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

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CONCLUSIONSRecommendations for Creating New Habitat BanksUnder Existing AuthoritiesThere are several opportunities for states to establishnew habitat banks or habitat banking programs thatcould contribute to the conservation of priority wildlifehabitat identified in the state wildlife action plansunder existing regulatory mechanisms that alreadyrequire compensation for impacts to the environment.Appendix I lays out a set of effective banking practicesthat should guide any habitat banking programto ensure that the mitigation provided is sustainableand ecologically effective. Banking can support theprotection of priority wildlife habitat through: (1)establishment of state-sponsored banks; (2) creationof incentives for banks to be sited in priority conservationareas; and (3) creation of new banking programsthat utilize existing authorities.Establish state-managed banks in priority conservationareasIf the state itself becomes a banker, then, like anyother banker, it decides the location of its bank. Thus,through establishing their own banks, states maybe able to leverage funds from private developmentinterests (or from state agencies such as highwaydepartments) to acquire and manage areas that areconservation priorities in state wildlife action plans.In effect, banking can enable states to steer mitigationdollars toward state priority conservation areas. Statewildlife agencies may also be able to work with theirlandowning sister agencies to establish banks on statelands not currently being managed for conservationpurposes.For example, North Carolina’s EcosystemEnhancement Program (NCEEP) is considered anational model of a state-sponsored compensatorymitigation program. The North Carolina Departmentof Environment and Natural Resources and the NorthCarolina Department of Transportation (NCDOT)established and administer the NCEEP. NCEEPaccepts payments in advance of permitted impactsand operates as a quasi banking/in-lieu fee program.One portion of NCEEP conducts mitigation exclusivelyfor impacts resulting from NCDOT activities. NCDOTprovides NCEEP with information on its anticipatedmitigation needs; NCEEP provides NCDOT with anestimate of the costs it anticipates incurring to offsetthe impacts; and NCDOT provides funds for NCEEP tocarry out mitigation activities.The cornerstone of the NCEEP is a detailed watershedplanningprocess that is designed to support highquality,cost-effective projects for watershed improvementand protection and open space preservation.NCEEP develops River Basin Restoration Priorities,which include the identification of Targeted LocalWatersheds. NCEEP currently delivers an estimated 80to 90 percent of all of the state’s required mitigation.Most of the program’s funding is generated throughthe agreement with NCDOT, which averages approximately$95 million annually.Another example is the conservation bank for theUtah prairie dog. In this case, Utah’s school landtrust agency, the State and Institutional Trust LandAdministration (SITLA), already owned extensivelands that it managed to generate income for stateschools. Its trust responsibilities precluded it fromsimply dedicating these lands for non-income-generatingconservation purposes. However, working with theUtah Division of Wildlife, SITLA identified a portionof its land that it was willing to allow the Divisionto manage for prairie dog conservation purposes. Inreturn for encumbering those lands with a conservationeasement, SITLA earned credits to sell to privatedevelopers in rapidly growing Iron County. Thus, byestablishing a conservation bank on some of its lands,SITLA could both devote the land to conservation andfulfill its legal duty to generate income from its landfor the benefit of the state’s schools. Although thisbank (like nearly all conservation banks) was completedbefore the state had a wildlife action plan, thedevelopment of state wildlife action plans providesadded reason for many states in the West to look forsimilar opportunities to improve conservation practiceson school trust lands through the establishmentof banks.There are, of course, limits to the ability of states toacquire conservation priority areas by establishingbanks on them. First, depending on the details of statelaw, state conservation agencies may lack the legalauthority to establish banks or sell credits from them.Thus, in the case of conservation banks, any state wildlifeagency contemplating the possibility of establishinga conservation bank should seek legal advice from62 Environmental Law Institute
CONCLUSIONSthe state Attorney General’s office as to the extent ofits authority. However, even if a state agency clearlyhas the authority to establish a conservation bank,its priority conservation areas may not support federallylisted species, or may not support those speciesfor which there is credit demand from developmentinterests.There is another consideration that states shouldweigh carefully before venturing into the businessof establishing wetland and conservation banks. Theentry of states into the banking business may discourageprivate entrepreneurial investment in banking.Private wetland and conservation bankers often viewgovernment-sponsored banks as unfair competitionthat can underprice their credits precisely becausethey are taxpayer subsidized and do not need to generateprofits to remain in business. This concern is somewhatless applicable to state-sponsored banks thatare intended to supply the future mitigation needs ofonly the sponsoring agency itself (such as banks establishedby state highway departments to compensate forthe effects of future highway projects). Nevertheless,before a state decides to establish a bank, it should atleast consider the likely impact of that decision on thewillingness of private investors to invest in banking. Itshould do so not because states have any special obligationtoward those private investors, but because thegoal of advancing the state’s conservation objectivesmay be better served by encouraging private investorsto enter the banking business than by discouragingthem from doing so.Create incentives for banks to be sited in priorityconservation areasMany existing state laws impose regulatory requirementsto provide compensatory mitigation for impactsfrom certain development activities. Whenever anystate environmental law imposes compensatory mitigationobligations, the potential to meet those obligationsthrough banking exists. Since the state itself willdesign the rules for banking pursuant to the state’sown laws, the state can ensure that those rules furtherthe conservation priorities of its state wildlife actionplans.There are a variety of ways in which a state might dothis. For example, a state might allow certain wetlandor conservation banks to be established only in areasdesignated as priority conservation areas in the stateplan. Alternatively, a state might allow the siting ofbanks anywhere, but reward those sited in priorityconservation areas by giving extra credit for bankssited in such areas. That same crediting methodologycould also discourage development in conservationpriority areas by requiring developments there to beoffset with more credits than would be required of acomparable development elsewhere.Create new banking programs as a means of complyingwith existing state regulatory requirementsThe discussion thus far has focused on how statesmight influence or participate in habitat bankingactivities carried out pursuant to the federal §404Clean Water Act and Endangered Species Act. Thefact should not be overlooked, however, that the statethat has made the most aggressive use of conservationbanking, California, did so initially as a way of fosteringcompliance with its own regulatory requirementsimposed by the California Endangered Species Act andthe California Environmental Quality Act. Such provisionsare available in many states. Virtually every statehas a state endangered species law, fifteen states haveenacted environmental policy acts, 255 and many stateshave enacted wetland or stream protection provisions.Although the details of these state laws vary from stateto state, many of them impose regulatory requirementsthat include a duty to mitigate the impacts of certaindevelopment activities.Whenever any state environmental law imposes compensatorymitigation obligations, the potential to meetthose obligations through banking exists. And sincethe state itself will design the rules for banking pursuantto the state’s own laws, the state can ensure thatthose rules further the conservation priorities of itsstate wildlife action plans.For example, California’s Environmental Quality Actrequires state and local agencies to identify the sig-255 The District of Columbia and Puerto Rico also have state environmentalpolicy acts modeled after the National EnvironmentalPolicy Act. Sive, David and Mark A. Chertok. June 2005. ”LittleNEPAs” and their Environmental Impact Assessment Procedures.Sive, Paget & Riesel, P.C. Developed for ALI-ABA: EnvironmentalLitigation Course. http://www.sprlaw.com/pdf/spr_little_nepa_ali_aba_0605.pdf.Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species 63
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Design of U.S. HabitatBanking Syste
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EXECUTIVE SUMMARYExecutive SummaryA
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EXECUTIVE SUMMARYbanks or habitat b
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IntroductionIntroductionAvariety of
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WETLAND AND CONSERVATION BANKING IN
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WETLAND AND CONSERVATION BANKING IN
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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
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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
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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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