II. Federal Endangered Species Act

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II. Federal Endangered Species Act 10 Financing
Conservation

• Opportunities
• Supports land acquisition
• HCPs address broad-based, landscape-level
  planning issues
• Limitations
• Mitigation is targeted to offset impacts to the
  specific listed species from permitted activities
• Site selection is applicant-driven

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III. Federal Natural Resource Damage Programs

• Hold liable parties that are responsible for
  injuries to the environment
• NRDs may be assessed under
• Comprehensive Environmental Response,
  Compensation, and Liability Act
• Clean Water Act
• Oil Pollution Act of 1990
• Park System Resources Protection Act
• National Marine Sanctuaries Act

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III. Federal Natural Resource Damage Programs

• Cost of injury assessment and restoration
• From 1997-2005 87.7 million

Lordship Point, CT remediation
New Bedford Harbor, MA PCBs and toxic metal
contamination
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Estimated Annual Compensatory Mitigation Costs
Environmental Law Institute. October 2007.
Mitigation of Impacts to Fish and Wildlife
Habitat Estimating Costs and Identifying
Opportunities. Washington, DC Environmental
Law Institute. Supported by the Doris Duke
Charitable Foundation
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III. Federal Natural Resource Damage Programs
Financing Conservation

• Opportunities
• May allow for restoration, replacement, and
  acquisition of equivalent resources
• NRD restoration plans must be available for
  review by responsible parties, trustees, other
  interested agencies and tribes, and any other
  interested member of the public
• Limitations
• NRD restoration must be equivalent on-site
  restoration and off-site in-kind restoration

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IV. Federal Power Act

• Authorizes FERC to issue and renews licenses for
  hydropower project
• License issuance, reissuance or surrender may
  require mitigation actions

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IV. Federal Power Act

• 2003-2006 FERC issued 70 EAs and final EISs
• Itemized recommended mitigation measures
• On average of 210.3 million/year

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Estimated Annual Compensatory Mitigation Costs
Environmental Law Institute. October 2007.
Mitigation of Impacts to Fish and Wildlife
Habitat Estimating Costs and Identifying
Opportunities. Washington, DC Environmental
Law Institute. Supported by the Doris Duke
Charitable Foundation
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IV. Federal Power Act Financing Conservation

• Opportunities
• Federal, state agencies make recommendations on
  protection, mitigation and enhancement (PME)
  measures including mandatory conditions and
  fishway prescriptions
• Limitations
• Mitigation is applicant-driven
• Mitigation actions must be made within the
  context of energy development and conservation

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V. Northwest Power Act

• Encourages the development and conservation of
  electric power in the Columbia River Basin
• Seeks to protect, mitigate and enhance fish and
  wildlife in the river and its tributaries
• Provides funding for projects that include
  protection, mitigation, and enhancement measures

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V. Northwest Power Act
1,400-acre Willamette Valley Ranch preserved as
partial mitigation for impacts of hydropower dams
on fish and wildlife of the Columbia River Basin.

• Hydropower project mitigation expenditures
• 2003 2005 Averaged 207.1 million/year

12,533-acre Sagebrush Flats Wildlife Area
northwest of Ephrata. Preserved as partial
mitigation or habitat lost with construction and
operation of Grand Coulee and Chief Joseph
hydropower dams.
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Estimated Annual Compensatory Mitigation Costs
Environmental Law Institute. October 2007.
Mitigation of Impacts to Fish and Wildlife
Habitat Estimating Costs and Identifying
Opportunities. Washington, DC Environmental
Law Institute. Supported by the Doris Duke
Charitable Foundation
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V. Northwest Power Act Financing Conservation

• Opportunities
• The Council is required to solicit and must give
  due weight to recommendations from fish and
  wildlife agencies, tribes, and other parties in
  developing mitigation projects
• Limitations
• Compensatory mitigation is solely limited to
  actions that address fish and wildlife in the
  Columbia River and its tributaries

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Stream Mitigation

• RGL 02-2 (2002) Districts should require
  compensatory mitigation projects for streams to
  replace stream functions.
• Rule (2008) clarifies requirement for stream
  compensation

Alaculsy Mitigation BankMurray County,
GA Sponsored by Wetland Ecological
Consultants, LLC
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Mitigation Bank Credit Types (2005)
Proportion of approved mitigation banks that sell
only wetland credits, both wetland and stream
credits, and only stream credits (data available
for 380 out of 405 approved banks).
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ILF Program Credit Types (2005)
Proportion of approved, active in-lieu-fee
programs that sell only wetland credits only
stream credits both wetland and stream credits
and wetland, stream, and other credits (data
available for 42 programs).
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Water Resources Development Act 2007

• Biennial legislation to study, plan, and carry
  out water resource development and restoration
  projects
• An authorization bill appropriations are needed
  for funding
• Construction funding averages 1.6 billion/year

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Water Resources Development Act 2007

• Corps failed to prepare mitigation plans for 70
  percent of its projects from 1986-2001
• Requires minimum mitigation standards for
  projects

USACE Flood Control Ecosystem Restoration
Project Photo Honolulu District
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Water Resources Development Act 2007

• A water resources projects that involves
  wetlands mitigation and that has impacts that
  occur within the service area of a mitigation
  bankthe Corps shall first consider the use of
  the mitigation bank 2036.

Levee construction for Dredge Material Placement
Area on Victoria Barge Canal, Victoria, Texas
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The Arrival of Private Capital
300-500 million/year committed to investing in
wetland mitigation banking
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Compensatory Mitigation Hierarchy under 2008 Rule

• Mitigation bank credits
• In-lieu fee program credits
• PRM under a watershed approach
• PRM through on-site and in-kind mitigation
• PRM through off-site and/or out-of-kind
  mitigation

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Wetland Mitigation Mechanisms (2005)
Proportion of required wetland mitigation
nationwide (43,549 acres) satisfied by
permittee-responsible mitigation, purchase of
credits from a mitigation bank, payment to an
in-lieu-fee program, and by other means.
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Mitigation Bank Sponsorship (2005)
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ILF Program Sponsorship (2005)
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New Provisions for In-lieu Fee Mitigation

• May be sponsored only by governmental or
  non-profit natural resources management entity
• Requires a compensatory mitigation planning
  framework
• Less up-front capitalization than banking

Maine in-lieu fee program
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Opportunity Support the Watershed Approach

• The watershed approach
• Where available, use an existing watershed plan
• Where no such plan is available, use the
  watershed approach

Julie J. Metz Wetland Bank, Woodbridge, VA Bank
sponsor Wetland Studies Solutions
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The Watershed Approach

• Provides additional flexibility on
• Site selection
• Type
• Method
• Preservation only in conjunction with
  restoration, establishment, or enhancement
• Unless identified as a priority through the
  watershed approach
• BUThigher ratios

Watershed-based wetland characterization for
Marylands Nanticoke River and Coastal Bays
Watersheds U.S. FWS Maryland DNR
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The Watershed Approach

• Can be guided by
• Information on rare, endangered and threatened
  species and critical habitat
• Local ecological reports or studies

Middle South Platte River Wetland Mitigation
Bank, CO Sponsored by Land and Water Resources,
Inc.
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Conclusions for conservation non-profits

• Lessons learned from the wetland compensatory
  mitigation market
• Poor track record, both ecologically and
  administratively
• Higher risks and up front investment requirements
  for banks

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Questions?