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New Wetlands Rules Would Encourage Mitigation Banking
A new “results-oriented” wetlands mitigation rule proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers would change how wetlands mitigation is regulated by establishing performance standards and criteria for on-site mitigation and mitigation banks, with the goal of applying the same standards to both types of mitigation and encouraging banking where possible. The rule is aimed at “improving the quality and success of compensatory mitigation projects for activities authorized by Department of the Army permits,” the proposal says.
The emphasis on mitigation banking should be welcome news for smaller builders who don’t have the resources to successfully engineer and construct new wetlands.
“Home builders are not the right people to be in the wetlands mitigation business, just as you wouldn’t want a mitigation banker to build your home,” said Susan Asmus, NAHB’s staff vice president for regulatory affairs. “On the surface, this looks interesting, but the devil is in the details. We need to take a close look at all the implications of this proposed rule and work with the agencies to ensure that the final rule is workable for builders and does not have too profound an effect on housing affordability.”
Regulatory experts at NAHB are scrutinizing the proposal now in preparation for submitting written comments.
The proposal also directs regulators to look not just at the wetland in question, but the entire watershed in determining how to best mitigate a wetlands loss or removal. It would also require in-lieu fee programs to meet the same standards as mitigation banks.
“NAHB members all want wetlands mitigation efforts to be successful because we understand the important ecological contributions that wetlands can make,” said NAHB Executive Vice President Jerry Howard. “We are encouraged by reports that this proposed rule builds on the guidance already available from EPA and the Corps and makes it consistent across the board,” he said.
“Equally important is that the rule recognizes that there are several options available for providing compensatory mitigation,” he said. “We applaud the EPA and Corps’ efforts to encourage flexibility in cases where the functionality of one wetland makes ‘acre for acre’ replacement less effective for the watershed as a whole. We look forward to examining this new rule closely.”
Comments are due by May 30.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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