For decades in Hampton Roads, officials have used a legal mechanism called mitigation banking to protect local ecosystems.
If a developer or locality impacts wetlands or river bottom when building a project, they must compensate by paying to restore it elsewhere. Organizations that conduct restoration work can sell credits to developers to meet those requirements – hence the bank-like system.
The goal is for the compensatory work to serve the same river or watershed that is affected by the original development action.
But local environmental groups and some federal scientists now worry that an impending decision by the U.S. Army Corps of Engineers could upend that system.
The Corps has issued a notice of intent to approve a wetlands mitigation project in Prince George County, along the James River east of Petersburg.
The project would earn wetlands credits that could be sold in the Hampton Roads region, which the Corps says would comply with state and federal requirements and follows a lengthy review process.
But environmentalists say allowing restoration to occur so far from local development would violate the spirit of the system and could ultimately “export” wetlands work out of Hampton Roads.
Nearly a dozen groups, including Wetlands Watch, Lynnhaven River Now, the Chesapeake Bay Foundation and the Elizabeth River Project, signed a recent letter to the Corps voicing their concerns.
“A lot of the things that make living along the water such a beautiful thing could be reduced and and just move the area back toward industrial (uses) without having any offsets to fix the damages that are being done,” said Helen Kuhns, executive director of the Coastal Virginia Conservancy, which does restoration work and operates a land trust. “We just want what's right for the waterways.”
The local mitigation banking system picked up steam in the 1990s with a project on about 300 acres near the Great Dismal Swamp in Chesapeake, said Steven Martin, a former environmental scientist and mitigation specialist with the Army Corps’ Norfolk District.
He said it started with guidelines from federal agencies, but “they were basically suggestions.”
The national practice was formalized in 2008 through joint regulations by the Army Corps and Environmental Protection Agency.
The rules “make it clear that in-kind compensation is preferred,” Martin said. “So if you impact salt marsh, you offset it with salt marsh. It needs to be a similar hydrologic regime, a similar vegetation type.”
He believes the project currently under consideration, called the Upper Brandon Farm Mitigation Bank, does not meet those standards.
The project would turn about 37 acres currently used for crop production into a tidal wetland mitigation site to earn and sell resulting credits on the market. It is located within the James River-Kittewan Creek watershed, according to the Army Corps application.
Martin, who’s on the restoration committee of the Coastal Virginia Conservancy, recently conducted a technical analysis of the project outlining environmental groups’ concerns.
He said there are too many differences between the water’s salinity, plants and wildlife habitat between the Hampton Roads area and the Upper Brandon site 50 miles upstream.
“It's providing oranges for the loss of apples,” he said. “They're completely different aquatic resource systems.”
Representatives from the National Oceanic and Atmospheric Administration’s Fisheries Service recently echoed those concerns in a letter to the Corps’ Norfolk District opposing the project’s inclusion of credits in Hampton Roads.
“This opposition is based on our belief that compensation for impacts to salt marsh vegetation will be compensated out-of-kind with tidal fresh credits, thereby compensating for loss to one unique aquatic habitat type with another, which runs contrary to the underlying tenets” of the 2008 federal rule, NOAA wrote.
Martin said environmental groups are also worried about potential financial ramifications.
A project in rural Prince George County is likely to cost less than one in Hampton Roads because of factors such as construction costs and land value, he said.
“That means they can charge less for credits,” making the farther option more attractive for local developers or governments. “I could certainly see that there would be pressure for them to choose that less expensive option.”
In an emailed statement, the Corps’ Norfolk District said it does not intend to export tidal wetlands credits out of Hampton Roads.
“It is important to clarify that the availability of mitigation credits for purchase does not automatically grant authorization for impacts,” the district said. “Any proposed mitigation must be appropriate and practical to the specific impacts proposed. Our goal remains to uphold the integrity of wetland ecosystems while facilitating responsible development through a thorough, balanced permitting process.”
The Corps acknowledged there are natural differences in plant and animal species between different areas, but said the federal rules don’t require an exact match. “Instead, the bank just needs to create wetlands that are similar in overall structure and function to those affected by development.”
The Virginia Marine Resources Commission is the lead state agency overseeing permitting in partnership with the Corps. Spokesperson Zachary Widgeon said in an email that the sale of credits from the Upper Brandon mitigation bank into Hampton Roads “is fully compliant with state law and represents no change to the existing lawful sale of wetland credits in the South Hampton Roads area.”
Officials expect to make a final decision by June 20.
Kuhns urges the Corps to reconsider allowing credits to be sold in Hampton Roads.
“We just want clarity, and want to make sure that restoration stays in the waterways that we live with,” she said. “The restoration work that is going on here is already because of so much damage being done to the waterways.”
