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

The Compleat Wetlander: Wetland Mitigation Then and Now

Wetland mitigation, replacing functions and values lost, is a large part of Clean Water Act Section 404 and state dredge and fill permitting programs for wetlands.  Throughout the country stream mitigation requirements are slowly being adopted by states and Corps district offices as well.

But 20 years ago this was not the case.  When the Mitigation Memorandum of Agreement (MOA) was signed in February of 1990, mitigating on a routine basis for destruction and degradation of wetlands was a controversial ideal. http://water.epa.gov/lawsregs/guidance/wetlands/mitigate.cfm

The 1990 Mitigation MOA endorsed on-site mitigation whenever possible. The reasoning was that this approach would allow for the functions and values of the wetlands destroyed to be replaced close to what was lost, minimizing the negative impacts on the local watershed, including nearby residents.

However, on-site mitigation turned out to be impractical in the field.  Many times the site was a poor location for a mitigation project.  There were too many other changes in the local landscape to support wetland hydrology.  Creating wildlife habitat next to a busy highway resulted in high mortality for wildlife.  Other strategies and approaches were needed.

I can remember participating in a conference around 1992 when Minnesota Department of Transportation posed the still rather novel concept of a mitigation bank. The idea of mitigation banking was pioneered by the U.S. Fish and Wildlife Service around 1983 http://www.epa.gov/owow/wetlands/facts/fact16.html but a decade later there were still many questions about whether it was an appropriate approach.  Initially state highway departments adopted it as an efficient way to replace losses occurring from roads that destroyed or altered multiple wetlands.  It later gained support from private sector with the creation of a growing number of privately held mitigation banks.  In 1995 five federal agencies—Department of the Army, Environmental Protection Agency, Department of Interior, Department of Commerce and Department of Agriculture) released Guidance on the Establishment Use and Operation of Mitigation http://water.epa.gov/lawsregs/guidance/wetlands/mitbankn.cfm. In 2001 the National Research Council released a Compensatory Mitigation Study http://www.nap.edu/openbook.php?isbn=0309074320,which was quickly followed by the National Mitigation Action Plan in 2002, identifying a series of topics to address to improve mitigation success.

At the same time, In Lieu Fee, a third and more flexible approach to mitigating wetland losses was pursued.

The Environmental Law Institute hosted a series of conferences that addressed many of the priorities identified in the National Mitigation Action Plan.  It is still possible to review the PowerPoint and audio presentations of these conferences to gain a deeper understanding of basis for current mitigation policies.

They are available on the ELI website at:
Stakeholder Forum on Federal Wetlands Mitigation
http://www.elistore.org/reports_detail.asp?ID=10664&topic=Wetlands
http://www.eli.org/Program_Areas/Events/wetlands_mitigation_forum.cfm
Third Stakeholder forum on Federal Wetlands Mitigation (2003)
http://www.eli.org/Program_Areas/events/wetlands_mitigation_forum_2003.cfm
http://www.elistore.org/reports_detail.asp?ID=10929&topic=Wetlands
Fourth Stakeholder Forum on Federal Wetlands Mitigation (2004)
http://www.elistore.org/reports_detail.asp?ID=11065
National Symposium on Compensatory Mitigation and the Watershed Approach (2004)
http://www.eli.org/program_areas/Events/watershed_symposium.cfm
Fifth Stakeholder Forum on Federal Wetlands Mitigation (2006)
http://www.eli.org/Program_Areas/events/wetlands_mitigation_forum_2006.cfm

Links to these and many other useful resources on wetland mitigation can be found at
http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmitigation_index.cfm.

The mitigation rule published by the Corps and EPA in 2008 integrated many of the recommendations of the National Research Council study and the Federal Mitigation Action Plan—policies that would have been inconceivable 20 years ago, had gained wide acceptance.
http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_04_10_wetlands_
wetlands_mitigation_final_rule_4_10_08.pdf
Many challenges remain. But looking back over the past 20 years the federal agencies, states, the regulated public, scientists and many others have made remarkable progress.

Now we are embarking on the next phase by implementing the mitigation rule.  Continuing challenges include using a watershed approach, developing a parallel action plan for stream mitigation, quantifying mitigation success or failure, and integrating mitigation with the overall Clean Water Act goal of protecting the biological, physical and chemical integrity of the nation’s waters.

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