Mitigation Banking - Creating Water Quality Credits

A unit of pollutant reduction that can be used to improve water quality: 

• How they work: A source that controls its pollution levels can sell credits to another source that needs to comply with regulations. 
• How they are generated: A point source can generate credits by controlling its discharge, or a nonpoint source can generate credits by installing best management practices. 
• What they are used for: Water quality credits are a cost-effective way to meet water quality goals and encourage conservation. They are often used to address nitrogen and phosphorus pollution, but can also be used for other purposes, such as protecting salmon. 

The Oyster Culture Foundation (OCF) is a nonprofit 501(c)(3) organization dedicated to the restoration of global ocean water quality through innovative bioremediation techniques. Our initiatives focus on restoring oyster populations and their habitats, particularly through the establishment of a mitigation bank within the San Francisco Bay. OCF collaborates with local governments, ocean-dependent businesses, environmental organizations, and community stakeholders to promote sustainable practices that enhance marine biodiversity, improve water quality, and mitigate the impacts of urban development, runoff and wastewater treatment spills.

This case involves significant fines against the City of San Francisco, which not only affects the city’s financial resources but also has far-reaching implications for the ecological health of the San Francisco Bay. This brief advocates for a "fee in lieu of fine" resolution through the establishment of an OCF mitigation banking program. This initiative could facilitate the creation of 1,300 acres of oyster reef, restoring over 130 million oysters—an essential cornerstone species that benefits both the local ecosystem and the surrounding communities.

The Environmental Protection Agency (EPA) seeks to hold the City of San Francisco accountable for billions of gallons of untreated sewage discharged into the Pacific Ocean over the last two decades. Establishing a 1,300-acre artificial Pacific oyster reef via OCF's mitigation bank would help to eventually filter the entire volume of San Francisco Bay (approximately 489 billion gallons) each year, while simultaneously reducing impacts of sewage spills, lowering pollution levels, and restoring the native ecosystem. Notably, wild oyster spat of the Olympia oyster settle in high concentrations on the living shells of Triploid Pacific oysters, enhancing recruitment rates compared to dead shells used in current and more traditional restoration methods.

ARGUMENT

1. Environmental Benefits of Oyster Reefs

  Oyster reefs are vital to marine ecosystems, providing habitat for diverse marine species, improving water quality through natural filtration, and offering coastal protection against erosion. By deploying 1,300 acres of oyster reefs in strategically targeted locations, we can significantly reduce pollution and enhance the ecological health of San Francisco Bay, which will contribute to increased biodiversity and greater resilience to climate change and rising sea levels.

  Year-old Triploid Pacific oysters utilized in OCF's bioremediation methods start off filtering approximately 50 gallons per day and are sterile, posing no risk to human activities or native ecosystems. These oysters grow rapidly and robustly, living over 10 years as they don’t use up energy with reproductive processes and grow to filter more than 100 gallons per day. The restoration of 1,300 acres of reef would enable 140 million oysters to collectively filter an astounding 1.3 billion gallons of ocean water daily.

2. Mitigation Banking as a Solution

  Mitigation banking is a proven approach that allows developers and municipalities to compensate for environmental impacts by proactively restoring, creating, or enhancing natural habitats. By implementing OCF’s mitigation banking program, the City of San Francisco could avoid fines and instead allocate funds to establish 1,300 acres of oyster reef. Afterall it was San Francisco that dredged them for fill, paved market street and otherwise ate all of the existing oysters.  This strategy not only addresses the penalties but also transforms them into a constructive environmental outcome. In the event of future sewage spills, the city could easily quantify the gallons spilled and purchase additional mitigation banking credits to directly offset those impacts.

3. Community and Economic Impacts

  The establishment of a large oyster reef would yield numerous benefits for the local community. It would encourage eco-tourism, enhance recreational activities such as fishing and kayaking, and support educational initiatives centered around marine conservation. Healthy oyster populations can bolster local fisheries, creating economic opportunities for fishermen and related businesses.

  Sourcing 130 million oysters from various local oyster farmers would enhance their business viability and increase the overall value of the oysters. Public awareness initiatives, including educational presentations and hands-on experiences with oysters and polluted water in schools and universities, would further engage the community. The “Bucks for Shucks” campaign would encourage oyster consumers to balance their environmental impact by donating $1 for every oyster shucked. As well, stewardship partners, typically boat owners, marinas and yacht clubs become sponsors for bioremediation services.

  By pursuing this resolution, the City of San Francisco can avoid substantial fines, potentially totaling up to $11 billion. The purpose of this Amicus Curiae Brief is to advocate for the transformation of these penalties into constructive fees—approximately $1.1 billion in OCF mitigation banking fees for plan review approval process and also OCF-MB credits— allowing funds to be directed toward effective solutions. OCF's bioremediation methods target pollution at its source, creating a framework for holding polluting businesses accountable while OCF-MB provides them a financial vehicle to offset their ongoing negative environmental impacts.

4. Precedent for Collaborative Solutions

  The Supreme Court has historically recognized the importance of collaboration between governmental entities and environmental organizations in addressing complex regulatory challenges. By endorsing a fee in lieu of a fine resolution that supports the creation of a bioremediating oyster reef, the Court would establish a precedent for innovative, collaborative approaches to environmental restoration, serving as a model for other municipalities facing similar dilemmas. Mitigation banking was initiated by the U.S. Fish and Game Department and streamlined in 2012 to include comprehensive, collaborative plan reviews overseen by the EPA, U.S. Army Corps of Engineers, NOAA, California Fish and Game, and U.S. Wildlife. We encourage the Court to resolve this case in favor of OCF's mitigation banking approach, setting a precedent for cities nationwide.

CONCLUSION

Given the urgent need for environmental restoration in San Francisco Bay and the potential for a fee in lieu of fine resolution to yield substantial ecological benefits, the Oyster Culture Foundation respectfully urges the Supreme Court to consider this innovative approach. By allowing the City of San Francisco to redirect fines towards the establishment of a mitigation bank for 1,300 acres of oyster reef, the Court would foster environmental stewardship, community engagement, and sustainable practices that benefit both the ecosystem and the economy.

Fund Ongoing research and data collection. To create and validate a Water Quality Credit for SF Bay Mitigation Banking Plan Review.