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

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A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGresources. 147 In an effort to improve the success rate ofcompensatory mitigation, NRC made two very influentialrecommendations that relate to site selection: the10 operational guidelines and the watershed approach.Guidelines for Improving Site SelectionThe NRC stressed the importance of selecting mitigationsites that are likely to become self-sustaining. 148The Committee offered 10 “Operational Guidelines forCreating or Restoring Self-Sustaining Wetlands.” 149 Theoperation guidelines suggest, for example, identifyingsites that duplicate the features of naturally occurringlocal wetlands, sites where wetlands previously existed(i.e., restoration), sites that are resistant to disturbancefrom surrounding land uses, and sites that donot require over-engineered structures in their design.These guidelines were reissued as guidance by theCorps in 2002. 150The Watershed ApproachAnother closely related recommendation relates tomaking site selection decisions in a watershed context.NRC recommended that the federal wetlandmitigation program make site selection decisions that“follow from an analytically based assessment of thewetland needs in the watershed and the potential forthe compensatory wetland to persist over time.” 151This recommendation to adopt a watershed approachwas embraced by the Corps in its 2002 compensatorymitigation guidance 152 and has been further elaboratedupon in the proposed mitigation rule. 153There are many opportunities for wetland mitigationbanking to support the habitat conservation objectivesof the state wildlife action plans in the context of thewatershed approach contemplated in the proposedrule. As outlined in the proposed rule, the watershedapproach provides a framework under which compensatorymitigation decisions can consider, among otherthings, “habitat requirements of important species…,as well as the requirements of other regulatory andnon-regulatory programs that affect the watershed,such as…habitat conservation programs.” 154 The statewildlife action plans can be a solid basis for this habitatanalysis.The proposed rule also describes the type of informationthat should be utilized in watershed-baseddecision-making and suggests that this informationmay be contained in existing plans. The state wildlifeaction plans could be an excellent source for informationon, for example, “the presence and needs ofsensitive species.” 155Finally, the proposed rule states that a watershedapproach involves consideration of, among otherthings, state interests “including the requirementsof other programs and objectives, such as habitatconservation…” 156 In circumstances where a formalwatershed plan does not exist, EPA and the Corpscould require or encourage the consideration of thestate wildlife action plans, along with information fromother appropriate sources.Relying upon the watershed approach to guide selectionof bank sites can help contribute to maintaininghabitat diversity, connectivity, and appropriate proportionsof habitat types needed to enhance the long-termstability of the priority wildlife habitat identified inthe state wildlife action plans.Other bank siting considerationsThe §404 compensatory mitigation program seeks toreplace lost wetland functions and services in closeproximity to the site of impact. In addition to replacingacres, replacing wetland functions is a primaryconcern of the program. Wetland functions are “thephysical, chemical, and biological processes that occur147 NRC (2001), p. 3.148 NRC (2001), pp. 4-5.149 NRC (2001), pp. 5, 123-128.150 RGL 02-2 (2002), Appendix B.151 NRC (2001), p. 4.152 RGL 02-2 (2002) § 2.153 Proposed Compensatory Mitigation Rule (2006), § 332.3(c).154 Proposed Compensatory Mitigation Rule (2006), p. 15535 and§332.3(c)(2)(i); p. 15547 and §230.92(c)(2)(i)).155 Proposed Compensatory Mitigation Rule (2006), p. 15536 and§332.3(c)(3); p. 15548 and §230.92(c)(3)).156 Proposed Compensatory Mitigation Rule (2006), § III, pp. 15523.Emphasis added.40 Environmental Law Institute
A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGin aquatic resources and other ecosystems,” 157 andinclude water quality improvement, wildlife habitat,and flood protection.Wetland services, on the other hand, are the benefitshumans derive from wetland functions, 158 includingwildlife viewing, flood attenuation, water filtration,and sediment capture. 159 Replacing lost wetlandservices is a challenge since many of the authorizedimpacts to wetlands are in more urban or denselypopulated locations where restoration options are few.Indeed, the majority of restoration opportunities are inmore rural areas where the ability of people to appreciatewetlands are few.A recent empirical study of wetland mitigation bankingfound that banking facilitates “the redistribution ofwetland resources from urban to rural areas,” therebyshifting the ecosystem services of wetlands away fromwhere people live. 160 A wetland mitigation bank maybe designed appropriately to provide flood attenuationand water quality functions. But unless that wetlandbank is in reasonable proximity to the communitywhere the impacts occurred, the population may bemore prone to flood damage and less likely to derivethe water quality services provided by the mitigatedwetlands.If wetland mitigation banks are to provide bothwildlife functions and services to human populationcenters, these considerations need to be taken morefully into consideration. One other possible approachis to decouple wetland functions and replace them atdifferent geographic locations. Proposed federal rulessuggest that, within a watershed context, in somecircumstances it may be most ecologically beneficialto replace certain wetland functions on-site, such aswater quality and flood protection functions, and others,such as wildlife functions, off-site. 161157 Proposed Compensatory Mitigation Rule (2006), § 332.2.158 Proposed Compensatory Mitigation Rule (2006), § 332.2.159 Ruhl, J.B. and James Salzman. March-April 2006. “The Effectsof Wetland Mitigation Banking on People.” National WetlandsNewsletter. 28(2): 1, 9-14.160 Ruhl, J.B. and James Salzman. March-April 2006. “The Effectsof Wetland Mitigation Banking on People.” National WetlandsNewsletter. 28(2): 1, 9-14.161 Proposed Compensatory Mitigation Rule (2006), Preamble, § II.Conservation BanksThe siting of both wetland and conservation banksis especially important, since it will significantlyinfluence the amount and nature of conservationbenefit to be gained from any bank. The U.S. Fishand Wildlife Service’s conservation banking guidancecharacterizes site selection as one of two issues of“paramount importance” in evaluating any conservationbank (the other is the management programassociated with the bank). That guidance devotesseveral paragraphs to the topic and articulates a fewgeneral principles. Most fundamentally, the Serviceguidance indicates that a bank site should either becapable of supporting a viable population of the speciesfor which it is intended, or at least contribute tothe maintenance of such a population by expandingan existing area managed for the species. Attentionto surrounding land use trends and managementactivities is also an important part of site selection.Anticipated land use changes nearby could, for example,undermine the conservation utility of a proposedbank site. Alternatively, careful site selection couldlocate a bank in a place where it can provide replacementhabitat for currently suitable habitat nearbythat may become unsuitable due to natural successionand lack of management.The Service guidance makes the further point thatrecovery plans for federally listed species rarely identifyparticular parcels as priority sites for conservationattention (whether through banks or otherwise).Rather, such plans often identify “broader areas withinwhich recovery efforts will be focused.” The guidancesuggests that banks can generally be most usefullysited within these broadly identified areas. The sameconclusions are likely to apply with equal or greaterforce to state wildlife action plans, most of which identifypriority areas at a fairly high level of generality.The challenge for state wildlife action plan implementerswill be to step down from the broadly identifiedpriority areas to influence actual site selection forparticular banks.Complicating this task is that, within certain illdefinedlimits, private parties who want to establishconservation banks have considerable flexibility toestablish them wherever they choose. State or federalconservation agencies can influence bank site selectionin a variety of ways, most particularly through theDesign of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 41
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
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Page 35 and 36: A DETAILED LOOK AT WETLAND AND CONS
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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
Page 92 and 93: APPENDIX EDelaware (Phase IV)Delawa
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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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