Compensating for Wetland Losses Under the Clean Water Act (2001) / Chapter Skim
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8 Institutional Reforms for Enhancing Compensatory Mitigation
8 Institutional Reforms for Enhancing Compensatory Mitigation
Pages 138-168
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From page 138... ...
Some sites appear to have met the criteria established for permit compliance and are, or show promise of becoming, functional wetlands in watersheds. However, in some cases, required compensation actions were never initiated or, if initiated, were poorly designed or carelessly implemented.
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From page 139... ...
· To ensure the replacement of lost wetlands functions, there should be effective legal and financial assurances for long-term site sustainability of all compensatory wetland projects. Achieving these results will require modifications to the regulatory program and compensatory mitigation mechanisms described in Chapters 4 and 5.
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From page 140... ...
The 2000 in-lieu fee guidance embraces the watershed approach for in-lieu fee mechanisms, stating, Local watershed planning efforts, as a general matter, identify wetland and other aquatic resources that have been degraded and usually have established a prioritization list of restoration needs. In-lieu fee mitigation projects should be planned and developed to address the specific resource needs of a particular watershed" (Fed.
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From page 141... ...
An alternative approach for determining what is desired in a watershed is to begin with a landscape perspective and seek to emphasize the type and location of compensatory wetlands that are revealed by that perspective. If a watershed approach to compensatory mitigation is taken,
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From page 142... ...
A watershed approach forces a consideration of this possibility. As a first step in a watershed approach, there is a need to assess what functions would be lost from the permitted activity, and the goal would be to restore the localized functions that had been performed by the impact site (e.g., water quality or storm water)
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From page 143... ...
In 1995, the banking guidance began to encourage the inclusion of uplands in mitigation banks, "to the degree that such features increase the overall ecological functioning of the bank" because the presence of upland areas may increase the per-unit value of the aquatic habitat in the bank. If a watershed perspective is taken, some limited acceptance of highly functional uplands [meeting the mitigation obligation]
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From page 144... ...
The committee is aware of the concern that a watershed approach might weaken the commitment during the permitting process to protect individual wetlands and the functions they provide, with existing wetlands being too readily traded for compensatory wetlands that might not be ecologically functional. However, if recommendations made elsewhere in this report on avoidance and improvements to compensatory mitigation institutions are incorporated into guideline and regulatory revisions, that concern will be addressed.
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From page 145... ...
. A watershed approach means that permitting decisions are integrated with other regulatory programs (e.g., storm-water management or habitat conservation)
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From page 146... ...
Therefore, watershed planning for wetlands will need to proceed without a formal written plan. Instead, reliance on the professional judgment of staff from multiple agencies can set watershed priorities and be the form of compensation wetland planning, given current agency time and resource limitations.
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From page 147... ...
INSTITUTIONAL REFORMS FOR ENHANCING COMPENSATORY MITIGATION 147 present, in many emerging fee payment programs the selection of projects for funding is made based on a consensus of professional interagency judgment on watershed needs (Scodari and Shabman 2000~. Two institutional reforms could be made to increase the technical quality of these regulator judgments.
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From page 148... ...
Therefore, the committee encourages the states, with the participation of appropriate federal agencies, to prepare technical plans or to initiate community and interagency consensus processes for setting wetland protection, acquisition, restoration, enhancement, and creation project priorities on an ecoregional (water
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From page 149... ...
Another outcome that follows from the effort to shorten the time required to establish compliance is replacement of bottomland hardwoods with emergent wetlands or open water (Brown and Veneman 1998~. Incentives for both the agency and responsible party to favor simplistic wetlands performance criteria would be lessened if legal compliance was based on three obligations:
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From page 150... ...
Therefore, for permittee-responsible mitigation there needs to be some practical compromise between the goals of securing functional compensatory wetlands and placing realistic requirements on permit recipients. Toward that end, the first obligation of the permitter should be to initiate the required compensatory project no later than concurrently with the permitted activity.
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From page 151... ...
or where remedial activities were undertaken." The Corps SOP (USACE l999b) requires monitoring reports for mitigation banks and "other substantial mitigation," such as in-lieu fees.
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From page 152... ...
Long-term management of a site demands that long-term real-estate protection be in place. The 1995 banking guidance states that a bank site should be "protected in perpetuity with appropriate real estate arrangements" and the 2000 in-lieu fee guidance recommends legal arrangements to ensure long-term management.
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From page 153... ...
The 1995 banking guidance states that bank sponsors need to provide some sort of financial assurances in the event of bank default or failure as well as throughout or beyond its operational life. Florida's administrative rules on mitigation banking require posting of financial assurances for both mitigation implementation and perpetual management (Florida Administrative Code Rule 62-342.400 & 700~.
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From page 154... ...
This section includes discussion and recommendations directed toward the responsibilities of the regulatory agency. Recognize Watershed Needs It is often impossible and, with a watershed perspective, may not be necessary for a compensatory wetland to perform the same wetland functions as those of the wetlands at the impact site on a permit-by-permit basis.
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From page 155... ...
2000~. Therefore, the committee recommends that the Corps and other responsible regulatory authorities use a functional assessment protocol that recognizes the watershed perspective, described in Chapters 3 and 7, to establish permitter compensation requirements.
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From page 156... ...
, studies have shown that the Corps does not make sufficient visits to mitigation sites to determine if mitigation projects were constructed as proposed or to evaluate compliance of mitigation efforts (Sudol 1996~. The budget blueprint from President George W
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From page 157... ...
Whether a wetland is created or restored, the type of wetland, the surrounding watershed condition, and uncertainties in the science all mean that different mitigation projects will require different amounts of time to become functional wetlands. Once these wetlands have attained their permit-specified performance criteria, long-term stewardship is critical to achieving the goals of the CWA.
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From page 158... ...
This recommendation applies for both permittee-responsible and third-party mitigation. Agency Technical Capacity Corps regulatory staff should receive continuing training on ecological and hydrological principles necessary to analyze a mitigation design so that there is a reasonable expectation that mitigation projects will meet target functions.
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From page 159... ...
Unfortunately, there is no mechanism in place to build an experimental design or adaptive management process into mitigation projects in order to learn from these real-world tests of mitigation project design. Therefore, the committee recommends that the Corps establish a research program to study mitigation sites to determine what practices achieve long-term performance for creation, enhancement, and restoration of wetlands.
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From page 160... ...
To help design the wetland and to set the cash payment for the long-term site maintenance in the face of long-term uncertainty regarding performance, those who write and review permits will benefit from the training and professional development. In addition, to assist permit writers and others in making compensatory mitigation decisions, a reference manual should be developed to help design projects that will most likely achieve mitigation requirements.
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From page 161... ...
For these reasons, credits from commercial mitigation bankers are of potentially high ecological quality, and because of the credit release schedules imposed upon mitigation banks, the credits will be used after some degree of ecological performance has been achieved. These are all important attributes if compensatory mitigation is going to meet the goals listed earlier in this chapter.
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From page 162... ...
Two criticisms were that in-lieu fee programs were allowing compensation outside impacted watersheds and that funds were being used for activities other than compensatory wetlands, although it is not clear that these practices are widespread (Scodari and Shabman 2000~. The 2000 guidance cautions against these kinds of expenditures (Fed.
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From page 163... ...
The committee understands that the best way to have confidence that compensatory mitigation will serve watershed goals is to have mitigation projects initially designed, implemented, and managed by reliable mitigation experts who are held accountable for certain results. These projects would be of varying wetland types, sizes, and locations to secure priority functions identified by the watershed planning process.
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From page 164... ...
Wetland projects would meet priorities established in formally developed wetland plans or in plans developed by a consensus of agency regulators and wetland scientists. Although not the practice in North Carolina, one possibility is that the actual restoration and creation work would be contracted out using a competitive bidding process, drawing in the expertise of the private-sector commercial mitigation bankers.
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From page 165... ...
Recent court rulings raise the question of whether this momentum can be maintained by national reliance on the Section 404 program alone. In this setting the committee commends the actions of many states that have expanded their roles and responsibilities for wetland management beyond the review role called for in the Section 401 water-quality certification requirement on Section 404 permits and, in some cases, in statements of coastal zone management consistency.
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From page 166... ...
governing wetland permitting and compensatory mitigation should promote compensatory mitigation sites that meet ecological performance criteria and that result in a
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From page 167... ...
5. The committee recommends that the Corps and other responsible regulatory authorities use a functional assessment protocol that recognizes the watershed perspective, described in Chapters 3 and 7, to establish permitter compensation requirements.
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From page 168... ...
10. The committee recommends that the Corps and other responsible regulatory authorities establish a research program to study mitigation sites to determine what practices achieve long-term performance for creation, enhancement, and restoration of wetland.
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