September 27, 2001

On June 26 the National Research Council, a unit of the National Academy of Sciences, released a report titled Compensating for Wetland Losses Under the Clean Water Act. The committee was staffed by Suzanne van Drunick (NRC), chaired by Dr. Joy Zedler (University of Wisconsin), co-chaired by Len Shabman (U. Maryland) and included eleven members from the academic community, one private consultant, and one person from a state department of transportation. As stated in their introduction, the committee endorsed but did not evaluate avoidance and minimization.

The committee came to many conclusions and highlighted five:

·        The goal of no net loss of wetlands is not being met for wetland functions by the mitigation program, despite progress in the last 20 years.
·        A watershed approach would improve permit decision making.
·        Performance expectations in Section 404 permits have often been unclear, and compliance has often not been assured nor attained.
·        Support for regulatory decision making is inadequate.
·        Third-party compensation approaches (mitigation banks, in-lieu fee programs) offer some advantages over permittee-responsible mitigation.

In addition to addressing the permitting process, and past performance, the committee makes numerous recommendations for improving the performance of compensatory mitigation sites. These recommendations can be boiled down to three fundamental categories: location in the landscape, design, and follow-through.

COMMITTEE RECOMENDATIONS

Location in the Landscape

The committee contends that a landscape approach to wetland restoration and creation will not only increase the likelihood that individual compensation efforts will succeed, and be self-sustaining, but that the proper placement of wetlands in the landscape will maximize the services provided by these efforts. The report recommends that States formulate basin-wide wetland creation and restoration plans. Regulatory agencies should then encourage compensation, especially in the form of mitigation banks and in-lieu fee programs, in high priority areas. The needs of each watershed should overshadow agency preferences for in-kind and on-site mitigation.

Design

Our current understanding of restoration science makes the replication of certain wetland types impossible. Similarly, the literature indicates that some wetland types are more difficult to restore or create than others are. In general the more variables there are the more difficult the wetland will be to replace. Currently compensation designs do not attempt to replace the breadth of functions lost, nor do they replicate the same hydrology, or landscape position. Open water wetlands, for example, continue to increase relative to other wetland types (FWS Status and Trends Report). In an effort to hedge establishment of wetland, permittees often create static water levels, and hydroperiods longer than those of the wetlands lost. Often this results in replacement wetland types that are either ubiquitous or unsuitable for the region. Regulators should require design criteria that focus on both functions as well as structure (plants) to produce the desired results. The committee recommends the development of reference manuals to assist permit writers. They discuss the lack of training for regulatory staff and recommend the commitment of funds to allow staff to attend training and share experiences outside of their agency and region.

Follow-through

The committee recommends that regulatory agencies require clear performance criteria, require monitoring of compensation site performance, conduct regular site inspections, create a database to track these ongoing projects, take enforcement actions upon the non-compliant, encourage long-term management, and establish a long-term research program. Currently follow-through is limited and ineffective. The committee makes a compelling argument that follow-through and enforcement, which are both considered low priorities by the Corps, cannot be inadequately performed, since the Corps has insufficient resources to perform what they currently consider their high priority duties. The committee recommends the elevation of follow-through to high priority status. The committee recommends that the Regulatory Analysis and Management System (RAMS) database be modified to track not only the area of permitted impact and area of required compensation but also the functions lost and the area and functions actually established at the compensation site. The committee notes that the quality of the data entry into this system must improve.

There must be effective legal and financial assurances for the long-term site sustainability and monitoring to ensure the replacement of lost wetland functions, according to the committee. Compensatory mitigation sites should receive long-term stewardship via an easement or a transfer of title and a cash contribution to an appropriate long-term monitoring, management and maintenance entity. Though they did not specifically state that monitoring duration should be extended they did use an example that showed that herbaceous wetlands might not reach equivalency even after 13 years. Function as well as structure (plants) should be evaluated when monitoring, and that assessment methods used on the compensation site and the impact site should be the same.

CRITIQUE

Permittees are not motivated by some altruistic desire to restore wetlands. King and Bohlen [1] put it this way, “because permit seekers demand low-cost permits this market is understandably driven by incentives for low-cost mitigation, not the production of high-quality wetlands.” The committee makes a number of great suggestions regarding design and landscape position, but improvements in these factors may not improve performance if permittee incentives are neither understood nor addressed. Although the committee does make an effort to discuss enforcement, they fail to discuss other means of effecting permittee incentives. Their discussion of performance bonds is sparse and limited to mitigation banks. Up-front compensation is only discussed in the context of the temporal loss of functions and not as it relates to compliance.

The committee did not discuss the trade-off inherent to reference manuals and proscriptive design criteria. Guide books and design criteria may improve the results achieved when restoring or creating wetland types with few variables, but could also result in a loss of innovation, a reduction in the diversity of attempts, and a reduction in agencies’ abilities to require corrective action or “adaptive management.” A number of sites will fail regardless of the best design criteria implemented by the most knowledgeable expert. A permittee’s claim that he “did what he was told” is difficult to counter. Proscriptive design criteria effectively shift the risk and burden of performance from the applicant to the agency. Wetland restoration science, despite decades of progress, is far from well developed. There are still many unknowns. What is known often highlights the variability between sites. This variability does not lend itself to the development of a comprehensive wetland restoration cookbook. The problem is further exasperated by the relative lack of agency staff with the necessary expertise to dictate design criteria, and the disincentive agency staff may have in criticizing the results of their own designs. While the committee did mention the need for training, it was not given the emphasis it deserved.

The committee identifies project responsibility as one of the main defining characteristics of the various mitigation types. Mitigation banking and in-lieu fees shift accountability from the permittee. Will the regulatory agencies vigorously pursue an enforcement case against a not-for-profit conservation group or a sister agency when they fail to meet their in-lieu fee commitments? Because enforcement is unlikely, accountability in these situations is virtually absent. In the absence of accountability the in-lieu fee organization’s reputation is the only guarantee that the fees will produce any benefit.