Clean Water Act Clean Water Act MitigationMitigation

Jan Goldman-CarterJan Goldman-Cartergoldmancarterj@nwf.orggoldmancarterj@nwf.org

www.nwf.org/Waterswww.nwf.org/Waters

Compensatory Mitigation in the Real World

Limited Science + Economic Cost Considerations + Agency Discretion + Limited Resources + Limited Information + Limited Public Involvement = Net Loss Of Aquatic Resource Quality & Quantity

______________________________Impact Avoidance + Critical Thinking + Scientifically Credible Functional Assessment + Watershed-based Impact Assessment and Site Selection +Ecological Performance Standards + Diligent Compliance Monitoring and Enforcement + Long-term Site Protection and Management + Public Involvement =Maintenance/Improvement of Aquatic Resources

404(b)(1) Guidelines PROHIBIT permit issuance if:

There exists an environmentally preferable practicable alternative;An endangered species would be jeopardized; The discharge will cause or contribute to significant degradation;Impact minimization and mitigation are insufficient; The Corps fails to make specified factual determinations; OR The Corps lacks sufficient information to make a reasonable judgment of compliance with the Guidelines.

The Final Mitigation Rule: Avoiding Impacts

332.1(c)(2)/230.91(c)(2): “The district engineer will issue an individual section 404 permit only upon a determination that the proposed discharge complies with applicable provisions of 40 CFR part 230, including those that require the permit applicant to take all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the United States….” 40 CFR 230.10(a) and 1990 MOA: Prohibition against permit issuance where a less environmentally damaging practicable alternative for the proposed discharge exists.See also: 332.1(f)(2)/290.91(f)(2) (retaining avoidance aspects of 1990 MOA); 73 FR 19596, 19619-20.

The Final Mitigation Rule: Avoiding Impacts

40 CFR 230.10(c): Prohibition against permit issuance where activities associated with a proposed discharge will cause or contribute to significant degradation. From 1990 MOA: “It is important to recognize that there are circumstances where the impacts of the project are so significant that even if alternatives are not available, the discharge may not be permitted regardless of the compensatory mitigation proposed (40 CFR 230.10(c)).” See also: 332.1(f)(2)/290.91(f)(2) (retaining avoidance and significant degradation aspects of 1990 MOA); 73 FR 19596, 19619.

The Final Mitigation Rule: Avoiding Impacts

332.1(c)(3)/230.91(c)(3): “…During the 404 (b)(1) Guidelines compliance analysis, the district engineer may determine that a DA permit for the proposed activity cannot be issued because of the lack of appropriate and practicable compensatory mitigation options.”

73 FR 19618: “Effective implementation of this rule, including the ecological performance of compensatory mitigation projects, is dependent upon critical thinking by decision-makers to determine whether a particular compensatory mitigation proposal at a specific site is technically feasible and capable of providing the desired aquatic resource functions and services.”

Avoiding Impacts to “Difficult-to-Replace” Aquatic Resources

332.3(e)(3)/230.93(e)(3): “for difficult-to-replace resources (e.g., bogs, fens, springs, streams, Atlantic white cedar swamps) if further avoidance and minimization is not practicable, the required compensation should be provided, if practicable, through in-kind rehabilitation, enhancement, or preservation since there is greater certainty that these methods of compensation will successfully offset permitted impacts.” 73 FR 19605: “…[S]ome types of aquatic resources are difficult to replace, such as bogs, fens, vernal pools, and streams….[W]e have added § 332.3(e)(3)[230.93(e)(3)], which emphasizes avoidance and minimization of impacts to difficult –to-replace resources….” See also 73 FR 19633. See: 73 FR 19618 (re critical thinking by decision-makers re feasibility and capability to replace functions and services).

The Mitigation Rule Watershed Approach

332.3(c)(1)/230.93(c)(1): “The district engineer must use a watershed approach to establish compensatory mitigation requirements in DA permits to the extent appropriate and practicable.”

“The ultimate goal of a watershed approach is to maintain and improve the quality and quantity of aquatic resources within watersheds through strategic selection of compensatory mitigation sites.”

332.3(c)(3)/230.93(c)(3):332.3(c)(3)/230.93(c)(3): Absent an available Absent an available and appropriate watershed plan, and appropriate watershed plan, “the district “the district engineer will use a watershed approach based on engineer will use a watershed approach based on analysis of information regarding watershed analysis of information regarding watershed conditions and needs, including ....”:conditions and needs, including ....”:-- current trends in habitat loss and conversion;-- current trends in habitat loss and conversion;-- cumulative impacts of past development activities;-- cumulative impacts of past development activities;-- current development trends;-- current development trends;-- presence and needs of sensitive species;-- presence and needs of sensitive species;-- site conditions that help/hinder mitigation success;-- site conditions that help/hinder mitigation success;-- flooding, poor water quality, other chronic -- flooding, poor water quality, other chronic environmental problems.environmental problems.

The Mitigation Rule Watershed Approach

Scientifically Credible Functional Scientifically Credible Functional AssessmentsAssessments332.3(f)/230.93(f): “[T]he amount of required

mitigation must be, to the extent practicable, sufficient to replace lost aquatic resource functions.” In cases where appropriate functional or condition assessment methods or other suitable metrics are available, these methods should be used where practicable to determine how much compensatory mitigation is required.”

“We are moving towards greater reliance on functional and condition assessments ….We believe that more frequent use of such assessment methods will help improve the quality of aquatic resources in the United States.” 73 FR 19601, 19633.

Mandatory Ecological Performance Mandatory Ecological Performance StandardsStandards

332.4(c)(1),(9)/230.94(c)(1),(9): The final mitigation plan “must include” “ecologically-based” performance standards.

332.5/230.95: “Ecological performance standards must be based on the best available science that can be measured or assessed in a practicable manner.” See also: 73 FR 19597 (mandatory ecological performance standards based on best available science); 73 FR 19643.

Enforcement of Mitigation ConditionsEnforcement of Mitigation Conditions • 332.3(k)/230.93(k):332.3(k)/230.93(k): Compensatory Compensatory

mitigation requirements must be clearly mitigation requirements must be clearly stated in individual permit conditions and stated in individual permit conditions and must be enforceable. must be enforceable.

• 332.3(l)/230.93(l):332.3(l)/230.93(l): responsible party responsible party must be clearly identified.must be clearly identified.

• See also: 73 FR 19609-10 (permittee enforcement per 33 See also: 73 FR 19609-10 (permittee enforcement per 33 CFR 326; 3CFR 326; 3rdrd party enforcement through “appropriate party enforcement through “appropriate actions”; 73 FR 19636-38.actions”; 73 FR 19636-38.

Monitoring ReportsMonitoring Reports • 332.6(c)/230.96(c): 332.6(c)/230.96(c): Monitoring report Monitoring report

information must be sufficient to determine project information must be sufficient to determine project progress toward meeting performance standards; progress toward meeting performance standards; monitoring requirements must be clearly stated as monitoring requirements must be clearly stated as enforceable special permit conditions; reports must enforceable special permit conditions; reports must be publicly available. See also 73 FR 19597, 19644-be publicly available. See also 73 FR 19597, 19644-45.45.

• 332.4(b)/230.94(b)/325.1: 332.4(b)/230.94(b)/325.1: The permit application The permit application and public notice must include statement re impact and public notice must include statement re impact avoidance, minimization, and mitigation sufficient avoidance, minimization, and mitigation sufficient to provide for meaningful public comment. See to provide for meaningful public comment. See also 73 FR 19640-41.also 73 FR 19640-41.

•332.3(a)(3)/230.93(a)(3):332.3(a)(3)/230.93(a)(3): Compensatory Compensatory mitigation projects may be sited on public lands as mitigation projects may be sited on public lands as long as credits are based “solely on aquatic long as credits are based “solely on aquatic resource functions provided by the compensatory resource functions provided by the compensatory mitigation project, over and above those provided mitigation project, over and above those provided by public programs already planned or in place.” by public programs already planned or in place.” See also: 73 FR 19627, 19632.See also: 73 FR 19627, 19632.•Cost of land acquisition, ownership, management Cost of land acquisition, ownership, management is subsidized and therefore not incorporated into is subsidized and therefore not incorporated into full cost of development.full cost of development.•Public interest in public land and water Public interest in public land and water conservation and recreation may be compromised. conservation and recreation may be compromised.

Mitigation on Public Lands: In the Public Interest?

Long-term Protection and ManagementLong-term Protection and Management332.7(a)/230.97(a): The compensatory mitigation project must be provided long-term protection …as appropriate. The long-term mechanism must, to the extent appropriate and practicable, prohibit incompatible uses. See also: 73 FR 19646 (“The goal of the rule is to ensure permanent protection of all compensatory mitigation project sites.”)332.7(d)/230.97(d)(1): “The permit conditions or instrument must identify the party responsible for ownership and all long-term management of the compensatory mitigation project.”332.7(d)/230.97(d)(2): The long-term management plan should “identify the funding mechanism that will be used to meet those [long-term management] needs. See also: 73 FR 19648-49 (necessary to demonstrate adequate funds for long-term management activities).

Implementation Reality: Who’s Watching?Implementation Reality: Who’s Watching?District officials told GAO in 2005: “…because of budget constraints, little time is spent on compliance activities, including following up on the submission of monitoring reports ….”

“…the low priority accorded compliance inspections in the Corps’ guidance, as well as limited resources, contribute to their low level of oversight of compensatory mitigation.”

Rule puts our aquatic resource eggs in the 3rd party basket: “As more credits are generated by third-party mitigation providers, burdens on permittees should be reduced.” 73 FR 19609-10.

Mitigation Southwest Florida Style

-- 646-acre development site-- 557 acres of jurisdictional wetlands (86%)-- 295 wetland acres dredged or filled-- 263 wetland acres remaining on-site are

“preserved” and “enhanced” through removal of exotic vegetation.

-- to be turned over to public land trust to be responsible for exotics removal and management long-term.-- 60 wetland acres “preserved” off-site and “enhanced” through exotics removal-- payment of $1.2 million to WMD mitigation fund for purchase of 154 acres in trust area off-site. -- purchase 8.7 credits Big Cypress Mitigation Bank

Forcing Watershed Analysis Beyond Consultants’ Reports

• Large-scale development in Cocohatchee Slough

• SW Florida areawide EIS includes watershed information, including flood storage, water quality, and endangered species habitat needs.

• Identifies Slough as high priority for restoration.

• Corps accepts project consultants’ project-by-project analysis re mitigation for these project impacts without critically examining the individual and combined impacts of these projects on a watershed scale.

• Watershed, ecosystem-based science, Watershed, ecosystem-based science, cumulative impacts information and mappingcumulative impacts information and mapping

• Strong, binding legal framework, legal claimsStrong, binding legal framework, legal claims

• Hydrological, ecological expertise supporting Hydrological, ecological expertise supporting permit review, litigation.permit review, litigation.

• Solid, sustained partnerships: local expertise, Solid, sustained partnerships: local expertise, media, grassroots, watch-dogging.media, grassroots, watch-dogging.

Key Ingredients

Settlement Terms

• Deletes 18-hole golf course• Shrinks footprint by 100 acres• Reduces wetland impacts by 85

acres• Restores @40 acres of short

hydroperiod wetlands on-site• Adds 85 acres of new preserve• Re-establishes natural flowway via

added western preserve• Restores @1000 acres SHP wetlands

in Corkscrew foraging area

Maintenance/Improvement of Aquatic Resources

•Impact Avoidance •Critical Thinking •Scientifically Credible Functional Assessment •Watershed-based Impact Assessment and Site

Selection •Ecological Performance Standards •Diligent Compliance Monitoring and Enforcement •Long-term Site Protection and Management •Public Involvement