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The Compleat Wetlander: Who’s on First: Understanding the Corps’ Mitigation Hierarchy and Selection Criteria

Costello: Are you the manager?
Abbott: Yes.
Costello: You gonna be the coach too?
Abbott: Yes.
Costello: And you don’t know the fellows’
Abbott: Well I should.
Costello: Well then who’s on first?
Abbott: Yes.
Who’s on First? by Abbot and Costello

In 2008 the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency published a final compensatory mitigation rule for improving, restoring, and protecting the nation’s wetlands and streams.  It represented the accumulated knowledge of 20 years of experience and  innovation restoring and creating wetlands and other water resources  to compensate for losses through permitted dredge and fill activities under the Clean Water Act.  In 1988 the concept of addressing wetland losses by replacing them elsewhere was a novel idea.  By 2008 it was a well established area of national and state policy that organized mitigation approaches into three categories:  mitigation banking, in-lieu fee and permittee-responsible mitigation.

The mitigation rule also provided a framework for selecting the most appropriate compensatory mitigation  establishing a preference for mitigation banking first, in-lieu fee programs second and permittee responsible mitigation third.  For permitting responsible mitigation the rule further identified a preference for on-site/in-kind mitigation over off-site/out-of-kind mitigation.  Final mitigation rule:

This hierarchy represented a significant departure from earlier public policy.  Initially regulators preferred on-site permittee-responsible mitigation based on the premise that restoring or creating wetlands in the closest possible proximity to where they were destroyed would likely be most often successful.  On-site mitigation prevented those wetland functions from being lost in the stream reach or watershed where they occurred.  However, experience had demonstrated that there were serious challenges to doing mitigation on-site.  Often the landscape was too altered to be suitable.  Also many permit recipients lacked sufficient expertise to undertake mitigation and maintain it over time.  These and other concerns led to the development of third party alternatives: mitigation banks and in-lieu fee programs.

The final rule’s framework provided a structure for evaluation of mitigation alternatives that is very flexible.  The mitigation rule as a whole delegated a great deal of discretionary authority to  Corps District Engineers.  The framework provided an ordered approach for a District Engineer  to apply in considering possible sites for mitigation.  In addition the District Engineer was also directed to evaluate and apply the following criteria in making the final selection of the most environmentally preferable mitigation package:

  • Likelihood of ecological success and sustainability
  • Location of the compensation site relative to the impact site (closer is better)
  • Compensatory mitigation project costs
  • Relationships to water sources (water availability)
  • Habitat connectivity
  • Compatibility with adjacent land uses

These factors can be weighed and used to select a mitigation bank or to select in-lieu fee or permittee-responsible mitigation.  As part of making the decision the Corps is required to  document the reasons for the selection of a specific mitigation alternative as one of the public record for permit decisions and is part of a larger goal to improve the transparency and standardize documentation practices.

Minimum Level of Documentation Required for Permit Decisions:
Department of Army Environmental Assessment and Statement of Finding for Above-Numbered Permit application
Department of Army Memorandum Document Nationwide Permit/Regional General Permit Verification

The preference for mitigation banks does not mean that banks must be used more often than In-Lieu Fee or permittee-responsible mitigation. The rule requires consideration of a mitigation bank first, but it does not require the bank to be selected.  Evaluation criteria may steer the mitigation decision toward or away from a mitigation bank.

In 2005 the Army Corps of Engineers reported that 33% of all mitigation was provided by mitigation banks, 7% by in-lieu fee and 60% by permittee-responsible mitigation.
.  Between then and now, the number of approved banks has grown from around 450 approved banks to 723, which are currently listed as approved mitigation banks in the Regulatory In-lieu fee and Bank Information Tracking System (RIBITS).

However, it is not clear that the preference for mitigation banks will create large changes in the frequency they are used.  There are larger areas of the country that do not have enough permitting activity to make mitigation banks feasible.  In these areas permittee-responsible mitigation, and where available in-lieu fee programs will continue to be the primary forms of mitigation.  Sometimes District Engineers will select permittee-responsible mitigation or an in-lieu fee program over a mitigation bank using the evaluation criteria.  Also, like any business, some will succeed while others will fail.  When all credits are sold, banks close.

Finally over time,  new information may dictate changes in policy.  While it seems reasonable that mitigation banks, with their comprehensive planning and implementation requirements, are more likely to be successful from an ecological perspective than other types of mitigation, this has not been evaluated through any kind of rigorous national study.  However there is one underway designed to address mitigation success nationally.  The Environmental Law Institute has convened a panel of expert wetland scientists to develop a study designed to assess the regulatory and ecological outcomes of the three compensatory mitigation mechanisms — mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation — in a way that will enable comparisons of the three mechanisms nationwide. The final study design was scheduled to be completed in early 2011 and will help establish a protocol for the on-going national assessment of mitigation sites. This information will help inform future adjustments and revisions to national wetlands mitigation policy.

Compensatory mitigation has undergone many changes over the past 20 years and the establishment of mitigation banks and in-lieu fee programs have been essential to creating realistic avenues for successful mitigation.  There is no doubt that our collective experience going forward will establish the need for additional improvement and innovations.

Additional Resources:

The Environmental  Law Institute’s Compensatory Mitigation Research
The Compleat Wetlander: Wetland Mitigation Then and Now
Mitigation Plan Development:
Mitigation MOA
National Mitigation Action Plan (2002)

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One Response to The Compleat Wetlander: Who’s on First: Understanding the Corps’ Mitigation Hierarchy and Selection Criteria

  1. Very interesting post!

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