This Week In Biodiversity: What Koontz v. St. Johns Means For Mitigation

Leaders of the mitigation banking industry believe the recent ruling on the Supreme Court case involving compensatory mitigation-Koontz v. St. Johns River Water Management- will not have a negative impact on mitigation banking. Also, Forest Trends’ BBOP (Business and Biodiversity Offset Program) are hosting new webinars this month. 

Leaders of the mitigation banking industry believe the recent ruling on the Supreme Court case involving compensatory mitigation-Koontz v. St. Johns River Water Management- will not have a negative impact on mitigation banking. Also, Forest Trends’ BBOP (Business and Biodiversity Offsets Program) are hosting new webinars this month.

This article was originally published in the Mitigation Mail newsletter. Click here to read the original.

12 July 2013 | Greetings! Last month, the U.S. Supreme Court returned a decision in Koontz v. St. Johns River Water Management District. This is a case that the mitigation banking community’s been keeping an eye on, as it brought into question exactly what kind of mitigation requirements the government can make of private landowners. The Court ultimately offered some clarity there (answer: it’s not acceptable to require or establish compensation on conservation land held by the regulating agency approving the permit). But the ruling did emphasize principles of proportionality and the nexus in determining appropriate compensatory mitigation, and it looks like the burden of proof may fall on mitigators.

That’s a challenge that the industry welcomes,
according to a opinion piece on the case up at To find out why and get a plain-English explanation of the decision, click here.

This month, Forest Trends’ Business and Biodiversity Offsets Programme (BBOP) is hosting two webinars for its Community of Practice:


  • July 18th: Exploring limits to biodiversity offsets. John Pilgrim of The Biodiversity Consultancy will present the paper for which he was lead author: “A process for assessing the offsetability of biodiversity impacts”. The paper outlines a general process for evaluating the relative offsetability of different impacts on biodiversity. In addition, Jeff Manuel of SANBI will present South Africa’s approach to the limits of biodiversity offsets.”
  • 25 July: Species metrics in Bio-Banking New South Wales Australia. Tom Grosskopf and John Seidel of the Metropolitan Branch, Regional Operations, Office of Environment and Heritage, Department of Environment and Conservation, New South Wales, Australia will present NSW’s approach to integrating species metrics into offset calculations.

For details on registration, send us an email at [email protected]. You can access past webinar recordings here.


BBOP also just launched a new No Net Loss discussion group at LinkedIn. Join the conversation here.


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—The Ecosystem Marketplace Team

If you have comments or would like to submit news stories, write to us at [email protected].

EM Exclusives

‘Take’ or Not to ‘Take’-What The Koontz Decision Means For Mitigation Banking

At a time when the mitigation banking industry is looking to cement its place as the gold standard of wetland compensation, June’s Supreme Court decision in Florida’’s Koontz v St Johns River Water Management District decision is not all good news. The case came about when Coy Koontz applied to develop a portion of his property, and the St John’s River Water Management District issued a 404 permit that required a very specific form of compensatory mitigation. Koontz challenged their ability to make such requirement.

There are some immediate take-home messages for mitigation bankers. The decision did establish new legal specificity regarding ‘take’: in order to avoid ‘take’ the permit must follow the “Nollan/Dolan” outcome, which in this case means that it’s not acceptable to require or establish compensation on conservation land held by the regulating agency approving the permit. That decision could potentially direct compensation to privately owned mitigation banks.


The next step of the Koontz decision, however, takes a step away from supporting mitigation banks. The other part of the Nollan/Dolan ruling is that in order to be in line with the law and US Constitution, the compensation must have a ‘nexus’ and be ‘in proportion’ to the impact. The Koontz decision does not provide definitive answers as to what, exactly, needs to be proportional. But it seems plausible that a pro-active and adaptable industry such as mitigation banking will be able to take this in their stride and adapt to this potential burden of proof. It’s also not yet clear just how or what a nexus means in terms of determining how geographically close impact and conservation must be.


At any rate, the National Mitigation Banking Association is not too worried. “I think we as an association and its members will be fine,” says current president Doug Lashley. “Mitigation banks within the same watershed or geographic area as the proposed project should satisfy the nexus test. Further, given that mitigation banking is premised on the use of science-based credits to measure impacts and related offsets, mitigation banks provide a clear pathway to a determination that the appropriate proportionality exists.”

Read the full opinion at

Peru Will Look For Global Commitment On Climate Change During COP 20

With the recent news that the 20th Conference of the Parties to the UNFCCC will take place in Lima, it looks like host country Peru has its sights on finally getting a global agreement on mitigating the impact of climate change. The meeting’s location in a developing country will likely draw attention to the importance of achieving a binding global agreement under the principals of “common but differentiated responsibilities and respective capacities,” following the outlines of the Durban Platform, and in keeping with Peru’s own voluntary efforts to reduce emissions.

Another issue important to developing countries is adaptation to climate change. Little emphasis has been put on it in past negotiations amounting to little advancement made in the sector, especially when compared to mitigation efforts. Pedro Solano, Executive Director of the Peruvian Society of Environmental Law (SPDA), considers creating a climate change adaptation strategy based on ecosystems and environmental compensation, sustained by natural infrastructure, an essential part of the negotiations.



“It is hoped that at a national level there is a priority given to the management of woods and meeting the zero deforestation goal, coupled with updating binding concepts such as the role of the protected areas on climate change issues and the actual internalization of an oceanic strategy for the sustainable provision of food,” he says.

Read more.

Belizean Fisheries Project Could Help Protect Indigenous Lands While Easing Border Tensions

Environmental NGO EcoLogic has big plans for a bi-national fisheries project between between communities residing along both sides of the Sarstoon River in Belize and Guatemala. It’s an ambitious effort: creating a project in an internationally-disputed territory is unusual and something most organizations shy away from. But because poverty is the driving force behind threats like illegal logging and oil exploration that’s destroying the countries’ mangroves, wetlands and rainforests, EcoLogic believes establishing a healthy working relationship between the two nations could solve more than one regional conflict.

“On both sides, people are struggling for survival,” says David Kramer, Senior Manager of Impact, Learning and Innovation at EcoLogic. “We believe a project in this area can be a model for coastal zone management and trans boundary cooperation that can be used around the world.” He hopes they can ultimately build an organized union of local fisherfolk with decision-making capabilities over the region’s natural resource management and even empower them to meet the looming threat of oil exploitation.

Get the full story from Ecosystem Marketplace.

Getting More Of A Good Thing? California Introduces New Law on Conservation Banking

New legislation passed last month in California on conservation banking could invigorate the state’s long-running but stagnate industry and serve as a framework for other states and even at the national level. But the conservation banking sector is in disagreement over if the new rule will actually deliver on intended benefits.


Senate Bill 1148 authorizes new rules and processes around how conservation banking is practiced in the state under the Fish and Game Code. These kinds of specifications seem to be something both regulators and conservation bankers have been wanting for a while. Overall, the reforms are needed to help streamline the process, reduce delays and disagreements, and ensure effective and efficient participation from everyone- agencies and conservation bankers alike. However, they stop short of actual conservation banking standards which many feel would better ensure real conservation outcomes.

Learn more.

Habitat Banking In Spain: Moving Towards The Future

Spain has a shortage of public funds for nature and an overabundance of environmentally valuable land in private hands. It could, therefore, benefit greatly from conservation banking if the legal landscape can be adapted to recognize it. In recent years, interest has picked up among regulators: the Spanish Ministry of Agriculture, Food and Environment floated a proposal to include habitat banking in Spanish legal framework last year, while biodiversity banking is also being considered at regional policy levels.It’s also likely that later this year, the concept “conservation banking” will come to the fore in a modification of the Environmental Impact Assessment National Act.

But with ongoing economic difficulties in Spain, progress has been hindered by the near-complete lack of demand for offsets from projects like infrastructure and new urban development.


In the meantime, the NGO Ecoacsa plans to continue to pilot the model and absorb knowledge and experience from models developed in other countries to learn from mistakes and develop an agile, effective, coherent and constructive model – to be ready whenever the economy and the regulators are.

Keep reading at Ecosystem Marketplace.

The Natural Capital Declaration Moves Forward With Implementation Phase

Last year at the Rio+ 20 Sustainable Development Conference, the Natural Capital Declaration (NCD) was launched and hailed as one of the most promising initiatives of the conference. Now, almost a year later, the NCD marks the start of Phase II, explained in detail in the newly-released NCD Roadmap. Basically, Phase II is the implementation of the Declaration’s four commitments through the process laid out in the Roadmap.


The NCD is a global project that seeks to integrate natural capital – the ecological goods and services the Earth provides that yields direct and indirect benefits, like water and timber – into financial accounting, disclosure and reporting. In doing so, the Declaration believes it will create a broader understanding of natural capital risks in financial markets. The NCD has been endorsed by investors, insurance firms and banks. A total of 41 CEOs from these financial institutions have signed the document, which ultimately aims at a global standard for business for natural capital accounting and reporting by 2020.

Learn more.
Download the Roadmap (pdf).

Althelia Raises $80 Million For REDD And Ecosystem Services

If Christian del Valle is right, the Althelia Climate Fund will make money over the next eight years for the Church of Sweden, the European Investment Bank, the Finnish Fund for Industrial Cooperation (Finnfund), and the Dutch Development Bank (FMO, Financierings-Maatschappij voor Ontwikkelingslanden). It will do this by investing in certified commodities, sustainable agricultural produce, carbon credits, and other ecosystem-service projects across Latin America, Africa, and Asia – spawning in the process imitators who will funnel billions into sustainable land-use projects around the world.


“We will provide funding to projects that are early-stage in nature or pilots in need of scaling up,” says del Valle, who is Managing Partner and Chief Investment Officer of Althelia Ecosphere, the Fund’s management Company. “These investments are often overlooked or perceived as being too complex (or risky) for conventional sources of capital.”

The full article’s here.

Mitigation News

Charting the Empty Places on the Biodiversity Finance Map

The 40 most severely underfunded countries contain 32% of the world’s threatened mammals, according to a study published in the Proceedings of the National Academy of Sciences. The authors found that the estimated total annual expenditure on global biodiversity was approximately US$21.5 billion for 2001–2008. Of this amount, US$1 billion represents international biodiversity aid. The major biodiversity aid donors were the Global Environment Facility (22% of biodiversity aid spending) and the World Bank (19%). The largest bilateral donors for biodiversity were the United States (7.5%) and Germany (5%).

The study shows that underfunded countries are often neighbors, creating areas where underfunding affects species across their entire habitat. This trend is evident in the region where Malaysia, Indonesia, and Australia are located. There is also a pattern of underfunding in arid and semiarid lands across Central Asia, Northern Africa, and the Middle East. The analysis is a shout out for better coordination between the few donors that control the bulk of the international aid.

Learn more at Monga Bay.

Does a Virginia Mitigation Plan Buck the 2008 Rule?

The State of Virginia recently approved the construction of the Cobbs Creek Reservoir which comes with a very controversial mitigation plan – one that the Corps has yet to approve. Under the plan, 75% of stream impacts will be offset with land already under protection in the Cumberland State Forest. 19.5% of mitigation will come from private mitigation banks, and 5.5% will come from Swift Island, through permittee-responsible mitigation actions in Buckingham County, which will also provide all of the wetland mitigation credits. For private bankers, this plan looks like a bypass of the 2008 rule which clearly states that mitigation banks should be the first option when choosing offset actions, as they provide more environmentally valuable mitigation by restoring and creating habitats. Other questions being asked are whether this mitigation plan generates any additionality, and whether the State Forest lands is under eminent threat that would justify the proposed plan.

Learn more.

Trade-Offs Between Income and Cultural Values in a Chinese PES Effort

A recent study on the environmental and socioeconomic effects of payments for ecosystem services (PES) highlights the need to integrate local context to improve program performance. The study, tracking a PES initiative in China’s Wolong Nature Reserve for giant pandas, showed that the program contributed to improved forest cover, as well as improving household income. In this region, total household income doubled from 1998 to 2001 and quadrupled from 1998 to 2007.

The households that were interviewed reported that the program had overall been beneficial, but loss of crops due to wildlife raiding and restrictions on forest use that limited access to forest products, often tightly linked with local customs and traditions, were common criticisms. The study’s authors noted the need to design programs that achieve conservation goals without compromising the cultural values associated with forest communities.

Read more at Science Daily.

Bad News for the Taxpayers Funding the National Flood Insurance Program

After five years of number crunching and politics, the Federal Emergency Management Agency (FEMA) released a study on the Impacts of Climate Change and Population Growth on the National Flood Insurance Program (NFIP) through 2100. Some of the hair-rising findings: the risk of flooding in the US will increase 45% by 2100, largely because of climate change. These findings will not only have implications on residents of flood zones, but on taxpayers. With flood risk areas increasing, NFIP will have to insure 80% more properties than it does today. The study also points out that the “average loss for each property could rise as much as 90%.” Additionally, individual premiums per policy are expected to increase approximately 20% to 70%.

Private insurers have been backing away from flood-prone areas for years – perhaps this report will serve as a wake-up call for FEMA. As Peter Lehner, Executive Director of the Natural Resources Defense Council writes at the Huffington Post, “FEMA needs to factor climate change into state plans for dealing with disasters…and flood insurance needs to be priced commensurate with its risks in order for the NFIP to survive. The program was meant to be a deterrent to building in flood plains, and instead, it’s become a resource that encourages developers to do so.”

Get commentary at the Huffington Post.
Download the study (pdf).

Puma, Virgin Group Announce Plan B

High level commitments have been made by leading business and political leaders in an effort to promote “Plan B”: a ten-point plan that seeks to transform the way business is done. The group includes Sir Richard Branson from Virgin Group, Jochen Zeitz from Puma, and other high profile leaders from Unilever, Natura, Tata Group, United Nations Foundation, Rockefeller foundation, among others. The B Team will work to create a business model that addresses three key aspects: accounting methods, incentives, and leadership in an effort to address growing challenges, such as unemployment, inequality and the unsustainable use of natural resources. According to Puma chairman Jochen Zeitz, “The B Team will help to catalyze a shift away from the existing short-term, unsustainable mindset towards the long-term interest of people, the planet and the wider economy. Tackling these three challenges is a starting point for a ‘Plan B’ to form.” Details of Plan B have not been released so far.

Read more at GreenBiz.

Business in a New Climate

The United Nations Environment Program (UNEP) released the GEO-5 for Business: Impacts of a Changing Environment on the Corporate Sector which builds on the findings of UNEP’s fifth Global Environment Outlook (GEO-5) report, released in June 2012. The GEO-5 for Business analyzes the impacts and risks associated with climate change and natural resource scarcity in the construction, chemicals, power, mining, finance, food, healthcare , tourism, Information and communication technology (ICT), and transportation sectors.

The report shows that the increased frequency of extreme weather events, often linked to climate change, is a source of risk to all sectors, but at the same time it will be a source of new business opportunities. Some of the implications for business highlighted in the report:


  • The cost of energy, food, and other commodities will rise.
  • Severe weather is likely to increase the cost of operation and materials and will lead to disruption of operational and supply chains.
  • As urban populations increase, there will be new and growing markets for urban expansion that will lead to greater competition for arable land and greater pressure to increase natural resources. In cities, around 60% of the infrastructure needed to meet urban population demands by 2050 still needs to be built, presenting significant business opportunities for greener urban construction and retrofits.
  • As critical habitat becomes more scarce, businesses will be subject to increased market, reputational, and regulatory pressure to reduce impacts.


Access the report here.

Indian Industry “Surprised” by Biodiversity Tax Ten Years in the Making

A 2% biodiversity tax was recently approved in India. Although the tax was proposed back in 2004, it took the government almost ten years to get it passed. Little information is available, but it appears that industry groups are unhappy, claiming that they’ve been taken “completely by surprise”. In the meantime, government says that it will consider the comments of business.

Get the story at the Times of India.

Mitigation Roundup

A roundup of mitigation news and notes from around the web:


  • A new agricultural wetland mitigation bank backed by the USDA Natural Resources Conservation Service (NRCS) and the Minnesota Board of Water and Soil Resources (BWSR) will let landowners meet get both state and federal approval for mitigation requirements in one go. The joint agency agreement has BWSR and local soil & water conservation districts overseeing wetland credit creation on private lands, while NRCS manages the buyer side.
  • Finally, remember the ongoing saga in Florida involving state wetlands expert Connie Bersok being suspended then later backed by a judge over her refusal to approve a permit for the proposed Highlands Ranch mitigation bank that used a “performance-based system” Bersok found objectionable? Meanwhile, the bank itself was approved for 193 credits, then 424, and then 280. Well, last month the state Department of Environmental Protection denied the project’s permit while retaining the performance based system. A spokesperson for the bank declined to comment. Somehow we think we haven’t heard the end of this.
  • 215 acres of agricultural land owned by Westervelt Ecological Services in Colusa County, CA, will be rezoned as restoration habitat (thus losing an agricultural property tax break). About 70 acres are slated for mitigation for impacts from a new wastewater treatment plant; 120 gartner snake habitat and 40 wetland credits remain.
  • Speaking of California, a draft environmental impact report for the 500-megawatt BrightSource Energy’s Palen solar thermal project suggests that BrightSource should expect to mitigate impacts to desert tortoise habitat to the tune of 4,683 acres, with the mitigation ratio at 5:1 in critical areas.
  • Under the terms of a settlement announced this week, Radback Energy, the developer of a planned natural gas-fired power plant in East contra Costa, CA, will have to pay $1 million to offset ecological impacts from nitrogen emissions, which petitioners say encourage weed growth that crowds out native plants which an endangered butterfly species relies upon. Funds will go to local habitat restoration efforts for the butterfly, the Lange’s Metalmark.
  • In Florida, $2.8 million in proceeds from sales of excess credits from a Jacksonville city public mitigation bank have been approved for use in improving city parks – though one council member says the mitigation fund has been “grossly mismanaged… the City should have millions more dollars in the mitigation bank.”




Executive Director

Biodiversity Conservation Alliance – Wyoming, USA

The Biodiversity Conservation Alliance seeks an Executive Director with strong development skills and an extensive background in community outreach and relationship building. Also important are a thorough understanding of Wyoming wildlife issues and wildlife habitat management principles as well as relevant laws and regulatory mechanisms, an in-depth understanding of resource management issues and wild lands and the agencies administering them. Primary responsibilities include overall planning and implementation of fundraising, finance, administration, public relations and staff supervision and development.

Learn more here.

Ecosystem Services Officer, Environmental Markets

Fauna & Flora International – London, UK

FFI is seeking an individual with a thorough understanding of and strong practical experience in ecosystem services valuation to support our developing work on ecosystem services valuation and assessment. The successful applicant will have a strong background in economic valuation techniques, practical experience in implementing projects that capitalize on the emerging tools, technology (valuation methodologies, GIS) and markets for ecosystem services (water, carbon and others) in accordance with international best practice, and will have some familiarity with non-monetary valuation approaches. S/he will have an advanced degree or equivalent level qualification in a relevant discipline and substantial experience in a related role.

Learn more here.

Investment Officer

Food and Agriculture Organization – Rome, Italy

The Investment Centre Division (TCI) promotes investment in agriculture and rural development in developing countries and countries in transition, assisting governments, international financing institutions (IFIs) and other development partners with the strategic planning and implementation of their investments to achieve growth, poverty alleviation, food security and nutrition goals.

Under the overall guidance of the Director, Investment Centre Division (TCI), and the supervision of the Chief, Africa Service (TCIA), the incumbent will be responsible for contributing to investment programme and project formulation, implementation support and evaluation in the areas of livelihoods resilience and rural development. In particular, the incumbent will provide support to FAO’s renewed commitment to a hunger-free Horn of Africa (HoA) in line with FAO’s new Strategic Objectives (SOs).

Learn more here.



International Congress for Conservation Biology 2013

The biennial International Congress for Conservation Biology is recognized as the most important global meeting for conservation professionals and students. The congress features a dynamic scientific program with more than 100 cutting edge symposia, workshops, posters, and focus groups; countless networking opportunities, fantastic field trips, and world-renowned speakers. The 26th ICCB takes place in Baltimore, Maryland, USA, on the shores of the Chesapeake Bay in Baltimore’s Inner Harbor. Chesapeake Bay is the world’s most productive estuary and the region is rich in cultural and historical heritage and conservation challenges and success stories. If you have questions about ICCB, including the Calls for Proposals, email John Cigliano, chair of the Local Organizing Committee. 21-25 July 2013. Baltimore MD, USA.


Learn more here.

5th National Conference on Ecosystem Restoration (NCER)

Join us at NCER ’13 for four days of presentations in multiple program tracks, workshops, plenary sessions, poster sessions, field trips and coffee-house discussions dedicated to current topics in ecosystem restoration. We’ll explore the roles of policy, planning, s

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