WETLAND MITIGATION BANKING GUIDANCE

• Jurisdiction: United States

Water Quality & Wetlands Regulation and Managment in the Development of Natural Resources
(Jan 2002)
CHAPTER 5B
WETLAND MITIGATION BANKING GUIDANCE


Laurie Rink
Mile High Wetlands Group, LLC
Brighton, Colorado

Federal Guidance 11/28/95

• Federal Guidance for the Establishment, Use and Operation of Mitigation Banks; Notice

• USACE, EPA, NRCS, USFWS, NOAA

• November 28, 1995 Federal Register, Vol. 60, No. 228, pages 58605 - 58614

[Page 5B-2]

Basis for Encouraging Banking

• Large parcels more ecologically appropriate

• Consolidation of financial, planning, and scientific resources

• Reduces permit processing time

• Reduces temporal losses

• Consolidation of mitigation increases efficiency of agency resources

• Contributes to overall goal of no-net-loss when mitigation may be otherwise inappropriate or practicable

[Page 5B-3]

Contents of Federal Guidance

• Planning Considerations

• Goals, site selection, technical feasibility, preservation, upland areas, watershed planning

• Establishment of Mitigation Banks

• Prospectus, bank instruments, agency roles and coordination, role of bank sponsor, public review and comment, dispute resolution procedures

• Criteria for Use of a Bank

• Project applicability, relationship to mitigation requirements, geographic limits, banks vs. on-site, in-kind vs. out-of-kind, timing of credit withdrawal, accounting procedures

• Long-Term Management, Monitoring and Remediation

• Bank operational life, long-term management/protection, monitoring requirements, remedial actions, financial assurances

[Page 5B-4]

Regional Guidance

• Operational Draft: U.S. Army Corps of Engineers' Guidance for Wetland Mitigation Banks in the Omaha District

• November 2000

• Public Comment period ended September 15, 2000

• Undergoing modifications in response to comments

[Page 5B-5]

Banking within the Regulatory Structure

[Page 5B-6]

National Research Council Report

• Compensating for Wetland Losses Under the Clean Water Act, National Academy Press, 2001

• Report Conclusions

• Goal of no net loss of wetlands is not being met for wetland functions by the mitigation program, despite progress in last 20 years

• Watershed approach would improve permit decision making

• Performance expectations in permits have been unclear and compliance has not been assured or attained

• Support for regulatory decision making is inadequate

• Third-party compensation approaches offer some advantages over...