Orwellian Rules?

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Perhaps you have heard the dictate from George Orwell’s wonderful book Animal Farm:All animals are equal but some animals are more equal than others” This is much the dilemma of the North Carolina mitigation banker. All mitigation rules are equal — but some mitigators are more equal than others — and they ain’t us.

Case in point:  the more liberal regulatory standard applied to mitigation emanating from the North Carolina Ecosystem Enhancement Program, versus the increasingly strict (and strident) rules applied to private mitigation banks.   In this case, government rules apply to everyone — but the government.

For instance, the holy writ of the “Eight-Digit HUC.”  The USGS Eight-Hydrologic Unit Code is a useful (and often economically sufficient) scale of watershed in which a given compensatory action will be assumed to compensate for a permit action (all things equal).

Here’s the rub.  Each state and Army Corps District RS has worked in — with the exception of North Carolina —  allows impacts to be compensated with mitigation performed in an adjacent HUC, unless, and  this is important, another mitigation bank has credit in the same HUC as the impact.  The process, as followed  in TN, VA, TX, GA, SC, ALA, etc., is as follows:

1)  Have mitigation need

2)  Is there a bank in the HUC?

3)  If so, go to bank.

4) If no, seek banked mitigation in adjacent HUC before  doing it yourself or using a Fee Program.

In North Carolina, however, banked and successful mitigation is virtually worthless in an adajcent HUC.  Only on a “case-by”case” basis can the restoration and protection  be used as mitigation outside the HUC in which it is performed.  The North Carolina process looks like this:

1)  Have mitigation need

2) Is there a bank in the HUC?

3) Go to bank.

4)  If no bank, pay the state Fee Program (or do the mitigation yourself), rather than access banked, advance mitigation in an adjacent HUC.

It might be a fair policy call to restrict mitigation to 8-Digit HUC only.  But there is nothing fair about letting the state Fee Program use its mitigation in a far more generous manner than private sector banks.  NCEEP has sold its mitigation — literally — all over map.  In and out of HUC, in and out of major river basin, in and out of kind, in any way the agencies decide behind closed doors.

Dr.  Todd Bendor of UNC’s Institute of Environment has revealed a number of questionable NCEEP practices in his seminal paper:

Landscape Characteristics of a Stream and Wetland Mitigation Banking Program.

At the top of this post is a Figure from the paper that well illustrates my point.  If the same rules that apply to banks were applied to the state itself — the little lines in the figure would stay in their watersheds and not spider across whole eco-regions and river basins.

In Animal Farm, the animals that were more equal than other animals were the pigs.  There is an old North Carolina saying that, “Pigs get fat — Hogs get slaughtered.”  In this case, brother Orwell’s pigs are starting to look a lot like hogs.

From: Landscape Characteristics of a Stream and Wetland Mitigation Banking Program


Comment (1)

Once again George…a state or Fed Gov can do whatever they want to do. For example, if the State Gov decides to pay you twice for the same product…so be it…no worries…If they wish to eliminate you as a competitor…then no crossing lines for you and best of all even if you are inside your basin they have a thing called the “Excluded Areas” which just so happen to be the only properties/sites that have the most need for mitigation.

One for the Public sector and nothing for the private sector!