Mitigation Banking:

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Mitigation Banking
The Why, What, and How
Presented to 2009 Statewide Land Trust
Conference Presented by J. Grant
Barber PBSJ Tyler, Texas
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What is Mitigation Banking?

• Mitigation banks are large-scale,
  ecosystem-oriented wetland restoration projects
  designed to provide compensatory mitigation in
  advance of unavoidable adverse impacts.
• Mitigation banking provides permit applicants the
  opportunity to pay a one-time fee to satisfy
  wetland mitigation requirements.
• Mitigation banking is a U.S. Army Corps of
  Engineers (USACE) preferred alternative of
  compensatory wetland mitigation.

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What Are Wetlands?1987 USACE Wetland
Delineation Manual

• Wetlands are those areas inundated or saturated
  by surface or ground water at a frequency and
  duration sufficient to support, and that under
  normal circumstances do support, a prevalence of
  vegetation typically adapted for life in
  saturated soil conditions.
• 1. Hydrology
• 2. Vegetation
• 3. Soils

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Hydrology(Water)

• areas inundated or saturated by surface or
  ground water at a frequency and duration
  sufficient
• This part is telling us we need sufficient
  hydrology.
• Hydrology as it pertains to wetlands is defined
  as, Areas which are seasonally inundated and/or
  saturated with water to the surface for a
  consecutive number of days for more that 12.5 of
  the growing season
• For this discussion surface is the upper 12
  inches of soil.
• Primary Indicators
• Inundation,
• Saturated soil in the upper 12 inches,
• Water marks,
• Drift lines,
• Sediment deposits, and
• Drainage patterns.

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Hydrology(Water)

• Secondary Indicators (2 or more required)
• Oxidized root channels,
• Water-stained leaves,
• Local soil survey data,
• FAC-neutral test,
• Buttress swelling,
• etc.

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Hydrology(Water)
I think we have sufficient hydrology!
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Vegetation

• under normal circumstances do support a
  prevalence of vegetation typically adapted for
  life in saturated
• This part is telling us we need hydrophytic
  vegetation (or hydrophytes).
• Hydrophytes are plants that are adapted to or can
  tolerate being in water or wet conditions.
• According to the USACE more than 50 of the
  dominant vegetation must be species that are
  adapted to living in wet areas (hydrophytic) as
  listed on the appropriate U.S. Fish and Wildlife
  Service (USFWS) regional list of plants that
  occur in wetlands.

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Vegetation
Hydric vegetation is present!
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Soils

• saturated soil conditions.
• This part is telling us we need hydric soil.
• As a general rule, hydric soils exhibit gleyed or
  low-chroma coloring (with some soil colors,
  mottling must also be present).

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Soils
You want me to dig WHAT with that shovel?
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Why Mitigate?

• Is the wetland a water of the United States?

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Waters of the United States 40 CFR 230.3(s)

• (1) All waters which are currently used, or were
  used in the past, or may be susceptible to use
  in interstate or foreign commerce, including all
  waters which are subject to the ebb and flow of
  the tide
• (2) All interstate waters including interstate
  wetlands
• (3) All other waters such as intrastate lakes,
  rivers, streams (including intermittent
  streams), mudflats, sand flats, wetlands,
  sloughs, prairie potholes, wet meadows, playa
  lakes, or natural ponds, the use, degradation or
  destruction of which could affect interstate or
  foreign commerce including any such waters
• (i) Which are or could be used by interstate
  or foreign travelers for recreational or other
  purposes or (ii) From which fish or shellfish
  are or could be taken and sold in interstate or
  foreign commerce or (iii) Which are used or
  could be used for industrial purposes by
  industries in interstate commerce

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Waters of the United States 40 CFR 230.3(s)

• (4) All impoundments of waters otherwise defined
  as waters of the United States under this
  definition
• (5) Tributaries of waters identified in
  paragraphs (s)(1) through (4) of this section
• (6) The territorial sea
• (7) Wetlands adjacent to waters (other than
  waters that are themselves wetlands) identified
  in paragraphs (s)(1) through (6) of this
  section waste treatment systems, including
  treatment ponds or lagoons designed to meet the
  requirements of the Clean Water Act (other than
  cooling ponds as defined in 40 CFR 423.11(m)
  which also meet the criteria of this definition)
  are not waters of the United States.

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Why Mitigate?

• Is the wetland a water of the United States?
• See definition.
• What type of impacts will occur?
• Pipeline, transmission line, well pad, road,
  building, etc.
• Will a permit be required?
• Discharge of dredge or fill material to a water
  of the United States, including wetlands.
• What type of permit is needed?
• Standard individual permit, letter of permission,
  nationwide permit, regional permit.
• Does it matter if the impact is on private
  property?
• No

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Scenario
Have I got a deal for you!
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Project Location
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Project Location

• Will there be impacts to a wetland at the project
  location?
• Yes.
• Is the wetland a water of the United States?
• Yes.
• Will a permit be required?
• Yes.
• Will mitigation be necessary?
• Yes.

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What is Mitigation?

• In general terms, to "mitigate" means to make
  less harsh or hostile.
• Environmental mitigation, compensatory
  mitigation, or mitigation banking, are terms used
  primarily by the United States government and the
  related environmental industry to describe
  projects or programs intended to offset known
  impacts to an existing natural resource such as a
  stream, wetland, or endangered species.
• Wetland mitigation provides for the replacement
  of the chemical, physical, and biological
  functions of wetlands and other aquatic resources
  which are lost as a result of USACE-authorized
  impacts.

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Which Type of Mitigation?

• Avoid
• Minimize
• Compensate
• Mitigation Banking
• In-lieu Fee
• Permittee Responsible
• On-site/Off-site
• In-kind/Out-of-kind

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What is Mitigation Banking?

• Mitigation banks are large-scale,
  ecosystem-oriented wetland restoration projects
  designed to provide compensatory mitigation in
  advance of unavoidable adverse impacts to
  wetlands caused by projects such as pipelines,
  electric transmission lines, road construction,
  and well pads. Many projects involve wetland
  impacts that are relatively small. To mitigate
  individually for such impacts often results in
  postage stamp mitigation projects that are
  smaller, often isolated wetlands that provide
  little environmental benefit.

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What is Mitigation Banking?

• Mitigation banking provides developers, utility
  providers, and state and local governments with
  the opportunity to pay a one-time fee to purchase
  credits from the bank, thereby satisfying all or
  a portion of the statutory wetland mitigation
  requirements.
• Mitigation banking is a USACE-preferred
  alternative to the postage stamp method of
  compensatory wetland mitigation and mitigation
  banks provide a more comprehensive, cost
  effective and higher-quality mitigation solution.

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Who is Involved in the Process?Interagency
Review Team (IRT)

• U.S. Army Corps of Engineers (USACE) Lead
  Agency
• Environmental Protection Agency (EPA)
• Natural Resources Conservation Service (NRCS)
• U.S. Fish and Wildlife Service (USFWS)
• National Marine Fisheries Service (NMFS)
• National Oceanic and Atmospheric Administration
  (NOAA)
• Railroad Commission of Texas (RCT)
• Texas General Land Office (GLO)
• Texas Parks and Wildlife Department (TPWD)
• Texas Commission on Environmental Quality (TCEQ)

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Whats Involved?

• Site Determination 12 to 23,922 acres
• Fieldwork
• Wetland delineation
• Functional assessment
• Site potential
• Enhancement
• Restoration
• Creation
• Preservation
• Prospectus
• Used to initiate the planning and review process
  by the IRT (also public review)
• Bank objectives
• Establishment
• Operation

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Whats Involved?

• Mitigation Banking Instrument
• The legal document that defines what is required
  of the sponsor over the life of the bank.
• Mitigation Plan
• Outlines the management strategy of the bank,
• Establishes success criteria, and
• Provides a framework for corrective actions (if
  necessary).

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Mitigation Banking Instrument

• Service Area(s),
• Based on ecoregion and watershed
• Primary and Secondary
• Accounting Procedures,
• Legal Responsibilities of Sponsor,
• Default and Closure Provisions,

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Mitigation Banking Instrument

• Reporting Protocols,
• Credit Release Schedule,
• Tied to specific milestones
• Mitigation Plan,
• Other Information.

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Mitigation Plan

• Project Objectives,
• Site Selection Process,
• Site Protection Instrument,
• Baseline Information,
• Geographic location,
• Regional and site history,
• Property description,
• WOUS present,
• Functional capacity of WOUS, and
• Existing site conditions.
• Determination of Credits,

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Mitigation Plan

• Mitigation Work Plan,
• Project details
• Methods
• Maintenance Plan,
• Performance Standards,
• Monitoring Requirements,
• Long-term Management,
• Adaptive Management Plan,
• Financial Assurances,
• Other Information.

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New Mitigation Rules

• Mitigation banking is the preference over other
  forms of compensatory mitigation.
• Defined in 33 CFR 332 Compensatory Mitigation
  For Losses of Aquatic Resources (Federal Register
  Vol. 73, No. 70).

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Sponsored by
For a copy of this presentation please
visit www.pineywoodsbank.com/mitigation.php