance with the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (60 Fed. Reg. 58605) or other applicable Federal law (including regulations).
(2) Service Area. – To the maximum extent practicable, the service area of the mitigation bank under paragraph (1) shall be in the same watershed as the affected habitat.

The House yesterday (7/25/07) named its conferees to the Water Resources Development Act, in an effort to cut a conference deal before the August recess.
In the Senate, where conferees were named in May, Environment and Public Works Committee Chairwoman Barbara Boxer (D-Calif.) told E&E Daily yesterday that staff negotiations were "going smoothly" and lawmakers are on track to reach a conference deal soon. Earlier this week, Boxer said that a final package would not be ready until September.
Transportation and Infrastructure Committee ranking member John Mica (R-Fla.) gave a final deal before the break a 50-50 chance. He and other Republicans have been working with the Bush administration to make sure the White House doesn't veto the bill.
The Senate approved its $14 billion measure authorizing Army Corps of Engineers' water projects in May, while the House passed its version in April. The Congressional Budget Office scored the House bill at $13.2 billion through 2022, but the White House estimated it would cost at least $15 billion.
Mica said the House has cut more than 100 projects from its WRDA bill while the Senate has added extra projects. The final bill is likely to cost somewhere around $20 billion, he said.
"I had to turn away members who literally came to me with tears in their eyes," Mica said in an interview. "But we are trying to talk the administration away from the 'V' word."
House aides indicated lawmakers are likely to meet for a formal conference session next week, and there is a slim chance something could be scheduled this Friday.
House Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) named himself and Water Resources and Environment Subcommittee Chairwoman Eddie Bernice Johnson (D-Texas) as conferees. Other Democrats from the House side are: Reps. Ellen Tauscher (Calif.), Brian Baird (Wash.), Brian Higgins (N.Y.), Steve Kagen (Wis.), Jerry McNerney (Calif.) and Harry Mitchell (Ariz.).
On the Republican side, Mica named himself and five other conferees: Water Resources and Environment Subcommittee ranking member Richard Baker (La.) and Reps. John Duncan (Tenn.), John Boozman (Ark.) Vernon Ehlers (Mich.) and Henry Brown (S.C.).
Also named to the House conference team were Natural Resources Committee Chairman Nick Rahall (D-W.Va.) and Water and Power Subcommittee Chairwoman Grace Napolitano (D-Calif.). The Republican conferees from the Natural Resources panel were unknown at press time.

1. This week, (July 16, 2007), there will be hearings on the post-Rapanos Clean Water Act jurisdiction issues. As of late last week, when Strand spoke to staff members, the witness list was still in flux. As you know, Oberstar (and Dingell) introduced a Clean Water Act Jurisdiction Restoration Bill. That bill, and the need for legislation, will be the focus of the hearing.


2. Several sources are reporting that the Water Resources Development Act (WRDA) will come out of the Conference Committee for final votes by the end of July, 2007. The House and Senate staff folks have been meeting regularly on conference issues. The House still has not formally appointed Conference Committee members, so there has been no formal meeting of the Conference Committee.

Labels: Washington

The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency issued regulatory guidance yesterday regarding the Rapanos v. United States and Carabell v. United States that will affect how the Corps claims wetlands and other waters.
A copy of the guidance is attached. Ultimately, this is how we believe it will affect wetland determinations:
Swales or other erosional features, such as wash-outs, that do not have a permanent or significant duration of flow/innundation will NOT be considered juridictional and therefore will not need a permit from the Corps.
Ditches that were excavated wholly in and draining only uplands that do not carry a relatively permanent flow will NOT be considered jurisdictional and therefore not need a permit from the Corps. Note the caveat that the ditches be excavated wholly in uplands--a ditch that cuts through a wetland or drains a wetland may still be claimed as jurisdictional.
Non-navigable tributaries that are not relatively permanent and wetlands adjacent to non-navigable tributaries must have a "significant nexus" in order to be claimed as jurisdictional. This will be determined on a case-by-case basis. To determine if a significant nexus is present, an analysis of topography between the wetland and tributary, size of the watershed, amount of rainfall, and ecological factors must be considered. For example, if a wetland was present adjacent to a non-navigable drainage ditch, the topography between the ditch and the wetland should be analyzed to determine if the wetland could overflow to the ditch at some time or could contribute to water quality improvements to a navigable water. If it is determined that a seasonal connection would not occur, then the wetland would not be considered jurisdictional to the Corps.

Kudos to George Kelly for the terrific job he did testifying before the Joint hearing of the Subcommittee on Energy and Mineral Resources and Subcommittee on National Parks, Forests and Public Lands of the Committee on Natural Resources. Here is a very brief summary of the hearing. The hearing began with opening statements from Nick Rahall (D. W.V.), full committee Chair, as well as Jim Costa (D. Cal) and Raul Grijalva (D. Az), subcommittee chairs, and ranking minority member Steven Pearce (R. N.M.). The concern expressed by all was that the US has ample coal and relies on coal for 50% of its power generation. They said that the hearing was to gather information on meeting the "challenge" of climate change while still utilizing this domestic source of energy. The majority members accepted that there needed to be some solutions for carbon emissions from coal; the minority members expressed some concerns that the US should not rush into costly solutions to a problem that has not really been proven. There were two panels of witnesses. The first panel had speakers from USGS and DOE. They were describing the research and assessment/pilot programs on sequestration of carbon in underground systems, such as saline aquifers, coal seams or as an aid to oil recovery. This first panel addressed research needs to improve technology, etc. and did not talk at all about forests or carbon capture by trees and living resources.
The second panel had six witnesses, including George. Three of the witnesses addressed similar geologic sequestration issues, including using CO2 to enhance oil recovery and sequester the carbon, or other geological issues. Three witnesses talked about forests and use of living resources to sequester carbon. George Kelly was the only witness approaching these issues in terms of how to enhance markets in natural resource credits. George did a terrific job, in a very limited time (5 minutes), of explaining mitigation banking and the conditions needed to foster a market in carbon credits. He took the principles that work for mitigation banking and explained that a system for efficient forestry carbon credits would need to have similar attributes. Afterwards, a number of folks were talking with George about these concepts. It was very, very exciting.
After the hearing, we spent some time in Wayne Gilchrest's (R.Md) office. Gilchrest is one of 7-8 folks who has a bill pending on climate change. He is also a long time member of the Water Resources Subcommittee of House Transportation and Infrastructure, which is the subcommittee with Clean Water Act and WRDA jurisdiction. Congressional hearings require a great deal of preparation, a significant amount of time waiting, and then a short opportunity to make key points. George Kelly gave freely of his time to assist the Association and the industry. He deserves our congratulations and appreciation.

Welcome to the NMBA Blog!

This space will be used to keep you up-to-date on the latest happenings here at the NMBA, as well as for dialogue on important issues that affect the mitigation banking industry.

We hope you will check back often for our regular updates and take the time to post your comments.

Sincerely,
The NMBA Blog Team