Tuesday, May 13 , 2008

NMBA Advocacy

Since its inception in 1998, the NMBA has accomplished a great deal in advocating the cause of mitigation banking on a number of government-related fronts. The NMBA continues to work for policies that support and protect mitigation banking by pursuing both a legislative and a regulatory agenda. Our mission and accomplishments are clear:

Encourage Legislative Preference for Mitigation Banking. Early on, the NMBA members successfully convinced Congress to include a preference for using mitigation banks in various enactments that federally fund large development projects, such as the Transportation Equity Act for the 21^st Century (TEA-21) and the Water Resources Development Act (WRDA). The NMBA is currently working to maintain this preference in the upcoming re-authorizations of those Acts, as well as the enactment of other development-related funding, such as the AIR-21 and Amtrack bills.

Support Mitigation Banking Legislation. The NMBA endorses the American Wetland Restoration Act (currently H.R. 1474), introduced by Congressman Walter Jones and others to codify the regulatory structure for mitigation banking. We have provided testimony at hearings, offered letters of support, and worked to help the "Jones Bill" move through Congress. We most recently testified in support of this bill at hearings before the House Subcommittee on Water Resources in September 2001.

Pursue Equivalent Standards for All Mitigation. The NMBA is also working hard to level the playing field for mitigation banks and the other forms of compensatory mitigation, such as in-lieu-fee programs. The NMBA was instrumental in initiating and supporting a number of studies examining the effectiveness of compensatory mitigation (in general) and in-lieu-fees (in particular). As a result, studies have been completed by the National Academy of Sciences (NAS) (Compensating for Wetland Losses under the Clean Water Act, June 2001); the U.S. General Accounting Office (GAO) (Wetlands Protection: Assessments Needed to Determine Effectiveness of In-Lieu-Fee Mitigation, May 2001); and the Army Corps of Engineers (Review and Analysis of In Lieu-Fee-Mitigation in the CWA Section 404 Permitting Program, November 2000). These studies uniformly identify the need for more bank-like accountability across the various forms of compensatory mitigation.

Seek to Impose Standards on In-Lieu-Fee Programs. As a result of NMBA pressure and the scientific studies, the Army Corps of Engineers (Corps) issued its In-Lieu-Fee Guidance in November 2000, imposing more stringent standards on in-lieu-fee arrangements and providing a preference for use of mitigation banks for compensatory mitigation in the general permitting context (if bank credits are available within the same service area as the permitted impact). In addition, the Corps issued a Regulatory Guidance Letter (RGL), outlining more uniform standards for all forms of compensatory mitigation, in October 2001. (The Corps is currently revising this RGL).

Maintain Sound Wetland Protection. Since the January 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC), the NMBA has urged the federal agencies to issue detailed guidance so that wetland permitting and subsequent compensatory mitigation can proceed efficiently and effectively. The Association seeks to assure that all wetland loss are replaced, a concern exacerbated by the unpredictable and variable practices of individual Corps districts.

Clarify Federal Mitigation Policy. One of the NMBA's top priorities is to clarify the federal government's policies towards mitigation banking and compensatory mitigation generally. We are working with the federal agencies to identify the inconsistencies within federal mitigation policy and identify ways to improve the program. This includes review of the 1990 Memorandum of Agreement (MOA) on Mitigation, the 1995 Mitigation Banking Guidance and the 2000 In-Lieu-Fee Guidance.

Improve Consistency in Implementation of Mitigation Banking Policy. The NMBA has placed a high priority on obtaining consistent, appropriate deadlines for review and approval of bank charters and other milestones in the federal regulatory review process governing mitigation banks. The efforts are aimed at assuring that bankers around the country face consistent procedures and standards nationwide.