The Why, What, and How Presented to:2009 Statewide Land Trust Conference Presented by:J. Grant Barber PBS&J Tyler, Texas Mitigation Banking:

What is Mitigation Banking? Mitigation banks are large-scale, ecosystem- oriented wetland restoration projects designed to provide compensatory mitigation in advance of unavoidable adverse impacts. Mitigation banks are large-scale, ecosystem- oriented wetland restoration projects designed to provide compensatory mitigation in advance of unavoidable adverse impacts. Mitigation banking provides permit applicants the opportunity to pay a one-time fee to satisfy wetland mitigation requirements. Mitigation banking provides permit applicants the opportunity to pay a one-time fee to satisfy wetland mitigation requirements. Mitigation banking is a U.S. Army Corps of Engineers (USACE) preferred alternative of compensatory wetland mitigation. Mitigation banking is a U.S. Army Corps of Engineers (USACE) preferred alternative of compensatory wetland mitigation.

What Are Wetlands? 1987 USACE Wetland Delineation Manual Wetlands are those areas inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. 1. Hydrology 2. Vegetation 3. Soils

Hydrology (Water) … areas inundated or saturated by surface or ground water at a 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 seasonally inundated and/or saturated [with water] to the surface for a consecutive number of days for more that 12.5% of the growing season … Hydrology as it pertains to wetlands is defined as, Areas which are seasonally inundated and/or saturated [with water] to the surface for a consecutive number of days for more that 12.5% of the growing 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, and Sediment deposits, and Drainage patterns. Drainage patterns.

Hydrology (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.

Hydrology (Water) I think we have sufficient hydrology!

Vegetation … under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated … This part is telling us we need hydrophytic vegetation (or hydrophytes). This part is telling us we need hydrophytic vegetation (or hydrophytes). Hydrophytes are plants that are adapted to or can tolerate being in water or wet conditions. Hydrophytes are plants that are adapted to or can tolerate being in water or wet conditions. According to the USACE more than 50% of the dominant vegetation must be species that are adapted to living in wet areas (hydrophytic) as listed on the appropriate U.S. Fish and Wildlife Service (USFWS) regional list of plants that occur in wetlands. According to the USACE more than 50% of the dominant vegetation must be species that are adapted to living in wet areas (hydrophytic) as listed on the appropriate U.S. Fish and Wildlife Service (USFWS) regional list of plants that occur in wetlands.

Vegetation Hydric vegetation is present!

Soils …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 low-chroma coloring (with some soil colors, mottling must also be present). As a general rule, hydric soils exhibit gleyed or low-chroma coloring (with some soil colors, mottling must also be present).

Soils You want me to dig WHAT with that shovel?

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

Waters of the United States 40 CFR 230.3(s) (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the 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 (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii)Which are used or could be used for industrial purposes by industries in interstate commerce;

Waters of the United States 40 CFR 230.3(s) (4) All impoundments of waters otherwise defined as waters of the United States under this definition; (4) All impoundments of waters otherwise defined as waters of the United States under this definition; (5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; (5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; (6) The territorial sea; (6) The territorial sea; (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act (other than cooling ponds as defined in 40 CFR (m) which also meet the criteria of this definition) are not waters of the United States. (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act (other than cooling ponds as defined in 40 CFR (m) which also meet the criteria of this definition) are not waters of the United States.

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 States, including wetlands. Discharge of dredge or fill material to a water of the United States, including wetlands. What type of permit is needed? What type of permit is needed? Standard individual permit, letter of permission, nationwide permit, regional permit. Standard individual permit, letter of permission, nationwide permit, regional permit. Does it matter if the impact is on private property? Does it matter if the impact is on private property? No No

Have I got a deal for you! Scenario

Project Location

Will there be impacts to a wetland at the project location? Will there be impacts to a wetland at the project 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? In general terms, to "mitigate" means to make less harsh or hostile. In general terms, to "mitigate" means to make less harsh or hostile. Environmental mitigation, compensatory mitigation, or mitigation banking, are terms used primarily by the United States government and the related environmental industry to describe projects or programs intended to offset known impacts to an existing natural resource such as a stream, wetland, or endangered species. Environmental mitigation, compensatory mitigation, or mitigation banking, are terms used primarily by the United States government and the related environmental industry to describe projects or programs intended to offset known impacts to an existing natural resource such as a stream, wetland, or endangered species. Wetland mitigation provides for the replacement of the chemical, physical, and biological functions of wetlands and other aquatic resources which are lost as a result of USACE-authorized impacts. Wetland mitigation provides for the replacement of the chemical, physical, and biological functions of wetlands and other aquatic resources which are lost as a result of USACE-authorized impacts.

Which Type of Mitigation? Avoid Avoid Minimize Minimize Compensate Compensate Mitigation Banking Mitigation Banking In-lieu Fee In-lieu Fee Permittee Responsible Permittee Responsible On-site/Off-siteOn-site/Off-site In-kind/Out-of-kindIn-kind/Out-of-kind

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

Mitigation banking provides developers, utility providers, and state and local governments with the opportunity to pay a one-time fee to purchase credits from the bank, thereby satisfying all or a portion of the statutory wetland mitigation requirements. Mitigation banking provides developers, utility providers, and state and local governments with the opportunity to pay a one-time fee to purchase credits from the bank, thereby satisfying all or a portion of the statutory wetland mitigation requirements. Mitigation banking is a USACE-preferred alternative to the postage stamp method of compensatory wetland mitigation and mitigation banks provide a more comprehensive, cost effective and higher-quality mitigation solution. Mitigation banking is a USACE-preferred alternative to the postage stamp method of compensatory wetland mitigation and mitigation banks provide a more comprehensive, cost effective and higher-quality mitigation solution. What is Mitigation Banking?

Who is Involved in the Process? Interagency Review Team (IRT) U.S. Army Corps of Engineers (USACE) – Lead Agency U.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 (NOAA) National Oceanic and Atmospheric Administration (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)

Whats Involved? Site Determination – 12 to 23,922 acres Site Determination – 12 to 23,922 acres Fieldwork Fieldwork Wetland delineationWetland delineation Functional assessmentFunctional assessment Site potential Site potential EnhancementEnhancement RestorationRestoration CreationCreation PreservationPreservation Prospectus Prospectus Used to initiate the planning and review process by the IRT (also public review) Used to initiate the planning and review process by the IRT (also public review) Bank objectives Bank objectives Establishment Establishment Operation Operation

Whats Involved? Mitigation Banking Instrument Mitigation Banking Instrument The legal document that defines what is required of the sponsor over the life of the bank. The legal document that defines what is required of the sponsor over the life of the bank. Mitigation Plan Mitigation Plan Outlines the management strategy of the bank, Outlines the management strategy of the bank, Establishes success criteria, and Establishes success criteria, and Provides a framework for corrective actions (if necessary). Provides a framework for corrective actions (if necessary).

Mitigation 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 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 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 Plan

New Mitigation Rules Mitigation banking is the preference over other forms of compensatory mitigation. Mitigation banking is the preference over other forms of compensatory mitigation. Defined in 33 CFR 332 – Compensatory Mitigation For Losses of Aquatic Resources ( Federal Register Vol. 73, No. 70 ). Defined in 33 CFR 332 – Compensatory Mitigation For Losses of Aquatic Resources ( Federal Register Vol. 73, No. 70 ).

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