Compensating for Wetland Losses Under the Clean Water Act (2001) / Chapter Skim
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6 Mitigation Compliance
6 Mitigation Compliance
Pages 94-122
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From page 94... ...
Fourth, inspection of the site is made to determine whether construction followed the design plan and whether design standards have been met. Fifth, physical monitoring of the site is executed for a period of time to determine whether the design is trending toward the target wetlands functions.
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From page 95... ...
By cautiously integrating these various perspectives with the literature, compliance can be characterized. MITIGATION PLANNING Mitigation plan development begins with a functional assessment of the impact site and continues through the selection and development of a mitigation site leading to the replacement of the impacted site's functional values.
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From page 96... ...
1992b California, 324 1,176 1971-87 NA 107 Holland and Statewide Kentula 1992 Orange County 70 168 1979-93 13 97 Sudol 1996 Southern CA 75 112 1987-89 92 140 Allen and Feddema 1996 Sacramento and 30 168 1987-90 NA 144 DeWeese 1994 San Francisco Bay San Francisco 36 NA 1977-82 64 NA Race 1985 Bay Florida, Corps NA NA NA NA 246 GAO 1988, as cited in Torok et al. 1996 Jacksonville District T .
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From page 97... ...
Because hydrological processes determine many wetland functions, design standards often seek to grade the topography down to the groundwater source, connect the site to a local stream channel, control the water source (e.g., with tide gates or berms) , or other features.
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From page 98... ...
98 ~ CD ·N U cn 5Em do g o ._, o V)
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From page 100... ...
In others, the risk of introducing invasive species leads to a restriction of the use of topsoil. Although a common design requirement is to spread wetland topsoil over the site, primarily to provide plant propagules, the soil characteristics desired are rarely stated.
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From page 101... ...
Because the permit requirements are legally binding, it is important that the permit conditions be clear, complete, and comprehensive so that the desired mitigation outcome is achieved. If the special conditions are not included in the permit or if they do not clearly describe mitigation milestones to be achieved, it is possible for regulatory certification to be obtained by the permitter even though the mitigation does not produce a mitigation site that replaces the impact area's functions and values (see Coyote Creek case study, Appendix B)
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From page 102... ...
implement self-reporting and certification for compliance is above the line. The committee found that the cumulative effect of these policy decisions indicates that evaluating and issuing permits takes priority over careful evaluation of mitigation projects.
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From page 103... ...
COMPLIANCE WITH PERMIT CONDITIONS The literature shows that many mitigation sites are not performing as specified in Corps permits (Allen and Feddema 1996; Sudol 1996; FDER l991b; Race 1985~. These same studies also show that where mitigation is performing as specified, many of those sites do not support functions and values equivalent to similar reference sites.
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From page 104... ...
. Ecologists, hydrologists, and other scientists who study mitigation sites find many shortcomings in comparing mitigation sites with reference systems (see Chapter 2~.
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From page 105... ...
. I ~ A I ·l ~ 1, 1 1 1 1 ~; ~~ my, ~~ my, me,, me,, <,,~,,~',~\ ',\ FIGURE 6-1 Water-table position and duration of root zone saturation for wetland site that satisfies the jurisdictional hydrology criteria (5% of growing season)
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From page 106... ...
. Mitigation projects that stress the wet end of the range will not replace the functions provided by much drier impact sites.
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From page 107... ...
Breaux and Serefiddin (1999) examined 110 compensatory wetland mitigation projects in California (permitted from 1988 to 1995)
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From page 108... ...
MITIGATION RATIOS Mitigation ratios are the proportional requirements for replacing wetlands that are permitted for fill. A point that is frequently raised in assessments of mitigation is that the ratios (the number of required mitigation acres to the permitted acres)
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From page 109... ...
The reasons that mitigation projects do not meet expectations are partially dependent on performance and design criteria, program oversight, and execution. These are discussed in the next sections.
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From page 110... ...
The adjustment of ratios is one of the principal tools for addressing risk and temporal loss with the ultimate goal of achieving permit compliance. MONITORING OF MITIGATION PROJECTS Once a Section 404 permit is issued by the Corps and the agreed-upon mitigation and corresponding performance standards are outlined in the permit special conditions, it is the responsibility of the permitter to conduct ongoing monitoring of the site to ensure that the performance standards are being achieved.
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From page 111... ...
These sentiments were shared by Race and Fonseca (1996~: [O] ur survey of past mitigation projects nationwide indicates that the success rate of permit-linked mitigation projects remains low overall.
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From page 112... ...
Based on design requirements, Morgan and Roberts (1999) found that 72% of the mitigation sites inspected were smaller than required.
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From page 113... ...
For the four wetlands that were compliant, there was an overall mitigation ratio of 1.4:1. Evaluations of ecological equivalency between mitigation sites and reference sites are rarely conducted as part of a programmatic review.
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From page 114... ...
used the HGM method to assess 40 mitigation projects covering 97 hectares of impacts for 104 hectares of proposed mitigation in Orange County, California.
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From page 115... ...
Fifteen habitat functions were compared in 7 reference sites. Forty-two percent of the compensatory mitigation wetland area met the terms of the permit requirements.
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From page 117... ...
mitigation sites in Orange County, California, to determine permit compliance for permits issued between 1985 and 1993. There were 128 ha of impact, of which 19 ha met all conditions of mitigation.
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From page 118... ...
NOTES: Based on field inspection or monitoring reports and when all permit conditions were met. Unverified mitigation attempts were considered noncompliant.
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From page 119... ...
The results indicate that the compensatory wetland mitigation area was often less than the permitted area. Mitigation sites have also been evaluated using more subjective measures.
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From page 120... ...
A summary of key data reviews is in Table 6-16. Between 70% and 76% of the mitigation required in the permits is implemented, and about 50% to 53% of the implemented mitigation projects did not meet the permit requirements.
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From page 121... ...
Record Keeping The committee found that in many cases, mitigation was required to offset impacts; however, some project files did not contain a mitigation plan or other explicit agreements on the size and type of mitigation to be provided. Because mitigation projects extend over many years, mitigation plans need to be on record, with mitigation requirements clarified, so that all subsequent parties involved in the evaluation of the mitigation site know exactly what was required.
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From page 122... ...
RECOMMENDATIONS The committee makes the following recommendations relative to future mitigation compliance to ensure that the nation has an accurate reporting of wetland losses and gains: 1. The wetland area and functions lost and regained over time should be tracked in a national database.
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