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February 22, 2000

Full Service Banks for the Environment

Developers Buy Credit from Mitigation Banks to Destroy Wetlands

by Bill Patterson

[This is the last of three articles about mitigation banks. The first examined the establishment of the Weeks Bay Mitigation Bank. The second article looked at plans to open more banks.]

The controversy about the Weeks Bay Mitigation Bank must have surprised the environmental regulators who approved it. A review of records by The Harbinger finds that regulators welcomed south Alabama's first commercial mitigation bank. No agency gave a more favorable assessment than the U.S. Army Corps of Engineers. In February 1999, Ronald Kritzman, Chief of the Regulatory Branch for the Corps in Mobile, recommended to the heads of the Corps' Mobile District and South Atlantic Division that they approve the Weeks Bay Bank because it would be "beneficial" to the Mobile District. In his memorandum to the officials, Kritzman described how the Corps would benefit: "The impact of the use of the proposed mitigation bank will be a regulatory tool for streamlining many Department of Army (DOA) permit evaluations within the mitigation bank's service area in Mobile and Baldwin Counties in south Alabama."

The service area is the geographic zone in which the mitigation credits of a bank can be used to compensate for the destruction of wetlands. In most of Alabama, the Corps of Engineers is the sole authority in the regulation of wetlands. Only in the Coastal Zone, defined as the area from the ten-foot elevation contour seaward, does ADEM share responsibility with the Corps. The power of the Corps includes decisions about whether developers can mitigate wetland destruction with credits bought from a mitigation bank. Outside the Coastal Zone, every other environmental agency, including the EPA and ADEM, can only make recommendations to the Corps. But the Corps, in turn, is bound by the terms of the Mitigation Banking Instrument signed when a mitigation bank is established. Because no federal or state laws govern the operation of mitigation banks, the Banking Instrument, negotiated by the Mitigation Bank Review Team (MBRT) and the owner of the bank, is critical. Under federal guidelines, MBRTs set the service area for all mitigation banks.

Barbara Allen served as the representative from the Corps of Engineers on the MBRT for the Weeks Bay Mitigation Bank. Today Allen works for the U.S. Fish and Wildlife Service. Asked by The Harbinger why the MBRT choose the two-county service area, Allen stated that the Corps takes "a watershed approach," an area she said the MBRT members "generally agreed was the drainage basin of Mobile Bay." Allen said that "all members of the MBRT agreed the Bank was a good thing" because its land would be perpetually preserved. "It's a long-term, permanent net gain for Mobile Bay," Allen said. She also believes compensation for wetland destruction with mitigation credits is a good concept because a well-run mitigation bank is preferable to the "piecemeal" mitigation she says regulators often approve on or near the site of permitted wetland fills.

The Harbinger spoke with Brad Gane of ADEM about the Weeks Bay Bank's service area. Gain said the MBRT approved the service area because federal regulators wanted a mitigation bank, and the two-county area was the only way to assure the bank would succeed financially. Gane said ADEM was "interested in being supportive of federal process," and that every member of the MBRT signed the Mitigation Banking Instrument that designated a two- county area.

In Mobile County, Not

Perhaps the greatest danger to wetlands in Mobile County is the county's lack of a land use plan. Among its neighboring counties on the Gulf Coast, Mobile County is alone in having no program to protect wetlands. Will Brantley, an Environmental Planner with Baldwin County, told The Harbinger that the county has produced a Wetland Advanced Identification (ADID) document for Baldwin County. Funded by EPA, an ADID locates and maps wetland resources to help plan for future growth. Brantley said the first step in creating the ADID document was to compile existing "data layers," including federal wetland inventories, aerial maps and hydrological surveys. After the information was compiled, Brantley and others used GIS mapping to "collect digital layers," and made on-site visits for "ground truthing." He said the wetlands within 100,000 of Baldwin County's 1.2 million acres have been mapped and assigned a "functional assessment." Brantley said the first ADID, an inch-thick summary document that included maps, was completed in December 1999.

Brantley said the main purpose of the ADID project is to prevent the destruction of wetlands. Asked how the ADID helps, Brantley said developers can now come into the planning office and learn where the wetlands are. "This will be an aid in pre-project management," he said, because developers "will be able to avoid the 404 permitting process." The Clean Water Act's Section 404 regulates wetland protection. Brantley said that once a developer knows where the wetlands are, the developer can seek "a less sensitive area." The ADID document, which Brantley pointed out is advisory only, is part of the county's long-term Wetland Conservation Plan. He said Baldwin County has applied for federal money to complete an ADID for the rest of the county, and he anticipates future plans will include the restoration of wetlands, public outreach and coordination of county efforts with municipal measures. Brantley said the only other political jurisdiction in Alabama that has done an ADID was the City of Huntsville. He said he had not heard about any plans by either Mobile County or the City of Mobile to map their wetlands.

David Ruple is a former environmental regulator with Mississippi's Department of Environmental Quality. He now works as Project Manager for the Grand Bay Savanna Nature Preserve. Ruple was a member of the MBRT that set up Mississippi's only mitigation bank, a bank in Ocean Springs owned and operated by the Nature Conservancy. Ruple told The Harbinger that Mississippi enacted the Coastal Wetlands Protection law in 1973. Under the legislation, the state created a "use plan" for the state's three coastal counties. In the use plan, all land was designated as industrial, commercial, or residential. In these counties, the Mississippi Department of Marine Resources must approve or reject plans to destroy wetlands. Ruple said the Commission on Marine Resources can, and sometimes does, override the decisions by department employees to deny permits.

According to Ruple, Alabama doesn't do more to protect wetlands because "the state doesn't want to get involved." But Ruple believes local and state wetland protection regulations might do some good. "Many at EPA and the Corps would like to see more things done on a local level." In fact, he said EPA has programs to give money to states to encourage state and local responsibility. An example of local regulation, Ruple said, would be if the City of Mobile passed an ordinance that prohibited anyone from constructing a hard surface or building within a hundred feet of any water body, including wetlands. "The Corps would go along with that," he said.

Critics and Experts

Mark Davis is Executive Director of the Coalition to Restore Coastal Louisiana. He talked with The Harbinger about mitigation banking. Davis believes the main threat to wetlands on the Gulf Coast is the lack of land use planning. "The South doesn't have land-use plans, it has land-use schemes," he said. Davis believes federal and state regulations encourage the degradation of wetlands through exemptions for forest lands. He described "a sequencing" in which landowners use "the silviculture exemption" to ruin wetlands and make a huge profit. Under the Clean Water Act, silviculture is exempt from the wetland permitting process. By declaring they are engaged in silviculture, landowners "clear cut" the timber off a healthy wetland tract, Davis said, and then neglect the tract. The land, once a healthy wetland forest, is degraded. Davis said the landowner then gets paid to restore the habitat by opening a mitigation bank. It is impossible to stop such practices, Davis said, because the only way to anticipate that landowners plan to abuse the silviculture exemption would be "to peer into people's souls."

Dr. Judy Stout is a wetland scientist and an administrator at the University of South Alabama. Stout said that the fight for statewide wetland protection, and for regulations to back the effort, has been a "non-battle." She blamed the real estate and forestry businesses for blocking every effort to regulate land use. "There is no will in the legislature," she said.

Stout said land use regulation is so sensitive a topic for Alabama's officials that they are reluctant even to accept money from the federal government to study the state's land. Stout said she had worked on one of the few studies of Alabama's wetlands, a study carried out by ADEM with money from the EPA. "The state almost refused to accept the grant," she declared, and did so only after federal officials applied pressure because "Alabama was one of few states without grants to study wetlands." She added that state officials "put constraints" on the grant so that "it could not deal with regulation." The wetland study resulted in a three-volume report that "sits on the shelf." Even the study's recommendations were "watered-down," she said.

Stout believes the best chance to protect Mobile County's wetlands is through local government and "non-regulatory" efforts. She pointed to the Coastal Counties Wetland Working Group, sponsored by ADECA, and the Mobile National Estuary Program as good local undertakings. She added that another element that might work could be "just pride." She said local pride, an attitude "not driven entirely by making a buck," would protect wetlands because of their beauty and ecological worth.

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