Banking on mitigation to balance protecting aquatic resources with development

Published Dec. 9, 2016
Krystel Bell, mitigation bank specialist, U.S. Army Corps of Engineers Sacramento District.

Krystel Bell, mitigation bank specialist, U.S. Army Corps of Engineers Sacramento District.

The delicate colors of a vernal pool are seen each spring.

The delicate colors of a vernal pool are seen each spring.

A grassy wetlands with its special ecological system is a natural treasure worth protecting.

A grassy wetlands with its special ecological system is a natural treasure worth protecting.

Protecting our nation’s rich variety of aquatic resources is a regulatory charge of the U.S. Army Corps of Engineers Sacramento District. Doing so while balancing the needs of both the watershed and the public can be challenging.

The Corps is one of the lead federal agencies given a mandate from Congress to protect the natural environment. Given that long-established Congressional mission, anyone wishing to develop a site that could impact aquatic resources--also referred to as waters of the U.S.--must apply for a Section 404 permit, explaining the size of the affected resources and the developer’s plan to avoid or minimize negative effects.

That’s where mitigation banks come into play.

The Sacramento District developed aquatic resource guidance to help direct how to balance preservation and development, and how mitigation can help bring two opposing concepts together into a positive solution. The standardized template allows Sacramento District regulators to maintain a consistent approach, and the guidance has become a model for other Corps districts and federal agencies.

“Our team led the way in developing regional guidelines, working with federal and state agency partners, because so many endangered species are found in wetlands within our service region,” said Krystel Bell, a Sacramento District regulatory division mitigation banking specialist. “How and what we specify as compensatory mitigation was set by regulations promulgated jointly with the U.S. Environmental Protection Agency in 2008.”

What is ‘mitigation’ as it relates to wetland conservation and loss of aquatic resources?

“Say a developer’s property includes some amount of recognized wetland or other water of the U.S.,” Bell explained. “After the developer has avoided and minimized their impact on those aquatic resources to the maximum extent practicable, the remaining impact must be offset through compensatory mitigation.” In essence, they must acquire property within the same watershed area to preserve similar aquatic resources to those being affected.

Popular compensatory mitigation options include mitigation banks and in-lieu fee programs. A mitigation bank is property that looks like a nature preserve. The bank is implemented by a sponsor to produce credits that can be sold or transferred to permittees. An in-lieu fee program offers the same kind of service, but is implemented by a governmental / non-profit entity.

A third compensatory mitigation option is termed permittee-responsible mitigation, wherein the developer independently creates and maintains compensatory mitigation sites. Sacramento Municipal Utility District (SMUD) and the California Department of Transportation (CalTrans) are examples of agencies that have chosen to operate their own single-client mitigation banks.

The Sacramento District is currently examining in-lieu fee program proposals to accompany habitat conservation plans in Butte County, East Contra Costa, South Sacramento and Placer counties, said Bell. Elsewhere in the nation, in-lieu fee sponsors include The Nature Conservancy and The National Fish and Wildlife Foundation.

In-lieu fee programs and mitigation banks offer practical advantages over the permittee-responsible process, especially for smaller developers. “The bank and fee program options lead to faster permit issuance and many times are less expensive and less technically daunting for the smaller developers,” said Bell.

“And just to be clear – owning wetlands somewhere in the same state does not mean you automatically have a mitigation bank,” said Bell. “The hallmarks of a successful bank are restoration, creation and enhancement of wetlands or other aquatic resources.”

Bell says finding an appropriate site is critical to the process, and the most successful sites for mitigation banks are often connected to other conserved lands or are compatible with the activities on adjoining property.

“Compensatory mitigation must be located within the same watershed area--to the maximum extent practicable--as the aquatic resource being affected and is typically a large parcel of land with conservation easements in the deed that bind the property in perpetuity,” said Bell.

Yes, compensatory mitigation is as permanent as “perpetuity.” Long-term care of the property is accomplished through a long-term stewardship endowment fund that provides for upkeep of the mitigation bank into the future.

“California is different from many other states in how we coordinate mitigation banking and in-lieu fee programs,” said Bell. “In California, the Corps operates as a partner within an inter-agency review team that includes California Department of Fish and Wildlife; U.S. Fish and Wildlife Service; National Marine Fisheries Service; U.S. Environmental Protection Agency and water quality control boards at state and regional levels.

“And when Corps regulators operate as a team alongside our state and federal agency counterparts, we help provide the customer with a comprehensive approach to compensatory mitigation,” said Bell. “Coordination is what we’re all about – coordinating the needs of our customers while protecting nature for the future.”

Note: The U.S. Army Corps of Engineers Sacramento District has regulatory offices in Sacramento and Redding, California; Durango and Grand Junction, Colorado; Bountiful and St. George, Utah; and Reno, Nevada. There are approved mitigation banks located within California, Colorado and Utah, with proposals for additional banks and in-lieu fee programs throughout the region.