New Research: A Wishlist for Improving the Mitigation Bank Approval Process
Earlier this year, the Environmental Policy Innovation Center (EPIC) and Ecological Restoration Business Association (ERBA) released a report revealing endemic delays in the approval of a class of wetland and stream restoration projects called ‘mitigation banks.’ While the research found that mandatory federal processing took 1.5 times longer than required in regulations, the analysis did not point to WHY timelines were delayed.
This new report identifies the top bottlenecks in the US Army Corps of Engineers’ review process and highlights dozens of solutions that could be implemented. These recommendations would lead to more money going to Nature, not paperwork.
Top Bottlenecks
Interviewees—19 bank sponsors* representing 70 banks in 17 Corps Districts—identified the 'top 3' factors that created delays in the approval process. Of the issues listed below, we heard repeatedly that lack of staff was an issue. However, more ‘warm bodies’ alone would not completely fix the issue. As one interviewee said, “You could double the staff but if the attitude is the same, you’ll get the same result.”
Another major theme was the perception that the Corps isn’t in the driver’s seat when it comes to multi-agency group decisions (called the Interagency Review Team, or IRT). The review process involves stacks of virtual paperwork that would be difficult for one person to tackle alone. Engaging peers from other agencies to share the load seems like a good idea. What we heard was the opposite - that more often, the IRT creates duplicative review and extends the process because everyone has a say about everything.
*Note: The analysis only includes the perspective of the sponsors, as the authors were unable to interview counterpart regulators.
See additional detail on other bottlenecks in the report.
Our Wishlist
The report contains over 50 individual recommendations, grouped into six main categories (at right), and 28 sub-categories.
Broad Categories
Address staffing issues
Address issues of standardization and consistency and ‘grandfather’ instrument reviews to the current version of templates
Create accountability for sticking to deadlines
Improve the Interagency Review Team process
Adopt technology that addresses cross-cutting issues and sources of delays
Create limits to Corps counsel review
Our top 3 recommendations are:
1. Create Accountability through Transparency and Automated Reporting.
The mitigation bank review process has a deadline set in regulations, and Corps staff have to track the time it takes them to review proposals. Why isn’t that enough? It’s because no one knows whether the Corps is keeping to their timelines because it is never made public. That’s a biggie. When you don’t have information on performance, it’s a game of pointing fingers: “You’re too slow!” “No, you’re too slow!” While EPIC and ERBA were able to get our hands on data from the Corps last year, it isn’t always easy or timely. Our latest FOIA request for an update of the data is still unmet after 12 months. Anyone should be able to access information about where a bank or in-lieu fee program is in the approval process and rolled-up reporting about how the Corps is doing on their mandated deadlines.
2. Adopt Technology Like PEEP.
Virginia’s Permitting Enhancement and Evaluation Platform, or PEEP is “... a publicly-accessible online platform where anyone can search and find details about a permit and where it is in the approval process” (see Environmental Policy Innovation Center’s case study: If You Can Track a Pizza, You Can Track a Permit). Right away, it’s hitting #1 on my wishlist, but that’s not all it does. PEEP automatically creates Gantt charts and target deadlines for parts of the approval process. You can always see whose desk the application is on and it is easy for staff to enter a timestamp (apparently in less than one minute). There are automatic reminders when the deadline is approaching. Reports can be generated to find out where the system is gumming up. Overall, PEEP is an elegant solution for project management and public transparency and we’d love to see something like this adopted by the Corps. Do yourself a favor and watch this adorable video about PEEP.
3. Fix the Group Work.
While there are a few shining examples of interagency review teams (IRTs) working well together (generally due to long working relationships), there appears to be minor to major dysfunction in IRTs. The Corps should communicate that agency policy moving forward is to gain consensus (meaning, “I can live with it”) rather than unanimity from IRT members. Gaining consensus in group facilitation involves identifying areas of strong disagreement and having the dissenter propose a constructive adjustment that will make the proposal acceptable to them. If, after working with the IRT consensus hasn’t been reached, the Corps project manager should exercise the leadership role (‘decider’ role) that the 2008 Rule clearly assigns to them. Another area that seems to be a challenge with the IRT process is tracking when changes have been suggested, response to that request, and ‘closing’ that subject area from further debate. Reopening ‘closed comments’ is exacerbated when new staff come on and start from zero, rather than accepting the decisions made by the previous staff.
Where Do We Go from Here?
We hope this report can serve as a jumping off point for adaptive management of the mitigation bank instrument approval process. The following are ideas for taking action on the findings of the research.
Dialogue with Corps mitigation banking staff. The report provides qualitative information from the perspective of bank sponsors only. While we weren’t given the opportunity to pursue Corps interviews in time for this report, we are in communication with Corps leadership to open an opportunity for input from Corps staff on what speeds and slows the instrument review process.
Dialogue between Corps staff and mitigation bank sponsors about opportunities for change. The report provides a library of recommendations synthesized from informational interviews and provided by the authors. It would be valuable to open dialogue between Corps staff and stakeholders to determine the most pressing as well as practicable recommendations to adopt in the near- and long-term.
Please let us know if you can help us in implementing these recommendations or come across opportunities to engage with the Corps or other stakeholders.
Our Other Restoration Permit Streamlining Work
Just last week, we released findings from similar research conducted in California, investigating the bottlenecks and solutions for conservation banks in California. The state has a similar mandated deadline for approvals of this category of mitigation banks (for state-listed species overseen by the California Department of Fish and Wildlife). The state has increasingly missed their 270-day deadline for approving conservation banks.
We’re also collecting examples of policies, programs and case studies of streamlining restoration permitting and ‘Pay for Success’ environmental programs. A database of these examples will be launched later this month.
The Restoration Economy Center, housed in the national nonprofit Environmental Policy Innovation Center (EPIC), aims to increase the scale and speed of high-quality, equitable restoration outcomes through policy change. Email becca[at]policyinnovation.org if interested in learning more, sign up for our newsletter, or consider supporting us!
