The Why, What, and HowThe Why, What, and How

Presented to:Presented to: 2009 Statewide Land Trust Conference2009 Statewide Land Trust Conference

Presented by:Presented by: J. Grant BarberJ. Grant BarberPBS&JPBS&JTyler, TexasTyler, Texas

Mitigation Banking:Mitigation Banking:

What is Mitigation Banking?What is Mitigation Banking?

Mitigation banks are large-scale, ecosystem-Mitigation banks are large-scale, ecosystem-oriented wetland restoration projects designed to oriented wetland restoration projects designed to provide compensatory mitigation in advance of provide compensatory mitigation in advance of unavoidable adverse impacts.unavoidable adverse impacts.

Mitigation banking provides permit applicants the Mitigation banking provides permit applicants the opportunity to pay a one-time fee to satisfy opportunity to pay a one-time fee to satisfy wetland mitigation requirements.wetland mitigation requirements.

Mitigation banking is a U.S. Army Corps of Mitigation banking is a U.S. Army Corps of Engineers (USACE) preferred alternative of Engineers (USACE) preferred alternative of compensatory wetland mitigation.compensatory wetland mitigation.

What Are Wetlands?What Are Wetlands?

1987 USACE Wetland Delineation Manual1987 USACE Wetland Delineation Manual

Wetlands are those areas inundated or saturated by Wetlands are those areas inundated or saturated by surface or ground water at a frequency and duration surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.life in saturated soil conditions.

1. Hydrology1. Hydrology

2. Vegetation2. Vegetation

3. Soils3. Soils

HydrologyHydrology(Water)(Water)

“… “… areas inundated or saturated by surface or ground water at a areas inundated or saturated by surface or ground water at a frequency and duration sufficient…” frequency and duration sufficient…”

This part is telling us we need sufficient hydrology. This part is telling us we need sufficient hydrology. Hydrology as it pertains to wetlands is defined as, “Areas which are Hydrology as it pertains to wetlands is defined as, “Areas which are

seasonally inundated and/or saturated [with water] to the surface for seasonally inundated and/or saturated [with water] to the surface for a consecutive number of days for more that 12.5% of the growing a consecutive number of days for more that 12.5% of the growing season …” season …”

For this discussion “surface” is the upper 12 inches of soil.For this discussion “surface” is the upper 12 inches of soil. Primary Indicators: Primary Indicators:

Inundation,Inundation, Saturated soil in the upper 12 inches,Saturated soil in the upper 12 inches, Water marks,Water marks, Drift lines,Drift lines, Sediment deposits, andSediment deposits, and Drainage patterns.Drainage patterns.

HydrologyHydrology(Water)(Water)

Secondary Indicators: (2 or more required)Secondary Indicators: (2 or more required) Oxidized root channels,Oxidized root channels, Water-stained leaves,Water-stained leaves, Local soil survey data,Local soil survey data, FAC-neutral test, FAC-neutral test, Buttress swelling,Buttress swelling, etc.etc.

HydrologyHydrology(Water)(Water)

I think we have I think we have sufficient hydrology!sufficient hydrology!

VegetationVegetation

“… “… under normal circumstances do support a prevalence under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated …”of vegetation typically adapted for life in saturated …”

This part is telling us we need hydrophytic vegetation (or This part is telling us we need hydrophytic vegetation (or hydrophytes).hydrophytes).

Hydrophytes are plants that are adapted to or can Hydrophytes are plants that are adapted to or can tolerate being in water or wet conditions.tolerate being in water or wet conditions.

According to the USACE more than 50% of the dominant According to the USACE more than 50% of the dominant vegetation must be species that are adapted to living in vegetation must be species that are adapted to living in wet areas (hydrophytic) as listed on the appropriate U.S. wet areas (hydrophytic) as listed on the appropriate U.S. Fish and Wildlife Service (USFWS) regional list of plants Fish and Wildlife Service (USFWS) regional list of plants that occur in wetlands. that occur in wetlands.

VegetationVegetation Hydric Hydric vegetation is vegetation is

present!present!

SoilsSoils

“…“…saturated soil conditions.” saturated soil conditions.”

This part is telling us we need hydric soil. This part is telling us we need hydric soil. As a general rule, hydric soils exhibit gleyed or As a general rule, hydric soils exhibit gleyed or

low-chroma coloring (with some soil colors, low-chroma coloring (with some soil colors, mottling must also be present). mottling must also be present).

SoilsSoils

You want me to dig You want me to dig WHATWHAT with that shovel?with that shovel?

Why Mitigate?Why Mitigate?

Is the wetland a water of the United Is the wetland a water of the United States?States?

Waters of the United StatesWaters of the United States 40 CFR 230.3(s)40 CFR 230.3(s)

(1) All waters which are currently used, or were used in the (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or past, or may be susceptible to use in interstate or

foreign foreign commerce, including all waters which are subject to commerce, including all waters which are subject to the the ebb and flow of the tide; ebb and flow of the tide;

(2) All interstate waters including interstate wetlands; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (3) All other waters such as intrastate lakes, rivers, streams

(including intermittent streams), mudflats, sand flats, (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign destruction of which could affect interstate or foreign commerce including any such waters: commerce including any such waters:

(i) (i) Which are or could be used by interstate or foreign Which are or could be used by interstate or foreign travelers for recreational or other purposes; or travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken (ii) From which fish or shellfish are or could be taken and and sold in interstate or foreign commerce; or sold in interstate or foreign commerce; or

(iii)(iii)Which are used or could be used for industrial Which are used or could be used for industrial purposes by industries in interstate commerce; purposes by industries in interstate commerce;

Waters of the United StatesWaters of the United States 40 CFR 230.3(s)40 CFR 230.3(s)

(4) All impoundments of waters otherwise defined as waters (4) All impoundments of waters otherwise defined as waters of the United States under this definition; of the United States under this definition;

(5) Tributaries of waters identified in paragraphs (s)(1) (5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; through (4) of this section;

(6) The territorial sea; (6) The territorial sea; (7) Wetlands adjacent to waters (other than waters that are (7) Wetlands adjacent to waters (other than waters that are

themselves wetlands) identified in paragraphs (s)(1) themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the including treatment ponds or lagoons designed to meet the

requirements of the Clean Water Act (other than cooling requirements of the Clean Water Act (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United the criteria of this definition) are not waters of the United States. States.

Why Mitigate?Why Mitigate?

Is the wetland a water of the United States?Is the wetland a water of the United States? See definition.See definition.

What type of impacts will occur?What type of impacts will occur? Pipeline, transmission line, well pad, road, building, etc.Pipeline, transmission line, well pad, road, building, etc.

Will a permit be required?Will a permit be required? Discharge of dredge or fill material to a water of the United Discharge of dredge or fill material to a water of the United

States, including wetlands.States, including wetlands. What type of permit is needed?What type of permit is needed?

Standard individual permit, letter of permission, nationwide Standard individual permit, letter of permission, nationwide permit, regional permit.permit, regional permit.

Does it matter if the impact is on private property?Does it matter if the impact is on private property? NoNo

Have I got a Have I got a deal for you!deal for you!

ScenarioScenario

Project LocationProject Location

Project LocationProject Location

Will there be impacts to a wetland at the project Will there be impacts to a wetland at the project location?location? Yes.Yes.

Is the wetland a water of the United States?Is the wetland a water of the United States? Yes.Yes.

Will a permit be required?Will a permit be required? Yes.Yes.

Will mitigation be necessary?Will mitigation be necessary? Yes.Yes.

What is Mitigation?What is Mitigation?

In general terms, to "mitigate" means to make less harsh In general terms, to "mitigate" means to make less harsh or hostile.or hostile.

Environmental mitigation, compensatory mitigation, or Environmental mitigation, compensatory mitigation, or mitigation banking, are terms used primarily by the mitigation banking, are terms used primarily by the United States government and the related environmental United States government and the related environmental industry to describe projects or programs intended to industry to describe projects or programs intended to offset known impacts to an existing natural resource offset known impacts to an existing natural resource such as a stream, wetland, or endangered species. such as a stream, wetland, or endangered species.

Wetland mitigation provides for the replacement of the Wetland mitigation provides for the replacement of the chemical, physical, and biological functions of wetlands chemical, physical, and biological functions of wetlands and other aquatic resources which are lost as a result of and other aquatic resources which are lost as a result of USACE-authorized impacts.USACE-authorized impacts.

Which Type of Mitigation?Which Type of Mitigation?

AvoidAvoid

MinimizeMinimize

CompensateCompensate

Mitigation BankingMitigation Banking

In-lieu FeeIn-lieu Fee

Permittee ResponsiblePermittee Responsible

• On-site/Off-siteOn-site/Off-site

• In-kind/Out-of-kindIn-kind/Out-of-kind

What is Mitigation Banking?What is Mitigation Banking? Mitigation banks are large-scale, ecosystem-Mitigation banks are large-scale, ecosystem-

oriented wetland restoration projects designed to oriented wetland restoration projects designed to provide compensatory mitigation in advance of provide compensatory mitigation in advance of unavoidable adverse impacts to wetlands unavoidable adverse impacts to wetlands caused by projects such as pipelines, electric caused by projects such as pipelines, electric transmission lines, road construction, and well transmission lines, road construction, and well pads. Many projects involve wetland impacts pads. Many projects involve wetland impacts that are relatively small. To mitigate individually that are relatively small. To mitigate individually for such impacts often results in “postage stamp” for such impacts often results in “postage stamp” mitigation projects that are smaller, often mitigation projects that are smaller, often isolated wetlands that provide little isolated wetlands that provide little environmental benefit.environmental benefit.

Mitigation banking provides developers, utility Mitigation banking provides developers, utility providers, and state and local governments with providers, and state and local governments with the opportunity to pay a one-time fee to the opportunity to pay a one-time fee to purchase credits from the bank, thereby purchase credits from the bank, thereby satisfying all or a portion of the statutory wetland satisfying all or a portion of the statutory wetland mitigation requirements.mitigation requirements.

Mitigation banking is a USACE-preferred Mitigation banking is a USACE-preferred alternative to the “postage stamp” method of alternative to the “postage stamp” method of compensatory wetland mitigation and mitigation compensatory wetland mitigation and mitigation banks provide a more comprehensive, cost banks provide a more comprehensive, cost effective and higher-quality mitigation solution.effective and higher-quality mitigation solution.

What is Mitigation Banking?What is Mitigation Banking?

Who is Involved in the Process?Who is Involved in the Process?Interagency Review Team (IRT)Interagency Review Team (IRT)

U.S. Army Corps of Engineers (USACE) – Lead AgencyU.S. Army Corps of Engineers (USACE) – Lead Agency Environmental Protection Agency (EPA)Environmental Protection Agency (EPA) Natural Resources Conservation Service (NRCS)Natural Resources Conservation Service (NRCS) U.S. Fish and Wildlife Service (USFWS)U.S. Fish and Wildlife Service (USFWS) National Marine Fisheries Service (NMFS)National Marine Fisheries Service (NMFS) National Oceanic and Atmospheric Administration National Oceanic and Atmospheric Administration

(NOAA)(NOAA) Railroad Commission of Texas (RCT)Railroad Commission of Texas (RCT) Texas General Land Office (GLO)Texas General Land Office (GLO) Texas Parks and Wildlife Department (TPWD)Texas Parks and Wildlife Department (TPWD) Texas Commission on Environmental Quality (TCEQ)Texas Commission on Environmental Quality (TCEQ)

What’s Involved?What’s Involved? Site Determination – 12 to 23,922 acresSite Determination – 12 to 23,922 acres

FieldworkFieldwork• Wetland delineationWetland delineation• Functional assessmentFunctional assessment

Site potentialSite potential• EnhancementEnhancement• RestorationRestoration• CreationCreation• PreservationPreservation

ProspectusProspectus Used to initiate the planning and review process by the IRT (also Used to initiate the planning and review process by the IRT (also

public review)public review) Bank objectivesBank objectives EstablishmentEstablishment Operation Operation

What’s Involved?What’s Involved?

Mitigation Banking InstrumentMitigation Banking Instrument The legal document that defines what is required of the sponsor The legal document that defines what is required of the sponsor

over the life of the bank.over the life of the bank.

Mitigation PlanMitigation Plan Outlines the management strategy of the bank,Outlines the management strategy of the bank, Establishes success criteria, andEstablishes success criteria, and Provides a framework for corrective actions (if necessary).Provides a framework for corrective actions (if necessary).

Mitigation Banking InstrumentMitigation Banking Instrument

Service Area(s),Service Area(s),• Based on ecoregion and watershedBased on ecoregion and watershed• Primary and SecondaryPrimary and Secondary

Accounting Procedures,Accounting Procedures, Legal Responsibilities of Sponsor,Legal Responsibilities of Sponsor, Default and Closure Provisions,Default and Closure Provisions,

Mitigation Banking InstrumentMitigation Banking Instrument

Reporting Protocols,Reporting Protocols, Credit Release Schedule,Credit Release Schedule,

• Tied to specific milestonesTied to specific milestones

Mitigation Plan,Mitigation Plan, Other Information.Other Information.

Mitigation PlanMitigation Plan Project Objectives,Project Objectives, Site Selection Process,Site Selection Process, Site Protection Instrument,Site Protection Instrument, Baseline Information,Baseline Information,

• Geographic location,Geographic location,• Regional and site history,Regional and site history,• Property description,Property description,• WOUS present,WOUS present,• Functional capacity of WOUS, andFunctional capacity of WOUS, and• Existing site conditions.Existing site conditions.

Determination of Credits,Determination of Credits,

Mitigation Work Plan,Mitigation Work Plan,• Project detailsProject details• MethodsMethods

Maintenance Plan,Maintenance Plan, Performance Standards,Performance Standards, Monitoring Requirements,Monitoring Requirements, Long-term Management,Long-term Management, Adaptive Management Plan,Adaptive Management Plan, Financial Assurances, Financial Assurances, Other Information.Other Information.

Mitigation PlanMitigation Plan

New Mitigation RulesNew Mitigation Rules

Mitigation banking is the preference over Mitigation banking is the preference over other forms of compensatory mitigation.other forms of compensatory mitigation.

Defined in 33 CFR 332 – Compensatory Defined in 33 CFR 332 – Compensatory Mitigation For Losses of Aquatic Mitigation For Losses of Aquatic Resources (Resources (Federal Register Vol. 73, No. 70Federal Register Vol. 73, No. 70).).

Sponsored by:Sponsored by:

JoiJoinn

For a copy of this presentation please visitFor a copy of this presentation please visit

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