Design of US Habitat Banking Systems to Support the Conservation ...

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APPENDIX ENew Mexico (Phase III)The State of New Mexico has no legislation, regulations,or guidance on wetland mitigation banking. Thestate does not participate in a Mitigation BankingReview Team.New York (Phase I)New York does not have state laws or regulations onwetland mitigation banking.The New York Department of EnvironmentalConservation (DEC) has developed general mitigationguidelines for its regulatory staff. 123 The guidelines offera framework for decision-making related to wetlandsregulation and enforcement, but only briefly mentionwetland mitigation banking. 124 In 2002, the DEC issueda memorandum to its field staff advising them to considerbanking as mitigation option equivalent to otheroff-site mitigation for freshwater wetlands. 125 The DECdoes not, however, support the use of banks for tidalwetlands. The state is also an active participant onthe MBRT that covers activities in the New York andBuffalo Districts of the U.S. Army Corps of Engineers. 126The Adirondack Park Agency (APA) generally reviewsmitigation plans as part of the wetlands permittingprocess in cases where impacts to wetlands cannot beavoided, as well as mitigation resulting from enforcementactivities. In 1995, the agency adopted general mitigationguidelines that, similar to the DEC guidelines,recognize banking and in-lieu-fee as mitigation options,but do not prescribe specific methods for either. 127123 New York Department of Environmental Conservation,Freshwater Wetlands Regulation - Guidelines on CompensatoryMitigation, athttp://www.dec.ny.gov/docs/wildlife_pdf/wetlmit.pdf (Oct. 26, 1993).124 New York Department of Environmental Conservation,Freshwater Wetlands Regulation - Guidelines on CompensatoryMitigation, at http://www.dec.ny.gov/docs/wildlife_pdf/wetlmit.pdf(last visited Sept. 12, 2007).125 Memorandum from Patricia Riexinger, New York Department ofEnvironmental Conservation, Division of Fish, Wildlife and MarineResources, Bureau of Habitat, to Natural Resource Supervisors, NewYork Department of Environmental Conservation (Dec. 24, 2002) (onfile with author).126 Personal communication with Patricia Riexinger, N.Y. Dep’t ofEnvtl. Conservation (Nov. 12, 2003).127 Personal communication with Dan Spada, N.Y. Adirondack ParkAgency (May 10, 2004).North Carolina (Phase I)North Carolina has state laws and regulations thatguide wetland mitigation banking in the state. Thestate has established a comprehensive mitigationand restoration program and operates a statewidein-lieu-fee program designed to consolidate wetlandand watershed mitigation and restoration efforts. Boththe North Carolina Ecosystem Enhancement Program(NCEEP) and the Division of Water Quality (DWQ) arelead state agencies for mitigation-related activities inNorth Carolina. DWQ is responsible for implementingthe state’s regulations pertaining to mitigation andworks with applicants throughout the permit process,while the NCEEP provides options for parties thatneed to satisfy mitigation requirements. 128 The NCEEPstrategy involves the development of WatershedRestoration Plans (WRPs), including the identificationof Targeted Local Watersheds (TLWs) (14-digit hydrologicunits) within each 8-digit U.S. Geological SurveyCataloging Unit in the state. 129 Numerous other stateand federal agencies participate in the state’s MBRTand the Program Assessment and Consistency Group,a state-level group that operates similarly to the MBRTto support the NCEEP. 130128 Due to the stringency of the Coastal Area Management Act, theDCM does handle compensatory mitigation issues as regularly as theNCEEP and the DWQ.129 In 1998, the NCWRP completed Watershed Restoration Plans(WRPs) for the 17 major river basins in the state. The WRPs includerestoration goals, narrative overviews of the basins, priority subbasinmaps with water quality information, watershed boundaries,land cover data, information on existing water quality problems,descriptions of priority sub-basins, and wetland impact information.See North Carolina Wetlands Restoration Program, NCWRPWatershed Restoration Plans, at http://h2o.enr.state.nc.us/wrp/plans/wetrip.htm (last revised Jan. 25, 2004). The NCEEP’s WatershedNeeds Assessment Team (WNAT), an interagency group composed ofrepresentatives from several state and federal agencies, developeda “screening methodology” to identify Targeted Local Watersheds(TLWs) in which to concentrate planning and restoration activities.Once TLWs have been identified through the screening methodology,the NCEEP will work with local governments, NGOs, and otherstakeholders to complete local watershed plans in selected TLWareas throughout the state. See North Carolina Wetlands RestorationProgram, Guide to the North Carolina Wetland RestorationProgram’s Watershed Restoration Strategy (April 2001), available athttp://h2o.enr.state.nc.us/wrp/pdf/restplans/Planning%20Guide.pdf.130 Personal communication with Suzanne Klimek, N.C. EcosystemEnhancement Program (Aug. 24, 2004).94 Environmental Law Institute
APPENDIX EState laws and regulations outline requirements forprivate mitigation. Banks must be consistent with thestate’s restoration priorities and must be located withinan area that is identified as a priority for restorationby the NCEEP. Mitigation banking credits must followstate regulations. 131North Dakota (Phase IV)North Dakota has not adopted legislation, regulations,or guidelines for wetland mitigation banking.Ohio (Phase I)Ohio state laws and regulations include provisionsfor wetland mitigation banking. State law and regulationsoutline compensatory mitigation provisionsfor the three categories of wetlands defined in theIsolated Wetlands Law and the state’s water qualitystandards. 132 Ohio state laws outline mitigation bankingrequirements and replacement ratios specific toisolated wetlands. 133The state’s compensatory mitigation rules include aprescribed set of mitigation ratios, replacement categoriesand mitigation location requirements. 134 On-siteand in-kind mitigation is required where its impracticabilitycannot be demonstrated. 135 If restoration is notpossible, the rules state that alternative compensatorymitigation techniques (including banking, enhancement,and preservation) may be approved on a caseby-casebasis. 136The Ohio Environmental Protection Agency and OhioDepartment of Natural Resources (ODNR) participateon the area’s Mitigation Banking Review Team(MBRT), along with the U.S. Environmental ProtectionAgency (USEPA), U.S. Fish and Wildlife Service,and Natural Resources Conservation Service. 137 The131 N.C. Admin.Code tit. 02R.0302.132 OHIO ADMIN. CODE § 3745-1-50.133 OHIO REV. CODE ANN. § 6111.027.134 OHIO ADMIN. CODE § 3745-1-54.135 Id.136 Id.137 Ohio Dep’t of Natural Res., Wetland Mitigation Banking, athttp://www.dnr.state.oh.us/wetlands/banking.htm (last visited June18, 2004).four Corps districts with jurisdiction in the stateare the Buffalo District, the Pittsburgh District, theHuntington District, and the Louisville District.In 1999, OEPA and ODNR released the Ohio WetlandRestoration and Mitigation Strategy Blueprint. 138The Blueprint lays out both a model for identificationof high priority areas for protection, restoration, andmitigation and a strategy for implementation of a statewetland mitigation banking policy and state restorationgoals.Oklahoma (Phase IV)Oklahoma has not adopted guidelines, policies, orlegislation (beyond §404 requirements) concerningcompensatory mitigation for permitted impacts towetlands or streams, including banking and in-lieufeeoperations. However, the state is taking stepstoward developing mitigation banks and is close toestablishing a bank for the Oklahoma Departmentof Transportation. 139 The OCC has also established aclearinghouse for landowners wanting to engage inwetlands restoration projects. 140 Oklahoma does notparticipate on the state’s Mitigation Banking ReviewTeam. 141Oregon (Phase II)Oregon requires compensatory mitigation for allwetland permits and allows for mitigation to be metthrough on- and off-site mitigation, payment in lieu,138 Ohio Department of Natural Resources and Ohio EnvironmentalProtection Agency. September 1999. “Ohio Wetland Restoration &Mitigation Strategy Blueprint.”http://www.dnr.state.oh.us/Home/Nature/wetlands/strategy/tabid/5635/Default.aspx.139 Guided by a memorandum of agreement written in 1996, signatoriesof the memorandum, the Tulsa District of the U.S. Army Corps ofEngineers, the U.S. Fish and Wildlife Service, the U.S. EnvironmentalProtection Agency, Natural Resources Conservation Service, FederalHighway Administration, Oklahoma Department of Transportation,Oklahoma’s Office of the Secretary of the Environment, OCC, andthe ODWC, along with the ODEQ and the Nature Conservancy,drafted a banking instrument, but the bank has yet to be finalized.DuBois, supra note 10.140 Oklahoma Conservation Commission, Wetland Registry forLandowners, at http://www.okcc.state.ok.us/Wetlands/wetlands_registry.htm(last visited July 5, 2007).141 Personal communication with Chris DuBois, Wetland ProgramsCoordinator, Okla. Conservation Comm’n (Jan. 11, 2007).Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 95
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Design of U.S. HabitatBanking Syste
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EXECUTIVE SUMMARYExecutive SummaryA
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EXECUTIVE SUMMARYbanks or habitat b
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IntroductionIntroductionAvariety of
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WETLAND AND CONSERVATION BANKING IN
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State Wildlife Action Plans3. State
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STATE WILDLIFE ACTION PLANSshed). C
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STATE WILDLIFE ACTION PLANSPlans th
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STATE WILDLIFE ACTION PLANSFuture i
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Page 73: AppendicesA. Federal Wetland Compen
Page 76 and 77: APPENDIX AProjects for Aquatic Reso
Page 78 and 79: APPENDIX Aland mitigation banks, um
Page 80 and 81: APPENDIX BMemphis District, U.S. Ar
Page 82 and 83: APPENDIX BJacksonville District, U.
Page 84 and 85: Appendix CAppendix CState Wetland M
Page 86 and 87: APPENDIX CState Statute(s) Regulati
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Page 90 and 91: APPENDIX Emitigation banking and ha
Page 92 and 93: APPENDIX EDelaware (Phase IV)Delawa
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Page 104 and 105: APPENDIX EVirginia (Phase III)Virgi
Page 106 and 107: APPENDIX Egation bank may be used t
Page 108 and 109: APPENDIX FGeorgiaGeorgia Department
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Page 118 and 119: APPENDIX GErwin, K.L. 1991. An Eval
Page 120 and 121: APPENDIX GPorej, D. 2004. Faunal As
Page 122 and 123: Appendix HAppendix HBibliography of
Page 124 and 125: APPENDIX HEcosystem Marketplace, Sp
Page 126: APPENDIX ILegal and Financial Mecha
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