The Environmental Law Institute® (ELI) has just released a white paper entitled “Preliminary Findings of The Environmental Law Institute’s Wetland Mitigation Banking Study.” ELI is conducting a comprehensive study of the current status of wetland mitigation banks and banking activity in the United States. The study builds on ELI’s 1993 seminal report, Wetland Mitigation Banking, which documented the status of wetland mitigation banking in the United States through June 1992. This new study is designed to provide local, state, and federal agencies and organizations with the information they need to achieve regional wetland conservation and land use planning objectives.
“Until now, local governments, citizen groups, and conservation organizations concerned about the use of wetland mitigation banking in their localities have had limited access to information on the banking activity in their areas,” said Jessica Wilkinson, Director of ELI’s Wetlands Program. “Our hope is that this study will provide these groups with the information they need to participate in local decision-making about how their wetland resources are managed and that this will lead to better wetland protection.”
The use of wetland mitigation banking has thrived as a technique for wetland development over the past decade. Wetland mitigation banking involves restoring or creating large off-site wetland areas to replace wetlands lost to development. Ordinarily, government regulators require developers to create or restore a wetland as a condition of their permit. When mitigation banks are in the same geographical vicinity as the area where permitted impacts are occurring, the developer can often purchase “credits” from a mitigation bank established by a third party to compensate for the permitted losses. Mitigation banking often creates larger wetlands than on a project-by-project basis, and if done properly may be more valuable ecologically.
Although wetland mitigation banking activity has expanded dramatically in the past ten years, there has been no comprehensive analysis of the status of banking in the U.S. since 1992. As a result, federal, state, and local policymakers, conservationists, and others lack the ability to assess the impacts of wetland mitigation banking on the status of the nation’s wetlands. ELI is conducting this study to respond to this information gap.
“This report reveals an explosion in the use of mitigation banks to compensate for permitted wetland impacts over the past few years,” said Julie Sibbing, Wetlands Legislative Representative for the National Wildlife Federation. “Our hope is that the information provided by the ELI report will prompt a close evaluation of whether mitigation banks are truly replacing the hydrological and ecological functions we are losing through the 404 program.”
To date, ELI has collected documentation from the 38 U.S. Army Corps of Engineers districts and each state’s wetland regulatory program on all current active and pending wetland mitigation banks. Preliminary data from these documents have been analyzed, and in the upcoming months, additional data on each of the active banks will be collected and reviewed. In addition, ELI has documented the federal, state, and many local wetland laws, policies, and guidelines on wetland mitigation banking and in-lieu fee mitigation.
In-lieu fee mitigation, a new mechanism for securing fee-based compensation for impacts to wetlands, has also increased in the past few years. ELI’s preliminary results indicate that there are currently 21 states with in-lieu fee programs, which are either administered by state agencies, local governments, private conservation organizations, or Corps district offices.
Although still in progress, early results indicate that there are at least 291 approved wetland mitigation banks in the United States, as well as 100 banks awaiting approval. In addition, there are at least 19 umbrella wetland mitigation agreements encompassing over 220 individual sites. This is a substantial increase from 1992, when there were just 46 wetland mitigation banks in the United States.
In addition, there has been a dramatic geographic expansion in banking as new states have developed banks and banking programs. In 1992, banks existed in only 17 states, but today, active or pending banks exist in 41 states. ELI’s preliminary research also reveals several key trends in banking. In 1992, the majority of banks were publicly owned banks intended for a single user. Today, th