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Stream Banks – an Essential Tool to achieve No Net Loss

“Mitigation Banking” may be an difficult term but it’s proving to be an essential tool for improving and protecting wetlands, streams, and other aquatic resources impacted by development.  It will only grow in importance as America yearns for energy security, while continuing to embrace noble goals of “no net loss” of wetlands and “fishable and swimmable ” quality under the Clean Water Act. For starters, the word “mitigation” is confusing. It has a different meaning in the Clean Water Act (CWA) and aquatic resources context compared to mitigation under Clean Air Act and greenhouse gas programs, where it connotes reduction, even prevention of emissions. For CWA and aquatic impacts, it’s essentially about compensation – the actions permittees must take to pay for resulting “sins” of a project making its way through the regulatory process.This all underscores the most important principle for environmentalists and responsible regulators: “sequencing”. They may be willing to support compensatory mitigation if it’s the third and final step, the last resort, after step 1: practicable alternatives analysis and step 2: minimizing unavoidable impacts. Controversy surrounding the first step, when regulators challenge the purpose of a project and whether it really has to be in or near wetlands and other waters, creates a temptation to simply build first and ask forgiveness later. Regulators may also be tempted to skip or marginalize the second step, minimization, where permit applicants are expected to reduce environmental impacts by modifying project features, and go straight to mitigation. Environmentalists argue that deviations in sequencing, which put a priority on avoiding and minimizing harm, can lead to wheeling and dealing to enable unwise development.
READ MORE AT:  http://www.uswateralliance.org/2014/02/26/stream-banks/
Printed with permission of Ben Grumbles

Workshop – Implementing the Galveston Stream Tool

On October 26th a workshop will be held in Houston, Texas to discuss the Interim Stream Condition Assessment Standard Operating Procedure which was recently put on the street by the Galveston Corps District.   This workshop is free and open to the public so if you would like to attend please visit the webpage and RSVP.  The workshop is key to anyone working on projects that may impact streams within Galveston District.

There will be three topics discussed during this workshop-

  • Jayson Hudson and Dwayne Johnson (USACE) will present on the Stream Condition Assessment SOP and how it should be implemented.
  • Lee Forbes (KBR) will discuss stream restoration techniques and present local project examples.
  • And RS’s very own Travis Hamrick will discuss our newest stream bank servicing the Houston Metro area- The Katy Prairie Stream Mitigation Bank.

 

We expect this workshop to be well attended (100+ people responded on the first day) so please RSVP to insure that there is enough room for everyone. See you there!

Victory on Jones Street: New state law means big changes for mitigation in North Carolina

As poorly headlined in last Sunday’s Raleigh News and Observer [Legislature OK’s Rule on Streams 6/19/2011], our little state trade association, the North Carolina Environmental Restoration Association, had a huge legislative win in the just adjourned 2011 session of the North Carolina General Assembly.  It is not our way at RS to get out ahead of ourselves, so Stories from the Field wanted to wait until the Governor signed the bill before announcing this bit of good news for the ecological balance of the Tar Heel state and commercial mitigation.

She signed it last night.

SESSION LAW 2011-343 puts the state fee-program and private mitigation banks in much closer compliance with the 2008 Federal Mitigation Rule by establishing a statutory preference for mitigation bank credits in North Carolina in almost all cases, as well as establishing “Full-Delivery” turn-key mitigation as the preferred method for contracting for the state’s continuing fee-program obligations where banks are not yet available.

The law continues the wise policy taking hold nationwide of transferring responsibility for restoring and caring for compensatory ecosystems from governments to privately capitalized and bonded green firms like RS and our competitors.  It almost ensures that mitigation in North Carolina will continue its progress from a state monoply functioning with state mandated “static” prices, to a vibrant ecosystem services market with true-cost competitive pricing.

All progress in commercial mitigation is incremental.  A win in the legislative halls for the NCRA is a long way from the bottom line of any individual company. But this legislation may finally have turned the ship of state in North Carolina toward performing mitigation that is not established according to available funds — but priced according to true costs.

The former method, state production and pricing, has failed miserably as detailed in the recent News and Observer series, “Washed Away.”  The latter method endorsed by the new law – establishing mitigation and then market pricing it for sale — makes sure that someone (I hope RS) is taking personal economic and ecological responsibility for a given impact to the waters of the U.S. within our state.

The bill description below may read like a wonky little change to policy but it makes a huge difference on the ground. It allows the green shoots of true-cost restoration and advance mitigation to grow in Tar Heelia without fear of being plucked by the cold dead hand of The Leviathan.

I can’t let this post end without giving a shout-out to the NCERA lobbyist from McGuireWoods Raleigh office, Harry Kaplan.  It takes a special kind of patience to navigate legislation in a heretofore unknown field with desperate entrepreneurs nipping at your heels in the halls.

Here is Harry’s summary of the law:

Analysis of Senate Bill 425:

During their 2008 Regular Session, the North Carolina General Assembly enacted legislation to provide that, under certain circumstances, certain applicants for compensatory wetlands mitigation must seek that mitigation from a private wetlands mitigation bank before seeking that mitigation from the Ecosystem Enhancement Program (“EEP”) in the North Carolina Department of Environment and Natural Resources. During their 2009 Regular Session, the General Assembly enacted legislation to extend this preference for private mitigation to the areas of riparian buffer protection and nutrient offsets. Under the law prior to the enactment of Senate Bill 425, the preference for private mitigation and nutrient offset did not apply to the State, the federal government, or to local governments.

Section 1.1 of Senate Bill 425 amends the definition of “governmental entity” in GS 143-214.11 (Ecosystem Enhancement Program: compensatory mitigation) so that the preference for private mitigation and nutrient offsets now applies to local governments unless the unit of local government was a party to a mitigation banking instrument executed on or before July 1, 2011, notwithstanding subsequent amendments to such instrument executed after July 1, 2011. Section 1.1 defines a “private compensatory mitigation bank” as a site created by a private compensatory mitigation provider and approved for mitigation credit by State and federal regulatory authorities through execution of a mitigation banking instrument. No site owned by a government entity or unit of local government shall be considered a “private compensatory mitigation bank.” Section 1.1 also requires an existing local compensatory mitigation bank to comply with the requirements of Article 12 of Chapter 160A of the General Statutes governing the sale and disposition of property whenever it transfers any mitigation credits to another person.

Section 1.2 of Senate Bill 425 establishes a new process by which the EEP provides for compensatory mitigation. This new process creates a priority system for different types of programs for the procurement of compensatory mitigation – with “Full Delivery/Bank Credit Purchase Program” listed as the first priority. Under Senate Bill 425, EEP must first seek to meet compensatory mitigation procurement requirements through its Full Delivery program or by the purchase of credits from a private compensatory mitigation bank, as defined above.

Senate Bill 425 became effective when it became law on June 17, 2011 and applies to all projects and contracts awarded on or after that date.

Buddy Study: Dr. Riggsbee in Science again

Stories is bursting with pride at the continuing accomplishments of Adam Riggsbee.

Adam worked at RS for a couple of years after getting his PhD at Carolina where his subject of study was dam removal. During that time Adam and his academic collaborator Todd BenDor had the bright idea (along with your’s truly) of surveying mitigation providers in 2009 following publication of the new Federal Mitigation Rule.

What we discovered was that mitigation banking “post-rule” is still a spooky business proposition. As detailed in Adam’s journal article below, and further reported this week in Science, 75% of participants believe the mitigation Rule did not lessen the financial risk of commercial compensatory mitigation.

Moreover, more than half reported that fundamental aspects of the regulation were essentially being ignored, such as the clear-cut preference for banked mitigation over Do-It-Yourself or Fee Program mitigation.

While disappointed with the results, I was not surprised. We had just returned from this year’s 2011 National Mitigation and Conservation Banking Conference in Baltimore. As in 2009, much gnashing of teeth and pulling of hair was evident among the participants over Rule compliance issues. If anything the angst was more intense than when the study was performed.

As a “Silver Back” in the mitigation business, however, I was less worried and more comfortably numb. Mitigation banking is simply not for the faint of heart or impatient. It is a long-term proposition likely to yield its reward only over great spans of time (under hypoxic conditions and at great pressure).

To use a trite but nonetheless apt phrase, commercial mitigation is not a revolution — but an evolution. Regulatory thickets can be pruned here and there and encouraged to grow healthy, but bush-hoggers need not apply as mitigation bankers

Which brings me back to Adam Riggsbee. After his stint at RS, Adam and his loyal side-kick (the westerly named) Matt Jessee moseyed on down to Austin, Texas and opened their own swamp and creek shop, Riverbank Ecosystems.

I was a bit concerned for the young fellers.

How could someone as steeped in the perils of commercial mitigation as Adam Riggsbee possibly put his young family and best friend on the firing line in the Lone Star state? It has worked for us thus far at RS — but we got lucky — and nearly had our clocks cleaned at several points. What if these guys were cut down by the real world challenges of swamp swamping for profit?

Not a chance. Adam has approached the challenge of professional mitigation provision just right. He is cultivating a winning mix of hard science and good business as a corporate strategy at Riverbank Ecosystems.

As far as I can tell, there is no one else in the business who is publishing at a high level on mitigation while simultaneously negotiating land options on valuable Central Texas ranches. Adam is the best of both worlds in mitigation: A publishing businessman.

As Dr. Riggsbee joked this morning, it is now “official.” It takes longer to produce revenue from mitigation than it does to publish on the subject in a top journal.

Welcome to the rodeo, kid.

“Science” Editor’s Choice “A survey of entrepreneurial risk in stream and compensatory mitigation markets”

A survey of entrepreneurial risk in stream and compensatory mitigation markets

Bad Headline: Good News

Wetlands Bill May Penalize Raleigh

MANY RESTORATION PROJECTS FAILING
A News & Observer series, Washed Away, recently identified $140 million spent on restoration projects that are failing, long delayed or too far away to counter the effects of development.The roughly 80 projects identified by The N&O were largely built by the state. It has operated programs that allow developers and the N.C. Department of Transportation to pay fees based on how much damage their roads, shopping centers and subdivisions cause to streams and wetlands, and then the state becomes obligated to build restoration projects that counter those effects.

There is no such program in many other states. The restoration is provided by businesses known as mitigation bankers, who find degraded streams and wetlands, restore them and then sell part or all of those sites to developers and road builders so their projects can move forward.

Market’s good in North Carolina
North Carolina is a lucrative market for mitigation banks because it is a fast-growing state with more stream miles than any other, according to one study. Roughly a dozen mitigation bankers in the state not only compete with the state program, they sometimes serve as a supplier.

_________________________________________________________________

RALEIGH There has been a growing mantra among state lawmakers, environmentalists and others to privatize the production of restored streams and wetlands to offset the impacts of development.

They believe that private businesses in a market environment would produce better projects at less cost.

But for Raleigh residents new legislation aimed at furthering that goal could lead to the city eating more than $1 million spent on sites it has purchased for environmental projects. The legislation also would force the city to deal with what is now a monopoly – one business providing the pollution-reducing projects in the Raleigh area.

“I don’t think the bill’s sponsors realize some of the unintended consequences,” said Kenneth Waldroup, Raleigh’s assistant public utilities director.

The bill’s chief sponsor, state Sen. Neal Hunt, a Raleigh Republican and former city council member, said he was unaware of the city’s concerns. The council recently voted to oppose the legislation.

The legislation is the latest development in a continuing battle between the public and private sectors over what is the best way to produce restoration that protects the environment while keeping development and road building from slowing to a standstill. The federal Clean Water Act requires the damages from development be offset by restoration projects that improve water quality.

Waldroup said he generally agrees with a market-based approach to restoration, but says the market isn’t in a position to work for Raleigh. There is only one mitigation bank providing stream and wetland restoration in the Neuse River sub-basin that includes the city.

It could be several years before a second enters the market, he said.

He also said it’s unfair to exclude municipalities from buying restoration from the state, while allowing the state and federal governments to have access to it. The state Ecosystem Enhancement Program provides the restoration for a fee based on the amount of damage a road or development would create.

The city began developing its own restoration three years ago when state lawmakers first made a run at excluding municipalities from buying restoration from the state. The city has purchased conservation easements on two properties at a cost of $1.1 million that it plans to use to offset water quality losses caused by the construction of a new reservoir. The conservation can be used to offset development damages.

But that reservoir on the Little River may not get built. If that happens, under Hunt’s bill Waldroup thinks the city would not have the option of selling the conservation to someone else.

One of the biggest mitigation bankers in the state is Restoration Systems, which is based in Raleigh. John Preyer, co-founder and chief operating officer, said he understood Waldroup’s concerns, but private businesses such as his will struggle to survive if they have to compete against government programs not as focused on the bottom line.

He also predicted mitigation banks will quickly move into underserved areas in a competitive field. His company is looking to produce stream and wetland restoration that would serve Raleigh and the surrounding area.

Three years ago, he said his company began producing nitrogen-reduction projects locally to offset development-related pollution. Within a year another competitor jumped into the market and a third soon followed.

Hunt said he wants to nurture mitigation banks by taking away some of the government competition. His bill does not stop the state from producing restoration for its needs.

He said the businesses would be more accountable and efficient. If a project went bad, they would have to fix it on their own dime.

“They would be responsible and they’d have to go back and do it themselves,” he said.

That hasn’t been the case with many stream restorations done by the state that needed repairs. In a three-part series, “Washed Away,” The News & Observer found more than 30, and in many cases issues were raised about the design or construction. But the state had only docked two contractors for construction problems.

State records suggest those who produce mitigation and then sell it to the state have a better track record. They have fewer erosion problems with stream restorations and performed slightly better than the state in a recent environmental audit of stream and wetland projects.

But that picture is dimmed by the fact that the state did not require private providers to report such repairs until two years ago.

Another question is the scientific research that questions whether stream restoration improves water quality. State legislative leaders say they are concerned about spending money on restoration without proof goals are being met.

Legislative leaders say Hunt’s legislation is likely to become the vehicle to respond to concerns about the quality of stream and wetland projects. Hunt said he will listen to the city’s concerns, and expects his bill will likely be reworked before it is heard in a legislative committee.

dan.kane@newsobserver.com or 919-829-4861

Commentary: Washed Away

The Swamp Merchant was on vacation deep in the fecund marshes of South Florida during the “Washed Way” series on mitigation this week. I was hardly surprised though, since the worst kept secret in Raleigh among environmental professionals was that reporter Dan Kane and the News and Observer have been working for years to document the failures of the state In-Lieu-Fee mitigation program.

While not surprised on Sunday, I was a bit spooked. What if the series never made the distinction between the people who do what I do, restore wetlands and streams and work like hell to see them succeed or I go broke, and the bureaucracy at NCEEP which has made a hash of their “in-house” projects for years?

What if private commercial mitigation “banks,” with all their scrutiny and regulatory oversight, are not distinguished from state projects regulated by the same state agency that takes payments for them?

Oh, the worry.

Turns out the worry was justified. I don’t think any reader without significant prior knowledge of the intricacies of compensatory mitigation would be able to distinguish the good guys from the bad guys in this sorry state of affairs.

As good guys, all of us at Restoration Systems were being brushed by the ink of the state’s paper of record. Stream mitigation and restoration was being made to seem a terrible failure across the board.

Would anyone ever know of Three Mile, Travis Hamrick’s knock-out stream and wetland site in Avery County? Or the Causey Farm stream and wetland site Worth Creech restored for the FedEx hub in Guilford County? (Causey could make John Muir weep.) Nope. Just careful documentation of the myriad failings of the state program’s “in-house” projects, with nary a mention of the other methods.

But sunshine is still healthy and we got a fabulous week of weather from the News and Observer. As long-time promoters of an entirely different way of performing mitigation in North Carolina — at-risk commercial mitigation banks — our company, Restoration Systems, is willing to see eggs broken while we wait for the omelet.

I am willing to endure day-after-day of bad press for mitigation in general, as long as the policy makers, future articles and the public eventually catch-on to the good news.

The good news is that it doesn’t have to be this way. Other states and Corps Districts do not have state-wide programs to sell developers mitigation and then do the projects later. Outside of North Carolina mitigation is increasingly accomplished by green entrepreneurs banking mitigation ahead of time and receiving salable credit for it — after the ecosystem is cared for.

This system is recommended because it distributes the responsibility for mitigation to regulated private firms who have their own capital at risk. We contend that restoration performed at-risk, with the financial reward of the sponsor rising or falling depending on the ecological results, will someday be recognized in North Carolina as the superior public policy tool to the “fee” program.

The (no) command and (out-of) control state mitigation leviathan documented by the Old Reliable will be retired (again) at some point. The North Carolina Ecosystem Enhancement Program is a failed experiment of government that has worked at cross purposes to its mandate.

I’d like to go on but at the close of this post I am now in New Orleans preparing for bed. I have a meeting in the morning with potential customers to discuss providing bonded wetland mitigation. Later this week I’ll be in Baltimore at the National Mitigation Banking Conference and hope to post once more. God bless this fine spring day in the meantime.

Links: News and Observer "Washed Away" series on mitigation

PART ONE:

Washed Away: First of three parts:  State programs intended to offset environmental damage from development have spent roughly $140 million on work that is failing, needs significant repair or is too far away from distressed sources of drinking water.
Washed Away: Second of three parts:  Money that the state spends on projects to reduce pollution from nitrogen has gone toward improvements far downstream and outside the watersheds of the Triangle’s two biggest sources of drinking water: Falls and Jordan lakes.

Washed Away: Third of three parts:  Studies of what seemed a logical solution to the destruction of streams by road builders and developers have found that 20 years of applying common restoration methods – often at public expense – is doing little good.

FOLLOW-UP STORIES:

A plan developed by the state in 2001 for environmental restoration was a boon to conservation groups that had thousands of acres to sell for mitigation.

Story

StarNews Good News: Study says mitigation areas working as planned

Mitigation banking as a profession can often be a tough and thankless slog through a morass of regulatory politics.  What’s more, there is a feeling among some in certain quarters that what we do — restore ecosystems — is frequently not successful and RS is “building” “fake” wetlands that meet regulatory criteria but do not truly add anything much back to the environment.  It is gratifying when our successes are revealed as in the article below.

The article and the study it highlights demonstrates that wetland and stream restoration can be done well according to at least someone’s criteria. I would contend (and often do contend) that mitigation is most successful, however, when it is performed by someone who actually owns the project.

Banked, Full-Delivery, Turn-Key contracted, it doesn’t much matter — but the person doing the work and responsible for the work should have their own personal fortunes rise or fall with the success or failure of the given restoration.  This distinction is somewhat borne out by the data in the recent study, and can be deduced from the graphs I put up here.

But lets not get bogged down in who’s swamps are most thriving on this fine spring day — but rather sit back and enjoy the good news about good mitigation when and where we can find it.

Wetland study shows improvement

By Amy Hotz
Amy.Hotz@StarNewsOnline.com

Published: Sunday, April 10, 2011 at 10:41 p.m.

Just behind the movie theater at Mayfaire is a little piece of wilderness separated from the business by a retaining wall. Its hardwoods, water-loving plants and the occasional critter give a glimpse into what that property looked like before the mixed-use development paved streets, laid foundations and brought in strings of cars.

When these regulations were made, the idea was to create a kind of environmental balance, allowing development while at the same time making sure natural habitats endure.

A new study funded by a Wetland Program Development Grant from the U.S. Environmental Protection Agency has taken a look at 82 wetland sites and 79 stream sites affected by these regulations to determine if they’ve worked. The study, “Compensatory Stream and Wetland Mitigation in North Carolina – An Evaluation of Regulatory Success,” was released this month.

Several of these test sites were in Southeastern North Carolina, including Mayfaire, Taylor Farm (Landfall), Beach Walk at Kure Beach and Brunswick County Airport.

“Things have improved since the late 1990s. . . . The science has come a long way since then,” said Tammy Hill, environmental senior specialist with the N.C. Division of Water Quality. “That said, we still saw room for improvement. . . . This project helped to highlight some of the problem areas and also some things that we can continue to look into in the future.”

The results of the study indicate 75 percent of the wetland and stream mitigation projects were successful in meeting their regulatory requirements. And, according to the Division of Water Quality, this is a great improvement over two studies done in 1995. One showed a 20 percent success rate for wetlands and another showed a 42 percent success rate. The new study is the first time stream restoration success had been evaluated.

Read more

SwampGate: Purchasing nutrients from a wetland bank prohibited by EEP's own rules

As an informational update on the brewing controversy concerning the state paying twice for work done once, “Stories from the Field” offers a snippet from the EEP‘s own rule book.  The rule specifically and unequivocally prohibits the dual use of a single mitigation site for wetland and nutrient mitigation, as was done at least once by a private contractor, and perhaps many times by the rule maker themselves:

Ecosystem Enhancement Program:
“Policies, Process, and Procedures Manual,” May 4, 2008

2.0 DEFINITIONS AND PROJECT REQUIREMENTS TO GENERATE RIPARIAN BUFFER MITIGATION CREDITS.

2.9 Wetland and Buffer Mitigation. Wetland mitigation may not overlap with riparian buffer mitigation. When wetland mitigation is implemented in a riparian zone using buffer restoration techniques that could also generate riparian buffer mitigation, a decision must be made as to which type of credit will be claimed from the project. A specific area on a project can generate either wetland mitigation credits or riparian buffer mitigation credits. Portions of a project can be designated as generating riparian buffer mitigation credits and portions generating wetland credit, but these areas cannot overlap.

2.10 Nutrient Offset and Buffer Mitigation. Nutrient offset mitigation is required to be stand alone mitigation in order to generate nutrient offset mitigation. Any area being used for nutrient offset mitigation cannot be used to generate stream, wetland, or buffer mitigation credits. Similarly any area being used to generate riparian buffer mitigation credits cannot be used to generate nutrient offset mitigation.

The Flying Turkey takes more air photos

When Pam and the kids and I visit our family in Beaufort, North Carolina, I often take the opportunity to hire a small plane at the friendly Michael J. Smith Airport to take photos of nearby RS sites. I did so yesterday and enjoyed nearly perfect conditions.  Here are some pictures of the Bear Creek, Jarman’s Oak and Lloyd wetland and stream mitigation sites. (As regular readers will recall, I flew Bear Creek earlier this month. But I returned this time WITH my stabilized lens).

I also flew the North Carolina Coastal Federation’s North River Restoration Site, about which I have provided some background below.

Note: If you “click through” the photo box you can more easily read captions and navigate the photos.

Enjoy!

Below are some photos of North River Farms, which is being restored by the North Carolina Coastal Federation. This project is near and dear to RS’ heart. RS owned the option to purchase this 6000 acre farm in the 90’s. Determining that the farm had significantly more restoration potential than could be used as mitigation in the watershed (unless Cape Canaveral were relocated to the NC coast), we contacted the NCCF and suggested they take our option and make an application for its restoration to the then newly formed NC Clean Water Management Trust Fund.

The rest is history. The project is now one of the largest coastal restoration projects in the nation. We retained 390 acres within the farm, for which RS was recently awarded a grant from the Natural Resources Conservation Service to restore and protect. Brassgrill and I will blog in the future and tell you more about this project.