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

More documents

Recommendations

Info

A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGcrediting process. That is, under almost any conceivablemetric, banks sited in high priority locationsought to produce more credits than similarly sizedbanks located elsewhere. A prospective private conservationbank owner may still be free to establish a bankin a non-priority area, but the very factors that make ita non-priority area ought to limit the number of creditsthat can be generated by a bank there.In practice, however, methodologies to quantifycredits associated with any particular bank areoften quite simple. At their simplest, some banksare simply awarded a number of credits equal to thenumber of “suitable” acres included in the bank, withno effort to distinguish degrees of suitability. Thus,would-be bankers often establish banks whereversuitable habitat occurs, an outcome that rendersplanning efforts largely superfluous. Where it is notpossible to establish more nuanced crediting systems,it may be necessary for conservation agenciesto prescribe where banks can or cannot be established,perhaps through a process of prior approval ofacceptable bank sites.Although not discussed in the Service’s guidance, afurther important consideration in the siting of anyconservation bank is the nature of the bank. If it is a“preservation” bank that generates credits simply bypreserving existing high quality habitat, banks shouldpresumably only be approved if they have been previouslyidentified as needing long-term protection (onan acquisition priorities list, for example) or if theymeet certain general criteria for long-term protection.On the other hand, for “restoration” or “creation”banks, which generate credits by creating or restoringcertain types of habitat, there is inherently more latitudeto locate these banks wherever they may producesignificant resource benefits. The ability of state wildlifeaction plans to influence the siting of conservationbanks may thus depend on whether the action plansfocus exclusively on preserving existing high qualityhabitats or whether they also seek to guide future restorationactivities.Finally, bank site selection has an obvious relationshipto the identification of bank “service areas” (i.e.,the areas within which projects can mitigate theiradverse impacts by purchasing credits from the bank).Bank service areas are discussed later (see below,“Balancing Conservation and Economic Objectives:Establishing Bank Service Areas”).Bank Review ProcessThe process of reviewing and approving wetland andconservation banks offers several opportunities forfederal and state agencies to encourage the design ofbanks in a manner that maximizes their contributionto the conservation of critical wildlife habitat and atriskspecies.Wetland Mitigation BanksAlong the way to bank approval, MBRTs provide banksponsors with early feedback on the location anddesign of proposed banks. There are several opportunitiesfor MBRTs to encourage bank sponsors to designbanks in a manner that would support the protectionof critical wildlife habitat and species.Wetland mitigation banks that sell credits to compensatefor impacts under §404 must be approved by afederal interagency Mitigation Bank Review Team. Therole of the MBRT is to “facilitate the establishment ofmitigation banks through the development of mitigationbanking instruments.” 162 MBRTs are generallycomprised of representatives from the Corps, EPA andthe Service. Representatives from the National MarineFisheries Service (NMFS) and the Natural ResourcesConservation Service (NRCS) are also commonlymembers, as are representatives from state, tribal, andlocal regulatory and resource agencies, particularly inareas where these agencies’ authorities or mandatesdirectly affect or are affected by banks. An ELI surveyfound that state wildlife agencies serve on only abouthalf of the nation’s 40 MBRTs. 163Federal policy dictates that the Corps serves as thechair of the MBRT, except where a state or other localentity has a strong regulatory presence, in which casethat agency may serve as co-chair. Although MBRTs arenot required to achieve consensus on bank approvaland oversight, they are encouraged to “strive to obtain162 Banking Guidance (1995), § II, C.,3.163 Environmental Law Institute. July 2007. Unpublished datadeveloped for the Training Course for Interagency Mitigation BankReview Teams, sponsored by the Environmental Law Institute andThe Conservation Fund.42 Environmental Law Institute
A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGconsensus…” 164 When consensus cannot be reached,the chair of the MBRT has the ultimate authority tomake final decisions on the terms and conditions ofthe banking instrument.Bank sponsors are encouraged to meet with theMBRT for a pre-application consultation in advanceof submitting a mitigation banking instrument. 165Prospective bank sponsors are then encouraged to submita bank “prospectus”. 166 Only after addressing theagencies’ feedback on the prospectus does the banksponsor submit a draft mitigation banking instrument,which includes the mitigation plan. The bank instrumentmay go through one or more iterations before itis finalized.Because MBRTs usually include all the state agencieswith regulatory responsibilities for the habitat and/orspecies covered by the bank, there may be ampleopportunity for these groups to rely upon the statewildlife action plan to guide site selection, bank reviewand approval, credit types and amounts, and otherfactors. State wildlife agencies can be encouraged toplay a more active role on the MBRT to ensure thatproposed banks take key wildlife habitat and speciesof conservation concern into account.Conservation BanksThe process for reviewing and approving conservationbanks is less formally structured than the processapplicable to wetland mitigation banks. Indeed, priorto the issuance of the Service’s Guidance, there wasno formal federal process for reviewing and approvingconservation banks. The State of California’s “OfficialPolicy on Conservation Banks” also did not addressthe topic in any detail. As a result, conservation bankshave been approved in a variety of ways, a fact thathas contributed to the current uncertainty about howmany conservation banks there actually are.The Service’s 2003 Guidance has brought greaterclarity and certainty to this matter. Although it neverspecifically requires either of these, it clearly contemplatesthat conservation banks will be established viaa legally binding “conservation bank agreement” andthat a “conservation bank review team” will overseethe establishment of the bank.The Service’s Guidance sets out a non-exclusive listof 23 “main components” that are to be included ineach banking agreement. Among the more importantof these components are a management plan for thebank property, a description of the bank’s service area,the number and kind of conservation credits withinthe bank, and performance standards that the bankmust meet. 167 Not all of the enumerated 23 main componentsare clear. For example, one of the requiredcomponents is listed as “[c]ompliance with applicableState and Federal laws such as State endangered speciesacts.” What that means is rather opaque.Other parts of the Service’s Guidance say that a bankingagreement must include items not included inthe list of 23 main components. For example, it statesthat a banking agreement “must identify and includea requirement for adequate funding to provide for theconservation bank’s operation, management, monitoring,and documentation costs.” 168 In contrast, the onlymention in the section’s list of main components thatpertains to funding is a requirement for contingencyfunding plans in the event that the obligations ofthe banking agreement are not fulfilled. 169 There isa puzzling reference in another section to a “mitigationagreement” that probably was intended to referinstead to a “banking agreement” since there is noother mention in the Guidance of “mitigation agreements.”170 It specifies that the rationale for any differentialweighting of credits or debits associated withsimilar activities in different places should be clearlyexplained in “the mitigation agreement or elsewhere.”This requirement also does not appear in the list of 23major components.The Guidance says very little about the workings of“conservation bank review teams,” which it defines as“an interagency group of Federal, State, tribal and/or167 Guidance on Conservation Banks (2003), § II.E.2.164 Banking Guidance (1995), § II, C.,3.165 RGL 02-2 (2002). § 3.166 Banking Guidance (1995), § II, C.168 Guidance on Conservation Banks (2003), § II.D.4.169 Guidance on Conservation Banks (2003), § II.E.2.170 Guidance on Conservation Banks (2003), § II.C.3.Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 43
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 47: 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
Page 92 and 93: APPENDIX EDelaware (Phase IV)Delawa
Page 94 and 95: APPENDIX Estaff intend to make the
Page 96 and 97: APPENDIX EMitigation banking regula
Page 98 and 99:
APPENDIX EMississippi (Phase IV)The
Page 100 and 101:
APPENDIX ENew Mexico (Phase III)The
Page 102 and 103:
APPENDIX Eand mitigation banking. 1
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
Page 112 and 113:
APPENDIX GWETLAND MITIGATION BANKIN
Page 114 and 115:
Page 116 and 117:
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
show all

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

Create successful ePaper yourself

Delete template?

Save as template?