I have finally read the Corps' new Mitigation rule, an arduous task. I have a few preliminary comments that I hope we can discuss here.

1. It looks as if the Corps has abandoned on site mitigation. Now, the two most preferred mitigation methods in order of preference will be wetland mitigation banks and in-lieu payment. For those methods mitigation sites will be chosen and those sites will have service areas. Who knows what a service area will be and how it will really be chosen, but it has something to do with watersheds. As best I can tell the Army and EPA are still avoiding a working definition of watershed. So what will be done to replace the functions of wetlands in an urban area if the mitigation bank is in a remote rural area. Should we be developing urban banks?

2. Although the mitigation is still for the loss of functions, we will no longer focus on acreage, but on credits. Yet no clear national standard for establishing mitigation credits is set forward.

3. Preservation is acceptable in certain circumstances, but how can preservation ever provide for mitigation for lost functions. Is this a major contradiction?

4. According to the rule, mitigation banks will be the highly preferred mitigation technique. At another place in the rule the financial value of the credits is completely left to the bank sponsor. This sets up an interesting supply and demand business model, and a potentially ridiculous price structure for mitigation bank credits.

5. What kind of system produces 115 pages on administering wetland mitigation but says not a word on how to construct or restore wetlands. If the answer is that the government does not know how to build or restore wetlands, then how can they pretend to know how to issue permits. If they know how to do it then what is the big secret that prevents them giving us some guidance. I personally believe it is the former, because what I have seen from district level guidance the Corps doesn't have any clear or generally useful direction for us.

I can accept that rules are not the place to discuss mitigation technology, but it is certainly long past time for the Corps to stop avoiding the issue.

Gary,
Did the Corps set a price on in-lieu payment? I would assume that this price will set the price charged for mitigation bank credits.

Gary Pierce asked;

"...What kind of system produces 115 pages on administering wetland mitigation but says not a word on how to construct or restore wetlands..."

Dear Gary,

It should be noted that the Corps has produced 115 pages of official rules on wetlands mitigation, but it can not promulgate any official rules on jurisdictional determination. Presently, we have no official rules for determing which wetlands are jurisdictional and are therefore subject to mitigation.

Most developers that I know curtailed their use of mitigation banks after the SWANCC decision in 2001.

I have met some unhappy mitigation bankers who complain that the business has suffered because mitigation is no longer required for non-jurisdictional wetlands (under federal law). It is difficult for mitigation banks to prosper when faced with so much confusion over jurisdiction.

This message has been edited. Last edited by: Johnny Stevens,

This is government at its finest; just another economic stimulus package. We have another 115 pages and we still don't know what to do. However, it might reduce the price of oil by putting more pressure on forests for paper products. The fact is, none of this is focused on building the end product, which is a functional wetland. Government is process, not product oriented. After a few lawsuits and some executive branch re-alignments, you will see a revised mitigation rule with even more pages and confusion. And all of this will require a larger government staff to implement, track and monitor; just remember to track your own billable hours.

Now that the Corps has actually promulgated its Compensatory Mitigation Rule, it might be interesting to uncover the history of the Corp's authority to require compensatory construction for permitted adverse impacts to the aquatic ecosystem. Anyone?

This message has been edited. Last edited by: Matt Reed,

Matt said:

"...it might be interesting to uncover the history of the Corp's authority to require compensatory construction for permitted adverse impacts to the aquatic ecosystem..."

Dear Matt,

Historically, the threat of legal action from a powerful federal agency is where the Corps got its authority to require compensatory construction (mitigation) for permitted adverse impacts to the aquatic ecosystem.

As I recall, typically the first threat was communicated during the pre-permit application meeting when the applicant was informed that the penalty for starting work without a permit was around $25k/day. Usually, this was enough to persuade most applicants to mitigate and do anything else the Corps told them to do.

Now the penalty is higher and with all the uncertainty over jurisdiction, the threat may be greater than before.

Johnny,

I hear you on the hammer. That's some hammer, that 25K/day hammer! Who knew you could build wetlands with a hammer?! No, I was musing more along the lines of the regulations. Before the new rule, where did the Corps get authority to "require" compensatory wetland construction?

This message has been edited. Last edited by: Matt Reed,

Maybe it was promulgated from NEPA.

40 CFR 1508.20
http://www.epa.gov/owow/wetlands/regs/mitigate.html

Regarding Brother Matt's question about the Corps' authority for requiring compensatory mitigation, Dave said:

"...Maybe it was promulgated from NEPA..."

Dear Dave,

The link you provided is a memorandum between EPA and the Corps in which they grant themselves the authority to require compensatory mitigation.

Brother Matt wants to know where did the EPA and Corps received the statutory authority to require compensatory mitigation? This is a good question because neither the Clean Water Act, nor the Rivers and Harbor Act, nor the National Environmental Policy Act (NEPA), specifically grant this authority to the agencies.

The Corps' new mitigation rules will soon be tested in the courts and the question of authorization will be properly adjudicated.

When one considers the unfortunate fate that the federal courts (and the Brotherhood) dealt isolated wetlands, then we can not ignore the possibility that this same fate may await compensatory mitigation.

This is why I caution my Brothers to exercise sensitivity and restraint when broaching this delicate subject. There are many among us, including many people on this Forum who support the concept, objectives, and ecological contributions of compensatory mitigation.

When the Brotherhood began its quest we never expected that our words and ideas (as expressed on this Forum) would change the direction of wetlands law. When we reflect on all that has been accomplished, we should not forget that some of our deeds have left others with a sense of lingering frustration.

We may not be able to save compensatory mitigation from its legal flaws, but we can restrain our use of laudatory language and hopefully ease the pain.

This message has been edited. Last edited by: Johnny Stevens,

Well stated, Johnny. We'll try to keep things in the objective realm.

I wasn't questioning the statutory authority to require compensation, but rather the rule. Prior to the new Compensatory Mitigation Rule, under what rule did the Corps "require" compensation for the issuance of a permit? The requirement for avoidance and minimization of impacts is easily cited in the 404 regulations. And there certainly has developed over the past couple decades a culture of compensation in the Corps/EPA 404 program. But where did the requirement to compensate come from? What regulation?

You have a good question. On the lighter side, you have to remember that every Corps regulator has a little black box at their desk, and every time they have a permit application they shake that little black box until an answer pops out.

The Corps' authority to require/mandate compensatory mitigation has evolved just as land has evolved into water and excavation has evolved into fill. You will find a reference in the Corps' regulation at 33 CFR 325.4, which is titled "Conditioning of permits". That gets the Corps to the point of including conditions to satisfy CZM, WQC, ESA, 404(b)(1), and the public interest. Remember that the 404 guidelines are not a regulation, but since they were published in the Federal Register in December 1980, most people don't readily recognize or remember that. However, they were at least in the federal register, which makes some people happy. Further, there is the Mitigation MOA between the Corps and EPA from 1990 that sets up the sequential review of "avoid, minimize, and compensate". Few people would remember that the MOA on Mitigation was a significant agreement between the Corps and EPA at that time. In fact, the MOA was delayed for most of a year prior to that because of the Alaska delegation in Congress, Sen. Stevens I believe. Further, NEPA describes 5 different mechanisms to mitigate environmental harm in 40 CFR part 1508.(?). So the Corps can offer that this is merely another menas to comply with NEPA.

Most large organizations/agencies are well served when they utilize their institutional memory. This allows them to understand where they have been and where they are going. Whether historic decisions are bad or good is not relevant, but the agency is able to understand their decisions and what the consequences of those decisions might be. Unfortunately, the Corps has completely failed in this area. That is why many regulators in the Corps and other environmental organizations were completely unprepared for the recent Supreme Court decisions for SWANCC and Rapanos. Section 404 of the Clean Water Act utilized the phrase "navigable waters of the United States". A borrow pit in Cook County Illinois is clearly not a navigable water of the United States, but too few people paid attention to the program evolution that got us there.

I would expect that very few regulators, particularly people who have been in the program for 10 years or less, would be able to give you a solid answer on the legal authority to require compensatory mitigation. Stay tuned, I would not be surprised if compensatory mitigation is the subject of a future Supreme Court decision in the not too distant future.

Not sure why there is so much consternation on this – at least without any discussion of “relative quality”. For some here it looks to be yet another opportunity to get a jab at the government and regulations with little discussion on topic.

Mitigation banking guidelines have been established for years with hundreds of banks in existence. The focus is not on acreage but on credits so that credits can be discussed based on mitigation type. However, when it comes right down to it, we’re still talking acres and ratios ultimately.

Service areas are defined by the applicability of the bank as its being permitted. That ultimately is a discussion between the proposed bank and the corp district person assigned with banking review responsibility. Yes, its based on watershed but the size, type and scope of the bank play a critical role in determining “how many” watersheds to which the service area applies.

If one goes to the Corps HQ regulatory website, you can find an amazing amount of this information…

http://www.usace.army.mil/cw/cecwo/reg/techbio.htm

While banking and in-lieu fee are now highest priority, in any area that has neither, clearly on-site/off-site and in-kind will still be the standard. Additionally, like any other supply and demand business, if this spurs a demand for banks and credits, how long do you think any given area will have bank developers popping to supply credits to meet demand. Speaking from some experience, one has to be VERY careful in examining the start up of a new bank as development costs and/or overpricing can eat your profits very quickly and turn the venture into a loss. Ergo, I don’t see this as much of a big deal from either the regulatory or business side.

I believe the message being sent is that the Corps believes that banking has become sufficiently well developed to lead to “better” mitigation solutions than continuing to have small degraded “mitigation sites” that are no more than detention ponds scattered across the landscape.

Mr. Morganstern,

You'll have to pardon me, but some of us are just sticklers for history. History elucidates the present (I made that up). You and Mr. Felton may indeed be right-on in your comments regarding mitigation banking. No doubt, it's the wave of the future. But wouldn't you like to know from where the federal government takes its legal authority to "FORCE" developers to provide compensation? I would.

Matt, you have an excellent question, and one, I am sure you will never have a clear answer for. The truth is the Corps' regulations found at 33 CFR 320 et. seq. and dating back to November 13, 1986 do not mandate compensatory mitigation. The recent mitigation rule is the first time it has been published as a rule. The infamous 404(b)(1) guidelines published in December 1980 are not a regulation, but rather just a guideline. Some of the people commenting on this subject may not think this is significant, but it could become significant. The common phrase we often hear "avoid, minimize, and mitigate" comes from these guidelines. In fact, it was a memorandum of agreement (MOA) between the Corps and EPA in 1990 where the agencies agreed that this process would henceforth be a sequential process. Prior to that 1990 agreement, the Corps did not necessarily accept this process as sequential (i.e. it did not have to follow the process of avoid, minimize, and mitigate). The well noted term " no net loss of wetlands" was a goal established by the first Bush administration. There was no regulation developed and implemented for that goal. The first mitigation banking guidance issued by the Corps in 1995 was just that, "guidance", not a regulation or rule. Subsequent mitigation guidance was prepared by the Corps in 2002 in the form of a Regulatory Guidance Letter, again not a rule.

The next hurdle will be the interpretations of the recent mitigation regulations. There are 38 district offices for the Corps and 10 regions for the EPA. If I were going to calculate some probabilities, I might use 38 x 10 x 3 = 1140 different interpretations of this regulation by the federal agencies. This accounts for the 38 district offices for the Corps, 10 regional offices of EPA, and the HQ for the Corps, EPA, and DOJ inside the beltway.

Seth Morganstern said:

“…Mitigation banking is setting up to be a major market which many professionals believe is the best form of compensatory mitigation to date….”

Dear Mr. Morgenstern,

While we may hope that mitigation banking is setting up to be a major market, this has not happened yet. Personally, I have seen a decline in wetlands mitigation since the SWANCC decision in 2001. As Matt and Ed correctly point out, mitigation is more of a “suggestion” that has been institutionalized within the permit process, but it is not a hard legal requirement.

As noted elsewhere on this forum, the EPA recently curtailed enforcement action against wetland violators. Why build a wetlands mitigation bank when the agencies decline to take enforcement action against those who fail to mitigate?

In my opinion, the outlook for mitigation banking is less than lucrative.

This message has been edited. Last edited by: Johnny Stevens,

Mr. Bonner,

Don't the "infamous 404(b)(1) guidelines" have the same legal force as regulations? They are solicited by the statute. Section 404(b)(1) of the CWA says "through the application of guidelines developed by the Administrator" (EPA). My question remains: Do the guidelines require compensation?

This message has been edited. Last edited by: Matt Reed,

Well, I got bored of rastlin' with GIS and thought hey I wonder what the spin doctors are up to on the SWS forum... well, nothing new under the sun eh boys?

While y'all are ignoring the very informative post by the SWS President, and arguing esoterica, I noticed that the underfunded cats are having a hard time keeping a handle on the mice:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/10/12/MNIPSOF76.DTL

yes, it's from last year, but things haven't changed have they?

David,

Where ya been? We've missed you, old boy! Still as inscrutable as ever, I see. Welcome back.

Re: the sfgate link "....the Bush administration has narrowed its (CWA) reach with new regulations." Huh?

This message has been edited. Last edited by: Matt Reed,

Hi Matt,

well if the Bush Administration has "narrowed" its CWA reach that much, meaning they don't actually regulate the discharge of toxic materials directly into boat-navigable rivers, then their promulgation should be considered criminal.

This is not a jurisdictional issue - this turns the clock back a half-century! Should piss of anyone who likes drinking water, swimming, or fishing... somebody get a rope.

David,
You have to remember that not all discharges are created equal. Discharges regulated pursuant to Section 404 are different than the discharges regulated pursuant to Section 402.