Versatile purpose: New IRT workbooks offer additional resources for Tribal Compensatory Mitigation

In November of 2022, the EPA released a series of workbooks and checklists pertaining to compensatory mitigation banks and in-lieu fee (ILF) programs. The documents are non-binding guidance regarding how an interagency review team (IRT) should conduct adequate review of mitigation bank and ILF prospectuses, instruments and relevant documents. Although these workbooks are designed for a specific audience, IRTs, the workbooks can also serve to benefit tribes (or anyone for that matter) seeking information on the process and establishment of compensatory mitigation project on tribal lands. 

IRTs are established by an Army Corps district engineer. IRTs can include personnel of federal, tribal, state and/or local regulatory and resource agency representatives such as, the Environmental Protection Agency, U.S. Fish and Wildlife Service, NOAA Fisheries, the Natural Resources Conservation Service and/or other tribal, state and local agencies that have authority or mandates that directly affect or are affected by the establishment, operation or use of the mitigation project. An IRT reviews the relevant documentation for a compensatory mitigation project and advises the chair and co-chairs on the documentation of the proposed project. Additionally, the IRT will advise the district engineer in assessing monitoring reports, remedial or adaptive management, approval of credit releases and modifications to the final instrument. Members of the IRT may sign the final instrument, indicating agreement with the terms of the final instrument but are not required to. Alternatively, a member of the IRT can submit a separate letter indicating concurrence with the final instrument of the proposed compensatory mitigation program. The information provided by the IRT is given weight by the chair, but the chair has final authority over the composition of the establishment of a compensatory mitigation project.

Over the past 14 years, a lot has been learned about the process and specifics of compensatory mitigation, specifically under section 404 of the CWA. The regulatory program has experienced a growth in expertise, knowledge and navigation to achieve no net loss outcomes for impacts to natural resources. The root of all growth in the field extends from the 2008 Mitigation Rule, which focuses on 12 fundamental components required for establishment of a mitigation project. The mitigation rule is the catalyst for an environmental market approach to no net impacts to natural resources – it’s the foundational piece to federally regulated compensatory mitigation. However, like many federal regulations, the mitigation rule can be vague and leave an interested party confused or searching for more guidance and information. The recently released workbooks and checklists can help remedy that.

The series of five workbooks and checklists focus specifically on the type of compensatory mitigation project and the elements needed to accomplish successful review of submitted instruments. The series includes: (1) Mitigation Bank Prospectus, (2) Mitigation Bank Instrument, (3) In-Lieu Fee Prospectus, (4) In-Lieu Fee Instrument, and (5) In-Lieu Fee Project Site Plan, each of which makes the elements of a bank or ILF, digestible.

As many may know, the mitigation rule is A LOT to digest! (“Okay I read it, but did I understand it in its entirety?”) Navigating the prospectus and instrument elements for establishment of a mitigation project can be a hurdle in itself. Additionally, navigating the applicable regulations and policies in each district or state is a hurdle too. The workbooks and checklists provide the IRT with critical insight regarding the intentions and potential issues of a proposed compensatory mitigation project. This is tremendous! However, something that is missing, and unsurprisingly so, is reference to tribal participation via sponsorship or at least beyond mere consultation capacity. This is ironic because the workbooks clearly state in the Introduction “In 2007, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) began training federal, state and tribal (emphasis added) members of Interagency Review Teams (IRTs) on the review and approval process . . . through national and regional courses.” (“So, tribes can be members on IRTs but aren’t included at compensatory mitigation program sponsors?”) This could be reflective of the fact that the workbooks and checklists are complementary to the mitigation rule, which also does not include tribes as a participant or sponsor of mitigation projects. Why does this matter? It matters because despite the lack of inclusion in a regulatory program that tribes are also subject to, tribes have established their presence in environmental markets and specifically for wetland compensatory mitigation banking under section 404 of CWA.

There is no doubt that policy needs to change to be more inclusive to tribal participation in compensatory mitigation and this is something we have written extensively about in the past year. We also recognize the strides that can be made with a deep dive into the text of these workbooks and checklists. For instance, we know there are different levels of tribal participation in compensatory mitigation that run the gamut from full tribal sponsoring and ownership of a bank or ILF; to partnership mitigation programs between a tribe(s) and non-tribal entity; to the tribe serving as the third-party holder of a site protection mechanism (conservation easement, etc.) owned by non-tribal mitigation entities, tribes serving in long-term management roles; the implementation of tribal traditional ecological knowledge (with consent) into restoration (mitigation) techniques; or for approaching tribes to participate on already established compensatory mitigation programs.

Regardless of the type of tribal participation, there is a likelihood of running into a unique set of considerations that prove to be difficult to navigate when working with tribes. These considerations are unique because of the sovereign status tribes hold in the United States and the unique relationship tribes have with the federal government and states. The EPA’s new workbooks or checklists do not reference considerations such as tribal sovereignty, waivers of sovereignty immunity, tribal water rights or land fractionation, but the workbooks are good at pointing out the particulars of each fundamental element of the mitigation rule. Moreover, the workbooks and checklists identify critical questions that could come up in IRT review. Many of these questions are beneficial to a tribe doing an initial feasibility study on the success (ecologically, financially, culturally) of a mitigation project.

Helpfully, the workbooks generally reference the applicable citation from the mitigation rule and in many sections, they break down the specific points the IRT should be focusing on in review. The workbooks also clearly identify logical categories and roles each category plays with regard to the fundamental components of mitigation projects, such as (1) Bank establishment, (2) Bank operations, and (3) Performance and management. This may be obvious and a small detail, but for a tribe or anyone new to this regulatory program, the mitigation rule can be more confusing than helpful.

The workbooks also clearly lay out the process of bank instrument development in 4 stages. Even if it is a very condensed timeline, this is beneficial because little is known about the timelines specific to development of compensatory mitigation projects on tribal lands. Additionally, core challenges for establishing a compensatory mitigation program are broken down in more detail, offering insight into critical questions an IRT might ask a tribe. Again, because the workbooks do not specifically recognize tribal participation (namely as a sponsor), tribes are likely to have much more extensive questions beyond what is in each workbook and under each element.

All this is to say, the workbooks and checklists are a good starting place for tribes seeking information on the breadth of topics relating to compensatory mitigation under section 404 of the CWA. Being able to anticipate IRT questions, and understand steps and timelines, can aid a tribe in confronting unique challenges that would need consideration prior to prospectus development, such as tribal land mitigation site checkerboarding, fractionation or water rights (severed interests in land, mineral rights and water rights references in the site selection piece of the workbook). My hope is that someday federal agencies and state authorities who oversee compensatory mitigation programs and regulations will recognize the vital roles tribes play as sponsors and participants in environmental markets. And moreover, that the recognition will be inclusive to tribal sovereignty and acknowledge that tribes are inherently unique, which may require some creativity from all parties navigating the establishment of tribal compensatory mitigation programs on tribal land.