Current Issues Wetland Mitigation_Irow 2009

Robert G. Doherty & James L. Arndt

Recent Developments in Wetland Mitigation Regulations

and Their Implications for Right-of-Way Development and Management

Recent Developments in Wetland Mitigation Regulations

and Their Implications for Right-of-Way Development and Management

Wetland Conversion – 1700s to 1950(Manifest Destiny and the Cowboy Way)

Wetland Conversion – 1700s to 1950(Manifest Destiny and the Cowboy Way)

Laws encouraged wetland conversion.

Washington granted lands to state under the condition that they be drained.

Technology (ACOE and SCS) emphasized land drainage. Drainage becomes efficient.

Extensive wetland conversion – averaging 850,000 acres/year through 1954.

75 – 80 million acres total, about 42% of the nation’s original wetland acreage.

Most acreage lost prior to the 1950s was from conversion for agriculture.

Wetlands a Nuisance and an Impediment to Agricultural and National Growth

The Movement To Regulation(Mea Culpa)

The Movement To Regulation(Mea Culpa)

1930s USFWS and USDA scientists begin noting the effects of wetland loss.

Beginnings of wetland acquisition (initially for wildlife and waterfowl).

Beginnings of environmental review and consultation processes.

1950sShift of wetland conversion to urban/suburban development.

Growth of research interest in wetland science.

1960sPartial elimination of incentives for wetland conversion.

Expansion of wetland acquisition and protection activities.

Expansion of public review process for environmental impacts.

Increased public funding for wetland research.

Regulation(Mea Maxima Culpa)

Regulation(Mea Maxima Culpa)

1972 - Federal Water Pollution Control Act.

Prohibited dredging or filling waters of the U.S without a permit.

Scope expanded to wetlands through lawsuits and Executive Orders.

(Wetland Regulations Grow Teeth)(Wetland Regulations Grow Teeth)

1977 - Clean Water Act.

1980 - EPA Section Incorporated lawsuits and Executive Orders.

Expanded coverage to isolated wetlands and lakes and similar waters.

Established the US Army Corps of Engineers as responsible agency.

Allowed use of compensation as a means of impact minimization.

404 regulations finalized.

Established permit process for regulating discharges into wetlands.

Established requirement for practicable alternatives analysis.

Early Mitigation(Mitigation – To act is such a way as to make an offence seem less serious;

Lessening in severity or intensity

Early Mitigation(Mitigation – To act is such a way as to make an offence seem less serious;

Lessening in severity or intensity

1970 – NEPA directs mitigation analysis for federal activities.

1977 – Clean Water Act allows compensation for impact minimization.

1981 – USFWS adopts the first comprehensive mitigation policy.

1985 – Corps of Engineers adopts mitigation procedures for 404 program.

1990 – Water Resources Development Act codifies “No Net Loss” policy. Interagency MOA establishes a functional basis for mitigation.

Application of the 1990 MOA guidelines varied across Corps Districts.

Mitigation was generally required only for conversion to non-wetland.

Mitigation requirements were generally based on acres of wetland lost.

Mitigation Under Development: The sins of the fathersMitigation Under Development: The sins of the fathers

Development and application of diverse Wetland Evaluation Methodologies. (WET, EMAP, HGM, MnRAM, WiscRAM, FQA, Alphabet soup of others.

Expansion of wetland research interest and funding. NRCS, Army Corps, EPA, USGS, State Agencies.

Establishment of stakeholder groups for program oversight.

Expansion of public awareness of and interest in wetlands.

Critical evaluations of mitigation approaches and success/failure evaluations.

Critical evaluations of Corps administrative procedures.

Implementation of the 1990 MOA pushed development of a more complex and

standardized approach:

National Research Council, 1995

Arndt Paraphrase: “Your hearts are in the right place,

but you don’t know what you’re doing”

“The federal regulatory system for the protection of wetlands is scientifically sound and effective in most respects, but it can be

more efficient, more uniform, more credible with regulated entities, and more accurate in

a technical or scientific sense through the constructive reforms of the type suggested in

this report.”

Mitigation Criticized (1): Small Acorns……Mitigation Criticized (1): Small Acorns……

National Research Council, 2001

The CWA Section 404 program should be improved to achieve the goal of no net loss of wetlands for both AREA and FUNCTIONS ……[It] is of paramount importance that the regulatory agencies consider each permitting decision over broader geographic areas and longer time periods, i.e. by modifying the boundaries of permit decision making in time and space.

Arndt Paraphrase: “Mitigation is not working…You need to listen

to us, or bad things will happen to you and your programs”

Mitigation Criticized (2): ….Grow into Big OaksMitigation Criticized (2): ….Grow into Big Oaks

Mitigation Under Revision (They Listened)Mitigation Under Revision (They Listened)

Improve data collection and evaluation standards.

Clarify performance standards.

Establish a watershed context in mitigation planning and evaluation.

Integrate mitigation more fully into the permitting process.

Create greater opportunity for public involvement and comment in mitigation.

Improve compensatory mitigation accountability (monitoring and accounting for failure).

Promote mitigation approaches with greater likelihood of success. Detailed mitigation plans. Consistent content.

Response: 2005 EPA and ACOE Identify Issues and propose to address mitigation needs.

Mitigation Revised – the 2008 Rules (They Acted)Mitigation Revised – the 2008 Rules (They Acted)

On June 9, 2008 , new rules went into effect governing compensatory mitigation for authorized impacts aquatic resources under Section 404 of the CWA.

Implications: June 9, 2008 WAS LAST YEAR. COE districts are notoriously autonomous. Each will implement the rules on their own time schedule and in their own way.

No change to jurisdiction, avoidance and minimization requirements, or when compensatory mitigation is required.

Implications: 404b1 guidelines unaffected. MORE SCRUTINY.

The new regulations substantially affect the permitting of and mitigation for impacts to wetlands and waters for utility projects.

Implications: Cost and Timing. Coordination. Inefficiency and inconsistency in dealing with agency requirements.

Mitigation Plan development and approval was moved forward in the permitting process.

Implication: APPROVED Mitigation Plan is REQUIRED prior to permit authorization. COMPLICATES concurrent project planning and permitting.

Mitigation Plan development was made subject to public review and comment.

Implication: Other agencies (EPA, DNRs) and NGO’s can comment on mitigation adequacy. If there are substantive questions about impacts or mitigation, DELAYS. Permits denied without prejudice.

Mitigation Revised – the 2008 Rules (What They Did, Effects)

Mitigation Revised – the 2008 Rules (What They Did, Effects)

Mitigation Plan content requirements were expanded and standardized (and made far more complex). Districts adopt and modify recommendations.

Objectives, number of credits to be providedSite-protection instrumentBaseline information, site selection informationMitigation work planMaintenance planEcological performance standardsMonitoring requirementsFinancial assurancesLong-term management plan, adaptive management plan

Implications: Competence of responsible sub-contractors extremely important. Additional cost, Additional Time (project planning and post construction phases). (Can be offset if credits purchased - availability).

Mitigation Revised – the 2008 Rules (What They Did)

Mitigation Revised – the 2008 Rules (What They Did)

Rejection of the acreage replacement in favor of a complex analysis of project’s functional and temporal impacts . Mitigation required for functional impacts.

Temporary loss of wetland function during construction,

Mid-term loss of function during recovery from construction clearing,

Permanent loss of function for post-construction maintenance. TYPE CONVERSION (they like forested wetlands).

Establish preference for mitigation options that encourage market-based solutions.

In-kind preferred (need to know what was impacted).

In order of preference: mitigation banks, in-lieu fee programs, project-specific mitigation.

More assurance of success.

Mitigation Revised – the 2008 Rules (What They Did)

Mitigation Revised – the 2008 Rules (What They Did)

Example 1 – Recent Projects, Charleston DistrictExample 1 – Recent Projects, Charleston District

A recent utility project in The Vicksburg District

Temporary impact to approximately 130.9 acres of wetlands and

Permanent impacts (type conversion forested or shrub to emergent of approximately 15.5 acres.

The project was authorized under Nationwide Permit 12 – Utility Lines.

Using the Charleston District mitigation SOP, the Vicksburg District required

180 acres of mitigation for the project.

Approval of a mitigation plan prior to the initiation of construction.

Met primarily through purchase of credits from a mitigation bank with some on site restoration of previous construction impacts.

Example 1 – Recent Projects, Charleston DistrictTechnical and Complicated

Example 1 – Recent Projects, Charleston DistrictTechnical and Complicated

Example 2 – St. Paul DistrictExample 2 – St. Paul DistrictLike Charleston, the St. Paul District started developing its approach before the rules were finalized though not nearly as early.

The District’s approach also combines

Evaluation of the type, quality, and acreage of wetlands affected;

The geographic region where the impacts will occur; and

The temporal duration of the impacts in order to develop mitigation ratios for calculating the mitigation required.

Example 2 – St. Paul DistrictExample 2 – St. Paul District

Two recent projects in Wisconsin and Minnesota. Obligations were met with a combination of different sites designed for Project-specific

mitigation.

Agencies permit project impacts (including construction procedures), not projects.

404(b)(1) guidelines have teeth, and require  EARLY and CONTINUED cooperation and collaboration of ALL components involved in pipeline planning: engineering, ROW, environmental, and legal. 

LEDPA Least Environmentally Damaging Practicable Alternative. “The term practicable means “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purpose.” Engineers take notice.Rebuttable Presumptions. An assumed LEDPA route or construction procedure. It’s the applicants responsibility to rebut these presumptions.

Agencies require that project designs follow sequencing guidelines (avoidance, minimization, and mitigation).

Impacts to aquatic resources should be determined sufficient to prepare mitigation plans submitted with the final permit application materials. 

Words to Live ByWords to Live By

Do know your Agencies, both Federal and State.  COE districts vary greatly in their expectations and how they handle utility projects and 404 permitting.

Do begin coordination with Agencies early in the process.

Expectations, procedures, data requirements, and permit evaluation processes.  

Words to Live ByWords to Live By

Don’t get blindsided well into the project.  Determination of Impacts and mitigation for same can cost months.  No work is done without a permit.

Pre-construction evaluation of aquatic resources should match agency expectations.  Functional evaluations may need to be performed.  Have delineators describe wetlands, not just focus on the boundaries.

Don’t jump the gun and start permitting requests too early.  Frequent changes in project specs and design after the agencies have begun their evaluations will not be looked at favorably. 

No Net Loss of functions is emphasized now, not acreage impact replacements.  More and more, this means mitigating for temporary impacts.

Expect that some mitigation will be at greater than 1:1.  For unique areas the ratio may be much higher.

Mitigation is expensive, and very difficult to find or develop in some areas.  Consider mitigation as part of the project design critical path - start early, and keep with it.

Mitigation in some districts must be approved prior to permit authorization and in others prior to the start of construction. Ultimately, mitigation will be a required component of a complete application.

Words to Live ByWords to Live By

[email protected] 612.215.6095

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