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

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A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGthe ability of compensatory mitigation to replace lostaquatic resource functions may be improved if permits“established clear mitigation goals with measurableperformance standards.” 226 In 2002, the Corps issuedguidance encouraging the districts to incorporatewritten and clear performance standards into permitsand mitigation plans. 227 However, “districts still lackdirection on how those clear standards should be constructed.”228Performance standards can be stated in terms of awide array of goals, structures, and functions. Althoughbanks should be required to meet all of the requirementsin the permits and mitigation plans, meetingadministrative performance standards (e.g. securingfinancial assurances, submitting monitoring reports)does not suffice for achieving ecological milestones.Ecological performance standards may include bioticor abiotic parameters. Biotic performance standardscould include measures of plant density, cover bynative or non-native invasive species, aquatic invertebratediversity, and composition of fish assemblages.Abiotic parameters may include measures such as soilconditions, hydrologic criteria, and nutrient thresholds.The peer-reviewed literature includes significantinformation on a number of the biotic and abioticparameters that might be adapted for performancestandards. 229 However, there are currently no nationalguidelines or models for developing ecological performancestandards.Few of the banks reviewed in ELI’s 2002 study includedperformance standards for wildlife. The wildlifestandards that were included primarily focus on waterfowl,shorebirds, and indicator bird species, as wellas threatened and endangered species. 230 Rather than226 Martin, Steve, Robert Brumbaugh, and Palmer Hough. March-April 2005. “Conceptualizing Mitigation Performance Standards.”National Wetlands Newsletter. 27(2): 7-10.227 RGL 02-2 (2002), § 3, E.228 Martin, Steve, Robert Brumbaugh, and Palmer Hough. March-April 2005. “Conceptualizing Mitigation Performance Standards.”National Wetlands Newsletter. 27(2): 7-10.229 For a review of this literature, see: Environmental Law Institute.April 2004. Measuring Mitigation: A Review of the Science forCompensatory Mitigation Performance Standards. Washington, DC:Environmental Law Institute.230 Banks and Fees (2002), p. 73.measuring wildlife directly, wildlife standards are generallymeasured qualitatively by assessing “evidence ofuse.” 231State wildlife agencies can play a lead role in workingwith the MBRT to support the design of performancestandards for wildlife criteria – particularlythose that address the needs of the wetland specieslikely to be present at the mitigation site and thatare listed as species of concern in the state wildlifeaction plan. The development of science-based wildlifeperformance standards is perhaps one of the greatestopportunities to advance the state wildlife actionplan through wetland mitigation banking. Having welldesigned ecological performance standards in placemay improve the likelihood of bank success, lead toadequate remedial actions if wildlife standards are notbeing met, and delay the release of credits until suchstandards are met.Conservation BanksThe U.S. Fish and Wildlife Service’s conservation bankingguidance defines a conservation bank as “a parcelof land containing natural resource values that areconserved and managed in perpetuity … for specifiedlisted species.” 232 Thus, like wetland mitigation banks,endangered species conservation banks are intendedto be secured in perpetuity. In some circumstances,however, a proposed bank site may be divided into discretesegments and implemented in phases. Each segmentis supposed to be capable of functioning effectivelywhether or not other segments are subsequentlyadded to it. Before the first credit is sold in any bank(or in any phase of a bank with multiple phases) theland in the bank (or relevant phase of the bank) mustbe permanently protected through a conservationeasement or transfer of fee title. Thus, phasing canfacilitate financing of a bank and hedge against economicrisk. That is, hedging may allow a bank to generatesufficient revenue from the sale of credits from thefirst phase to finance subsequent phases of the bank.231 Breaux, A. and F. Serefiddin. 1999. “Validity of PerformanceCriteria and a Tentative Model for Regulatory Use in CompensatoryWetland Mitigation Permitting.” Environmental Management. 24(3):327-336.232 Guidance on Conservation Banks (2003), § part I.B.1. Emphasisadded.52 Environmental Law Institute
A DETAILED LOOK AT WETLAND AND CONSERVATION BANKINGThe other noteworthy aspect of the above definitionis that it clearly contemplates management of theland in a conservation bank. That is because manyendangered species require active management oftheir habitats (e.g., prescribed burning, control ofexotic vegetation, etc.) to ensure that those habitatsare to continue to be occupied by the species.That is, occupied endangered species habitat, if leftunmanaged, may cease to be occupied. For manyendangered species habitats, particularly thosedependent upon frequent fire or other disturbance,recurrent disturbance through active managementmay be a necessity. Long-term management of conservationbank sites thus becomes a vitally importantaspect of these banks.Where the number of credits in a conservation bank isbased on the success of efforts to increase the populationof the target species (as in the red-cockadedwoodpecker and Utah prairie dog banks discussedearlier), there would not appear to be as much needto prescribe management requirements at the outset.Giving the banker in such situations the flexibility topursue population goals with whatever managementmeasures he thinks are most likely to succeed makesabundant sense, since credits are only earned if thosemeasures succeed.Although, as noted above, the Service’s conservationbanking guidance requires that banks be protected inperpetuity, the Service has also been exploring somewhatanalogous, non-permanent banking arrangementsthat it calls “recovery credit systems.” The prototypefor these is an effort around Fort Hood army base inTexas that has been encouraged by the Service, butthat does not yet have its final blessing. This effortcontemplates the generation of credits from non-permanentconservation commitments made by nearbylandowners and the use of those credits to offsetnon-permanent impacts of certain activities on FortHood. It also allows for the generation of credits frompermanent conservation commitments that can beused to compensate for permanent losses of habitat onFort Hood.The rationale for requiring permanent protection ofwetland mitigation banks is that they compensate forwetland losses that are virtually always permanent.Regulated impacts to endangered species habitats,however, do not always entail permanent loss ofthat habitat. Moreover, some endangered specieshabitats (e.g., for the black-capped vireo, Karnerblue butterfly, and bog turtle) are early successionalor transitory habitats, and thus, they are, by theirvery nature, impermanent and are capable of beingrepeatedly recreated through natural (or managementinduced) disturbance. One of the peculiaritiesof the Endangered Species Act is that the legality orillegality of an action may turn on whether the habitatit affects is actually occupied by a listed speciesat the time of the action. Thus, an action that affectsan early successional habitat that is occupied, forexample, by the black-capped vireo, may require mitigationunder the Endangered Species Act, whereasthe same action, if carried out in the same place adecade later after the habitat has matured and is nolonger occupied by the vireo, may not. Given that theeffects of some regulated actions on endangered specieshabitats are impermanent, and that some endangeredspecies habitats are themselves impermanent,the apparent willingness of the U.S. Fish and WildlifeService to reconsider its current requirement thatcredits available to compensate for impacts to endangeredspecies must be based on permanently protectedlands is understandable. An alternative approachthat has been utilized in California addresses temporaryimpacts by using “discounted” mitigation ratios,but still requires permanent protection of some habitatto offset the temporal loss of other habitat.For now, however, the policy of the Service is thatlands included in conservation banks must be protectedin perpetuity through some legally bindingmechanism. For state wildlife action plans that seekto secure high priority areas for permanent protection,conservation banking thus offers a mechanism tofurther that objective that is ultimately funded by theproponents of development projects that detrimentallyaffect similar, but less critically important, habitatselsewhere.Balancing Conservation and Economic Objectives:Establishing Bank Service AreasWetland Mitigation BanksA bank’s service area is “the designated area (e.g.,watershed, county) wherein a bank can reasonablybe expected to provide appropriate compensation forDesign of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 53
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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
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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
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
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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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