127.17 Wetland and Stream Mitigation Banking

127.17.1 Introduction

127.17.1.1 Overview

The wetland and stream mitigation bank concept is spelled out in federal and state guidance for unavoidable wetland and stream impacts permitted under Section 404 of the Clean Water Act. The concept uses a financial banking analogy where constructed wetland or stream mitigation (money) is given credit (deposited) to an account to be debited (spent) in the future. MoDOT’s statewide umbrella banking instrumentexplains how MoDOT develops and operates individual bank sites.

Banking service areas are specific geographic regions that have gained U.S. Army Corps of Engineers (COE) approval for the location and development of bank sites. Once developed, a bank site will then primarily serve the service area within which it is located; however, it can potentially provide mitigation for impacts outside the primary service area. These areas do not follow MoDOT district boundaries, as they are based on hydrologic and biological boundaries. They are more inclusive than small watersheds that were often used as the limits for on-site mitigation of impacts before banking was established. Federal banking guidance specifies that larger, but still watershed-based, service areas can be used for banks in the case of linear projects such as highways. MoDOT’s banking instrument is based on the larger watershed-based service areas.

127.17.1.2 Laws and Regulations

• Clean Water Act (33 USC 1251 et seq.)
• Rivers and Harbors Act of 1899 Section 10 (33 USC 403 et seq.)
• Federal Guidance for the Establishment, Use and Operation of Mitigation Banks 60 FR 58605
• Federal Highway Administration Guidance on Mitigation of Impacts to Wetlands (23 CFR Part 777) revised March 30, 2001
• National Environmental Policy Act (42 USC 4321 et seq.)

127.17.1.3 Process

127.17.1.3.1 Developing a Bank

The environmental specialist initiates the process to jointly develop a mitigation bank proposal, which is submitted to an interagency review team (IRT) headed by the COE for review and comment. Following the preliminary review, an official application (prospectus) shall be submitted for IRT approval. It is prudent to have banks approved and constructed prior to project impacts, because there are performance standards for hydrology and vegetation that require time to achieve.

The district will purchase land in fee-simple title or negotiate with another agency or landowner for a suitable site and will place a conservation easement or deed restriction or covenant on the bank property. The district or consultant will design the plans for the site in a similar fashion as designing a standard wetland and stream mitigation. Establishing the bank may also require a Section 404 permit when stream or wetland impacts are anticipated at the bank site.

MoDOT prepares an individual wetland-banking prospectus for a proposed bank site. Once the prospectus is approved by the IRT, which is made up of FHWA and natural resource agencies, MoDOT can develop a plan, including wetland or stream design, for the IRT review and approval.

The environmental specialist will help the district find an appropriate site, help write the prospectus and draft the banking development plan, prepare a section 404 permit, if needed, and help negotiate with the IRT. Since finding suitable and reasonably priced sites without impacts to other resources (particularly cultural resources) is sometimes difficult, the bank site selection process should be started six to twelve months before submitting a banking proposal to the COE. Once the COE receives a completed bank development plan, processing takes about ninety days, including time for public comment. The district will also complete a hydrographic survey of the site for the design process and the as-built condition.

Once the bank is established, the environmental specialist will do the monitoring and the accounting for the crediting and debiting, based on the directives given in the statewide and individual banking instruments.

A banking service area may cross several district boundaries. At this writing there is no established policy for the trading of credits across district boundaries. It is recommended that districts consider negotiating the terms for financing and debiting a bank that could provide credits for two or more districts. One note of caution: over-building a mitigation site without a formal banking agreement is not allowable for use as a bank. MoDOT does not receive “credit” for the extra mitigation in an over-built site.

127.17.1.3.2 Using a Bank

Once a bank is established, using the bank for Section 404 nationwide permit impacts is preferred. A request to debit the bank is included in the project permit application letter. For individual permits, using the bank is an option once it is established that MoDOT has avoided and minimized impacts and has exhausted on-site mitigation options. Often mitigation can be split—with a portion of the mitigation done on-site and the remaining mitigation debited from the bank.

The schedule of credit availability follows a specific set of criteria. Ten percent of total anticipated credits may be debited immediately after the banking review team has approved a specific site proposal and MoDOT has purchased a construction easement or property with a deed restriction or covenant. The environmental specialist and the COE keep the accounting of the credits and debits for a bank.

If the bank fails to meet any of its success criteria, the district design staff and the environmental specialist will prepare a remedial action plan. Debiting the bank ceases when it is determined that the bank is at a deficit or MoDOT is not correcting problems that lead to failure in meeting the success criteria. MoDOT will not be held responsible for natural catastrophes as outlined in the statewide instrument. MoDOT or other owner of the bank site will allow access to the IRT for inspections.

127.17.1.3.3 Wetland and Stream Banking Details

Refer to the banking instrument for details on the establishment, use, operation, and maintenance of a bank site. Otherwise mitigation banking is a process similar to on-site wetland and stream mitigation.

127.17.2 Project Development Milestones

EPG 127.17.2 outlines important milestones throughout the project development process for construction projects that either require the use of an existing mitigation bank (“Standard Project”) or projects involving the construction of a new mitigation bank (“Mitigation Banking Project”).

127.17.2.1 Initial Screening Stage

127.17.2.1.1 Standard Project

At the initial project screening stage for a standard construction project, it is unknown whether using a wetland or stream bank is appropriate. EPG 127.4 Wetlands and Streams contains details on wetland and stream processing.

127.17.2.1.2 Mitigation Banking Project

To develop a wetland and/or stream mitigation bank, the need for a wetland bank is determined and screening for potential sites is initiated. The environmental specialist will use information from wetland mapping, topographic maps, and the USDA (on farm parcels eligible but not funded under their Wetland Reserve Program) to identify potential sites adequate for mitigation banking. District personnel who know of excess right of way or available land in the district that is located in floodplains of local streams but not already wetlands should contact the environmental specialist with this information.

127.17.2.2 Location/Conceptual Plan Stage

127.17.2.2.1 Standard Project

At the location/conceptual plan stage, the environmental specialist may know that wetland or stream mitigation will be needed to complete the project and that a bank may be appropriate for use. The environmental specialist will propose the wetland or stream bank as mitigation in the environmental document. EPG 127.4 Wetlands and Streams contains details on wetland and stream processing.

127.17.2.2.2 Mitigation Banking Project

The environmental specialist will assess sites for the potential of becoming a mitigation bank site. It is important to look at several sites, because the IRT may want to compare sites or may reject a proffered site if they feel it does not have the best potential for success. The environmental specialist, with help from the district, will collect data, including aerial photographs and wetland and soils information, and will develop a banking prospectus for the IRT. See the banking instrument for details on developing a prospectus.

127.17.2.3 Preliminary Plans Stage

127.17.2.3.1 Standard Project

At the preliminary plans stage, the environmental specialist conducts wetland delineations and stream determinations that will provide the approximate acreage of wetland or length of stream impacts that will occur. This information will later be used to determine how much wetland or stream will be debited from the bank. EPG 127.4 Wetlands and Streams contains details on wetland and stream processing.

127.17.2.3.2 Mitigation Banking Project

At the preliminary plans stage, the environmental specialist may need to do wetland delineation and stream determination for the banking site, if some wetlands or streams occur on the site. Under the direction of the environmental specialist, the district (or consultant under contract) will design the mitigation bank for the location approved by the IRT. The design and further information about the site will be submitted to the IRT as a mitigation bank proposal for their approval.

127.17.2.4 Right of way Plan Stage

127.17.2.4.1 Standard Project

At the right-of-way plan stage, the environmental specialist will complete the Section 404 permit application and, if appropriate, will propose the use of the mitigation bank in the application. EPG 127.4 Wetlands and Streams contains details on wetland and stream processing.

127.17.2.4.2 Mitigation Banking Project

At the right-of-way plan stage, MoDOT should have obtained IRT approval for the bank site and plan. If MoDOT will own the bank site, the district right of way section should purchase the site in fee-simple title and establish an appropriate real estate instrument to achieve protection of the property. If the bank is owned by others, the district right of way section should negotiate the purchase of the use of the land for banking and place a conservation easement, deed restriction, or covenant on the land involved in the bank site.

127.17.2.5 Final Design Stage

127.17.2.5.1 Standard Project

At the final design stage, the Section 404 permit process should be close to completion and the COE should have determined whether the mitigation bank can be debited and at what ratio. Article EPG 127.4 Wetlands and Streams contains details on wetland and stream processing.

127.17.2.5.2 Mitigation Banking Project

At the final design stage, the plans for the mitigation site should be readied for inclusion in the letting, with the contract containing appropriate job special provisions (JSPs) developed by the environmental specialist and the district.

127.17.2.6 Letting

127.17.2.6.1 Standard Project

At the letting stage, the environmental specialist will record the debiting of mitigation banking credits from the bank.

127.17.2.6.2 Mitigation Banking Project

At the letting stage, the bank construction plan, JSPs, and Section 404 and 401 permits, if needed, should be in place.

127.17.2.7 Post-Letting Activities

127.17.2.7.1 Standard Project

No further work is required for the mitigation bank at the post-letting stage for the standard project.

127.17.2.7.2 Mitigation Banking Project

The banking mitigation site should be built to plans. Both the district design section and the environmental specialist will review and approve any changes to the design before such changes are executed. Care should be taken about how much material is taken from a site. Accurate staking for elevations and boundaries is critical to getting the correct depth of water in the site. Areas that are too dry or where water stands too deep in a mitigation bank may not be credited to the bank.

127.17.3 Maintenance Activities

During the monitoring period for the mitigation bank, the environmental specialist monitors and ensures proper maintenance of the bank site, as well as keeping the banking ledger up-to-date. The specialist may also recommend that further activities need to occur to maintain the bank.

If MoDOT is the entity that maintains the mitigation bank, the Maintenance Division may be called on to do certain activities in the bank area. Those activities may include, but are not limited, to mowing and tree replacement. However, all activities in the bank are regulated by the IRT and may require their approval before execution. MoDOT’s statewide umbrella banking instrument and the individual banking instrument explain how MoDOT operates individual bank sites.