By: Lucy Harrington, Rocky Mountain Region Director
Long term protection for compensatory mitigation sites can be complicated but are a necessary component to the Clean Water Act compensatory mitigation program. Some of the biggest threats to the mitigation program are the lack of appropriate site protection instruments and identifying accurate funding amounts for long term management. While there is a lot of information out there, the white papers put out by the Institute for Water Resources (IWR) are some of the most comprehensive information tools. They have published a Compensatory Mitigation Site Protection Instrument Handbook and Implementing Financial Assurance for Mitigation Project Success documents that speak directly to these threats, uses and appropriate applications.
The most common forms of site protection instruments are conservation easements, deed restrictions, and management plans. Advantages for the use of conservation easements are that there is a third party looking after the conservation values of the property. This means the mitigation provider and the agencies can rely on someone else to monitor for impacts to the protected resources. There are, however, potential pitfalls of a conservation easement. Primarily, that the third party could either run out of money to monitor the site or close their business. This is where having good long-term funding mechanisms in place becomes important. An endowment fund tied to the conservation easement helps to ensure that long-term monitoring of the easement continues, even if this responsibility needs to be handed off to a different organization in the future.
Another type of site protection is deed restrictions. Advantages for the use of deed restrictions are that the responsibility travels with the owner of the property and the property owner carries the obligation to protect conservation values (wetlands, endangered species habitat, streams, etc.). This can provide more flexibility for landowners but may result in less secure protection for the conservation values of a site as there is not routine third-party oversite of the property.
In either case, under a conservation easement or a deed restriction, each mitigation property should have a long-term management plan associated with it. This allows the conservation values to retain their ecological functions in perpetuity. Long-term management is the responsibility of a land manager. When the land manager takes over the site, it is important that they have appropriate funds to implement the long term management plan. One source of this funding is interest spun off from a long-term endowment set up upon mitigation project establishment. This endowment is then invested in a conservative account and managed by a third party entity. In this manner, funds should remain available for land management into the future. There can be pitfalls, however. One initial pitfall is being able to accurately estimate future costs of management items and imagine potential problems that could occur that could cost money. In addition, the typical mitigation project has to be financially viable, so ongoing highly expensive land management activities can be a challenge to fund. Because of this, it is important to take sufficient time and care to determine current and future costs of different activities and considering effective land management practices that can be implemented efficiently. Using an appropriate calculator like the Long-Term Stewardship Calculator compiled by The Nature Conservancy in 2016 through a US Environmental Protection Agency Wetlands Program Development Grant can be useful tools.
Searching for the appropriate site protection instrument and the right amount of money may take countless hours of planning over months and sometimes years. However, if correctly done the efforts should be worth your time in order to create lasting long term protection for a compensatory mitigation property.