Three changes to the mitigation rule to enhance successful tribal compensatory mitigation programs

By Mariah Black Bird

Tribes have participated in 404 Clean Water Act (CWA) compensatory mitigation programs, both through establishing mitigation banks and in-lieu fee programs. There are currently four active tribal compensatory mitigation programs (including an Alaska Native Corporation (ANC) program) and one program in the establishment phase:

·       Lummi Nation Wetland and Habitat Mitigation Bank, established on tribal trust land in 2012;

·       Ghost Dike Advance Mitigation Bank owned by the Shoalwater Bay Indian Tribe;

·       the Charles Etok Edwardsen Mitigation Bank, owned by the Ukpeagvik Inupiat Corporation (ANC) and Environmental Investment Partners (EIP) in Barrrow, Alaska;

·       the Tulalip Indian Tribe owns and operates an in-lieu fee program;

·       the Cow Creek Umpqua Indian Tribe in Oregon is developing an up-and-coming Villines Mitigation Bank.

Each tribal or ANC mitigation program has experienced a unique set of considerations and challenges during their establishment. Some tribal mitigation programs utilized a conservation easement as site protection, while at least one is recognized as a government and did not have to utilize a conservation easement. Some tribal mitigation programs are established to take advantage of the need for mitigation credits, either for tribal or non-tribal needs. Some tribal mitigation programs were established on tribally owned fee land or tribal trust land and some were funded entirely by the sponsor tribe or in partnership with another entity.

However they are structured, each mitigation program has had to deal with the fact that tribal governments are generally not considered by mitigation rules. This often led to ambiguity and immense time spent in negotiations, educating the mitigation program interagency review team (IRT) on tribes and the challenges they face in developing a mitigation bank. Some immediate changes could help tribes and the IRTs to develop tribal mitigation programs:

1.     Amend federal and state mitigation regulations such that tribes can be mitigation program sponsors, either as stand-alone tribal governments or within the definitions of government(s) entities. This distinction is important because governments are treated differently in the mitigation rules when it comes to site protection and financial assurances. Recognizing tribes as the government entities they are will not only address the ambiguity of tribes as mitigation program sponsors, but also recognize tribal sovereignty in the process.

2.     Clarify that tribally owned land, whether it be fee land, trust land, restricted land or any other type of tribal land tenure, is included in government property. This distinction is important because tribes often own different types of land tenure within their reservation boundaries and it would be a mistake to exclude certain types, thus hindering tribal involvement in mitigation programs. This clarification would aid confusion on what government property includes under the current rules and aid confusion with regard to tribal property.

3.     Amend the mitigation program site protection mechanisms particular to tribal governments seeking to establish a mitigation program. It is inappropriate to ask a tribal government to put a conservation easement or transfer the land title to a third-party entity, as tribal land is a fundamental component of tribal reservation existence. Tribes are inherently government entities with the right to govern their own affairs, including the lands they own and the activities that occur on them. Thus, tribes should be included as governments in the mitigation rules.