Royal C. Gardner Chair, Ramsar Scientific and Technical Review Panel

Professor of Law and Director Institute for Biodiversity Law and Policy

Stetson University College of Law

Biodiversity Offsets in Canada: Getting it Right, Making a Difference University of Ottawa, February 13, 2014

Roadmap Offset drivers and options 2001 National Research Council report and responses Wetland mitigation banking trends The good, the bad, and the ugly

Law as Market Driver • Clean Water Act and “no net loss” of wetlands

• Avoid • Minimize • Compensate (Offset)

• Restore, Enhance, Create and Preserve

Compensation (Offset) Options 1. Permittee-responsible mitigation 2. Mitigation bank 3. In-lieu fee mitigation

National Research Council report • Compensating for

Wetland Losses Under the Clean Water Act (2001)

NAS Study Conclusion and Recommendations

Conclusion 1: The goal of no net loss of wetlands is not being met for wetland functions by the mitigation program, despite progress in the last 20 years.

Conclusion 2: A watershed approach would improve permit decision

making. Conclusion 3: Performance expectations in Section 404 permits have

often been unclear, and compliance has often not been assured nor attained.

Conclusion 4: Support for regulatory decision making is inadequate. Conclusion 5: Third-party compensation approaches (mitigation banks,

in-lieu fee programs) offer some advantages over permittee-responsible mitigation.

Law as Market Driver Preference for offsets from wetland mitigation banks: 2008

U.S. Army Corps of Engineers and U.S. EPA regulations Laws may create captive markets: Transportation Equity Act

for the 21st Century (TEA-21)

Wetland Mitigation Banking Trends

July 1992: 46 approved banks 75% single-user banks (state

highway agencies, port authorities, local governments)

Only one entrepreneurial

bank

Source: Environmental Law Institute (2002)

9

Wetland Mitigation Banking Trends

• December 2001: 219 approved banks –Over 60% are private or entrepreneurial banks

• December 2005: 405 approved banks –Over 72% are private or entrepreneurial banks

• May 2010: nearly 1,000 approved banks –Another 500 in development

Sources: Environmental Law Institute (2002 and 2006) and National Mitigation and Ecosystem Banking Conference (2010)

Mitigation Banks in RIBITS as of 15 March 2013 Date of Approval

Brumbaugh & Martin (IWR)

189 now sold out

1308 banks

F E W

FEW

VERY FEW

(includes Sold Out & Suspended Banks)

Characteristics of a Successful Wetland Offset Project

Ecological success Watershed context Legal protections (e.g., conservation easements) Long-term management plans Trust fund for long-term stewardship Transparency

Panther Island Mitigation Bank

2,778 acre (1,124 ha) site adjacent to National Audubon Society’s Corkscrew Swamp Sanctuary

Panther Island Mitigation Bank

Panther Island Mitigation Bank

Panther Island Mitigation Bank

Mitigation bank land was turned over to the National Audubon Society (with a trust fund for management)

Corkscrew Swamp Sanctuary Ramsar Designation Ceremony

Wetland credits (federal and state) Highlands Ranch Mitigation Bank (FL)

Source: Highlands Ranch Mitigation Bank www.hrmb.co

Source: Tampa Bay Times http://www.tampabay.com/news/environment/wetlands/article1232352.ece

Wetland credits (federal and state) Highlands Ranch Mitigation Bank (FL)

425 state credits 70.37 federal credits

Gardner, Mitigation Banking and Reputational Risk, 34:6 National Wetlands Newsletter 10-11 (2012)

Thank you for your attention!