july-august 2012 9
and the regulators rests on one item: the bank performance stan-dards.
us, regardless of the mitigation banker’s personal or profes-sional opinion, the biological, legal, and
nancial performance stan-dard assurances that are listed in the mitigation bank instrumentare what de
ne the bank’s success. If the mitigation banker does notsatisfy these success criteria set by the regulatory agencies, then thebanker would be prohibited from selling credits. In addition, beforeany mitigation credits are released, documentation and, often,
eldvisits are performed to ensure that the performance standards arebeing implemented.
e performance standards set by the regulatory agencies notonly include ecological standards, but also legal,
nancial, long-termmanagement, and accounting standards. Often, the ecological stan-dards, such as the time, presence, and depth of hydrology on a site,the amount of speci
c types of vegetation and density of cover, anda limit or removal of non-native, invasive plant species are the is-sues on which most scienti
c studies focus.
e debate surrounding wetland mitigation bank success or failure typically revolves aroundthe appropriateness or rigor of these speci
c standards, which areoften subjective in nature. However, these biological standards aretypically determined by a consortium of regulatory agency scientistsand are not driven by the mitigation bankers.
e legal and
nancial assurances are much easier for determin-ing the adequacy of performance standard attainment, since they are based on documents, such as a conservation easement or deedrestriction being recorded on the property, letters of credit, surety bonds, or insurance policies being posted to the project during im-plementation, and, in some cases, nonwasting endowment accountsbeing created to fund the long-term management of the site.
us, to determine whether a wetland mitigation bank is suc-cessful in meeting its agency-approved performance standards, oneneeds to examine those banks that have either sold all of their credits(because they fully met all of their performance standards and alltheir credits were released) or are approved to sell credits (becausethey are meeting their performance standards currently).
In this study, we reviewed all the Corps districts’ reports on miti-gation banks within the RIBITS database to determine if they aremeeting their performance standards. As of February 26, 2012,the RIBITS database contains information from 37 of 38 districtsshowing 757 banks listed in RIBITS. One of the challenges to as-sessing data is that RIBITS is updated on an ad-hoc basis. For ex-ample, we downloaded data from May 23, 2012, and found that a total of 1,160 banks were listed on the site. At the recent NationalMitigation and Ecosystems Banking Conference, we discovered thatnot all data are available to the public, although database managersare working to make everything publically available.
e study compiled the data by its de
nitions related to Ap-proved, Sold Out, Suspended, Terminated/Withdrawn banks.
nitions for the various designations are typically de
: Meeting or having met the required mitigation bank instrument’s performance standards and are in good standing with the agencies and approved to sell credits;
: Banks that have fully met all their performance stan-dards and have allocated all of their credits (although monitor-ing may continue for an additional agreed-upon time);
: Banks that have had their credit sales suspendedby an interagency review team (IRT) for noncompliance with the mitigation bank instrument or at the request of thebank sponsor; or
: Banks that did not complete theirbank permitting process (oftentimes this is during the prospec-tus stage) or were withdrawn for further consideration by theIRT.
e use of this designation varies by district.Once we compiled all of the data from RIBITS, we thentotaled the
gures by category and applied percentages to ag-gregate programs and by individual category. We also looked atranges related to the categories and made note of the amount of categories by district.For all banks listed as “Suspended,” we conducted a phoneand e-mail survey with set questions to determine the reason forthe suspension, e.g., noncompliance for biological,
nancial, or le-gal reasons or requested by bank sponsor, the status in relation toreinstatement to sell credits, and a determination of the status of theland, e.g., was a permanent land restriction placed on the property. We compiled the data related to the phone survey by category andresponse, and some of the individual comments were noted, but notattributed to the individual bank or sta
As of February 26, 2012, the study reviewed a total of 757 cur-rent and previous banks in the United States listed in RIBITS orreported to us by the one district not on RIBITS. Of these banks,646 mitigation banks were, as of the date of the review, meeting per-formance standards and were approved to sell credits. Another 62banks had sold out all of their credits and thus had satis
ed the mit-igation bank instruments’ performance standards (although many had ongoing monitoring requirements).
e Terminated (23) and Withdrawn (1) banks were never approved to sell credits and shouldnot be considered in the statistics.
e two blank listings are forproposed banks.
erefore, adjusting for those banks listed underthe three nonapproved or implemented bank categories, as of Febru-ary 26, 2012, 722 (757 minus 35) banks are shown on the RIBITS
“[R]egardless of the mitigationbanker’s personal or professionalopinion, the biological, legal, and
assurances that are listed in themitigation bank instrument are what
National Wetlands Newsletter, Vol. 34, No. 4, Copyright© 2012 Environmental Law Institute® Washington, DC, USA.