KEY ISSUES IN BIODIVERSITY OFFSET LAW AND POLICY. A Comparison of Six Jurisdictions — new report by Dave Poulton

Some time ago I have been asked by Dave Poul­ton to review a chap­ter on bio­di­ver­sity off­sets under the Ger­man Impact Mit­i­ga­tion Reg­u­la­tion. So I am more than happy to inform you that Dave’s report enti­tled “KEY ISSUES IN BIODIVERSITY OFFSET LAW AND POLICY A Com­par­i­son of Six Juris­dic­tions” is now pub­licly avail­able. Thanks Dave for putting this together!

The six juris­dic­tions exam­ined include:

  • British Colum­bia (Canada)
  • Canada (fish­eries)
  • Ger­many
  • New Zealand
  • US (wet­lands)
  • Vic­to­ria (Aus­tralia, native vegetation)

You can access the full report online and see the con­clu­sion and sum­mary of rec­om­men­da­tions copied below.


 BIODIVERSITY OFFSETTING is a high level con­cept for rec­on­cil­ing devel­op­ment with the con­ser­va­tion of val­ued bio­di­ver­sity. There are com­mon issues that arise in off­set­ting, many of which are inher­ent to the con­cept. The cred­i­bil­ity of off­set­ting as a tool to address bio­di­ver­sity loss is depen­dent on address­ing those issues. One source of answers is the prin­ci­pled appli­ca­tion of logic as applied to the goal of no net loss and the nature of the off­set model. This is typ­i­fied by the BBOP Prin­ci­ples, and, in many ways, by the rec­om­men­da­tions aris­ing out of the Ontario Nature discussions.

The appli­ca­tion of these prin­ci­ples, how­ever, must be cus­tomized, tak­ing into account the social, eco­nomic and polit­i­cal nature of each juris­dic­tion, as well as the eco­log­i­cal char­ac­ter­is­tics of each land­scape. No sin­gle pol­icy pre­scrip­tion can fit all juris­dic­tions and all cir­cum­stances. The pur­pose of this report has been to exam­ine how some com­mon issues, with cor­re­spond­ing well-established prin­ci­ples, have been addressed in six juris­dic­tions with off­set systems.

While we have seen that there is vari­a­tion among these sys­tems, there is also a remark­able sim­i­lar­ity in rec­og­niz­ing the issues and assur­ing that they are con­struc­tively addressed. For exam­ple, all rec­og­nize the wis­dom of the mit­i­ga­tion hier­ar­chy, but all wres­tle with how to inter­pret and enforce it.

While try­ing to avoid being judg­men­tal about the course that any juris­dic­tion has taken, I have tried to derive some pol­icy rec­om­men­da­tions that ought to apply in most cir­cum­stances, and that seem to be real­is­tic based on the expe­ri­ence of the juris­dic­tions exam­ined. Hope­fully, this process will prove to be of value to stake­hold­ers and policy-makers in Ontario and elsewhere.

Sum­mary of Recommendations

1. The mit­i­ga­tion hier­ar­chy should be clearly stated as part of any bio­di­ver­sity off­set pol­icy. Devel­op­ment pro­po­nents should be required to doc­u­ment all mea­sures taken to avoid and min­i­mize neg­a­tive impacts on bio­di­ver­sity, includ­ing con­sid­er­a­tion of alter­na­tive loca­tions, designs, con­struc­tion and oper­a­tional tech­niques, on-site restora­tion meth­ods, etc., which might rea­son­ably and prac­ti­ca­bly serve the same pur­pose with less envi­ron­men­tal dam­age. Reg­u­la­tors should not defer to pro­po­nents with respect to these mat­ters, but carry out their own analy­sis and reach their own con­clu­sions. Where insuf­fi­cient efforts have been made to avoid or min­i­mize neg­a­tive impacts on bio­di­ver­sity, per­mits should be denied or projects sent back for redesign.

2. Any off­set sys­tem should have clear goals that are capa­ble of objec­tive mea­sure­ment. In the absence of other com­pelling pol­icy objec­tives, that goal should be, at a min­i­mum, no net loss, and where pos­si­ble a net gain, of iden­ti­fied ecosys­tem com­po­nents or func­tions of value. Depar­ture from no net loss should fol­low clear pol­icy objectives.

3. Any off­set sys­tems should iden­tify those con­di­tions under which off­sets are unlikely to pro­duce the desired out­comes, whether because the ecosys­tem com­po­nents lost to devel­op­ment are irre­place­able, or the con­se­quences of off­set fail­ure are unac­cept­ably high. Under these cir­cum­stances policy-makers should be forth­right about the choice they face between pro­tect­ing the val­ued envi­ron­men­tal com­po­nent or sac­ri­fic­ing it in order that devel­op­ment might pro­ceed. Off­sets that are unlikely to suc­ceed should not be used to mask this decision.

4. A bio­di­ver­sity off­set pol­icy should include a set of prin­ci­ples for the draw­ing of equiv­a­lency between impacts and off­sets. The appli­ca­tion of these prin­ci­ples in par­tic­u­lar cir­cum­stances should be flex­i­ble. The ini­tial onus might be placed on project pro­po­nents, but this should be reviewed by pub­lic ser­vants with a com­bi­na­tion of under­stand­ing and rigour.

5. The prox­im­ity of the impact and off­set sites should be deter­mined by ref­er­ence to the objec­tives of the off­set pro­gram, the eco­log­i­cal char­ac­ter­is­tics at each site, and the equi­table dis­tri­b­u­tion of social costs and ben­e­fits. This is not amenable to a sin­gle for­mula or pre­scrip­tion, so guide­lines in this respect should pro­vide flex­i­bil­ity for appli­ca­tion of these principles.

6. The cred­it­ing of averted losses as off­sets should only be allowed where there is clear objec­tive evi­dence of an immi­nent threat, and where long-term legally bind­ing pro­tec­tion is arranged that neu­tral­izes that threat. Cau­tion should be taken that the pro­tec­tive action on the off­set site does not sim­ply dis­place the threat to another site in the area where envi­ron­men­tal val­ues might then be threatened.

7. For the rea­sons set out above and in Sec­tion 2.h. of this report, it is best if the agency that is respon­si­ble for the day-to-day admin­is­tra­tion of an off­set sys­tem be sep­a­rate and dis­tinct from that which is respon­si­ble for sub­stan­tive envi­ron­men­tal out­comes. The lat­ter may then inde­pen­dently assess the ade­quacy of the out­comes pro­duced by the work of the for­mer, and the for­mer may strive for admin­is­tra­tive effi­cien­cies. A healthy dia­logue may be cre­ated between process effi­ciency and sub­stan­tive outcomes.

8. Sec­ondly, the for­ma­tion of a stand­ing inde­pen­dent com­mit­tee, con­sist­ing of experts and stake­hold­ers, ought to pro­vide at least peri­odic over­sight over an off­set sys­tem. This will not only assure the proper oper­a­tion of the sys­tem, but will be able to vouch for its bona fides to con­cerned citizens.


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