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

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APPENDIX Eand mitigation banking. 142 State rules establish wetlandreplacement ratios for compensatory mitigation,which apply to both compensatory mitigation andmitigation banks. 143 For unique habitats, such as vernalpools, Oregon Department of State Lakes (ODSL) mayconsider conservation instead of mitigation banking. 144In-lieu-fee payment is also an option for compensatorymitigation in Oregon. 145The Oregon Mitigation Bank Act of 1987 establisheda mitigation banking program administered by theODSL. 146 ODSL produced a “Wetland MitigationGuidebook for Oregon” in 2000. 147Oregon actively participates in MBRTs in coordinationwith the Portland District of the U.S. Army Corps ofEngineers. The ODSL and the Corps jointly chair theMBRT, which also consists of representatives fromOregon Department of Environmental Quality, OregonDepartment of Land Conservation and Development,Oregon Department of Fish and Wildlife, U.S. Fish andWildlife Service, EPA, Soil and Water ConservationDistricts, and local government planners. 148Pennsylvania (Phase I)Pennsylvania does not have legislation, regulations, orguidance on wetland mitigation banking.Wetlands are regulated under Pennsylvania’s DamSafety and Encroachments Act. 149 The act definesa “body of water” as “[a]ny natural or artificiallake, pond, reservoir, swamp, marsh, or wetland.” 150Corresponding rules and regulations (“Chapter 105”)outline “wetland replacement criteria,” acreage and142 OR. ADMIN. R. § 141-085-0115 (2) and O.A.R. § 141-085-0400.143 OR. ADMIN. R. § 141-085-0136.functional replacement requirements, 151 and sitingrequirements. 152 The Pennsylvania Department ofEnvironmental Protection (PADEP) has also developedguidelines, Design Criteria for Wetlands Replacement.The guidelines, written to provide “design, flexibility,and utilization of the best available technology inenvironmental engineering,” give a general overviewof mitigation objectives and provide guidance for siteselection and construction. 153The state participates on an MBRT along with theU.S. Fish and Wildlife Service, U.S. EnvironmentalProtection Agency, Pennsylvania Departmentof Transportation, Pennsylvania Fish and BoatCommission, Natural Resources Conservation Service,Federal Highway Administration, and the Baltimore,Philadelphia, and Pittsburgh Districts of the U.S. ArmyCorps of Engineers. The MBRT established 33 wetlandmitigation banking service areas, emphasizing a watershedapproach in banking-related decision-making. 154At present, PennDOT is the only organization in thestate that operates wetland mitigation banks.Rhode Island (Phase II)Rhode Island does not have legislation, regulations, orguidance on wetland mitigation banking.The state’s Department of EnvironmentalManagement’s (RIDEM) rules and regulations includestrict avoidance and minimization provisions. RIDEMdoes not have formal guidelines on compensatorymitigation. The Rhode Island Coastal ResourcesManagement Council (RICRMC) has adopted compensatorymitigation requirements for coastal wetlands. 155To fulfill its “no net loss” policy, 156 RICRMC requiresaltered coastal wetlands to be replaced by wetlands ofa similar type that provide an ecological value equal toor greater than that of the altered wetland. The rules144 Personal Communication with Dana Field, Oregon Department ofState Lands (Jul. 7, 2005).145 OR. REV. STAT. §§ 196-643 to 196-655.146 Field, supra note 162.147 Oregon Department of State Lands, Wetland Mitigation BankingGuidebook, at http://egov.oregon.gov/DSL/PERMITS/mit_guidebook_intro.shtml (Oct. 2000).148 OR. ADMIN. R. § 141-085-0421(8)(a).149 25 PA. CODE § 93.1.150 32 PA. CONS. STAT. § 693.3.151 25 PA. CODE § 105.20(a).152 25 PA. CODE § 105.20(a).153 25 PA. CODE § 105.20(a).154 Personal Communication with Ken Reisinger (Oct. 7, 2004).155 See: Rhode Island Coastal Resources Management Program,Activities Under Council Jurisdiction, § 300.12.E.156 Rhode Island Coastal Resources Management Program, ActivitiesUnder Council Jurisdiction, § 300.12.B.3.96 Environmental Law Institute
APPENDIX Ealso spell out replacement ratios 157 and explicitly prohibitmonetary compensation as an acceptable form ofmitigation. 158South Carolina (Phase IV)South Carolina does not have legislation or regulationsguiding wetland mitigation banking.The South Carolina Department of Health andEnvironmental Control, South Carolina Departmentof Natural Resources, U.S. Army Corps of Engineer’sCharleston District, U.S. Environmental ProtectionAgency, U.S. Fish and Wildlife Service, and U.S.Department of Agriculture serve on an interagencyMBRT. 159 In 2002, the MBRT published JointState/Federal Administrative Procedures for theEstablishment and Operation of Mitigation Banks inSouth Carolina, which provides guidance on the developmentand operation of mitigation banks. 160South Dakota (Phase III)South Dakota has no formal legislation, regulations, orguidance on wetland mitigation banking or compensatorymitigation.Tennessee (Phase IV)Tennessee does not have regulations or guidance onwetland mitigation banking. Tennessee law does, however,give the Tennessee Wildlife Resources Agency theauthority to “participate in the federal wetlands mitigationbanking program.” 161The Tennessee Department of Environment andConservation’s (TDEC) Aquatic Resources AlterationRule regulate impacts to wetlands from draining andfilling and requires that the impacts be “offset bymitigation sufficient to result in no overall net loss ofresource value.” 162 The rules include suggested ratiosfor common mitigation measures. 163An MBRT was established in 1995. The membersinclude the Memphis and Nashville Corps Districts,TDEC, TWRA, EPA, FWS, U.S. Department ofAgriculture (USDA), Federal Highway Administration,and Tennessee Department of Transportation. Theteam adopted a general wetland banking memorandumof agreement (MOA), which serves as the guidingdocument for banking. 164,165Texas (Phase II)Texas law specifies provisions for the establishmentand operation of wetland mitigation banks. 166 Thestate does not, however, have regulations or guidanceon wetland mitigation banking. State agencies alsoparticipate on an MBRT in coordination with the FortWorth and Galveston Corps Districts. 167Utah (Phase II)The State of Utah has not adopted any legislation, regulations,or guidance on wetland mitigation banking.Vermont (Phase II)Vermont does not have legislation, regulations, or guidanceon wetland mitigation banking.The Vermont Wetland Rules state that adverse impacts,other than minimal impacts, will not be permittedunless avoidance and minimization sequencing hasbeen conducted. Once sequencing requirements havebeen met, compensation may be considered if in accordancewith the rules. The rules lay out requirementsfor mitigation method and replacement ratios. 168157 Rhode Island Coastal Resources Management Program, ActivitiesUnder Council Jurisdiction, § 300.12.F.1.158 Rhode Island Coastal Resources Management Program, ActivitiesUnder Council Jurisdiction, § 300.12 B.10.159 Personal Communication with Rheta Geddings, Dep’t of Healthand Envtl. Control, Bureau of Water (Mar. 15, 2007).160 US Army Corps of Eng’rs – Charleston District, RegulatoryDivision, Standard Operating Procedures for CompensatoryMitigation (2002), available at http://www.sac.usace.army.mil/?action=mitigation.home (follow “2002 Compensatory MitigationSOP” hyperlink).161 Tenn. Code Ann. §70-1-302(e).162 TENN. COMP. R. & REGS. 1200-4-7-.04 (c).163 TENN. COMP. R. & REGS. 1200-4-7-.04.164 FED. HIGHWAY ADMIN.; DEP’T OF THE ARMY ET AL., GENERAL WETLANDBANKING MEMORANDUM OF AGREEMENT (June 12, 1995) (on file withauthor).165 Personal Communication with Mike Lee, Tenn. Dep’t of Env’t andConservation (January 9, 2007).166 V. Tex. Code Ann., Tex. Nat. Res. Code § 221.001 et seq.167 Personal communication with Tom Calnan, Texas General LandOffice (Summer 2005).168 Vermont Wetland Rules § 8.5(c).Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 97
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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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A DETAILED LOOK AT WETLAND AND CONS
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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
Page 88 and 89: Appendix DAppendix DState Conservat
Page 90 and 91: APPENDIX Emitigation banking and ha
Page 92 and 93: APPENDIX EDelaware (Phase IV)Delawa
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Page 98 and 99: APPENDIX EMississippi (Phase IV)The
Page 100 and 101: APPENDIX ENew Mexico (Phase III)The
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
Page 110 and 111: Appendix GWETLAND MITIGATION BANKIN
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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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