The Fish Don’t Care!
Or, Why Restoration for Any Purpose Should Be Eligible for Streamlined Permitting
by Becca Madsen and Phoebe Higgins
An oyster reef restoration effort stalled out last year after regulators found asphalt, metal wire, and plastic amidst crushed concrete being used to rebuild the reefs. This project was not done for regulatory compliance purposes; it was an example of what could be called “voluntary restoration.” Voluntary restoration is typically paid for by taxpayer dollars or charitable funding sources. But the do-good nature of the project, intended to restore oyster reefs in Virginia, was not enough to prevent a bad outcome: new pollution in a key Chesapeake Bay tributary that will cost millions to remove.
Some argue that voluntary restoration is better than restoration that’s done for compliance purposes, for a myriad of reasons. And they use these reasons - both overt and implied - to urge or make policy decisions that pick winners (voluntary restoration) and losers (restoration for compliance purposes). But restoration of nature is a great thing no matter how it’s paid for. In fact, more than one restoration expert told us recently, “the fish don’t care!” Restoration deserves to be fast-tracked because we can’t afford to wait to bring species back from the brink of extinction or clean up our streams and bays.
In this blog post we delve into the arguments surrounding streamlined permitting efforts for restoration projects and challenge assumptions that drive a preference for voluntary projects. Is it true that voluntary projects deliver better ecological outcomes, or that taxpayer dollars shouldn’t be spent on projects carried out by for-profit firms? At least three states–California, Washington and Michigan–have established regulations that are intended to make restoration happen faster. They have all considered, or chosen to give, preferential treatment to voluntary projects. Is this strategy actually good for nature? We don’t think so.
States are introducing streamlined permitting pathways
Michigan’s 2018 Natural Resources and Environmental Protection Act provided permitting streamlining, but only for government, tribal and nonprofit organizations, and restricted the benefits of the act to ‘voluntary’ restoration (HB 5854, 2018, and complementary act to change the definitions section of state code HB 5855, 2018). HB 5854 said the purpose was “to facilitate a net increase in wetland functions and services” with an underlying assumption that voluntary restoration is 100% uplift from previous conditions (see our counter-argument below).
The Michigan Act excluded restoration for compliance purposes by defining “voluntary wetland restoration” projects as those that:
“...are voluntarily undertaken to restore, reestablish, rehabilitate, or enhance altered or degraded wetland or former wetland and that result in a net increase in wetland functions and services,” and are not “...undertaken to fulfill, currently or in the future, a federal, state, or local wetland permit mitigation requirement.”
Michigan went on to exclude for-profit organizations by limiting who may apply for these permits to “a state or federal agency,” “a tribal agency,” and nonprofit organizations “whose stated primary mission, purpose, or programs include wetland conservation….” This is an arbitrary exclusion divorced from environmental outcomes.
The State of Washington has initiated streamlined permitting for fish habitat and stream restoration projects that impact threatened and endangered species. This new program offers two permitting pathways. The first, dubbed Limit 8, applies exclusively to threatened marine or anadromous fish species that fall under NOAA’s jurisdiction. A unique aspect of the Limit 8 pathway is the use of a one-page self-certification form filled out by the restoration project developer, and submitted to Washington’s Recreation and Conservation Office, to check the list of program eligibility requirements before consideration by the Army Corps. Under this pathway, an Army Corps permit is not required. This pathway is not available to compensatory mitigation projects.
Another permitting pathway, which is available for both grant-funded and compliance projects that meet certain criteria, is the updated Fish Passage and Habitat Restoration Programmatic (for projects that require Section 10 or Section 404 permits); this programmatic is now limited to non-ocean-going threatened and endangered species.
Washington also offers an exemption from the state’s Environmental Policy Act (SEPA) for Fish Habitat Enhancement Projects. This exemption is not intended for mitigation but it’s not impossible for such projects to utilize. Finally, the Habitat Recovery Pilot Program exempts grant-funded (not compliance) water and fish habitat recovery projects from local government permits and associated fees for projects funded under 13 state restoration programs.
California’s Cutting Green Tape initiative, which encompasses numerous state executive orders, legislation, permitting and grant program procedure changes, sets a laudable goal of expediting restoration projects. The initiative was initially set up to favor voluntary restoration, but has since expanded to include compensatory mitigation projects. Initially, California set up a 30- to 60-day approval process in the Habitat Restoration and Enhancement Act that excluded restoration for compliance purposes (AB 2193, 2014). The law stated that habitat restoration projects qualified for the fast lane only if their “purpose is voluntary habitat restoration and the project is not required as mitigation” and “the project is not part of a regulatory permit for a non habitat restoration or enhancement construction activity, a regulatory settlement, a regulatory enforcement action, or a court order...”.
Cutting Green Tape streamlining benefits were also originally restricted to small projects. The following permit streamlining efforts were limited to less than 5 acres or 500 linear feet: the Habitat Restoration and Enhancement Act noted above; California Environmental Quality Act (CEQA) Categorical Exemption 15333 for Small Habitat Restoration Projects; and state 401 Water Quality Certification for Small Habitat Restoration Projects. The only justification noted for the size limit was that there were a lot of small-scale restoration projects stymied by lengthy approval processes. While that may be true, projects over this arbitrary size limit have also experienced significant, unnecessary delays. And we would argue that projects that connect habitats and preserve biodiversity across larger landscapes are even more important to prioritize.
Over the past year, elements of Cutting Green Tape have been modified to make streamlining benefits available to more restoration projects. For example, an August 2022 statewide ‘programmatic’ general order for 401 certifications for restoration projects no longer bars restoration for compliance purposes: “Restoration projects serving as mitigation for a related project or activity may be enrolled under this Order.” The definition of restoration - no matter the purpose - is any project “that would result in a net increase in aquatic or riparian resource area functions and/or services.” The size limit was also removed (State Water Resources Control Board General Order WQ 2022-0048-DWQ). In September of 2022, a Programmatic Biological Opinion that was created to streamline ESA Section 7 consultation for Californian restoration projects has no text barring restoration for compliance purposes. Similar to the 401 general order, the project must create “a net increase in aquatic, riparian, floodplain, wetland, or coastal dune resource functions and/or services” for projects to be eligible. We applaud these steps to focus on the outcomes of restoration.
Arguments and counter-arguments
The examples above make implied or overt policy choices about whether: 1) restoration for compliance purposes is eligible for streamlined permitting, 2) projects completed by for-profit companies are eligible for streamlined permitting, and 3) streamlined permitting is restricted to projects under a certain size.
Here we unpack these and other stated and implicit arguments for treating voluntary restoration differently, and provide counter-arguments:
1) Do voluntary restoration projects deserve special treatment because they are not offsetting an impact, but are pure uplift?
Voluntary restoration projects actually are offsetting an impact; it’s just that the damage was done before regulations required offsets. Countless abandoned mine sites with legacy pollution and crumbling culverts that prevent fish passage are examples of this. Publicly-funded restoration is about righting past wrongs after the fact, often at taxpayer expense.
2) Should preference go to nonprofits, tribes or government organizations, because for-profit restoration firms have a profit motive?
Either implied or outright exclusion of for-profit firms conducting restoration is a political choice of winners and losers and is divorced from ecological outcomes. In a world with so much environmental degradation and so much restoration needed, why would we care who fixes it and why? The point should be the outcomes. The EPA/Corps’ Final Rule on Compensatory Mitigation for Losses of Aquatic Resources (2008 Rule) is an example of a regulation that focuses on outcomes and creates equivalent standards for restoration. Any project resulting in stream or wetland mitigation credits, whether completed by a non-profit or for-profit organization, is held to the same ecological performance standards.
3) Do voluntary restoration projects result in higher ecological quality?
In the 2020 book, Streams of Revenue, the authors critically analyzed stream mitigation and found only minor differences between the hydroscape (form and siting) of stream mitigation created by mitigation bankers versus non-profit organizations (see Chapter 7). They notably found that “bankers were not chasing credits” (aka profit) through ecologically inferior design. Additionally, more headwater streams, which are “critically important for water quality throughout the watershed,” were restored in compliance restoration than voluntary restoration. Voluntary projects that do not have to meet regulatory requirements (e.g., agency-monitored ecological performance standards or funds set aside) have a greater risk of poor ecological quality.
4) Does allowing developers to offset impacts through compensatory mitigation make it easier to do new development?
The 2008 Rule requires avoidance and minimization of impacts first, and then allows mitigation of unavoidable impacts as an option of last resort. The cost of mitigating an acre of wetlands - from tens of thousands to millions of dollars an acre - further incentivizes avoidance and minimization of impacts from development projects. Provided that the regulators are implementing the 2008 Rule (e.g., requiring avoidance and minimization), streamlining will make restoration, not development, happen faster/more easily. If someone wants to make development more sustainable or slow it down, there are more fruitful policy avenues than restricting what type of restoration is eligible for streamlining.
5) Voluntary restoration may be funded by fixed amount grants &/or low dollar grants and funds should go to restoration, not paperwork.
We agree, funds should go to restoration, not paperwork, but no matter what the purpose of the restoration is.
6) Is there lower risk of failure of the restoration &/or impact to the environment from small projects? Example: “removal of a large dam may raise more concerns than restoration of a small wetland in previously drained farmland” (NAWM 2013).
If the intent of the regulation is to protect the environment, slowing or halting larger, more ecologically-beneficial projects could harm rather than benefit the resource of concern. Excluding larger projects may also unintentionally incentivize smaller projects with smaller-scale ecological benefits (Hat tip: California Landscape Stewardship Network, 2020).
7) Government agencies should not be able to buy mitigation credits for restoration goals because the government should not give the private sector grants/money.
Why would we insist that the government can’t pay a for-profit firm for goods and services? The decision about whom to pay for restoration services should come down to the quality of outcomes, not their tax status. Imagine if the government only bought computers, reams of paper, or consulting services from nonprofits; or even worse only used government-made cell phones (eek!). If there’s grant money available for restoration, it should be perfectly acceptable to purchase mitigation credits to meet restoration goals. This supports our argument of more outcomes, less ‘pay and pray’ that good things happen. As it is, the government often contracts with the private sector for restoration work.
8) Is it true that provisions or requirements for compensatory mitigation may not be applicable for voluntary projects?
It depends. For instance, the requirement to conduct a jurisdictional determination under the Clean Water Act’s Nationwide Permit 27 streamlined permitting process should only apply to projects that result in compensatory mitigation credits for impacts to Waters of the US. A jurisdictional determination is unnecessary and costly (tens of thousands of dollars) for voluntary restoration projects that don’t provide compensatory mitigation credits (i.e., offsets) for impacts to Waters of the US. An alternative, less costly means of wetland or stream identification could be used in this situation.
But the question should really be whether or not the project will be successful. In a comprehensive study of compensatory mitigation in 2000, the National Academy of Sciences recommended 12 elements of successful wetland restoration for compensatory mitigation projects, recommendations that could be followed for all types of restoration projects for things like design criteria, performance standards, land protection and monitoring (see Chapter 10, p.167-168).
At the end of the day, all restoration is mitigation for environmental damage that either happened in the past or will occur in the future. Common myths and assumptions around restoration completed for compliance and voluntary purposes are leading to policies that slow down restoration by picking winners and losers. But nature can’t wait for restoration to happen. The planet, species, and we humans rely on restoring damaged and degraded landscapes now and into the future.
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@policyinnovation.org if interested in learning more, sign up for our newsletter, or consider supporting us!
