Making Fully Informed Decisions
Researchers at Florida State University and Duke University have found that federal regulations on the mitigation of wetland damage result in the transfer of the benefits of wetlands from urban areas to rural ones.
Using data they gathered from mitigation banks in Florida, the pair showed that what Oconee County experienced when the U.S. Army Corps of Engineers granted a permit allowing the developer of a proposed shopping mall to pipe and fill tributaries of McNutt Creek and mitigate the damage in rural Greene County is typical.
The researchers found that the benefits of wetlands such as flood control, groundwater recharge, water filtration and sediment control are taken from urban areas and given to rural areas as a result of the federal mitigation procedures.
"So long as federal and state wetland regulation programs do not acknowledge the geographic distribution of ecosystem services as a criterion for regulation and a factor in wetland mitigation policy, the ‘market’ for credits will not do so either," J.B. Ruhl and James Salzman wrote in 2006 in the National Wetlands Newsletter.
Katie Sheehan, a staff attorney at the River Basin Center in the Eugene P. Odum School of Ecology at the University of Georgia, came across the article while doing legal research for a resolution she drafted after talking with me about the mitigation process for the proposed Epps Bridge Centre on Epps Bridge parkway.
The resolution, which I asked the Board of Commissioners back in April of 2009 to consider, would put the county on record with the Corps of Engineers as preferring that mitigation for stream and wetland damage in the county in the future be carried out in Oconee County or upstream from Oconee County, rather than downstream, as was the case for the Epps Bridge Parkway development.
In an article published by the pair in 2009, they argue that changes in Corps of Engineers’ regulations in April of 2008 now "enables the EPA and the Corps to consider the issues arising from the migration of wetland services from urban to rural areas."
These new rules, they argue, encourage the Corps to locate mitigation where it is most likely to replace lost functions and services from the streams and wetlands destroyed.
I contacted Ruhl in November after Sheehan sent me a copy of the 2006 article. Ruhl referred me to his web site, where that article and the more recent one are posted.
Ruhl is the Matthews and Hawkins Professor of Property at the Florida State University College of Law. Salzman is Samuel F. Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy at Duke University.
The researchers examined 24 mitigation banks operating in Florida and matched them with the projects for which mitigation credits from the banks were sold.
The Corps of Engineers allows developers and others who want a permit to put dredged or fill material into streams and wetlands to purchase credits sold by mitigation banks as a condition for issuance of the permit. The mitigation banks often operate as businesses.
Ruhl and Salzman used data from the U.S. Census Bureau for the census tracts in which the projects were located and for the census tracts within three miles of the mitigation banks. They computed an average for all the projects of a given bank.
The data they report for the 24 Florida banks show that the population density for the projects was on average 1,114 persons per square mile, while for the banks population density was only 440 persons per square mile.
The researchers also used census data to look at differences between projects and banks in terms of the wealth and minority status of those affected, but they found little difference in either case.
Because of the differences in terms of population density, Ruhl and Salzman said the Corps should change its "incentive structure" by giving more credit for mitigation that is "closer to the urban areas losing wetland resources."
Developer Frank Bishop is planning a $76 million shopping center east of Lowe’s on Epps Bridge parkway and has been given permission by the Corps to mitigate the damage he will do to streams and wetlands on the site at a mitigation bank he developed on land he purchased in Greene County.
Bishop filed his application for his permit to pipe and fill the streams and wetlands on his shopping center site in 2007, and public comment was taken in late 2007 and early 2008 before the new regulations went into effect. He was granted his permit in January of 2009.
Once the state completes the Oconee Connector Extension, now under construction, additional land near Bishop’s development will be open for development.
The streams that Bishop is piping will flow above ground on some of that undeveloped land, and developers will need permission from the Corps of Engineers if they wish to alter those streams.
I asked the Board of Commissioners in April of 2009 to pass the resolution stating its preference that any future mitigation for damage to streams and wetlands in the county be carried out in the county or upstream of the county so the county would benefit from the restoration.
The 113-page Compensatory Mitigation for Losses of Aquatic Resources Final Rule issued by the Corps of Engineers in April of 2008 stipulates procedures for the Corps to follow to make sure information is available to the public during the review process.
A separate "Questions and Answers" document carrying the Corps and the Environmental Protection Agency logos states that one of the "primary goals" of the new Rule is to "Enhance public participation in compensatory mitigation decision-making."
Were the Oconee County BOC to pass the resolution, citizens or the county government itself could inform the Corps during the review process for permit applications in the future that the county had passed the resolution.
The BOC sent the resolution to the Citizen Advisory Committee for Land Use and Transportation Planning, which held a hearing on the resolution on November 10.
Wayne Provost, director of Strategic and Long-Range Planning for the county, invited Bishop to provide feedback on the resolution and also argued against it himself at the meeting, according to the draft of minutes of that meeting.
The Committee voted 9-2 not to recommend the resolution to the BOC, which has yet to act on the recommendation.
In the 2009 article, published in the Stetson Law Review, Ruhl and Salzman wrote that the April 2008 Rule of the Corps replaces a "mish-mash of guidances, inter-agency memoranda, and other policy documents" controlling mitigation.
In that article, they also summarized other research findings that are consistent with their 2006 research showing that the current procedures for mitigation result in the shift of benefits associated with wetlands from urban to rural areas.
Ruhl and Salzman were joined in writing that article by Iris Goodman of the U.S. Environmental Protection Agency.
Policy discussion about wetlands in the past was "biocentric in focus," they wrote, meaning that the discussion was on whether the wetlands that were restored to mitigate the loss associated with issuance of the permit performed the same function and were comparable ecologically.
Wetlands provide "economically important services to human populations as well, such as flood mitigation, groundwater recharge, water filtration, and sediment capture," the researcher wrote in the article. These have not been taken into consideration in past discussions, they said.
Other benefits of wetlands not included in the discussion, they wrote, are air filtration, micro climate regulation, noise reduction, rainwater drainage, sewage treatment and recreational and cultural values.
"The economics of compensatory mitigation inherently shift wetlands…from urban to rural areas, because developers seek high-value land in urban areas whereas mitigation bankers seek less expensive properties in rural areas where opportunities exist to restore aquatic resources," the researchers said in the 2009 law review article.
Given that past Corps procedures did not focus on these shifts, the public probably has not been aware of what was gained and lost in the permitting process, they said.
"Urban dwellers might prefer a shopping center to a wetland and might not mind losing the services associated with the wetland," they wrote. "But if they do not know what and where those services are and the values conferred, they cannot make fully informed decisions."