The Ecological Restoration Business Association Issues Statement Regarding Army Corps Guidance Post Sackett
ERBA Applauds Corps Guidance on Watershed Approach and Mitigation Post-Sackett
From ERBA: Last Friday, on World Water Day, Assistant Secretary for the Army Michael Connor issued guidance affirming the position of the 2008 Compensatory Mitigation Rule (“Rule”) that restoration of non-jurisdictional waters and wetlands at compensatory mitigation sites may offset impacts to jurisdictional waters, and in fact such restoration may have increased value for impacted waters under the Rule’s watershed approach.
The Ecological Restoration Business Association (“ERBA”) applauds the leadership of the ASA’s office in issuing this guidance, which supports mitigation providers’ delivery of existing and future mitigation credits that represent uplift for a full suite of ecological functions and services, not just those considered jurisdictional at the current moment.
As we now approach almost a decade of swings in WOTUS interpretations, affirmation that mitigation credits for “non-jurisdictional” features will retain their ecological and permitting value under the 404 program helps to steady the impact of jurisdictional whiplash and rightfully acknowledges the contribution of mitigation projects to watershed restoration and the goals of the Clean Water Act (“CWA”). The Post-Sackett Memo follows a formal request by ERBA to Corps leadership last September 2023, available here, to issue a District-level directive on the Rule’s Preamble and watershed approach provisions that support application of “non-jurisdictional” credits to jurisdictional impacts.
ERBA will continue to stay closely engaged with the Corps and peer federal and state agencies on the Sackett response, including providing feedback to the ASA’s office on implementation of the Post-Sackett Memo at the District-level and advocating for policies that support multipurpose banking. As always, our industry stands ready to invest in ecosystem restoration for both efficient permitting compliance and achievement of the CWA’s goals.
To access ERBA’s public statement on their website, please click HERE.