Compensating for Wetland Losses Under the Clean Water Act (2001) / Chapter Skim
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4 Wetland Permitting: History and Overview
4 Wetland Permitting: History and Overview
Pages 60-81
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From page 60... ...
Also noted is the somewhat limited role that CWA compensatory mitigation plays in the attempt to achieve no net loss of the nation's remaining wetland base. The chapter concludes with a brief overview of the CWA Section 404 permitting process.
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From page 61... ...
The act calls on the FWS to advise federal agencies about proposed projects' impacts on fish and wildlife habitats and to recommend compensatory mitigation measures. Agencies are not, however, required to follow the FWS's recommendations (Sierra Club v.
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From page 62... ...
In contrast to the Fish and Wildlife Coordination Act and the NEPA, the ESA has more substantive mitigation requirements (Public Law 93205, as amended)
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From page 63... ...
that articulated how the Corps would implement its obligation to consult with the FWS under the Fish and Wildlife Coordination Act when it made its RHA decisions regarding dredging, filling, excavating, and other related work in traditionally navigable waters (Fed. Regist.
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From page 64... ...
See Appendix I for a list of the factors that the Corps must take into account in its permit decision-making process. CWA SECTION 404 MITIGATION REQUIREMENTS The terms "mitigate" and "mitigation" do not appear in CWA Section 404.
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From page 65... ...
describes a number of actions that the Corps should consider as permit conditions to minimize adverse effects for example, actions concerning the location of discharge, composition of discharge material, control of material after discharge, method of dispersal, and use of appropriate equipment and technology. Included in the minimization discussion is a reference to compensatory mitigation: "Habitat development and restoration techniques can be used to minimize adverse impacts and to compensate for destroyed habitat." Thus, in the Section 404(b)
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From page 66... ...
The Corps and EPA mitigation MOA's sequencing requirement is limited in several important respects. First, the MOA applies only to individual permits, not general permits such as nationwide permits.
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From page 67... ...
Mitigation banks may be established by permitters who anticipate having a number of future permit applications or by third parties who develop wetland credits for sale to permitters needing to provide compensatory mitigation. Although the Corps and EPA MOA expressed the agencies' preference for on-site compensatory mitigation, it does acknowledge that "mitigation banking may be an acceptable form of compensatory mitigation under specific criteria designed to ensure an environmentally successful bank." The Corps and EPA MOA promised additional guidance on mitigation banking; that was forthcoming in the form of a Corps and EPA joint memorandum to the field issued in 1993.
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From page 68... ...
Second, the agencies suggested that the availability of mitigation banks could make compensatory mitigation appropriate and practicable in cases where the Corps had not previously required any compensatory mitigation, especially for authorized activities under general permits. In this way, the agencies reasoned, mitigation banking could contribute to the attainment of the goal of no net loss of wetlands.
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From page 69... ...
In 1998, Congress expressed its preference that mitigation banks be used to offset wetland impacts from federally funded transportation projects (Public Law 105-178~. The Transportation Equity Act for the 21st Century states that the Corps shall give mitigation banks preference "to the maximum extent practicable," if banks are approved in accordance with the 1995 guidance and sufficient credits are available.
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From page 70... ...
As a general rule, the agencies prefer on-site mitigation to off-site mitigation. When, however, off-site mitigation is permitted, the agencies state that the "use of a mitigation bank is preferable to in-lieu fee mitigation where permitted impacts are within the service area of a mitigation bank approved to sell mitigation credits, and those credits are available." The preference for mitigation banks does not apply when (1)
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From page 71... ...
In the 1990 mitigation MOA, the Corps and EPA recognize that no net loss may not be satisfied in every Section 404 permit action but emphasize that a goal of the CWA Section 404 program "is to contribute to the national goal of no overall net loss of the nation's remaining wetland base." Thus, the agencies acknowledge two important limitations of the CWA Section 404 program with respect to wetland mitigation. First, the program is not designed to remedy historical losses of wetlands; rather, it focuses on existing or remaining wetland functions and values.
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From page 72... ...
The Corps and EPA report that approximately 15% of activities authorized under the Section 404 program proceed under an individual permit; most activities are authorized by general permit (Davis 1997~. Section 404 authorizes the Corps to issue general permits (which may be nationwide permits, regional permits, or programmatic permits)
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From page 73... ...
Individual permits include standard permits and letters of permission, while general permits include regional permits, nationwide permits, and programmatic permits for projects that should result in only minimal impacts to the aquatic environment. Standard Permits The most common form of individual permit is the standard permit.
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From page 74... ...
For the purpose of evaluating permit applications, the Corps considers the scope of analysis under ESA to be limited to the boundaries of the permit area plus any additional area outside Corps jurisdiction where there is sufficient federal control and responsibility (USACE 1999a)
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From page 75... ...
. imps Decades to ~ Issue Permit | Yes FIGURE 4-2 Section 404 of the CWA permit process flow chart.
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From page 76... ...
. Like all general permits, NWPs are issued for classes of activities that should result in only minimal individual and cumulative adverse effects to the aquatic environment (Long et al.
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From page 77... ...
by NWP Yes ,; | Apply for Individual 1 | Permit l FIGURE 4-3 Approach to the nationwide permit process.
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From page 78... ...
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From page 80... ...
In these cases, the Corps also may expect that monitoring reports be filed. Corps headquarters expects that its staff will inspect a relatively high percentage of compensatory mitigation sites to ensure compliance with permit conditions, the banking instrument, or the conditions in the fee agreement.
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