Is This Working?

After the recognition of the importance and value of wetlands, it took time to understand the science of how they function and the best way to protect them. Following attempts to implement the legislated guidance, it became apparent that wetlands weren’t being built and the standards of No Net Loss* (a standard that would be promoted strongly during George H.W. Bush’s administration and strengthened during Clinton and George W. Bush administrations) were not being met.

Most mitigation at this time was of the “postage stamp” variety—small site-by-site mitigation projects.

A reevaluation of implementation based on knowledge gained in this process led to a watershed approach and the determination of chemical, biological, and physical functions of wetlands.

| Early 1990| 1991 | 1992 | 1994-99 | 1995 | 1995 | 1996 |

| 1999 | 2000 | 2003 | 2006 | Key |

(click dates to view more detailed information)

 

| Early 1990 |

USACE and EPA issued Memorandums of Agreement regarding mitigation banking. A number of regional guidance documents from various federal agency offices clarified agency expectations regarding mitigation banking and officially sanctioned their use.

| 1991 |

The California Natural Community Conservation Plan (NCCP) Act (Fish and Game Code, section 2800 et seq) is passed.

| 1992 |

Coles Levee Ecosystem Preserve was established in Kern County, California, by the Atlantic Richfield Company primarily as a conservation bank for its own use to offset oil and gas development activities.

| 1994-99 |

Various regional guidance documents were produced detailing how to meet the standards of the Memorandums of Agreement.

Several reports were published describing the general failure of the project-by-project mitigation approach (DeWeese, 1994; Marsh et al, 1996; Redmond et al, 1996; Environmental Defense Fund, 1999), prompting agencies to take a mitigation banking approach.

| 1995 |

The same year, the USACE, EPA, NRCS, USFWS, and NOAA Fishers issued ‘Federal guidance for the establishment, use and operation of mitigation banks’ (Federal Register 60:58605-58614).

This federal agreement among agencies set the standard of avoiding, then minimizing, and lastly mitigating to offset impacts. It lists the acceptance of the following for offsetting impacts to wetlands and streams:

1. Permittee-responsible mitigation — on-site, do-it-yourself approach to mitigation

2.  In-lieu fees— a structure in which an organization collects money     from companies who need mitigation for small impacts; organization agrees to do a large mitigation project

3.  Mitigation banks (no banks at this time)

In-lieu fees became popular, but as they collected and held money until they had enough to create a large project, the money couldn’t keep up with inflation, so they could not buy land. Very few mitigation banks were built through the in-lieu fee program.

| Top |

| 1995 |

California announced its ‘Official policy on conservation banks’ (Wheeler and Strock). The first official species conservation bank, Carlsbad Highlands Conservation Bank, located in southern California, was approved by USFWS and CDFG for use in association with the San Diego Multiple Species Conservation Plan, the first HCP-NCCP.

| 1996 |

USFWS issued the first programmatic formal ESA section 7 consultation specifically promoting the use of species conservation banks.

| 1999 |

USFWS issued ‘Method for determining the number of available vernal pool preservation credits in ESA conservation banks in the California Central Valley,’ providing guidance on conservation banking.

| 2000 |

‘Federal guidance on the use of in-lieu fee arrangements for compensatory mitigation under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act’ was issued (Federal Register 65: 66914-66917).

| 2003 |

‘Guidance for the establishment, use, and operation of conservation banks’ was issued by USFWS.

| 2006 |

Memorandum of Agreement followed the Rapanos v. United States & Carabell v. United States Supreme Court decision, which more clearly defined the “Waters of the U.S.” and gave the USACE and EPA an established framework with which they could determine jurisdiction.

 

Key:

Conservation Bank – Mitigation banking approach to endangered species

Guidance – Non-binding statement issued by a government agency that advises how an organization can comply with legislation

Memorandum of Agreement – Written understanding of the agreement of cooperation between parties

Mitigation Bank – Restoration, creation, enhancement, or preservation of wetlands or streams that offsets expected adverse impacts to nearby wetlands or streams. Developers buy credits from USACE-permitted banks to fulfill requirements to offset impacts per the Clean Water Act to gain 404 permits and move forward with their projects.

No Net Loss – One acre of restored or preserved wetlands for every one acre of impacted wetlands, ensuring that No Net Loss of wetlands occurs

Rule – Administrative rules are officially promulgated agency regulations that have the force and effect of law. Generally these rules elaborate the requirements of a law or policy. http://definitions.uslegal.com/a/administrative-rule/

 

Mitigation Timeline information compiled and summarized from various sources, including:
Carroll, Nathaniel, Jessica Fox, and Ricardo Bayon. Conservation and Biodiversity Banking: A Guide to Setting Up and Running Biodiversity Credit Trading Systems. London and Sterling: Earthscan, 2008. Print.
Denny, Jemma. Personal Interview. July 2012.
EPA at 40. 2012. United States Environmental Protection Agency. July 2012. http://www.epa.gov/40th.

 

Read about: The Final Rule