AVOID, MINIMIZE AND MITIGATE
The nation’s aquatic resources are under constant pressure from development, whether the development is sustainable or otherwise. In particular, water quality and habitat degradation associated with urbanization and infrastructure expansion has been repeatedly identified as the major threat to aquatic ecosystem integrity. To reverse this trend and to provide the “waters of the US” with protection, the Clean Water Act requires that development projects avoid adverse impacts to the greatest extent possible, minimize the severity of “unavoidable” impacts, and mitigate for all minimized, unavoidable impacts to our nation’s aquatic resources.
In an effort to halt the loss and further degradation of aquatic resources, while continuing to allow for economic growth, the federal government established a mandate of “no net loss” under the first President George Bush. The US Clean Water Act (and various state statues and regulations across the country) has certain provisions that require compensation (compensatory mitigation) for any “unavoidable impacts” to the “waters of the US”. This means that any development plan that will result in the loss or alteration of wetlands or stream ecosystems must apply for federal and state permits. These permits are often provided with explicit conditions requiring the procurement or provision of stream or wetland offsets.
Stream and wetland offsets—or compensatory mitigation credits—are generated in a few different ways: restoration, enhancement, establishment (sometimes referred to as creation), and—in rare circumstances—preservation.
The US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (USACE) have the regulatory authority to oversee the main section of the Clean Water Act associated with the “avoid, minimize, mitigate” and “ no net loss” mandates (referred to as Section 404). Generally speaking, the EPA and USACE prefer mitigation credits generated through restoration, as this best agrees with the philosophy behind “no net loss”.
Over the last two decades, a small but growing industry has developed to generate mitigation credits. Specifically, mitigation banks are purely prospective ecosystem restoration projects (usually funded with private capital) that provide mostly restoration-based mitigation credits BEFORE adverse impacts to other aquatic ecosystems occur. Thus mitigation banks play an important role in reducing the risk of ecological failure of restoration projects by successfully reaching pre-determined project milestones before credits are available for sale. In addition, mitigation banks are generally the preferred mitigation alternative for EPA and USACE because they reduce or eliminate the time between permitted impacts and the construction of their required offsets (also referred to as “temporal loss”).
WHY DEVELOPERS USE MITIGATION BANKS
Developers—whether private or public—can (and sometimes do) choose to generate compensatory mitigation credits themselves. If a developer chooses to do so through on-site projects, they assume considerable risk until such restoration projects meet ecological objectives—a 5-10 year process. To avoid the risk and hassle, most developers opt to purchase credits from a mitigation bank, as their mitigation obligations and associated liabilities are transferred immediately and directly to the mitigation banker.
Contact RiverBank Ecosystems
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RiverBank Ecosystems is not employed by or affiliated with the Texas Land Conservation Assistance Network, and the Network does not certify or guarantee their services. The reader must perform their own due diligence and use their own judgment in the selection of any professional.
Contact RiverBank Ecosystems
Adam Riggsbee, PhD
P.O. Box 29921
Austin, TX 78755
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