Mitigation of Aquatic Resource ImpactsUSACE Published Mitigation Rule (33 CFR 332 - April 10, 2008) Contents Construction activities authorized by a Department of the Army permit may result in temporary and/or permanent adverse impacts to waters of the United States, including wetlands. The Regulatory Program regulations (33 CFR 320-331 and 40 CFR 230) authorize the Corps to require mitigation for project impacts. The Corps is committed to the protection of the aquatic ecosystem while administering a fair and equitable permit program. The Federal government has established a goal of "no overall net loss" of wetlands and the Corps has adopted this goal to the Regulatory Program. To "mitigate" means to alleviate or moderate something harsh, or to make or become less severe or intense. The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.) establishes policy and procedures to guide federal agency decision-making in matters affecting the quality of the human environment. For the purposes of informed environmental decision-making, the Council on Environmental Quality established by NEPA has defined "mitigation" (40 CFR 1508.20) to include:
Mitigation of project impacts to aquatic resources requires the development and consideration of project alternatives. These alternatives must employ three essential mitigation steps that are to be considered in a sequential manner. First, project impacts must be avoided to the extent practicable. Second, unavoidable impacts should be minimized. Third, remaining unavoidable impacts should be mitigated through compensatory actions. This mitigation policy is more explicitly described in the Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation under the Clean Water Act Section 404(b)(1) Guidelines. Avoidance MitigationAvoidance mitigation best occurs in the planning and design stages of a project by configuring the site layout to avoid impacting an aquatic area or areas or by not implementing certain parts of an action. Project proponents should configure the proposed development or facility around natural flood plains and aquatic resources by incorporating open space, green space, natural areas, and buffers into the site plan. For linear projects such as utility lines and transportation facilities, alternative alignments should be vigorously investigated to eliminate wetland and other aquatic resource impacts. The Section 404(b)(1) Guidelines are the substantive criteria used in evaluating proposed construction requiring a Clean Water Act Section 404 permit. These Guidelines support the selection of the least environmentally damaging practicable alternative in all cases. Where an action is proposed in a Special Aquatic Site (wetland, stream riffle and pool complex, mudflat, vegetated shallows, coral reefs, and sanctuaries and refuges) the Guidelines establish a rebuttable presumption that alternatives to construction in Special Aquatic Sites are less damaging to the aquatic environment and are environmentally preferable. In addition, where the proposed action is non-water dependent, practicable alternatives that do not involve Special Aquatic Sites are presumed to be available unless demonstrated otherwise. A non-water dependent activity does not require access or proximity to, or positioning within an aquatic area to fulfill its basic purpose (e.g. a marina is water dependent; a restaurant is non-water dependent). Minimization Mitigation Minimization mitigation should occur during the planning and design stages as well as during construction or implementation stages of a project. Project proponents should consider ways in which minimization of aquatic resource impacts could occur through limiting the degree or magnitude of the action and its implementation, and by effectively rectifying temporary impacts by repairing, rehabilitating, or restoring the affected environment to pre-construction or pre-disturbance conditions. Minimization of impacts could also occur through the designing or programming of operation or maintenance activities to eliminate or reduce impacts over the life of the project or operation. For linear projects such as utility lines and transportation facilities, alternative alignments should be vigorously investigated to reduce the number and length of wetland, stream, and river crossings, with particular sensitivity to multiple crossings of the same stream or wetland. Proper consideration of avoidance and minimization should result in the selection of the least environmentally damaging practicable alternative as required by the Section 404(b)(1) Guidelines. Compensatory Mitigation Compensatory mitigation is an action(s) taken or implemented to offset project impacts by exchanging ecologically beneficial actions for the project impacts. Compensation occurs through providing replacement or substitute aquatic resources for those to be lost due to project construction or project operation. While substituting off-site actions for resources impacted at a project site may be an attractive solution to project proponents for the resource impacts of a project, compensatory mitigation can only be considered for the unavoidable impacts that remain after all appropriate and practicable avoidance and minimization mitigation efforts have been identified and employed in a project design. Types of Compensatory Mitigation Restoration - Restoration is the re-establishment of wetland and/or aquatic resource characteristics and function(s) at a site where they have ceased to exist or exist in a substantially degraded state. An example of restoration mitigation would be restoration of the hydrology of a former wetland site through the removal of berms or levees, or the plugging or filling of ditches and artificial drainages. Creation - Creation is the establishment of a wetland or other aquatic resource where one did not formerly exist (i.e., the conversion of non-aquatic habitat to aquatic habitat). An example of creation mitigation would be excavation of a non-wetland site, designing appropriate passive hydrology, and installation of native wetland plants to establish a new wetland. Enhancement - Enhancement is activity(ies) conducted in existing wetlands or aquatic resources that increases or improves one or more aquatic function(s) or characteristic(s). An example of enhancement mitigation would be improvement of instream aquatic habitat or restoration of stream bed diversity (substrate, structure, holes, permanent bars and points, permanent coarse woody debris in stream bed). Establishment of riparian buffers to streams and vegetated buffers to open waters have been demonstrated to protect water quality and improve aquatic and terrestrial habitat and can be accepted as mitigation where appropriate. Buffers as mitigation should use native species only. They must be legally established and protected through an appropriate realty instrument and physically maintained to ensure intended mitigation is provided on an ongoing basis. Preservation - Preservation is the conservation or dedication of ecologically important wetlands or other existing aquatic resources in perpetuity through the implementation of appropriate legal and physical mechanisms to prevent its destruction or degradation in the future. An example of preservation mitigation would be preservation of existing yet threatened wetlands through acquisition and deed restriction to protect the property in perpetuity from degrading or destructive practices. On-Site Versus Off-Site Mitigation On-Site versus Off-Site Mitigation - On-site mitigation is mitigation action that is implemented within the proposed project site or immediately adjacent to the project site. On-site mitigation is often preferred because it keeps the intended offsetting benefits of compensatory mitigation close to the impact site. Implementing a comprehensive site design which respects landscape diversity, open space, and aquatic areas can incorporate mitigative features into the plan and avoid the high costs associated with off-site mitigation. Off-site mitigation is compensatory mitigation that is implemented a distance away from the impact site. Off-site mitigation may be as close as a non-adjacent property or as far as several miles away. Off-site mitigation requires acquisition or negotiated rights on an additional property and can incur substantially higher compensatory mitigation ratios (by order of magnitude) due to the displacement of offsetting benefits away from the area of the aquatic resource impacts. In-Kind Versus Out-of-Kind In-Kind versus Out-of-Kind - The "kind" of mitigation refers to the type of wetland or aquatic resource impacted and the type of wetland or aquatic resource provided in a compensatory mitigation exchange. For example, the wetland to be impacted by a project might be identified as a X-acre bottomland hardwood forested wetland. In-kind mitigation would include such options as: 1) restoring a formerly forested wetland by restoring hydrology and planting appropriate native species of trees, 2) preserving 10X acres of existing bottomland hardwood wetland, or 3) enhancing a degraded forested wetland by excluding deleterious activities, removing undesirable plant or tree species, and planting desirable native forest species appropriate to the site. Out-of-kind mitigation for this example would involve the establishment or creation of an herbaceous wetland and open water pond. Mitigation proposals involving out-of-kind mitigation will require higher mitigation ratios even when regional aquatic resource needs favor out-of-kind mitigation. Watersheds and Ecoregions - To the extent possible, the watershed boundary and ecoregion zone should be considered in the design and location of compensatory mitigation proposals. Proponents should look to compensatory mitigation options that lie within the same watershed as the project impact. Ecoregions are another landscape scale consideration that may drive the selection of off-site compensatory mitigation options (EPA Level III Ecoregions: http://www.epa.gov/wed/pages/ecoregions/level_iii.htm ) Links to Mitigation PoliciesTulsa District Mitigation and Monitoring Guidelines
National Mitigation Policies Environmental Protection Agency, Section 404(b)(1) Guidelines [40 CFR Part 230]. Guidelines for Specification of Disposal Sites for Dredged or Fill Material. Consolidated Compensatory Mitigation in Tulsa District Consolidated mitigation is mitigation accomplished in a region comprehensively for a number of various impact projects. It may be established as a single-party site such as for use solely by a state's transportation department for transportation-related aquatic resource impacts or it may be a multi-party site such as an entrepreneurial enterprise open to any clients needing mitigation within a specific geographic area. This mitigation typically involves the consolidation of what would otherwise occur as small, fragmented wetland mitigation projects into one large contiguous site. By nature of its use, consolidated mitigation is always off-site mitigation. By consolidating compensation requirements, this mitigation can more effectively replace lost wetland functions within a watershed, as well as provide economies of scale relative to the planning, implementation, monitoring, and management of mitigation projects. Consolidated mitigation may come in different forms, namely: mitigation centers, mitigation banks, and in-lieu-fee mitigation arrangements. Mitigation Banks - Mitigation banking has been defined as wetland restoration, creation, enhancement, and in exceptional circumstances, preservation undertaken expressly for the purpose of compensating for unavoidable wetland losses in advance of development actions, when such compensation cannot be achieved at the development site or would not be as environmentally beneficial. Units of restored, created, enhanced, or preserved wetlands are expressed as "credits" which may subsequently be withdrawn to offset "debits" incurred at a project development site. Ideally, mitigation banks are constructed and functioning in advance of development impacts, and are seen as a way of reducing uncertainty in the CWA Section 404 permit program by having established compensatory mitigation credit available to an applicant. For federal aid highway projects, the Transportation Equity Act for the 21st Century (TEA-21) established a preference for the use of mitigation banking over project-specific mitigation. This preference is governed by criteria such as the service area of the approved bank, the availability of credits, and considerations such locally important aquatic resource functions and in-kind versus out-of-kind mitigation. Tulsa District Mitigation Banks
Mitigation Centers - Mitigation centers are similar to mitigation banks with the exception that restoration, creation, and enhancement activities may occur concurrent with project impacts or development actions rather than in advance of project impacts. Components for the restoration, creation, enhancement, or preservation of wetlands and aquatic resources are expressed as "credits" which may subsequently be purchased or funded by a client to offset aquatic resource impacts incurred at the permitted project development site.
In-Lieu-Fee Mitigation Programs - "In-Lieu-Fee" mitigation occurs in circumstances where a permittee provides funds to an in-lieu-fee sponsor instead of either completing project-specific mitigation or purchasing credits from an approved mitigation bank. The program sponsor periodically funds a consolidated mitigation project from the proceeds of the accumulated in-lieu-fees.
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