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

The Compleat Wetlander: Understanding the Impact on Compensatory Mitigation of the 2008 Rule

By Jeanne Christie

At the beginning of November the U.S. Army Corps’ Institute for Water Resources released: “The Mitigation Rule Retrospective: A Review of the 2008 Regulations Governing Compensatory Mitigation for Losses of Aquatic Resources” which is a comprehensive and informative summary of the progress made in implementing the 2008 Mitigation Rule.  The report provides an overview of the number and categories of permits (general, regional, individual, etc.) issued and analyzes the overall wetland acreage and linear streambank impacts as well as the kinds of mitigation carried out to compensate for those losses between 2010 and 2014.  The report focuses on the permitting process highlighting trends and improvements in efficiency, responsiveness and consistency as well as areas that merit additional attention in the future.  As stated in the press release:

“Over the past five years, the Corps issued approximately 56,400 written authorizations per year under its permit authorities, approximately 10% of which required compensatory mitigation.  This modest percentage reflects the fact that, during the review process managed by the Corps, permit applicants are required to avoid and minimize aquatic resource impacts to the maximum extent practicable prior to offering compensatory mitigation.  When compensatory mitigation is required, the vast majority of compensatory mitigation is done to offset authorized wetland and stream impacts.  There has been continued growth in the numbers of mitigation banks and new in-lieu fee programs being approved to provide 3rd party compensatory mitigation and a marked increase in the proportion of the country served by 3rd party mitigation options.  As of December 2014, there were 1,428 mitigation bank sites and 45 in-lieu fee programs that have been approved by the Corps.”

mitigationrulereportIt is a very useful report that focuses on permitting processes. It does not attempt to evaluate the ecological performance of mitigation activities.  Currently the Corps does not have comparative information in its databases to evaluate performance on a national or regional scale and it is likely that such evaluations will be undertaken by outside sources.  But the report does provide a great deal of information about both the scope of permitting and subsequent mitigation activities on both a national and regional basis.

Key Findings include:

  • Impacts to jurisdictional wetlands and waters are avoided and minimized as much as possible during the permit application review process. This is reflected in the fact that the great majority of activities authorized under the Section 404 program impact less than 1/10 of an acre under the general permit program.
  •  There has been an increase in number of mitigation banks and in-lieu fee programs. At the end of 2014 there were 1,428 mitigation bank sites and 45 in lieu fee programs approved by the Corps.
  • There has been an increased focus on stream mitigation resulting in significant growth in the linear feet of stream mitigation required. As a result there has been a corresponding surge in the number of mitigation banks and in lieu fee programs providing stream credits.
  • Use of mitigation bank and in-lieu fee program credits can reduce permit processing times. An analysis of permit processing times indicated that those permit applications that used mitigation bank credits and in lieu fee program credits were approved within 120 days and 136 days respectively while onsite permittee responsible mitigation permit application approvals required 177 days for onsite mitigation and 243 days for offsite mitigation.
  • There is increasing reliance on mitigation bank and in-lieu mitigationrule1215fee program credits. Beginning in 2012 there was an increase in the number of individual and general permits that used mitigation banks to provide compensatory mitigation and a corresponding decline in the use of permittee responsible mitigation.  The use of in-lieu fee credits also increased in this same timeframe, but at a much slower rate than the growth in the use of mitigation banks.

There is a substantial amount of information in the report to review and evaluate to gain a more detailed understanding of trends in compensatory mitigation—too much to cover here.  The report breaks down mitigation regionally, by wetland/stream type, and provides information on the amount of mitigation requried under individual, general, regional and other types of permits.  It highlights some of the concerns expressed by the mitigation bank and in-lieu fee program sponsors including ongoing concerns about the amount of time needed to gain approval for a bank or in-lieu fee program and the greater use of banks for small rather than large wetland/stream impacts.  It provides insights on future areas of activity that the Corps intends to pursue to improve implementation of the 2008 mitigation rule.  It provides  a list (in Appendix B) of publicly available mitigation documents by Corps District and Division as well as information currently available and  future modifications planned for the Corp’s data bases used to summarize and track compensatory mitigation.  In sum, for individuals and organizations with an interest in compensatory mitigation, this document provides an important addition to our collective understanding of this very important area of national and state policy.

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