Offsetting Wetland Impacts in the United States: Policy Choices and Lessons Learned


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Written by Royal Gardner, Professor of Law, Director of Center for Biodiversity and Law, Stetson University

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Offsetting Wetland Impacts in the United States: Policy Choices and Lessons Learned

  1. 1. Royal C. Gardner Chair, Ramsar Scientific and Technical Review Panel Professor of Law and Director Institute for Biodiversity Law and Policy Stetson University College of Law Biodiversity Offsets in Canada: Getting it Right, Making a Difference University of Ottawa, February 13, 2014
  2. 2. Roadmap  Offset drivers and options  2001 National Research Council report and responses  Wetland mitigation banking trends  The good, the bad, and the ugly
  3. 3. Law as Market Driver • Clean Water Act and “no net loss” of wetlands • Avoid • Minimize • Compensate (Offset) • Restore, Enhance, Create and Preserve
  4. 4. Compensation (Offset) Options 1. Permittee-responsible mitigation 2. Mitigation bank 3. In-lieu fee mitigation
  5. 5. National Research Council report • Compensating for Wetland Losses Under the Clean Water Act (2001)
  6. 6. NAS Study Conclusion and Recommendations Conclusion 1: The goal of no net loss of wetlands is not being met for wetland functions by the mitigation program, despite progress in the last 20 years. Conclusion 2: A watershed approach would improve permit decision making. Conclusion 3: Performance expectations in Section 404 permits have often been unclear, and compliance has often not been assured nor attained. Conclusion 4: Support for regulatory decision making is inadequate. Conclusion 5: Third-party compensation approaches (mitigation banks, in-lieu fee programs) offer some advantages over permittee-responsible mitigation.
  7. 7. Law as Market Driver  Preference for offsets from wetland mitigation banks: 2008 U.S. Army Corps of Engineers and U.S. EPA regulations  Laws may create captive markets: Transportation Equity Act for the 21st Century (TEA-21)
  8. 8. Wetland Mitigation Banking Trends July 1992: 46 approved banks  75% single-user banks (state highway agencies, port authorities, local governments)  Only one entrepreneurial bank Source: Environmental Law Institute (2002)
  9. 9. Wetland Mitigation Banking Trends • December 2001: 219 approved banks – Over 60% are private or entrepreneurial banks • December 2005: 405 approved banks – Over 72% are private or entrepreneurial banks • May 2010: nearly 1,000 approved banks – Another 500 in development Sources: Environmental Law Institute (2002 and 2006) and National Mitigation and Ecosystem Banking Conference (2010) 9
  10. 10. Mitigation Banks in RIBITS as of 15 March 2013 Date of Approval 1308 banks 189 now sold out Brumbaugh & Martin (IWR)
  11. 11. (includes Sold Out & Suspended Banks) F E W FEW VERY FEW
  12. 12. Characteristics of a Successful Wetland Offset Project       Ecological success Watershed context Legal protections (e.g., conservation easements) Long-term management plans Trust fund for long-term stewardship Transparency
  13. 13. Panther Island Mitigation Bank 2,778 acre (1,124 ha) site adjacent to National Audubon Society’s Corkscrew Swamp Sanctuary
  14. 14. Panther Island Mitigation Bank
  15. 15. Panther Island Mitigation Bank
  16. 16. Panther Island Mitigation Bank Mitigation bank land was turned over to the National Audubon Society (with a trust fund for management)
  17. 17. Corkscrew Swamp Sanctuary Ramsar Designation Ceremony
  18. 18. Wetland credits (federal and state)  Highlands Ranch Mitigation Bank (FL) Source: Highlands Ranch Mitigation Bank Source: Tampa Bay Times nt/wetlands/article1232352.ece
  19. 19. Wetland credits (federal and state)  Highlands Ranch Mitigation Bank (FL)  425 state credits  70.37 federal credits Gardner, Mitigation Banking and Reputational Risk, 34:6 National Wetlands Newsletter 10-11 (2012)
  20. 20. Thank you for your attention!