Written by Royal Gardner, Professor of Law, Director of Center for Biodiversity and Law, Stetson University

1. 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

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

3. Law as Market Driver
• Clean Water Act and “no net loss” of wetlands
• Avoid
• Minimize
• Compensate (Offset)
• Restore, Enhance, Create and Preserve

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

5. National Research Council report
• Compensating for
Wetland Losses Under
the Clean Water Act
(2001)

6. 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.

7. 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)

8. 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)
9

10. Mitigation Banks in RIBITS as of 15 March 2013
Date of Approval
1308 banks
189 now sold out
Brumbaugh & Martin (IWR)

11. (includes Sold Out & Suspended Banks)
F E W
FEW
VERY FEW

12. 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

13. Panther Island Mitigation Bank
2,778 acre (1,124 ha) site adjacent to National Audubon
Society’s Corkscrew Swamp Sanctuary

14. Panther Island Mitigation Bank

15. Panther Island Mitigation Bank

16. Panther Island
Mitigation Bank
Mitigation bank land was turned over to the National
Audubon Society (with a trust fund for management)

17. Corkscrew Swamp Sanctuary
Ramsar Designation Ceremony

18. 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/environme
nt/wetlands/article1232352.ece

19. 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)

20. Thank you for your attention!