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

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WETLAND AND CONSERVATION BANKING IN DETAILturn, been delegated to the agency’s 38 district offices(see Fig. 1). 27The Corps’ direction on administering the §404 programderives from the Department of the Army regulations(33 CFR 320-331). The regulations have evolvedover time to reflect new authorities and developingcase law. The regulations are supplemented by thefederal guidance issued by the Corps and interagencyguidance issued in conjunction with the other sisterwetland agencies. In addition, individual Corps districtsissue their own guidance on the program, includingguidance specifically pertaining to wetland mitigationbanking. In many instances, the district-specificguidance is modeled after national guidance and isdeveloped in response to a request from Headquarters.At least 32 of the Corps’ 38 districts have issued generalguidance or standard operating procedures on compensatorymitigation. Seventeen districts have issuedguidance specifically on mitigation banking and 10 of27 33 CFR Part 320.1 (a) (1).these have issued the mitigation banking guidance inconjunction with other federal and/or state agencies(see Appendix B for a bibliography of Corps districtbanking guidance).State Wetland Mitigation Banking PolicyMany states in the U.S. have wetland programs withregulatory provisions that complement the §404program. Some of these programs create additionalregulatory requirements over and above §404 andsome have wetland regulatory thresholds that aremore stringent than §404. Thus, these programs oftenrequire mitigation for impacts not covered by §404.A comprehensive survey of state wetland programscompleted in 2007 found that at least 20 states havestatutes authorizing state wetland mitigation bankingprograms or authorizing the state to purchase creditsfrom a wetland mitigation bank; at least 16 states havewetland mitigation banking regulations; and at least18 states have developed guidance on wetland mitigationbanking, often in coordination with the Corps or aMitigation Bank Review Team (MBRT) (see AppendixC for chart and Appendix E for narrative descriptions).FIGURE 1. U.S. Army Corps of Engineers – Division and District Boundaries12 Environmental Law Institute
WETLAND AND CONSERVATION BANKING IN DETAILA review of these laws, regulations, and policies alongwith interviews with state wetland program staffreveal that at least eleven states (Arkansas, California,Florida, Michigan, Minnesota, New Jersey, NorthCarolina, Oregon, Virginia, Washington, and Wisconsin)have active wetland mitigation banking programs. Inaddition to having laws, regulations, or policies thataddress wetland mitigation banking, these states supportbanking through programmatic commitments ofstaff and funding.The ways in which these state wetland laws, regulations,and policies interact with the federal wetlandmitigation banking process varies from state to state.Three states with active banking programs – Florida,Michigan, and Oregon – are discussed below to provideexamples of how state and federal wetlands programsinteract to affect mitigation banking on the ground.Wetland Mitigation Banking in FloridaFlorida has one of the nation’s oldest and best developedstate wetland regulatory programs. The statelegislature approved mitigation banking legislation. 28The Florida Department of Environmental Protection(DEP) Florida and the Florida water managementdistricts (WMD) promulgated rules governing bankingin February 1994. 29 Mitigation banks in Floridamust obtain a mitigation banking instrument approvedby the federal interagency Mitigation Bank ReviewTeam that operates in Florida and a state bank permitapproved by DEP or the appropriate WMD. In 1998,the Florida MBRT 30 developed joint state/federalguidelines to provide direction to the MBRT reviewprocess and “streamline the respective evaluation processesand reduce redundancy between the State andFederal reviews.” 31 The state’s MBRT is co-chaired bythe Corps and the lead state agency (either FL DEP ora WMD). Approval of banks begins as a joint federal/state review, but state and federal approval processesmay diverge as the proposal moves forward due to differentrequirements. However, the state and federalMBRTs continue to coordinate throughout. As of 2005,Florida had 55 approved, pending, or sold-out banks.A pending bank is one with a completed draft bankinginstrument or prospectus, but for which the Corps hasnot yet approved the banking instrument. A sold-outbank is one that was approved and subsequently soldall of the available credits (i.e., the bank has beencompletely debited).Wetland Mitigation Banking in MichiganMichigan is only one of two states (the other beingNew Jersey) that has assumed administration of the§404 program, as allowed under the CWA. In orderto assume the program, Michigan was required todevelop a wetlands permit program similar to thefederal program and submit an application to assumethe program to EPA. 32 Michigan assumed §404 in 1984.Under the state’s wetlands law, mitigation is requiredas a condition of many permits. 33 Administrativerules for mitigation banking were promulgated in1997. 34 In order to establish a bank in the state, thebank sponsor must enter into a Wetland MitigationBanking Agreement with the Michigan Departmentof Environmental Quality (DEQ). In 2001, DEQ issueda Wetland Mitigation Banking Handbook 35 outliningthe process for establishing a bank, planning considerations,and bank management. DEQ is required bystate regulations to maintain a registry of established28 FL. STAT. ANN. § 373.4135 and 373.4136. Fla. Stat. ch. 373.4135-.4137, ch. 373.414, ch. 403.9322. See: Reiss, Kelly Chinners, EricaHernandez, Mark T. Brown. May 2007. “An Evaluation of theEffectiveness of Mitigation Banking in Florida: Ecological Successand Compliance with Permit Criteria.” Florida Department ofEnvironmental Protection. http://www.dep.state.fl.us/water/wetlands/docs/mitigation/Final_Report.pdf.29 Florida Mitigation Bank Review Team. October 1998. “Joint State/Federal Mitigation Bank Review Team Process for Florida.” http://www.saj.usace.army.mil/regulatory/permitting/mitigation/mBanks.htm.30 Comprised of FL DEP, water management districts, Corps, EPA,NMFS, FWS, and NRCS.31 Florida Mitigation Bank Review Team. October 1998. “Joint State/Federal Mitigation Bank Review Team Process for Florida.” http://www.saj.usace.army.mil/regulatory/permitting/mitigation/mBanks.htm.32 Clean Water Act, Section 404 Program Definition and PermitExemptions; Section 404 State Program Regulations, June 6, 1988,Federal Register, 40 CFR Parts 232 and 233.33 Part 303, Wetlands Protection, of the Natural Resources andEnvironmental Protection Act, 1994 PA 451, as amended.34 12 Mich. Admin. Code R. §§281.951-.961.35 Michigan Department of Environmental Quality. September 2001.“MDEQ Wetland Mitigation Banking Handbook.” See: http://www.deq.state.mi.us/documents/deq-water-wetlands-webhandbook.pdf.Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 13
Page 3: Design of U.S. HabitatBanking Syste
Page 7 and 8: EXECUTIVE SUMMARYExecutive SummaryA
Page 9 and 10: EXECUTIVE SUMMARYbanks or habitat b
Page 11 and 12: IntroductionIntroductionAvariety of
Page 13 and 14: WETLAND AND CONSERVATION BANKING IN
Page 17: WETLAND AND CONSERVATION BANKING IN
Page 27 and 28: State Wildlife Action Plans3. State
Page 29 and 30: STATE WILDLIFE ACTION PLANSshed). C
Page 31 and 32: STATE WILDLIFE ACTION PLANSPlans th
Page 33 and 34: STATE WILDLIFE ACTION PLANSFuture i
Page 35 and 36: A DETAILED LOOK AT WETLAND AND CONS
Page 65 and 66: ConclusionsConclusionsThis report c
Page 67 and 68: CONCLUSIONSsuch as habitat conserva
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CONCLUSIONSthe state Attorney Gener
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CONCLUSIONSGeneral RecommendationsF
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AppendicesA. Federal Wetland Compen
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APPENDIX AProjects for Aquatic Reso
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APPENDIX Aland mitigation banks, um
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APPENDIX BMemphis District, U.S. Ar
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APPENDIX BJacksonville District, U.
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Appendix CAppendix CState Wetland M
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APPENDIX CState Statute(s) Regulati
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Appendix DAppendix DState Conservat
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APPENDIX Emitigation banking and ha
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APPENDIX EDelaware (Phase IV)Delawa
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APPENDIX Estaff intend to make the
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APPENDIX EMitigation banking regula
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APPENDIX EMississippi (Phase IV)The
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APPENDIX ENew Mexico (Phase III)The
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APPENDIX Eand mitigation banking. 1
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APPENDIX EVirginia (Phase III)Virgi
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APPENDIX Egation bank may be used t
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APPENDIX FGeorgiaGeorgia Department
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Appendix GWETLAND MITIGATION BANKIN
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APPENDIX GWETLAND MITIGATION BANKIN
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APPENDIX GErwin, K.L. 1991. An Eval
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APPENDIX GPorej, D. 2004. Faunal As
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Appendix HAppendix HBibliography of
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APPENDIX HEcosystem Marketplace, Sp
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APPENDIX ILegal and Financial Mecha
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