Mitigation Banking:

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

2. 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 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.

3. 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

4. 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. • 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. • Primary Indicators: • Inundation, • Saturated soil in the upper 12 inches, • Water marks, • Drift lines, • Sediment deposits, and • Drainage patterns.

5. Hydrology(Water) • Secondary Indicators: (2 or more required) • Oxidized root channels, • Water-stained leaves, • Local soil survey data, • FAC-neutral test, • Buttress swelling, • etc.

6. I think we have sufficient hydrology! Hydrology(Water)

7. 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). • 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.

8. Hydric vegetation is present! Vegetation

9. Soils “…saturated soil conditions.” • 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).

10. Soils You want me to dig WHAT with that shovel?

11. Why Mitigate? • Is the wetland a water of the United States?

12. Waters of the United States40 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; • (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: (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;

13. Waters of the United States40 CFR 230.3(s) • (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; • (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 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

14. Why Mitigate? • Is the wetland a water of the United States? • See definition. • What type of impacts will occur? • Pipeline, transmission line, well pad, road, building, etc. • Will a permit be required? • Discharge of dredge or fill material to a water of the United States, including wetlands. • What type of permit is needed? • Standard individual permit, letter of permission, nationwide permit, regional permit. • Does it matter if the impact is on private property? • No

15. Scenario Have I got a deal for you!

16. Project Location

17. Project Location • Will there be impacts to a wetland at the project location? • Yes. • Is the wetland a water of the United States? • Yes. • Will a permit be required? • Yes. • Will mitigation be necessary? • Yes.

18. What is Mitigation? • 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. • 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.

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

20. 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.

21. What is Mitigation Banking? • 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.

22. Who is Involved in the Process?Interagency Review Team (IRT) • U.S. Army Corps of Engineers (USACE) – Lead Agency • Environmental Protection Agency (EPA) • Natural Resources Conservation Service (NRCS) • U.S. Fish and Wildlife Service (USFWS) • National Marine Fisheries Service (NMFS) • National Oceanic and Atmospheric Administration (NOAA) • Railroad Commission of Texas (RCT) • Texas General Land Office (GLO) • Texas Parks and Wildlife Department (TPWD) • Texas Commission on Environmental Quality (TCEQ)

23. What’s Involved? • Site Determination – 12 to 23,922 acres • Fieldwork • Wetland delineation • Functional assessment • Site potential • Enhancement • Restoration • Creation • Preservation • Prospectus • Used to initiate the planning and review process by the IRT (also public review) • Bank objectives • Establishment • Operation

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

25. Mitigation Banking Instrument • Service Area(s), • Based on ecoregion and watershed • Primary and Secondary • Accounting Procedures, • Legal Responsibilities of Sponsor, • Default and Closure Provisions,

26. Mitigation Banking Instrument • Reporting Protocols, • Credit Release Schedule, • Tied to specific milestones • Mitigation Plan, • Other Information.

27. Mitigation Plan • Project Objectives, • Site Selection Process, • Site Protection Instrument, • Baseline Information, • Geographic location, • Regional and site history, • Property description, • WOUS present, • Functional capacity of WOUS, and • Existing site conditions. • Determination of Credits,

28. Mitigation Plan • Mitigation Work Plan, • Project details • Methods • Maintenance Plan, • Performance Standards, • Monitoring Requirements, • Long-term Management, • Adaptive Management Plan, • Financial Assurances, • Other Information.

29. New Mitigation Rules • 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).

30. Join Sponsored by: For a copy of this presentation please visit www.pineywoodsbank.com/mitigation.php