How Mitigation Banks and ILF Programs Can Help Conservation Devin Schenk, Mitigation Program Manager Anthony Sasson
The Nature Conservancy Mission: To conserve the lands and waters for which all life depends
The Nature Conservancy Mission: To conserve the lands and waters for which all life depends Operating Principals Whole-system conservation Non-confrontational Science-based
Clean Water Act Clean Water Act under 401/404 requires permitting for all activities impacting waters of the U.S. The discharge of dredged or fill materials into waters of the United States, including wetlands is prohibited without a permit. A permit generally requires offsetting mitigation in order to achieve No Net Loss.
Mitigation Clean Water Act 401/404 permitting for impacts to streams or wetlands (many state regs.) Requires 1. Avoidance, 2. Minimization, 3. Compensatory Mitigation (as a last resort) Avoid Impacts Minimize Impacts Compensate for Impacts
What is Compensatory Mitigation? COMPENSATORY MITIGATION: The restoration, creation, enhancement, or preservation of natural resources to compensate for impacts permitted through regulatory programs.
Why we should care
because the funds are significant Regulatory Program or Authority Cost Estimate (in millions) Clean Water Act 404 $2,947.3 Endangered Species Act $370.3 10 Federal Natural Resource Damage Programs $87.7 Federal Power Act $210.3 Northwest Power Act $207.1 Total: $3,822.7 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
because the acreage is significant
Since 2004 wetland mitigation in Ohio has averaged 340 acres per year Average Annual Wetland Mitigation
Since 2006 stream mitigation in Ohio has averaged 194,983 linear feet per year Average Annual Stream Mitigation
Need to Increase Performance There is an average of 194,000 feet of stream and 314 acres of wetlands mitigated each year in Ohio. Independent research has identified a high rate of failure. Permittee restoration can be difficult because: Small projects Scattered in landscape Located in substandard sites Unavailable watershed-based planning When a project fails, there is a net loss of aquatic resources in Ohio.
and because All compensatory mitigation sites must be: Afforded permanent protection Designed to be selfsustaining
Compensatory Mitigation Hierarchy (2008 Federal Rule) BANKS develop a restoration project that creates mitigation credits, which can be sold to permitees. This is the preferred option. IN-LIEU-FEE govt. or non-profit sponsored program that receives credits to sell upfront, and then uses funds to do restoration projects PERMITEE-RESPONSIBLE - the developer puts together a project to meet their own mitigation requirements.
Mitigation provider Roles in Compensatory Mitigation for Land Protection Entities Allow restoration on fee lands Participant in restoration Long-term stewardship of mitigation lands Fee title holder Easement holder and defense Long-term management and maintenance
Mitigation Bank Challenges Capacity and Specialized Knowledge Required A lot of up-front investment required no credits until project approved Uncertain market must be located in watershed where credits can sell
Time Commitment ILF Program Challenges Reputation and Public Perception Internal Capacity Required Regulatory understanding, Legal expertise, Financial management, Accounting, Restoration ecology, Conservation planning This is NOT a revenue generating program Full Cost Accounting and excess fund restrictions Risk and Liability
ILF Risk and Liability Ultimately you are guaranteeing a 100% success rate Corrective actions, financial assurances, default Required to find and initiate projects under a 3-year timeline Meet budgets Feasibility analysis/service Areas Credit pricing full cost accounting Balance credit ledger
Ohio State-wide ILF program 43 HUC-8 Service Areas
Project Criteria Occur within the same watershed service area 3-year timeline to complete restoration Inter-Agency Review Team (IRT) review and approval 4 stages of approval All mitigation projects must be permanently protected No Severed Mineral / Oil & Gas Rights
TNC s Commitment to Partnerships Request for nominations of potential properties Park districts, land trusts, ODNR, etc. Credit prices contain an accounting for the purchase and permanent protection of land. Site Selection Checklist - objective scoring system used to select best candidates Highest scoring projects will be those that best improve water quality in the watershed and improve other resource and community needs.
Funding for Conservation and Restoration TNC ILF Projects come with funds for: Site Selection Acquisition Design Restoration Permanent Protection Long-term Management
Permanent Land Protection All mitigation projects must be under longterm protection Fee-simple ownership and conservation easements may be held by: Federal, tribal, state, or local resources agencies Non-profit conservation organizations in good standing
Wetland and Stream Mitigation: A Handbook for Land Trusts
Thank you! Devin Schenk dschenk@tnc.org The Nature Conservancy Ohio Field Office 6375 Riverside Drive, Suite 100 Dublin, Ohio 43017