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

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A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGReplacing functionsIn addition to not meeting acreage requirements, mitigationwetlands often do not replace the functions andtypes of wetlands destroyed due to permitted impacts.In a 2001 review, researches found that an average ofonly 21 percent of mitigation sites met various testsof ecological equivalency to lost wetlands. 116 Tworecent studies comparing mitigation sites to impactsites found that only 17 117 and 29 118 percent of themitigation sites evaluated successfully replaced lostfunctions. The former study also found that 50 percentof the mitigation sites evaluated were actually nonjurisdictionalriparian and upland habitat. 119 Of 8 studiescomparing mitigation sites to reference wetlands,3 found that just over 50 percent of mitigation siteswere ecologically successful, 120 but 5 studies foundthat fewer than 50 percent of the sites evaluated wereconsidered ecologically successful. 121 A statewide studyof 143 permit files in California found that 27 percent116 Turner, R.E., A.M. Redmond, J.B. Zedler. 2001. “Count It By Acreof Function—Mitigation Adds Up to Net Loss of Wetlands.” NationalWetlands Newsletter 23(6).117 Minkin, P. and R. Ladd 2003. Success of Corps-RequiredMitigation in New England, USACE New England District.118 Ambrose, R.F. and S.F. Lee. 2004. An Evaluation of CompensatoryMitigation Projects Permitted Under Clean Water Act Section 401 bythe Los Angeles Regional Quality Control Board, 1991-2002.119 Ambrose, R.F. and S.F. Lee. 2004. An Evaluation of CompensatoryMitigation Projects Permitted Under Clean Water Act Section 401 bythe Los Angeles Regional Quality Control Board, 1991-2002.120 Allen and Feddema 1996 – 55 percent; McEnespy and Hymanson1997 – 50 percent; and Zentner 1987 – 65 percent. Allen, A. O., andJ. J. Feddema. 1996. Wetland loss and substitution by the Section404 Permit Program in southern California, USA. EnvironmentalManagement 20: 263-74; McEnespy, M. B., and Z. P. Hymanson. 1997.Examination of Past Wetland Projects Permitted by the CaliforniaCoastal Commission: A report card on project performance.Unpublished Manuscript. Pp. 1-30; Zentner, J. J. 1987. WetlandRestoration Success in Coastal California: 1975-1985. Wetland andRiparian Ecosystems of the American West. Eighth Annual Meetingof the Society of Wetland Scientists, Technical Coordinators K. M.Mutz, and L. C. Lee, 122-24.121 Ambrose et al. 2006 – 19 percent; DeWeese and Gould 1994– 10 percent; Johnson et al. 2002 – 46 percent; MDEQ 2001 – 22percent; and Sudol and Ambrose 2002 – 16 percent. Ambrose, R.F.,J.C. Callaway, and S.F. Lee. 2006. An Evaluation of CompensatoryMitigation Projects Permitted Under Clean Water Act Section 401 bythe California State Water Quality Control Board, 1991-2002; DeWeese,J. and C. Gould. 1994. An evaluation of selected wetland creation projectsauthorized through the Corps of Engineers Section 404 Program.US Department of the Interior, Fish and Wildlife Service, Sacramentoof the constructed mitigation did not even meet thejurisdictional definition of a wetland. 122Several studies have also found that compensatorymitigation results in a shift in wetland type. A studyof 31 mitigation sites in Indiana found failure ratesof 71 percent for forested mitigation sites, 87 percentfor wet meadow areas and 42 percent for shrub areas,but only 17 percent of the shallow emergent areas and4 percent of open water areas were failures. 123 Theseresults indicate that mitigation may be resulting in thereplacement of forested mitigation sites with shallowemergent and open water community types. Similarresults have been reported in New Jersey, where astudy of that state’s mitigation program found thatemergent wetlands were the only wetland type thatachieved a greater than 1:1 replacement ratio, whileforested wetlands were successfully replaced at aratio of only 0.01:1. 124 A Pennsylvania study of 23 §404permits issued from 1986-1999 showed that only 45percent of the mitigation wetlands were of the sametype as the impact sites and that the mitigation hadresulted in a shift from wetlands dominated by woodyspecies to less vegetated mitigation wetlands and areplacement of scrub-shrub, emergent and forestedwetlands with open water ponds or uplands. 125Field Office, Sacramento, California, 90 pp; Johnson, P., D.L. Mock, A.McMillan, L. Driscoll, and T. Hruby 2002. Washington State WetlandMitigation Evaluation Study. Phase 2: Evaluating Success. WashingtonState Department of Ecology. February 2002. Publication No. 02-06-009; Michigan Department of Environmental Quality. 2001. MichiganWetland Mitigation and Permit Compliance Study. Lansing, MI: Landand Water Management Division; Sudol, M.F., and R.F. Ambrose.2002. The U.S. Clean Water Act and habitat replacement: evaluationof mitigation sites in Orange County, California, USA. EnvironmentalManagement 30: 727-734.122 Ambrose, R.F., J.C. Callaway, and S.F. Lee. 2006. An Evaluationof Compensatory Mitigation Projects Permitted Under Clean WaterAct Section 401 by the California State Water Quality Control Board,1991-2002.123 Robb, J.T. 2001. Indiana Wetland Compensatory Mitigation: AreaAnalysis. Indiana Department of Environmental Management. EPAGrant #CD985482-010-0.124 Balzano, S., A. Ertman, L. Brancheau, W. Smejkal, A.S. Greene,M. Kaplan, and D. Fanz. 2002. Creating Indicators of Wetland Status(Quantity and Quality): Freshwater Wetland Mitigation in NewJersey. NJ Department of Environmental Protection, Division ofScience, Research, & Technology.125 Cole, C.A. and D. Shaffer. 2002. “Section 404 Wetland Mitigationand Permit Success Criteria in Pennsylvania, USA.” 1986-1999.Environmental Management 30(4): 508-515.36 Environmental Law Institute
A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGSeveral recent studies of bank sites indicate that banksare generally no more successful at replacing lost acresand functions than permittee-responsible mitigation.A 1999 study reported a net loss of 21,000 acres of wetlandsdue to inclusion of enhancement and preservationas mitigation methods at bank sites. 126 A comprehensivereview of 12 mitigation bank sites in Ohio found that 25percent of the bank areas studied were not wetlands. 127Of the wetland acreage, 25 percent was consideredin poor condition, 58 percent was fair, and 18 percentwas good quality in terms of vegetation as compared tonatural reference wetlands. The study also found thatamphibian community composition and quality wassignificantly lower at banks than natural forest, shrub,or emergent wetlands and pond-breeding salamandersand forest dependent frogs were virtually absent fromthe bank sites. Overall, of the banks studied, three weremostly successful, five were successful in some areasand failed in others, and four mostly failed. A recentstudy from Florida found that of the 29 banks evaluated70 percent fell within the moderate to optimal range offunction. Although the baseline conditions of most siteswere in the high functional range, most of the projectsrelied upon enhancement, rather than restoration, asthe mitigation method. 128Mitigation and wildlife habitatOnly a handful of studies on compensatory mitigationattempt to address the ability of compensatory mitigationto replace wildlife habitat lost through the §404 program.These studies indicate that compensatory mitigationsites are not effectively replacing lost wildlife habitat.One study reported that over half of the mitigation sitesevaluated did not adequately compensate for wildlifehabitat services lost due to permitted activities. 129 Only126 Brown, P., and C. Lant. 1999. “The effect of wetland mitigationbanking on the achievement of no-net-loss.” EnvironmentalManagement 23(3): 333-345.127 Mack, J.J and M. Micacchion. 2006. An Ecological Assessmentof Ohio Mitigation Banks: Vegetation, Amphibians, Hydrology, andSoils. Ohio EPA Technical Report WET/2006-1. Ohio EnvironmentalProtection Agency, Division of Surface Water, Wetland EcologyGroup, Columbus, Ohio.128 Reiss, K.C., E. Hernandez, M.T. Brown. 2007. An Evaluation of theEffectiveness of Mitigation Banking in Florida: Ecological Successand Compliance with Permit Conditions. Florida Department ofEnvironmental Protection #WM881. EPA Grant #CD 96409404-0.129 Ambrose, R.F. and S.F. Lee. 2004. An Evaluation of CompensatoryMitigation Projects Permitted Under Clean Water Act Section 401 bythe Los Angeles Regional Quality Control Board, 1991-2002.41 percent of the studied sites had successfully replacedwildlife habitat and connectivity, while replacementfailed at 38 percent of sites (25 of these sites were consideredextreme failures). In Washington State, 55 percentof the sites surveyed in one study had only a moderatecontribution to wildlife functions, 130 while in a NewJersey study the wildlife suitability assessment criteriaachieved the lowest score of all the assessment criteriaused to evaluate the mitigation sites. 131 The New Jerseystudy reported that, on average, mitigation sites providedlimited protective cover, adjacent food sources, and nestinghabitat for wildlife and that there were moderatehuman impediments to wildlife use of the sites.Although wetland mitigation and, more specifically,wetland mitigation banking account for a significantannual investment in habitat restoration and protection,wetland mitigation has not, to date, proven to bea reliable conservation tool. One study that looked atboth permit compliance and functional replacementsuggests that, despite the nationwide “no net loss”goal, compensatory mitigation actually leads to an 80percent net loss in wetlands acres and functions. 132Although compliance with permit conditions has apoor track record, and many compensatory mitigationprojects do not include wildlife criteria in their designand performance standards, 133 a recent Californiastudy suggests that the ecological success of compen-130 Johnson, P., D.L. Mock, A. McMillan, L. Driscoll, and T. Hruby2002. Washington State Wetland Mitigation Evaluation Study. Phase2: Evaluating Success. Washington State Department of Ecology.February 2002. Publication No. 02-06-009.131 Balzano, S., A. Ertman, L. Brancheau, W. Smejkal, A.S. Greene,M. Kaplan, and D. Fanz. 2002. Creating Indicators of Wetland Status(Quantity and Quality): Freshwater Wetland Mitigation in NewJersey. NJ Department of Environmental Protection, Division ofScience, Research, & Technology.132 Of the 178 hectares of mitigation required for every 100 hectaresof impacts annually, 134 (75 percent) are actually implemented, 77to 104 hectares (58 – 78 percent) complied with permit conditions,16 to19 hectares (20 percent) of wetland functions were compensated.This estimate suggests that, despite the national “no net loss”goal, compensatory mitigation actually leads to an 80 percent netloss in wetlands acres and functions due to compensatory mitigation.Turner, R.E., A.M. Redmond, J.B. Zedler. 2001. “Count It ByAcre of Function—Mitigation Adds Up to Net Loss of Wetlands.”National Wetlands Newsletter 23(6).133 “None of the compensatory mitigation projects visited by thecommittee included design and evaluation criteria for animals…”NRC (2001), p. 31.Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 37
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 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 41: A DETAILED LOOK AT WETLAND AND CONS
Page 65 and 66: ConclusionsConclusionsThis report c
Page 67 and 68: CONCLUSIONSsuch as habitat conserva
Page 69 and 70: CONCLUSIONSthe state Attorney Gener
Page 71 and 72: CONCLUSIONSGeneral RecommendationsF
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
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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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