presented at dialogos de biodiversidad - compensaciones ambientales bogota, colombia may 22,2014 by...
TRANSCRIPT
MITIGATION AND CONSERVATION BANKING IN THE US-
A MODEL TO CONSIDER
Presented at
Dialogos de Biodiversidad - Compensaciones Ambientales
Bogota, Colombia May 22,2014By
Wayne WhitePresident, National Mitigation Banking Association
Wildlands
Purpose for today
o Mitigation Implementation
o Hierarchyo Avoido Minimizeo Mitigate unavoidable, residual impacts
o Compensatory Mitigationo Permittee responsible mitigationo In lieu fee programo Banks
In 2001 the National Research Council released a comprehensive evaluation of
the effectiveness of wetlands compensatory mitigation required by
Clean Water Act.
o The experience and scientific expertise of the NRC study panel’s most important finding was that the market-driven, incentive-based wetland mitigation banking program had outperformed both in-lieu fee mitigation and permittee-responsible mitigation
o No Equivalency Standard
Overview
o What is a mitigation/conservation bank?
o Regulations require mitigation/offsets
o Evolution of US banking
o Benefits of banks-
o Agency requirements for bank approval
o Service area and credits
o Offsets around the world
o Key messages
o Principles of mitigation and recommendations
What is a conservation (habitat)bank?
“A site or suite of sites containing natural resource values that are conserved and managed in perpetuity for specified listed or other at-risk species and used to offset impacts occurring elsewhere to the same type of resource.”
o Pre-approved Net Conservation Benefit
Offset Unavoidable Impacts
Review
Team
Land-owner
Agency
CE Holder
$ Holder
Land Mgr
Market-based 3rd party System
BrokerBan
k
Agency
Banker Buyer
Bank
Agency
Buyer
Banker
Bank
Bank Sponso
rBuyer
Agency
Tribes
Local Gov’t
AgencyAgency
Scientific Communit
y
Regulatory Driven Market
Federal Government
o Clean Water Act- Sec 404 o (No-net loss: Mitigation banks)
o Endangered Species Act- Sec 7 o (BO’s: Conservation banks)
o Natural Resource Damage Assessment (Restoration to offset impacts)
State and local Governments
o Varies- water, protected species and natural resources
History of Banking
Restore and maintain the chemical, physical, and biological integrity of the
Nation’s waters.
No Net Loss Policy (1989)
Permit from USACE or StateAvoid, Minimize, Compensate impacts
Compensatory Mitigation:Bank over In-Lieu fee over PRM
Clear policy regulation over time
Creation/Restoration over Preservation
…provide a means whereby the ecosystems upon which endangered and threatened
species depend may be conserved…
Unlawful to “take”
Permit from FWS or NMFSAvoid, Minimize, Mitigate impacts
Compensatory Mitigation:No clear mitigation type preference
No overall mitigation policyDepends on species needs
Clean Water Act1972
Endangered Species Act1973
Evolution of Mitigation
1972Clean Water Act and Endangered Species Act
Required permit to fill wetlands1973
Endangered Species ActProhibited take of listed species
Both Acts require offsets but
no directive or cookbook on how toNO MITIGATION POLICY
Evolution continued
10 years laterFWS memo recognizing mitigation banking
12 years later First wetland mitigation bank approved
17 years laterNo net loss policy but no guidance
19 years later First conservation bank established
Evolution continued
23 years laterFederal Guidance on Establishment Mitigation Banks
30 years later FWS Guidance (Policy) for Conservation Banks
36 years later “New” Wetland Mitigation Rule
41 years laterFWS Developing mitigation policy for all authorities
Slow Evolution Problems
o Biodiversity further reduced- low quality offsets not meeting ecology goals
o More endangered species- further loss of habitat
o Greater conflict between project and biodiversity over time
o More polarization and activist groups o Project planning lack guidance for designing
offsets; increasing permitting timeo Increasing costs
Why do Banking?As opposed to permittee responsible mitigation…
Biological Benefits Aid in recovery
(outcome-based & traceable)
Preserve ecosystems Avoid piecemeal
mitigation & temporal habitat losses
Contributes to conservation strategies; science
Business Benefits Streamlined
permit/mitigation process
Transfer of liability Provides assurances
(mgmt, financial) Reduce agency time
monitoring mitigation sites
Reduce need for enforcement
For-profit conservation
Vernal Pool Tadpole Shrimp
Economies of Scale
Key Benefit
o Private sector investment to conserve habitat not consume habitat- For profit investment to conservation biodiversity!
o Provides potential new economic engine for private landowner who want to maintain ownership
o Assist implementation of regional conservation planning efforts and recovery of endangered species
o Severance of liability
Banks Require Assurances
Financial mechanism sufficient to fund long-term management, monitoring and reporting (non-wasting endowment preferred)
Perpetual Conservation Easement (or alternative for public lands)
Long-term Management Plan with Performance Standards, Monitoring, etc.
Legal/Real Estate Financial Biological
the legal document for the establishment, operation and use of a conservation
bank
CBA
Process procedurestimelines
Bank Service Areas
Mitigation/Service Area = the geographic area within which offsets can occur o Defined by the Agencieso Based on the conservation needs of the
species:
Conservationstrategy
Hectares/ Meters
Individuals
Weighted Function
Salmon Credit (Sc) Equation
5.0*** LpbSLnbS fpfpSc
Credits = Surrogate Measures for Recovery
1000 hectare
s habitat
1 credi
t=
1 pair
1 credi
t=
1 credi
t=
oror
Time-Based?
Simplify Credits
Offset Examples Worldwide
o Australia- 1) NSW Biobanking in 1995 law. Mixed results; 450 hectares conserved so far; 2) Victoria BushBroker. Uses Habitat Hectare metric, market place for developers and landowners; mostly successful
o UK- Biodiversity Offsetting in England 9/13o Germany- ILF to local jurisdictions may lack in-
kind offsets plus true cost to mitigate questionableo India- Some legislative policy but lacks clarity and
guidance; not successful o Chile- Legislation requiring offsets; developing
processes and policies
International Activities
o Habitat Banking in Latin America and Caribbean- A Feasibility Assessment- specific discussion of potential market in Colombia
o Business and Biodiversity Offset Program- providing mitigation hierarchy with an emphasis on biodiversity offset guidance and standards consideration for corporations and governments
Messages Key
o Species Conservation Strategyo Compensatory mitigation should be based on a larger
landscape conservation strategy for the species and lead towards a net conservation benefit.
o Must develop Compensatory Mitigation policyo Have one standard for compensatory mitigation and
implement it consistently for all forms of mitigation. Use mitigation plans and programmatic agreements when possible.
o Distance from Impact Site and Credit Methodologieso Careful selection of distance from impact site (or service
areas for banks) and simple credit methodologies based on balance between needs of species and mitigation program.
o Program Process/Timelineso Policy or guidance on how the compensatory mitigation will
operate, education of personnel, legal review, templates, tracking, etc.
Key Principles of Mitigation
o Assure appropriate offsets are implemented that benefit the conservation of species and habitat
o Provide a strong biological, financial and legal framework for offsets to persist for the length of the impact consistently
o Landscape scale implementation o Communicate to all stakeholders the
basic provisions expected of them in any situation where mitigation is required.
Principle 1- Strong Assurances
o Mitigation projects must contain strong performance assurances that restoration, enhancement, creation or preservation activities will be completed as required in perpetuity. This would include a mix of legal and economic assurances including support for the premise that mitigation done in advance of impacts is preferable to mitigation done after the fact.
Principle 2- Uniformity
o Standards and metrics should be used consistently for permits involving mitigation. These standards and metrics should apply for permanent or temporary impacts . Metrics should provide meaningful information about particular species and habitat characteristics. Standards must also insure measurable and lasting benefit using the same ecological criteria and metric that are used to measure impacts.
Principle 3- Landscape scale
o Offset proposals should take into account large scale conservation strategies. High priority habitats should be protected using the mitigation hierarchy- avoid, minimize then mitigate residue, unavoidable impacts. Low priority habitat less avoidance. Like-for-like offsets or trading up when fully justified.
Recommendations for Establishing a Compensatory Mitigation Program
o Review existing regulatory frameworko Establish policy and regulatory foundation with
clearly defined processes (scientific, legal and financial) and timelines
o Integrating with existing permitting processeso Build capacity to implement mitigation policyo Equivalency for types of mitigation – banks, in
lieu fee. permittee responsible o Strive for high standardso Preference for banks over in lieu fee or
permittee responsible mitigation supported by US studies
o Minimize the number of agencies
Ministry Manual
Legalo Offsetting measures will guarantee the
effective conservation or ecological restoration of an equivalent ecological area, where it is possible to generate a new management category, a permanent conservation strategy or where the biodiversity conditions are improved in areas that have been negatively transformed or subject to transformation processes.
Ministry Manual
Scientifico To qualify must address three
fundamental aspects:o a) How much to offset in terms of area o b) Where the offset should be carried out o c) How to offset and what type of action
to perform
Ministry Manual
Financialo Establish a financial management framework (trust
fund or other), that guarantees the design, implementation and control of the management plan, in accordance with the mechanisms provided by law.
o Enter into an agreement with the user and an established fund for the management and execution of the funds.
o Direct execution of the funds with the possibility of establishing a contract or agreement for a non-governmental organization or consulting firm to execute the funds.