We will be turning dirt out on the prairie for years to come, so this is unlikely to be the last version of the film. It will be fun taking footage of the site as it matures — over the next several decades — and including it in an evolving series of similar productions from Human Films.

Stay tuned!

All we need now is both banks planted thick with yellow roses. (Just kidding.)

John Preyer and George Howard have known and respected Eddie Bridges since they were kids growing up in Greensboro. Eddie’s organization, the NC Wildlife Habitat Foundation, holds the protective easements on more than 1000 acres of RS mitigation at multiple locations which we have permanently endowed with over $300,000.

John Preyer was honored to join Eddie at RS’ Haw River mitigation site to shoot the Field and Stream video below (cue the tall guy in dark blue shirt!).

From more pics of the project visit our public Facebook page.

To learn more about the project visit our Katy Prairie project page:

I’ve read a lot articles about mitigation banking. But this one got it just right.

We made the largest sale in the history of the mitigation industry to the Grand Parkway, for segments F1, F2 and G,” Howard explained. “As Houston grows west, it’s going to demand mitigation, and then that will drive the restoration of the Katy Prairie and the Warren Ranch. — George Howard, E&E, October 5, 2012

Texas launches eco-credit trading to mitigate development impacts
Published:Friday, October 5, 2012 | Source: http://www.eenews.net/gw/

Nathanial Gronewold, E&E reporter

HOUSTON — One of the largest highway construction projects in the country promises to deliver more urban sprawl to already-diffuse Houston when it is completed in 2019, threatening vast swaths of untouched natural areas.

State Highway 99, or the Grand Parkway, will become the third freeway loop to circle the greater metropolitan area here, alleviating congestion in some places but inevitably encouraging this fast-growing city to further expand its footprint.

But a new Army Corps of Engineers-administered ecological credit trading system being introduced in the state is viewed by developers as a potential game changer in the struggle to balance conservation and city growth.

Adjacent to the highway project, work crews began construction this week on the nation’s largest “stream mitigation bank” project, a market-based approach to mitigating losses of creeks, streams and smaller waterways affected by development.

The project, undertaken in conjunction with a local conservation group called the Katy Prairie Conservancy, seeks to restore more than 110,000 feet of streams lost to earlier development at a site managed by the conservancy on the Warren Ranch, the largest operating cattle ranch in Harris County. Officials involved in the project say it will serve as a template for this city’s future growth, ensuring that development in one part of the watershed will be met first with protections and ecological mitigation in another part of it.

The project, paid for by the sale of environmental mitigation credits to the highway project, will also potentially create revenues the conservancy can use to purchase and protect other parts of what is left of the historic Gulf Coast prairie that used to dominate Harris County, now almost completely swallowed by the city’s relentless growth.

Mary Anne Piacentini, director of the Katy Prairie Conservancy, said the arrangement will earn her organization enough funds to pay off the debt it took to acquire the ranch and create that portion of the preserve. The conservancy owns 72 percent of Warren Ranch, while family members control the rest.

“Clearly the money is important, and it will … allow us to ensure the permanent protection of the ranch,” Piacentini said. “But it also is important because it is really improving habitat on the ranch, not just the streams themselves, but the banks of the streams and the flood way and floodplain and the improved grasslands that are going to be on either side lining the creeks.”

Under the new Army Corps system, which the agency began crafting in 2008, construction projects that would cross or otherwise affect waterways in Houston’s watershed would have to receive a special permit to be allowed to continue. Developers have the option to avoid the impact entirely, minimize it as much as possible or mitigate the damage by restoring an equal amount of waterway in a different part of that watershed.

The stream mitigation bank project on the Katy Prairie will offset damage to other waterways at points where the massive Grand Parkway will be built. Click the map for a larger version. Map courtesy of Restoration Systems LLC.
The system allows third-party developers to manage their own restoration projects and bank credits for doing so. Later projects can then purchase those credits from these mitigation banks to meet regulations and proceed with construction.

Mitigation banking has been up and running in North Carolina for a few years but had yet to be introduced to Texas. George Howard, president of Restoration Systems LLC, said this initial project will serve as a template for future development mitigation banking throughout Houston and eventually across all of expanding Texas. Restoration Systems is the firm leading the Katy Prairie stream mitigation bank project.

“We made the largest sale in the history of the mitigation industry to the Grand Parkway, for segments F1, F2 and G,” Howard explained. “As Houston grows west, it’s going to demand mitigation, and then that will drive the restoration of the Katy Prairie and the Warren Ranch.”

The Texas Parks and Wildlife Department estimates that the Katy Prairie — a popular birding spot and home to a variety of species — once covered an area of 500,000 to 750,000 acres before development began, first in the form of rice farms and later as subdivisions. Little remains; Piacentini estimates that less than 20 percent is in “OK” condition, while perhaps 1 percent is considered “pristine.”

And a booming Houston economy is still putting pressure on the land. Plans for thousands of new homes and businesses are in the works for both sides of the route along the future Highway 99 toll road.

Segment E of the parkway, scheduled to open to traffic in late 2013, was permitted under the old system and is not contributing to the current stream construction. But the other three segments of the highway that will link Houston’s north suburbs will cross more waterways, and the state highway department is required to purchase conservation credits to get the permits it needs.

The city is eager to open segments F1, F2 and G in time for the opening of a massive new corporate campus that Exxon Mobil Corp. is building in the northern suburb of the Woodlands. To offset the damage caused by those three segments to north and northwest Harris County waterways, the Grand Parkway project will purchase banked mitigation credits from Restoration Systems, covering the cost of the Katy Prairie project and possibly more conservation initiatives.

Howard said it took the group four years to secure the permit for its stream mitigation project, but he said the delay was expected. Having never administered such a system in its area of jurisdiction before, the Army Corps of Engineers’ office in Galveston essentially had to develop standard operating procedures. Future projects will experience fewer bureaucratic hurdles, officials predict.

BUILDING STREAMS

During a recent tour of the stream restoration project site, Lee Forbes, a fluvial geomorphologist and president of Forbes Consultancy PLLC, explained the team’s plan for building — sometimes almost from scratch — more than 100,000 feet of streams that will be nearly identical to natural streams that once were found on the ranch.

Before the banking method was introduced, construction projects could offset their ecological impact by funding wetland restoration elsewhere in the region. The new rules specifying mitigation of streams bring greater technological challenges, Forbes said.

“Stream impacts, which prior to this were able to be mitigated with wetlands, now have to be mitigated with streams,” Forbes said. “And streams are a lot more complex to design, build and maintain, and they have different function, ecological function, than a wetland.”

Earlier settlers to the site worked to straighten out some streams and create a direct path to their tributaries, believing that was better for moving water efficiently and for flood control. But natural streams engineer themselves to move both water and sediment in the most economic manner that nature allows, creating the winding paths that creeks and rivers take in near-flat terrain.

Blueprints of the first phase of the project show what Forbes and others involved have planned. The course is deliberately windy and crosses much of the existing straight channel several times. Crews will also build the stream to have different depths at different places, and trees and branches will be carefully inserted in places to brace the walls of the stream, just as naturally fallen trees do for wild streams.

“A stream functions best when it has easy access to the floodplain. That’s how it builds itself, how it manages its energy,” Forbes said. “We’re putting back in ripples, runs, pools and glides. … It’s a very complex science.”

Stream construction is so complex that advanced computer models and the latest satellite-driven surveying equipment have to be laid out to plot the best meandering path to take. Local construction crews are also unschooled in the idea, requiring extra training, Forbes said.

“The contractors that do it have been from other states where they have been doing it a lot longer,” he said. “We have a mission here in Houston to start training the local contractors on how to do this.”

FUTURE OF CONSERVATION?

Technical challenges aside, both Forbes and Howard are convinced that the market-driven approach behind the mitigation banking concept is the future of environmental conservation across the United States.

Restoration Systems estimates it will generate about 250,000 credits from just this project, each credit selling to construction projects for about $250. As the first project, the Katy Prairie stream mitigation bank is being priced in the absence of competition, but Howard expects more actors to enter the fray and force credit prices lower as Houston continues to grow. City leaders believe Houston will overtake Chicago as the nation’s third most populous city by 2030.

Conservation through market-based credit trading systems has detractors. A similar project proposed by U.S. EPA for Chesapeake Bay is facing a court challenge by environmentalists who allege that credit trading will invite fraud and abuse (Greenwire, Oct. 3).

But the Army Corps of Engineers and the forces behind the pilot in Texas seem convinced that the concept is proved to work and may be one of the best methods for balancing development and environmental protection.

“There could be additional banks, and then it would be a competitive market that sells to the impactor at the best rate, so it’s a market-driven ecosystem management,” Forbes said. “Meanwhile, economic development and growth are restoring some of the last vestiges of native prairie and streams in the country.”

Piacentini says she’s equally enthusiastic about the concept and the millions of dollars her organization will receive from it. She is looking for other market-based conservation models that the Katy Prairie could tap into, to grab hold of more tracts of land to preserve ahead of the expanding zone of concrete.

The stream mitigation bank going up now is a prime example of the obvious benefit, she said.

“It will give us water. It will give us a place to put trails. It will allow us to improve the water quality in that stretch of the various tributaries to Cypress Creek,” Piacentini said. “And it will also just ensure that there are places that continue to be available for wildlife.”

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“That conservation mindset further blossomed after a chance meeting with Brents Fults in a Farmville log yard 10 years ago.

Fults, a landscape architect, long had wanted to develop private enterprise solutions to fix larger environmental problems.

He found a ready partner with John Harrison. By 2005, they had established the state’s first stream bank on Harrison’s Wildwood Farm, which cleaned up streams for credits that then are sold to developers. The nutrient offset bank came next. It’s a more complicated concept with greater potential to meet the family’s goal of generating money to keep the farm.” 

From:  Appomattox County Farm Does its part to keep Bay Clean

 

I was googling our Virigina water quality partner Brent Fults (never can tell what he is up to) and found this wonderful article I had never seen about his company and the Chesapeake Bay Nutirient Land Trust’s first water quality bank, Wildwood Farms, with the Harrison family of Appamotto County, Virginia.

The story is an accurate tribute to the profound promise of agriculture working with mitigation bankers. Readers of our blog are well aware now of the long history of farmers and bankers doing well by doing good with stream restoration.

In commercial stream mitigation projects, the farmer takes a relatively non-productive creek and riparian property and converts it, with an investment from the banker, to stream mitigation credits for sale to the regulated public. RS and Brent’s firm have done just this with dozens of our farming partners

What Brent and his team accomplished at Wildwood, however, is even more promising for the long-term economic prospects of mitigation banking and to a smaller degree (as it is a much larger industry) agriculture.

EarthSource Solutions expanded their project at the Harrison Farm and successfully permitted the the very first mitigation bank for water quality in the Chesapeake Bay watershed. That’s  a big deal — and getting bigger. Water Quality Banks are the next and much much larger wave of mitigation banking. As we have proven here in North Carolina (with the first such banks in the country) these new approaches lead to a virtuous cycle of payments from water polluters to water improvers (read agriculture).

And to think, all that from a chance meeting at a Farmville VA log yard!!

From the News and Advance of Lynchburg / Virginia Appomattox County Farm Does its part to keep Bay Clean

Five years ago, cloudy water flowed in a tiny Appomattox County stream. A brown fuzz of algae and silt lined the bottom.

The stream, which drains a small section of a 900-acre farm, looked like most rural creeks in Central Virginia that bear scars from agricultural and livestock runoff.

Today, about 110 acres of that farm have been converted from nutrient-polluting cattle land to water-cleansing forest and hay field.

Now the creek flows clear, with bottom rocks clean, as it meets a larger, still murky stream on its way to the James River.

That clear water is the result of years of transformation on John and Phillip Harrison’s land. The effort has placed the farm at the forefront of statewide legislation to improve water quality.

The land is the first in Virginia to help clean our streams, creeks and rivers through a pioneering combination of private business enterprise and two generations of land stewardship. [Full story here]

Army Corps of Engineers presents plans for West Bank wetlands projects

Published: Wednesday, August 01, 2012, 10:15 PM

 By Mark Schleifstein, The Times-Picayune 

The Army Corps of Engineers Tuesday night unveiled a variety of wetland-restoration projects that will serve as mitigation for the environmental impact caused by building leveesalong the West Bank in the aftermath of Hurricane Katrina. The projects would restore more than 885 acres of wetlands on the water side of the levee system, including filling in several abandoned oilfield canals in Jean Lafitte National Wildlife refuge, restoration of 85 acres of wetlands in Yankee Pond along Bayou Segnette, and restoration of 643 acres of bottomland hardwood wetlands and swamp at Lake Boeuf, near Raceland in Lafourche Parish. The mitigation plan also will eventually include restoration of wetlands in privately owned “mitigation banks,” which will compensate for habitat damage on the protected side of levees.

 

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Corps officials did not provide a price tag for the West Bank projects during Tuesday’s meeting at the Westwego Ernest J. Tassin Senior Center.

However, at a January meeting in Vicksburg, Miss., New Orleans corps planners estimated spending about $252 million on restoration projects resulting from construction of the 160-mile levee system, including $79 million on east bank projects and $173 million on the West Bank.

The projects in the corps’ tentatively selected plan were chosen from more than 400 possible mitigation sites, many suggested by community members.

The projects will compensate for damage to natural areas caused by building the West Closure Complex, Mississippi River Co-located levees, Eastern Tie-In, Harvey to Westwego Levee, Lake Cataouatche Levee, Bayou Segnette Floodgate Complex, the Western Tie-In, and government-furnished borrow sites in Plaquemines, Jefferson and St. Charles parishes.

Corps officials discussed the restoration program in general terms before attempting to break Tuesday night’s audience of about 50 people into smaller groups to discuss individual projects.

Another idea in Jesuit Bend

But the owner of a large tract at Jesuit Bend in Plaquemines Parish objected, saying the format deprived the audience of hearing about his alternative to the corps plan.

George Howard is president of Restoration Systems LLC, a North Carolina company that operates mitigation banks and develops property as mitigation for private owners and government agencies nationwide. He said the company has developed 25,000 acres in nine states as mitigation projects.

Howard’s proposal would redevelop open water areas of his property as wetlands, which he said could be done more cheaply than the corps and would help protect Plaquemines communities from hurricane storm surges. He said it’s not necessary to treat his property as a mitigation bank.

Elizabeth Behrens, corps environmental manager for the levee mitigation plan, said the agency has chosen projects it believes best match damage done in the levee construction. Many of the smaller projects will be in or adjacent to the Barataria Unit of the Jean Lafitte National Historic Park because of damage done to park lands.

Those projects avoid the cost of buying land that’s already part of the park, or will result in purchased land being added to the park, she said.

Other projects were selected as a response to damage to the environmentally sensitive Bayou aux Carpes wetland area, which is protected by a provision of the federal Clean Water Act, that occurred during construction of the West Closure Complex at the junction of the Gulf Intracoastal Waterway and the Harvey Canal.

She said Howard’s property is still eligible for participation in the mitigation bank portion of the restoration program, whose projects won’t be chosen until later this year.

‘Geocrib’ project under way

The Lake Boeuf project, chosen to mitigate for general impacts to bottomland hardwood forests and swamps, was picked as the best environmental project of its size in the area, she said. The land bought for that project will eventually be turned over to the state’s nearby Lake Boeuf Wildlife Management area, and thus available for public use, Behrens said.

Another 50-acre project, already well under way, is at the “Geocrib” area separating the eastern edge of Lake Salvador from the Gulf Intracoastal Waterway in Jefferson Parish.

The individual projects will be aimed at rebuilding wet or dry patches of bottomland hardwood forests containing cypress and tupelo trees, freshwater marshes, or swamps, based on the damage to each type of habitat by the levee projects.

The mitigation bank projects will involve the corps buying “credits” from an authorized bank located within the West Bank levee area. The corps will issue a request for proposals to buy credits from the banks equivalent to the acreage it determines is needed to be rebuilt.

Comments on the mitigation proposals can be made by calling the corps’ construction impacts hotline, 1.877.427.0345; on the web at www.nolaenvironmental.gov, or by email toaskthecorps@usace.army.mil.

For more information about the projects, contact Patricia Leroux, Project Management; U.S. Army Corps of Engineers;

Environmental Planning and Compliance Branch; P.O. Box 60267;

New Orleans, LA 70160-0267; or by phone at 862.1544; or by e-mail at mvnenvironmental@usace.army.mil.

Mark Schleifstein can be reached at mschleifstein@timespicayune.com or 504.826.3327.

© 2012 NOLA.com. All rights reserved.

Fortunately, the study speaks for itself. Take it away Dave and Craig:

National Wetlands Newsletter: 98.3% of wetland banks successful

Fred Danforth, Nik Dilks and Dave Urban deserve a round of applause from the national mitigation tribe. I heard on the grapevine they gave more than 200 “roadshow” presentations across the country in order the raise the money. Whew. Each one of their audience is one less monied interest the rest of us will have to explain mitigation banking to (which in itself is worth millions to the industry).

It is unclear (as expected) exactly where EIP plans to deploy their pile. But their experienced and ecologically minded leadership suggests it will result in better funded mitigation, in top-flight watersheds, based on the highest standards of conservation and restoration. Bully for them.

WETLANDS:

Fat private-equity investment buoys restoration industry

Paul Quinlan, E&E reporter

Greenwire: Tuesday, July 17, 2012

A private-equity firm has raised $181 million for wetland restoration, in what industry insiders are touting as a sign that for-profit ecosystem revival is finally coming of age.

At issue is the business of mitigation banking — reviving degraded swamps, bogs, marshes and other habitat to generate “credits” that can be sold to developers. Such transactions are aimed at satisfying regulators who require developers who damage or destroy wetlands to restore or protect habitat elsewhere.

Wetland mitigation banking has been around for some 30 years, but it has been slow to live up to its hype that it is a market-based solution to ecological ills caused by development in environmentally sensitive areas. Green groups question the ecological value of restored wetlands, and business analysts fret about mitigation banking’s regulatory uncertainty and uneven demand.

So the $181 million raised for Baltimore-based Ecosystem Investment Partners (EIP) is being celebrated by promoters of mitigation banking. EIP beat its $150 million target with large investments from typically risk-averse sources: a large university endowment, foundations and pensions — including $30 million from the New Mexico Educational Retirement Board, the state’s teacher pension.

“I think we’re probably at a breakaway point, if you will, in terms of institutional capital understanding of this space,” said Fred Danforth, a managing partner of EIP who founded the company in 2006.

Danforth discovered mitigation banking after retiring in 2002 from a Boston-based investment firm he helped found in 1987, Capital Resource Partners. An fly-fisherman and trustee of the Nature Conservancy in Montana, Danforth waded into his first restoration project when he bought a 1,900-acre former ranch in the Blackfoot Valley of western Montana.

The property’s streams and wetlands were “unbelievably degraded” from decades of ranching and poor management, he recalled recently. So he and others went to work, he said, rebuilding 10,000 linear feet of streams to the correct depths and widths and restoring 260 acres of wetlands.

“I became fascinated by the opportunity to do this important work and overlay a business model that could generate more conservation and more restoration at a real significant scale,” he said.

Danforth assembling experts from the environmental and conservation worlds to form EIP and began fundraising. The first fund closed in 2008 after Danforth raised $26 million — about one-seventh the size of his second fund.

The $181 million haul raised eyebrows across the industry.

“It’s good to see big-time institutional capital come into it, because we want to see the industry professionalized — not a lot of mom-and-pops,” said George Howard, co-founder and president of Raleigh, N.C.-based Restoration Systems, which banks 25,000 acres of wetlands and 60 miles of waterways in half a dozen states.

Randy Wilgis, president of both the National Mitigation Banking Association board and Environmental Banc & Exchange, a mitigation bank headquartered in Owings Mills, Md., said, “It’s just exciting, and it validates the entire market.”

Danforth’s strategy involves acquiring large tracts of degraded but ecologically valuable lands in areas where development — and thus demand for offsetting credits — is expected to be high and regulations requiring wetland mitigation are strictly enforced. Danforth won’t discuss specific figures, such as the costs of restoration, permitting and maintenance or the price of credits.

Generally, EIP expects to acquire 10 to 15 properties priced between $5 million and $20 million and ranging from 1,000 to 10,000 acres, he said.

The heart of wetland mitigation has traditionally been major highway projects, and that is expected to continue, but Danforth expects other projects are on the horizon.

“If you think about pipelines and power lines and the siting of renewable energy … mining, oil and shale gas — all have significant impacts,” he said.

Regs, shale drilling spur business

Much of the recent growth for mitigation banking was spurred by the release in 2008 of new federal regulations governing mitigation banking that industry officials say brought clarity and predictability by laying out performance standards.

But that same year brought the collapse of the real estate market and a corresponding plunge in demand for mitigation credits. This put many small mitigation banks out of business and forced even the largest industry players into a holding pattern.

“It took a lot of the nonprofessionals out, which we welcome,” Howard said. “You had developers jumping into it to make a quick pop.”

The 2008 rules handed another gift to the industry: They indicated that mitigation banking was the preferred method for offsetting wetlands destruction, trumping both the do-it-yourself and in-lieu-fee options also available to developers.

Experts, meanwhile, predicted that demand for credits would rise because of shale drilling and pipeline building and construction projects funded by the 2009 federal stimulus. Applications for new mitigation banks began rolling into the Army Corps of Engineers, which handles Clean Water Act permitting for wetland projects.

Companies such as Resource Environmental Solutions of Baton Rouge, La., and Houston’s Mitigation Solutions are among companies actively pursuing the shale mitigation market. Restoration Systems sponsored the first bank in Pennsylvania targeting mostly gas-line construction associated with shale drilling, Howard said.

“There’s still plenty of growth in mitigation banking, even in a stagnant or declining economy,” Howard said.

The Army Corps doesn’t compile complete mitigation bank statistics from all 38 of its districts. But Dave Urban, EIP’s director of operations and past president of the National Mitigation Banking Association, keeps an informal and incomplete tally of the number of federal bank applications approved: 10 in 2008, 68 in 2009, 78 in 2010, 86 in 2011 and 38 so far this year.

“In 2009 and 2010, you just started seeing a flood of mitigation bank applications,” Urban said. “Now I think you’re seeing a lessening of application because, I think, people realize that in spite of a rule, the process is still balled up in local issues.”

‘No net loss’

The bottom line in the wetland-mitigation business is that swamps are valuable.

Once seen as mosquito-breeding nuisances, wetlands are now protected as sponges for recharging aquifers, filters for polluted stormwater and collection basins for floods. They are also nurseries for multibillion-dollar fisheries and breeding grounds for migratory waterfowl.

For too long, wetland values went unrecognized. Most landowners sought to drain or fill them. By the 1980s, the wetland area in the United States had shrunk to 53 percent of its size when the nation was founded.

Soon enough, plugging drainage ditches and returning these lands to their previous, swampy condition would become brisk business.

In 1989, President George H.W. Bush declared a “no net loss” policy toward wetlands. Enforcement by federal agencies opened the door to mitigation banking by requiring that marshes and other wetlands destroyed had to be replaced with new ones either created or restored.

A 1990 memorandum of agreement between the Army Corps and U.S. EPA followed that laid out guidelines for determining the type and level of mitigation necessary.

Developers began to set aside portions of their projects, where they would attempt to create or restore wetlands. Studies found these tiny, scattershot restoration efforts typically performed poorly. They were also difficult to inspect.

Oversight problems were highlighted in a 2005 report by the former General Accounting Office (now the Government Accountability Office), which found that the Army Corps had failed to check up on mitigation projects done by real estate developers to offset resource destruction.

The 2008 regulations are aimed at solving those problems. They require developers confronting wetlands to strive to avoid destruction and then to minimize impacts. If destruction is “unavoidable,” rules say, builders can look to mitigation.

Industry promotes legislative fix

But mitigation bankers say there are still regulatory uncertainties.

One of the biggest headaches, they say, involves uncertainty over where a bank must be located to service a particular project. Regulations call for a “watershed approach,” meaning banks must be within the same watershed. The methods used to define a watershed can be inconsistent and vary among 38 Army Corps districts, according to the National Mitigation Banking Association, the industry’s trade group.

The industry is also pushing legislation sponsored by Sen. Mary Landrieu (D-La.) in the Senate (S. 664) and Rep. Charles Boustany (R-La.) in the House (H.R. 2058) to allow the sale of mitigation credits to be treated as capital gains for tax purposes. Neither bill has gained traction.

Distrust still lingers among some environmentalists who note the poor early track record of the mitigation banking industry and argue that banking can, without proper oversight, encourage wetland destruction.

“I think banking has a lot of potential promise, but the combination of the profit motive and the science just all have a tendency to work against genuine replacement of the wetland functions,” said Jan Goldman-Carter, wetlands and water resources counsel at the National Wildlife Federation. “The bank is essentially paying for wetlands destruction somewhere else.”

Urban, an environmental engineer and former Army Corps permit officer, says the cure to poor oversight is greater transparency. Boundaries of watersheds and siting of mitigation banks are dependent on factors ranging from flora and fauna to soil types and are not always conducive to simple rules.

“There’s some people who advocate simple solutions, but simple solutions are not always the right solutions,” he said.

“It keeps all boiling down to transparency,” Urban added. “We want the administrative process to be transparent and to include people like us who have expertise in this world who could be helpful.”

Well, there is at least one one difference between the eerily similar stories of neighboring North Carolina’s fee program: North Carolina’s program had collected $58 million when the creek hit the fan, whereas the Tennessee Stream Mitigation Program had managed only a $54 million war chest.   

From: http://www.newswithviews.com/Nelson/kelleigh157.htmTENNESSEE GOVERNOR HASLAM, WATER RIGHTS AND AGENDA 21 CORRUPTION

PART 1 of 7

By Kelleigh Nelson

July 8, 2012

NewsWithViews.com

……The developer bypassed applying for and receiving proper permits, bypassed state environmental laws, and failed to abide by the federal Clean Water Act.

Key to Alphabet Soup Environmental Groups

TDEC – Tennessee Department of Environmental Conservation

TWRA – Tennessee Wildlife Resources Agency

TWRF – Tennessee Wildlife Resources Foundation

TSMP – Tennessee Stream Mitigation Program

AMEC – American Engineering Consulting (Ireland owned)

TDOT – Tennessee Department of Transportation

WWTP – Waste Water Treatment Plant

CWA – Clean Water Act

WRC – Wolf River Conservancy

Tennessee Water Rights

Tennessee Water Law, (T.C.A. 69-3-102 (a) (b), states, “waters of the state are held in trust for the citizens..”). So, the citizens of Tennessee own the rivers, the lakes, the streams, the aquifers, the channels, the spillways, every drop…yes, all of Tennessee’s water. We own it. That’s what the law states. So why then is the state selling our streams and our water rights for $200 per linear square foot through the Tennessee Stream Mitigation Program (TSMP) “In Lieu Fee” program? The Federal Clean Water Act (CWA) requires “No Net Loss” regarding mitigation issues. Easy enough. Whatever natural resources are damaged due to development, that same amount MUST be replaced (mitigated). Thus, the “No Net Loss” standard. An “In Lieu Fee” is substituted for the “No Net Loss” requirement in the CWA, when the stated requirement cannot be met, or would be quite difficult to satisfy.

In other words, if you pay a fee “In Lieu Of” repairing the stream you are damaging with the development, the Tennessee Stream Mitigation Foundation is supposed to use those funds to recreate a similar water way to replace the one which was lost. This means, “No Net Loss.” According to the Tennessee Stream Mitigation Program (TSMP) they have made great strides to provide mitigation to offset stream impacts permitted through §404/401 of the federal Clean Water Act. These “Mitigation measures” are supposed to include:

1. Restoration of degraded stream reaches and/or “riparian zones”; (those areas that surround water bodies in the watershed and are composed of moist to saturated soils, water-loving plant species and their associated ecosystems)

2. New (relocated) stream channels;

3. Removal of pollutants from and hydrologic buffering of storm water runoff; and

4. Any other measures which have a reasonable likelihood of increasing the resource value of a state water.

In layman’s terms, this is saying it is supposed to be nearly impossible for a developer to destroy a stream. However, the law is set up to where the developer is to try to build around the stream first. If that doesn’t work, they’re supposed to engineer and find a newly approved path to direct the stream with minimal damage. Lastly…and here’s the caveat, if that doesn’t work, the developer writes a check and destroys the stream. In other words, any developer can simply buy the stream through “In-Lieu-Fee” rather than fixing or mitigating the problem he’s made, and therefore, destroy the stream for development purposes. The check is supposed to go to repairing a stream somewhere else, but once it is written, the company is off the hook. They have no responsibility in terms of correcting the stream or mitigating any downstream damage to other property owners, as in the case of the Wolf River Airport.

The money goes to the TSMP and they are supposed to either repair the damaged stream or find another stream that is in need of repair within close proximity to this development and use the monies for same. Every foot of stream damaged is to be replaced with a foot of stream. This is “NO NET LOSS” required by the Clean Water Act. The Tennessee Stream Mitigation Program began in 2002 and so far $56 million has gone into the program so developers could do what they want with a stream.

What is happening in Tennessee is, rather than doing “No Net Loss,” they’re paying this “In Lieu Fee.” The TSMP is just taking a fee rather than doing all of the work they’re supposed to do according to the Federal Rules of Mitigation and the Federal Clean Water Act. When wetland mitigation, which is legal, came down to the states in the 2002 Memorandum of Understanding from the Federal Government, it was mandated that it be under the Tennessee Wildlife Resources Agency, (TWRA). The Agency was to establish a Tennessee Wildlife Resources Foundation (TWRF) and this foundation is to administer the mitigation program.

In addition, developers can purchase “mitigation credits” which are basically an acre a piece, and cost $40,000. These credits are not readily available to the smaller developers who couldn’t afford three or four acre purchases of these credits. However for the big developers, the price is not outrageous. In the case of Wolf River Airport, there are two streams upstream from the airport that both come down and converge on the airport property. They are about a mile to a mile and a half away. With the curvature of the streams, or the natural bends of the streams, each is about three miles of stream.

Norfolk-Southern and William Adair bought 4900 ft., and in another case, 3600 ft. of stream and paid money into a bank account for causing damage and tearing up those streams. Rather than mitigate properly and consider downstream use, or downstream impacts, as called for under the Federal Rules of Mitigation, the TSMP just put the money in an account. The key here in Tennessee is that they took the money and put it into an account that was not consistent with the 2002 agreement they had reached with the federal government under the Clean Water Act when Mitigation came to this state. What they did was they put that money in a private bank account off the books of the state of Tennessee. That bank account currently has $13 Million in it, and has had over $56 million run through it. The TSMP takes the money, the land, and the water through the Mitigation Banks. The non-profits, for-profits, and other third party organizations run the Mitigation Banks. The Corps of Engineers is doing their books (reports) and filings in order to keep it off of the books of the state, bypassing the CLEAN WATER ACT. This is against both state and federal law.

They couldn’t have it on the books because IN LIEU FEE is not in the regulations or the law and doesn’t meet the federal mitigation requirements of NO NET LOSS. All of this is to get around the federal CLEAN WATER ACT, and Tennessee’s own water laws. This is an illegal process of taking money and putting it into an off-the-books bank account and nobody knows what they’re doing with it. TSMP even put $5.4 million into Fannie Mae–outside of state fiscal oversight–and they’re totally unregulated!

There’s no cap on how much nature these developers can tear up. In the Wolf River Airport case, the developers bought 4600 ft. of one stream and 3600 feet of another. However, there are three miles of each stream, and they’re tearing up the entire two streams all the way to the Wolf river.

Mitigation is supposed to rectify any downstream impacts, but as you’ll see in this story, it is simply not happening. Codifying (to reconcile the law and incorporate it into the law) the “In Lieu Fee” and “No Net Loss,” is the official stated goal of mitigation.

In fact, an amendment was even removed from SB2211 in the House that would have made downstream impacts a more significant issue. We’ll get to SB2211 and HR2349 later in this tome.

In Part 2, we’ll discuss the Cast of Characters.

Click here for part —–> 1, 2, 3, 4, 5, 6, 7,

© 2012 Kelleigh Nelson – All Rights Reserved

E-Mail: Proverbs133@bellsouth.net

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