Environmental
Jul. 15, 2003
Agencies Abandon Fixed-Ratio Wetlands Mitigation
Focus Column - Environmenal Law - By Jon K. Wactor - The United States has lost more than half of its wetlands as the population has expanded. Continuing growth means continuing pressure on what remains.
Focus Column
Environmenal Law
By Jon K. Wactor
The United States has lost more than half of its wetlands as the population has expanded. Continuing growth means continuing pressure on what remains.
These wetlands are important habitat for a variety of plant and animal species, for keeping rivers, streams and lakes clean and for navigation. For these reasons, the Clean Water Act provides that the U.S. Environmental Protection Agency and the Army Corps of Engineers oversee the filling of various wetland resources.
These agencies can levy severe civil and criminal penalties for the filling of wetlands and other interstate waters without a permit. Environmental organizations and state and local agencies also can be involved heavily in the permitting process, making the handling of wetlands in the development context a complex business.
The EPA and the Army Corps of Engineers allow filling of wetlands and stream channels in certain circumstances, via a detailed evaluation and permitting scheme.
For many years, the goal of the agencies has been "no net loss" of wetlands when issuing permits for the filling of existing wetlands. In an attempt to reach this goal, the agencies have required "mitigation," generally using a ratio ranging from 1-1 to 1-3.
In other words, if you want to fill one acre of wetland, you must create from 1 to 3 acres of new wetland to mitigate the loss of the original 1-acre wetland. This approach has been in effect for more than 20 years.
Looking back, the agencies have come to realize that this acre-for-acre approach has not been especially effective in meeting the no-net-loss goal. It has failed for several reasons, including the lack of enforcement of required mitigation and the failure to make sure that the mitigation wetlands provide the same type of resource as the destroyed wetlands.
Since the 2001 National Academy of Sciences report recognized that the no-net-loss goal wasn't being met, federal policy-makers have been struggling with revising their approach to try to get closer to the no-net-loss goal.
The regulated community has argued that the fixed-ratio approach is not necessary and is too expensive. The environmental community has argued that the ratio is a good idea but that the ratios being used are way too small; they prefer a 1-10 ratio. That would mean that a developer would have to create 10 new wetland acres for every 1 filled.
Now the Army Corps of Engineers and the EPA have released a new guidance aimed at meeting the goal and attempting to address the valid points made by both sides of the debate. A copy of the Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program is available at www.spn.usace.army.mil\regulatory.
A new approach has evolved: Instead of a fixed acre-for-acre ratio, the government will attempt to reach the no-net-loss goal by considering the "functional attributes" of the lost wetland and requiring that whatever mitigation scheme the permittee proposes replace these attributes.
This approach addresses the environmental community's complaint that the 1-3 ratio mitigation done to date actually has not replaced all of the lost attributes of the filled wetland (and thus that a higher 1-10 replacement ratio should be required). It also addresses the regulated community's complaint that the fixed ratio is unrealistically high and, therefore, unnecessary and too expensive.
According to the guidance, the agencies believe that the new functional approach will, "in most cases, provide for a more accurate and effective way of achieving the environmental performance of the no net loss policy."
What is important to understand from any perspective is that the old acre-for-acre mitigation ratio is no longer the rule of thumb. As stated by the Army Corps of Engineers in the guidance document, in "some cases, replacing the functions provided by one wetland area can be achieved by another, smaller wetland; in other cases, a larger replacement wetland may be needed to replace the functions of the wetland impacted by development."
Also important to understand is that a wetland no longer will be seen by the agencies as a generic wetland. The agencies will conduct an individual review of the various functional attributes of the subject wetland to determine the appropriate mitigation requirements.
This new method offers hope to developers by specifically allowing for a less than 1-1 replacement ratio, in appropriate circumstances. Yet it also shows the environmental community that the actual functional attributes of the filled wetland will be compensated for.
How will this new approach work? As before, the first step will be to determine whether the filling of the wetland is avoidable. If so, the agencies will require that this alternative be taken. If not, and filling of a wetland or stream channel must occur, then mitigation requirements will kick in.
Rather than just trading acre for acre on the fixed-ratio formula, the agencies will create site-specific mitigation requirements from an evaluation using generally accepted aquatic site-assessment techniques.
Acceptable mitigation techniques include establishing new wetlands or stream channels; restoring a degraded wetland or stream channel, whether or not it adds new acreage; enhancing the functionality of an existing wetland (for example, creating a habitat for a critter different from one that existed there before); and/or protecting or maintaining existing wetlands through the purchase or dedication of nonwetland areas or, in the case of channels, flood-control devices.
Typically, the mere protection of an existing wetland would not be sufficient mitigation. However, the new policy states that this may be possible, depending on site-specific circumstances.
The Army Corps of Engineers can require that mitigation take place on-site and/or off-site and with like-kind or not-like-kind functionalities. It may require buffer areas (including uplands and riparian areas), and, if appropriate, the Army Corps of Engineers can approve the purchase of credits from a mitigation bank or payment into a fund for a needed supplementary environmental project.
Preferred mitigation projects will include a mix of open water, wetlands and adjacent uplands. These choices depend on what is most important in the local district and in the particular watershed where the filling occurs. Also important is the input of other federal, state, tribal and local government agencies.
The new policy allows the old acre-for-acre (or linear-foot-for-linear-foot, when applied to streams) approach to be applied if insufficient data on functionality exists to create a meaningful mitigation plan.
Further, to address one of the identified failings of the old acre-for-acre approach, the new policy requires that any mitigation plan, whether in individual- or general-permit situations, must identify clearly the person responsible for maintaining the effectiveness of the mitigation. The agencies will adopt specific monitoring requirements, generally requiring five to 10 years of monitoring.
The new program also generally requires that the mitigation take place simultaneously with the impact to the wetland or stream. In situations where this will not work, the Army Corps of Engineers will require that the mitigation plan be approved and ready for implementation before it will allow the filling of the existing resource.
Concurrent with the guidance document, the agencies issued a new National Wetlands Mitigation Action Plan, setting out 17 steps that they will follow by the end of 2005. The agencies hope that the insights gained through this lengthy process will provide a better understanding of wetland functions and how they might be better repaired or replaced when filling is unavoidable.
The National Wetlands Mitigation Action Plan will generate several new guidance documents dealing with various aspects of the wetland issue, including new guidances for implementing off-site and out-of-kind mitigation, use of mitigation banks, stream-channel mitigation and generalized checklists and monitoring guidelines.
This new plan means that more policy changes are coming up and will affect how development interests handle wetland challenges. All in all, we can expect a steady evolution of agency mitigation requirements for the next few years.
Jon K. Wactor, a partner with Wactor & Wick, has practiced environmental law exclusively since 1982. He is co-chair of the Bar Association of San Francisco's environmental law section and a member of the executive committee of the State Bar's environmental law section.
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