Hollywood in the Swamp

RS owns 330 acres we are permitting as Phase One of a mitigation bank in Plaquemines Parish, Louisiana, along the west bank of the Mississipi River below New Orleans.

The site is called Jesuit Bend because it lies on the last big easterly turn of the river below the city, but still 72 miles from the gulf.

The land is a dying beauty. A mix of open water and remnant swamp that is slowly but surely transitioning to ALL open water.

At this point, Jesuit Bend can only be reached by airboat, but it is worth the trip. The remnant swamp portion of the site, about 50 acres, is picture perfect.  The site is so attractive that we have allowed production companies access to film the landscape.

To date, two productions have been filmed; a promotion for an upcoming Coldwell Banker annual conference, and a segment of the reality show, “Sweet Home Alabama,” on Country Music Television.

Here is the Coldwell Banker promo:

Sweet Home Alabama is filmed and in the can, but we don’t have a trailer to show just yet. The premise of the show, for better or worse, is good looking country people and fabulous city people mixing it up and romancing at beautiful southern locations. The show will air February 27th on Country Music Television.

Tune in!

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.

THIS JUST IN: All Corps Mitigation Permit Decisions Must be Documented

All:

Today we received very good news! As of October 26th all permit decisions which the Corps makes must document decision making process for mitigation. This is significant because the mitigation rule (33 CFR 332.3) defines a mitigation hierarchy which has mitigation banking as the preferred method of mitigation. The Association has been fighting since the mitigation rule came into existence in 2008 for the Corps to follow the preference found in the rule. This directive requires that the permit officer document his/her decision making process which should have the effect of causing additional compliance with the hierarchy. I want to thank each and every one of you who have participated in this fight at both the District level and at HQ level for the hard work it has taken to achieve this milestone. We will be discussing this directive on the regular monthly NMBA call (Thursday, November 18th, 10 to 11 am Eastern,1-866-305-2467 access number 836122)

We hope you will participate in the call.

Thank you,

Victoria K. Colangelo

Click & link to:
The new Department of the Army Memorandum Documenting Nationwide Permit Template
&
Chief, Operation & regulatory Division letter discussing Minimum Level of Documentation required for Permit Decisions

Ecosystem Marketplace: Mitigation Bankers Say Army Corps Not Following the Rule

From Hannah Kett and Ecosystem Marketplace

According to law, if you damage a wetland in the US, you must restore a comparable piece of property in the same watershed. A 2008 regulatory rule says wetland credits from a mitigation bank should be your first option. Mitigation banks, however, say this isn’t happening, and they want the Army Corps of Engineers to tell them why. The Corps says it’s just trying to be flexible – and promises more transparency in the future.

29 September 2010 | In April, 2008, wetland scientist Rich Mogensen read “The Rule” and speculated that the number of wetland mitigation banks in the United States could triple from 500 then to 1500 right about now as a result of its issuance (read more here).

Officially titled the Compensatory Mitigation Rule for Losses of Aquatic Resources, the Rule was jointly issued by the US Environmental Protection Agency and the Army Corps of Engineers (USACE) (with a push from Congress), and it declared that anyone who damages a US wetland should look first to mitigation bankers to compensate for the damage before exploring other alternatives.

National Mitigation Banking Association letter to Army Corps of Engineers regarding the implementation Fede… </objec Read more

Nationwide 8-Digit Hydrologic Units Codes (HUC's)

I was reviewing our Google Earth file of 8-Digit HUC’s and and it occurred to me an image of all the HUC’s nationwide might make for a fun and informative post on the RS blog.

When learning about the business and policy of mitigation banking people will often ask, “Can a wetland or stream restored in North Carolina [for instance] compensate for a permit issued in California?”  Emphatically no —  I’ll answer.

The general rule of thumb is that each individual bank is assigned a Service Area, which includes a small assemblage of 8-Digt HUC”s — the polygons you see below — or fewer if the demand is stronger.

In all southeastern U.S. Army Corps Districts — with the exception of Wilmington, North Carolina — you are allowed, according to standard operating procedure, adjacent HUC’s in your Service Area for mitigation if no other bank is present.  So, take two or three of the polygon areas in this image and you are looking at a typical Mitigation Bank Service Area in the Southeast.

Interesting figure, huh?

Nationwide 8-Digit USGS Hydrologic Unit Codes (HUC’s)

UNC School of Government Study of EEP: Solid as Banana Cream Pie

UNC School of Government Study of EEP: Solid as Banana Cream Pie

This past Friday the UNC School of Government released its “Phase 1 Report” on evaluating the Ecosystem Enhancement Program’s method for procuring its mitigation.

As all long suffering followers of the inner workings of the ‘black box’ known simply as EEP understand, there are two separate processes for this: 1) a competitive bid system known as Full Delivery in which the provider assumes all liability for delivering the contracted amount of mitigation without an any change order provisions and is fully bonded, and 2) an arbitrarily awarded design contract (not competitive bid) for projects from a list of ‘on-call’ design firms which is then subsequently farmed out to bid for only the construction component known as Design Bid Build.

One would have assumed that UNC would have actually looked into the mechanics of these two methods and drawn some conclusions or at least made some salient observations. Oh wait, if that’s what was done then there would actually be something useful coming from this process. Instead, all that UNC did is establish a set of criteria for how to evaluate the two methods and with apologies to my friends at UNC—a third grader could have come up with the two main ones: effectiveness and transparency. The SOG work so far has been analogous to a round table discussion of the shade of black on the side of the box, with little discussion of what’s inside and why nobody gets to see it.

Was it really necessary to engage dozens of stakeholders in the process to come up with those revelations? Can you say ‘pass the butter knife so I can cut the banana cream pie’?

As one of those stakeholders who falls under the category in the study of “Mitigation Provider” i.e. one who actually does this work and has been well acquainted with both EEP and its DENR management since before the 2003 start of the program, let me add one point of clarification to the second sentence of the second paragraph on page 1 of the study which reads “DENR’s new leadership identified a need to have an objective third party review EEP’s procurement process.” WHOA!

There is an elephant in the room here and it needs to be acknowledged. The Assistant Secretary of DENR ever since the EEP has existed, Robin Smith, is married to Mike Smith the head of UNC’s School of Government. Now, both

and Smith are well regarded in their respective capacities and I am not trying to imply any cronyism was at play in the decision for DENR to give UNC the $25,000 contract for this study. After all, if DENR had wanted to bring in Bain Consulting to perform a thorough top to bottom review of the EEP, as UNC did when it had Bain study its layers of overlapping university bureaucracy, it would have cost a heck of a lot more than $25k.

However, I am disappointed that the study offered no disclaimer to this obvious reality which was discussed by several stakeholders outside of the series of meetings. It does neither institution any favors when even the appearance of a potential conflict of interest is involved, especially so when it is not duly acknowledged in an allegedly “transparent” process.

The one clear take away result from the study is that what is likely to come next—you guessed it, is another study! One can only hope that the Phase 2 Report actually comes up with real analysis and recommendations.

If not then we ‘stakeholders’ better be prepared for more banana cream pie. One can only wonder what the budget is for another serving of the same mush?

BrassGrill

Guidance: Army Corps Savannah District Releases Draft Guidelines for Mitigation Banking

sav

The updated guidance for mitigation banking in the Savannah Army Corps District has at long last arrived. As regular readers will know, in summer 2008 the Army Corps of Engineers and the Environmental Protection Agency promulgated an extensive regulation to reform and improve compensatory mitigation and mitigation banking for the 404 Federal wetland regulatory program. Presumably, each Army Corps District will at some point issue a document similar to this one in order to conform local practice and previously issued guidance to the new federal regulatory standards.

I have only skimmed the guidance document but (as expected) it appears to be excellent work. The Savannah District and the Georgia IRT (Interagency Review Team) already administer a relatively well-functioning and responsive mitigation banking regulatory system. It is no surprise to see them lead the nation in updating their regs in a comprehensive and thoughtful manner. Don’t get me wrong: I am sure there are bugs in it. But this document is a draft — and “Stories from the Field” will let you know in future posts what we think does or doesn’t work.

Another tip of the hat goes to the newly formed Georgia Environmental Restoration Association (GERA). Modeled to some degree after North Carolina’s NCERA, the GERA was formed last year and has quickly mobilized to improve compensatory mitigation banking in GA. GERA is a “must-join” for working down there.

Proposed Savannah Corps regs here

Real World Restoration and the Wetland Policy Industry

To identify, acquire, design, construct and manage for the long term actual aquatic ecosystems is a privilege and a challenge for our team at Restoration Systems.  “Stories from the Field” is in large part our attempt to communicate this experience in order to educate the wetland policy industry.

What is the “wetland policy industry” you ask?  It is my term for the 1000+ well intended people nationally who are wetland and environmental mitigation specialists — but not involved directly with anything that would wet a boot (except perhaps the occasional well-planned field trip).   It’s the think tankers, planners, academics, high-level regulators and Washington environmentalists who provide indispensable support for the politics of the wetland regulatory and policy apparatus on which our company relies, but who are woefully short of comprehensive real world experience with — and economic responsibility for — actual ecosystems.

This is to some degree excusable.  Wetland regulation and mitigation is hardly a generation old, and therefore very little intellectual mixing has occurred.  In other words, unlike agriculture, where the planner or policy maker might have had a grandmother who farmed, or the transportation sector, where the “road wonk” actually drives a car — the folks who are the backbone of a strongly protective wetland policy and those who carry it out are almost entirely siloed in their own intellectual envelopes.

But it is excusable only to a degree.  When the pontificators become so lost in their white papers, policy prescriptions and planning documents that they do not provide support, but misapply resources within the field (and away from the field) it is time to critically assess the value of their efforts in order to distinguish that which encourages better mitigation and is helpful to the comprehensive practitioner — and what is political posturing in the name of science or policy. “Stories from the Field” will attempt to make that distinction.  Stay tuned.

Webinar: New Mitigation Rule Compliance for the NC Fee Program

nceep_weblogo

This should be interesting:

Dear Colleagues:

The U.S. Army Corps of Engineers Wilmington District, the U.S. Environmental Protection Agency and the N.C. Ecosystem Enhancement Program invite your participation in a Webinar on Dec. 16, 2009 at 10:00 a.m.  The purpose of the Webinar is to provide the latest status of EEP’s conversion to the new federal mitigation rule, including the review of specific provisions of the draft instrument.

If you wish to participate in the Webinar, you must register your interest with EEP by Dec. 7.  Participants will be sent information on how to access the meeting via the Internet and telephone.  To sign up, please send an email to Eric Ellis of EEP (eric.ellis@ncdenr.gov) by Dec. 7, and please feel free to share this announcement with others that you think would be interested.

Tad Boggs

Director of Communications

N.C. Ecosystem Enhancement Program

919-715-2227 www.nceep.net