Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Many Hands Make Wetland Mitigation ‘Light’ Work

Wetland mitigation along with wetland restoration is a relatively recent concept, recognized on a national level after the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) signed the Mitigation Memorandum of Agreement (MOA) in 1990. http://water.epa.gov/lawsregs/guidance/wetlands/mitigate.cfm

The mitigation MOA was a formal agreement between EPA and the Corps; it formalized the process of avoiding, minimizing and mitigating for aquatic alteration.  It contains the policy and procedures to be used in determining the type and level of mitigation necessary to demonstrate compliance with the Section 404(b)(1) Guidelines in carrying out the Section 404 dredge and fill permitting requirements. It provided a uniform process designed in the increasing mitigation activities occurring throughout the country.

As mitigation became a standard part of the Section 404 permitting program, questions were raised about whether and how wetlands could be replaced successfully on the landscape.  Early evaluations identified many problems with onsite permittee-responsible mitigation leading to the identification of third party opportunities: mitigation banking and in-lieu fee.

A 2001 National Academy of Sciences report:   Compensating For Wetland Losses Under The Clean Water Act http://www.nap.edu/openbook.php?isbn=0309074320 provided a benchmark on progress implementing the mitigation MOA in the field.  The report was a comprehensive analysis of the effectiveness of compensatory mitigation under Section 404 of the Clean Water Act. It identified a number of shortcomings in current policy and provided specific recommendations for federal agencies and states on how to proceed with effective ecological replacement of wetland functions lost to authorized development activities.

The report received a lot of attention and on December 24, 2002, six federal agencies signed the National Mitigation Action Plan. http://water.epa.gov/lawsregs/guidance/wetlands/upload/2003_07_10_wetlands
_map1226withsign.pdf
.  The plan laid out a strategy for the federal agencies to work with states and tribes to address areas of ambiguity and increase accountability for wetland mitigation.

The 2008 mitigation rule codified many issues resolved by various committees, workgroups and forums that grew out of the mitigation action plan.  It adopted and applied ‘lessons learned’ from the efforts of wetland regulators, scientists, consultants and others working in the field.  Evaluating this progress is evident when looking at some of the many studies of mitigation success over the last 10 years.

A report from Missouri evaluating mitigation sites established prior to 2004 found that while applicants made good efforts to complete mitigation, it was difficult to evaluate success because the measures included in the permits were too general to quantify.

Another report reviewing mitigation banks in Florida evaluating sites established in 2006 and earlier determined that while sites generally met success criteria, they did not meet the highest scores, which were the basis for the credits sold.

A more recent report from North Carolina evaluating sites from 2007-2009 determined that 74% of the wetlands and 75% of the stream mitigation sites met their design requirements.  This was up from 20%-40% in studies conducted in the mid-90s.

What can we conclude?  We know a lot more due to an enormous amount of work undertaken by federal agencies, states, scientists, consultants and many others. We’re a lot better than we were in the beginning.  But are these studies representative of the rest of the country?  The only way to determine that would be to conduct a national assessment of mitigation success.

The Environmental Law Institute has taken on that challenge by convening a panel of wetland scientists to develop a study designed to assess the regulatory and ecological outcomes of the three compensatory mitigation mechanisms. These are mitigation banking, in-lieu fee mitigation and permittee-responsible mitigation. The study has been organized in a manner that will enable comparisons of the three mechanisms nationwide. The next step will be to identify the funding to conduct such a study, which is critical to continuing to build on progress made over the past 20 years.  For a list of studies, training and other materials on mitigation visit: http://www.eli.org/Program_Areas/WMB/index.cfm

For many of the documents described above as well as other information visit the U.S. Environmental Mitigation webpage: http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmitigation_index.cfm

This entry was posted in dredge and fill, environmental law, mitigation, permitting and tagged , , , , , . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

Web Analytics