Abstract
The repair, development, augmentation, or in some situations, conservation of wetland, waterways, and other aquatic resources to balance inevitable negative impacts is described as compensatory mitigation. As a consequence of the National Research Council’s suggestions, the 2008 Mitigation Ordinance integrates a Watershed Approach to compensating mitigation project site requirements for the design. This technique enhances the design, execution, advancement, and performance of compensating mitigation initiatives in wetlands. For aquatic resource reimbursement mitigation work done by mitigation banks, grant applicants, or in-lieu fee schemes, the 2008 Mitigation Rule mandates identical criteria.
According to the 2008 Mitigation Rule, the ideal compensatory mitigation strategy is a watersheds strategy to compensatory mitigation, which includes ecologically relevant projects, consolidates projects, reduces project costs, provides financial planning but also scientific expertise, reduces temporal losses of functions, and minimizes uncertainty (Chapman, 2020).
For the 2008 Mitigation Rule implementation, Corps districts developed a wide range of implementation guidance documents. This report compiles those documents and analyzes trends in effect and compensation statistics since that rule went into effect, and describes the specialized training and exposure provided by the Corps and the EPA.
A further part of this study examines the mitigation banks and fee systems already approved and the credits generated as a result of those programs.
The Corps has issued over 56,400 written permits each year. About 10 percent of those permits seek compensatory mitigation to equalize the permissible effects on aquatic resources with the permitted impacts on marine resources. Permit applicants must prevent and reduce the impact on territorial waters and wetlands to the most significant degree practicable before a permit decision is made. This low percentage reflects this obligation, which is reflected in the low rate. Because of the tight avoidance and minimization criteria, the vast majority of allowable effects on jurisdictional streams and wetlands fall considerably below the thresholds set by the Corps of Engineers for determining when compensatory mitigation should be needed for such impacts (Stephenson & Tutko, 2018). Numerous permits are granted for operations that do not permanently harm aquatic resources, such as habitat restoration or maintenance projects, and licenses for dredging and structures in waterways under Section 10 of the RHA, which are not considered permanent losses.
Purpose and Objectives of the Study
A retrospective assessment of permit approvals from 2010 to 2014 was conducted to generate data for this study. The Corps of Engineers and the Environmental Protection Agency (EPA) collaborated on this retrospective review to detail the 2008 Mitigation Legislation’s execution and evaluate pre/post compensatory mitigation approaches. As part of this study, the Corps Regulatory Program’s automated data system, the OMBIL Regulatory Module (ORM), as well as the Regulation In-Lieu Fee as well as the Bank Information Tracking System (RIFBITS) being employed, as well as the OMBIL Regulatory Module (ORM) (RIBITS). These automated information systems are discussed in further detail in the “Improvement in the Regulatory Permit Data Collection and Management” section below. For the last five years, we’ve researched how the Mitigation Rule from 2008 has been implemented in the real world. Until the regulation is implemented, it will not consider whether compensating mitigation schemes are ecologically beneficial.
Objectives
Using carefully positioned compensatory mitigation zones, compensating mitigation aims to preserve and improve the level and quality of underlying aquatic resources within watersheds.
To determine when compensating mitigation is required.
Compensatory Mitigation Regulations
U.S. army corps of engineer’s regulatory program
In each Corps division office, a Division Engineer is in command; similarly, the District Engineer controls the office in each Corps district office. Those who make permit decisions and those who determine whether or not to grant those permits must also consider compensatory mitigation requirements. Approving in-lieu contribution to the reduction devices or mitigation banking are all choices made by permitting authorities; Corps regional engineers have a great deal of latitude (Duncan, Bowers & Frisch, 2018). It is the responsibility of division engineers to ensure that the district’s Regulatory Program is appropriately implemented and to review an administrative appeal of permit decisions. The availability of aquatic resources varies significantly from one country to the other. Because streams and wetlands vary in structure, density, and function across the United States, this heterogeneity has influenced the progress of the Regulation Program, such as the formulation of compensating mitigation criteria for DA permits.
National compensatory mitigation policy
A draft rule was made public in March 2006 by the Corps and the EPA and published in the Federal Register. It was finalized in April 2008 and put into effect in June of that year, when it appeared in the Federal Register. A lot of work was put in after the 2008 Mitigation Rule was published, including outreach, training, and the actual implementation of the final rule.
Regulations such as the Regulatory Guidance Letter, the Mitigation Banking Guidance of 2000, and the Mitigation MOA of 1990 have been superseded by the 2008 Mitigation Rule, which now governs compensatory mitigation projects for standard permits required to offset losses from permitted impacts on jurisdictional waterbodies or wetlands. The Corps’ 1986 mitigation policy and the 1991 national permit program mitigation policies were not changed by the 2008 Mitigation Rule, and those rules remain in place. Mitigation policies formulated in 1986 and 1991 were expanded upon in the Mitigation Rule of 2008 to address the issues raised by compensatory mitigation projects, such as watershed approaches, standardization of the various compensatory mitigation mechanisms, and a more precise definition of compensatory mitigation methods.
Fundamental changes incorporated in the 2008 mitigation rule
Compensatory mitigation project planning, site selection, execution, adaptive management, performance monitoring, and long-term site preservation and stewardship are addressed in the 2008 Mitigation Rule (How the 2008 Mitigation Rule Cut the Cost of Environmental Compliance and Built a Restoration Economy – Ecosystem Marketplace, 2019). In addition to these changes, compensatory mitigation decision-making will become more efficient, predictable, consistent, and transparent.
Analytical decision-making is emphasized in the 2008 Mitigation Rule for compensating mitigation decisions to support watershed sustainability or enhancement. This watershed method aims to strategically pick compensating mitigation sites to maintain high aquatic resources in watersheds in quality and quantity. It considers the watershed’s requirements and the types of compensating mitigation initiatives that can be implemented to meet those needs.
The Mitigation Rule establishes deadlines for critical events in the evaluation process for mitigation banks, fee instruments, and fee program sponsors.
Methods of Compensatory Mitigation
When it comes to compensation mitigation projects, the 2008 Mitigation Rule identifies four general approaches (Robertson, Galatowitsch, & Matthews, 2021). These approaches vary in how they boost aquatic resource capabilities and the amount of space these resources occupy. Included among these are:
Restoration
There are two kinds of restoration: those that increase aquatic resource functions and those that expand the area of marine resources. Reestablishment and rehabilitation are two of the subcategories.
Rehabilitating a deteriorated or extinct aquatic resource by manipulating its chemical, physical, or biological features is restoration. Reestablishment and rehabilitation are the two types of repair used to calculate net improvements in the aquatic resource area. Reestablishment is the process of altering a site’s chemical, physical, or biological properties to restore a former aquatic resource’s natural or historical functioning. A marine resource is re-established, and its area and functions are expanded due to reestablishment. The purpose of rehabilitation is to restore a damaged aquatic resource’s natural and historical functioning by modifying its chemical, physical, or biological features. Rehabilitating an aquatic resource leads to again in its function, but not in its area.
Enhancement
When an aquatic resource’s properties are manipulated to enhance a specific aquatic resource function, it is known as aquaculture (Hough & Harrington, 2019). If one or more aquatic resource functions are improved due to enhancement, the other aquatic resource functions may be harmed (s). The area of marine resources is not increased as a result of enhancement.
Establishment (creation)
Aquatic resource development at an upland site can be achieved by manipulating the physical, chemical, and biological properties—establishment results in an increase in the area and functions of aquatic resources.
Preservation
They are eliminating or reducing the decrease in water resources by taking measures inside or around them. Protecting and maintaining aquatic resources by putting proper legal and physical procedures is usually referred to as this field’s primary focus. No additional marine resources or functions are gained as a result of preservation.
Mechanisms of Compensatory Mitigation
Compensatory mitigation for inevitable wetland damage can be achieved in three ways. Permittee-responsible mitigation places the onus on the permittee to ensure the site’s construction and long-term success (Background on Compensatory Mitigation | Environmental Law Institute, 2022). When a project’s success is contingent on a third party, such as a mitigation bank or even in fee sponsor, it is known as “third party” compensation.
Permittee-Responsible Mitigation: A permittee’s efforts to restore, establish, enhance, or preserve wetlands to compensate for the consequences of a given project. After the permit is issued, the permittee is ultimately accountable for the mitigation’s execution and success. Permitted impacts may be mitigated on-site or off-site in the same watershed by the permittee responsible for mitigation.
Mitigation Banking: One of the primary functions of mitigation banks is to compensate for future development operations by establishing a wetland that has been repaired, installed, upgraded, or protected. Permittees can purchase mitigation bank credits to complete their compensating mitigation obligations. Quantifying the restored or new acres or wetland functions is how these “credits” are valued. The project’s ultimate success is in the hands of the financial sponsor. The term “off-site” refers to an area not on or close to the site of the impacts but is still in the same watershed as the impacts themselves. Credits from mitigation banks are preferred under federal regulations above other forms of compensation because of their flexibility.
In-Lieu Fee Mitigation: Compensation for in-lieu fee sponsors who receive payments from a permit holder (a non-profit organization or public agency). Many permittees provide money to the sponsor, who then uses that money to create and manage the mitigation site. As a result of the mitigation, the in-lieu fee provider bears full responsibility for the outcome. While in-lieu fee mitigation is off-site like mitigation banking, this often occurs after the authorized impacts have been incurred.
When Compensatory Mitigation is required
Individual tickets need compensatory mitigation to make up for significant resource losses. In contrast, general permits require it to guarantee that approved activities adhere to the minimal impacts requirement for those permits. Therefore, several public and individual license thresholds are used to evaluate whether district engineers should mandate compensatory mitigation.
Compensatory mitigation may be required to ensure that the approved activity does not harm the public interest. Environmental standards for reviewing permit applications under Section 404(b) (1) of the CWA also allow for compensating mitigation. It may be required. Compensatory mitigation may be required to ensure that activity has minimal impacts on human surroundings, allowing for the preparation of an environmental assessment instead of an environmental assessment declaration. Compensation may be required if specialized aquatic resource functions are lost (Hough & Harrington, 2019). For example, a controlled activity may degrade or eliminate a function without destroying jurisdictional wetlands or rivers. Wetlands obliterated for power lines may lack forest habitat features, which require compensatory mitigation.
Efficacy of compensating mitigation rules in preserving aquatic resources
Almost 90% of the activities permitted by general licenses do not need compensatory mitigation. They have negligible impacts on jurisdictional waterways and wetlands, and compensatory mitigation would be redundant or impossible for such tiny impacts. Standard permit operations that do not need compensatory mitigation include aquatic resource restoration, maintenance of existing facilities and fills (such as utility poles or road crossings), and bank stabilization. Compensatory mitigation is typically not needed for wetland loss of fewer than 0.1 acres in compliance only with the overall mitigation situation for the NWPs established in 2012.
Summary
Retrospective data on the 2008 Mitigation Order and analyses of prior and subsequent compensating mitigation measures were compiled by the Corps of Engineers and the Environmental Protection Agency. Official reviews of permit approvals are analyzed by division engineers who are responsible for overseeing the district’s Regulatory Program. Aquatic resources vary widely in quantity throughout the country. Due to regional variations in stream and wetland form and function, the Regulation Program has been hampered in its efforts to design compensating mitigation standards for DA permits. Draft regulations were published in March 2006 in the Federal Register by the Corps of Engineers and the Environmental Protection Agency. Published in the Federal Register in June of that year, it was completed in April 2008. Adaptive management, performance analysis, and long-term facility conservation and stewardship are all addressed in the 2008 Mitigation Rule.
Compensation for inevitable wetland degradation comes in three forms. The permittee is accountable for the site’s construction and long-term success. There are numerous levels for general and particular permits to assess compensating mitigation. While individual licenses mandate compensation for substantial resource losses, general permits require that permitted operations meet the least effect requirements. Compensatory mitigation could be necessary to guarantee that the permitted activity does not undermine the public interest. It’s possible. Section 404(b) (1) of said Clean Water Act allows compensatory mitigation in examining permit applications. As a result of compensatory mitigation, an environmental impact study might be prepared instead of an environmental assessment. Compensation may be required if specialized aquatic resource functions are lost (Hough & Harrington, 2019). For example, a controlled activity may degrade or eliminate a function without destroying jurisdictional wetlands or rivers. Wetlands destroyed for power lines may lose forest habitat services, which need compensatory mitigation.
Conclusion
Mitigation banks have continued to grow in places where they were already widespread before the 2008 Mitigation Rule and in newly untapped areas.
In several previously unserved locations, such as Connecticut, Montana, and Vermont, as well as parts of California and the state of Oregon and the state of Washington, and the state of Mississippi, many new in-lieu fee systems have been established.
General and personal permits are overly reliant on mitigation banks and fee systems to satisfy compensation obligations as the range of permitted mitigation providers increases. At the very same time, permittee-responsible mitigation, especially on-site mitigation, has become less common.
References
Background on Compensatory Mitigation | Environmental Law Institute. (2022, May 19). Background on Compensatory Mitigation | Environmental Law Institute; www.eli.org. https://www.eli.org/compensatory-mitigation/background-compensatory-mitigation
Chapman, S. T. (2020). Human Dimensions Research for Informed Decisions About Aquatic Restoration in New Hampshire: Environmental Justice in Implementation of Compensatory Mitigation (Doctoral dissertation, University of New Hampshire).
Duncan, W. W., Bowers, K. M., & Frisch, J. R. (2018). Missing Compensation: A Study of Compensatory Mitigation and Fish Passage in Georgia. Journal of Fish and Wildlife Management, 9(1), 132-143.
Hough, P., & Harrington, R. (2019). Ten years of the compensatory mitigation rule: reflections on progress and opportunities. Envtl. L. Rep. News & Analysis, 49, 10018.
How the 2008 Mitigation Rule Cut the Cost of Environmental Compliance and Built a Restoration Economy – Ecosystem Marketplace. (2019, February 5). Ecosystem Marketplace; www.ecosystemmarketplace.com. https://www.ecosystemmarketplace.com/articles/2008-mitigation-rule-helped-developers-environment-building-restoration-economy/
Robertson, M., Galatowitsch, S. M., & Matthews, J. W. (2021). Wetland Compensation and Landscape Change in a Rapidly Urbanizing Context. Environmental Management, 67(2), 355-370.
Stephenson, K., & Tutko, B. (2018). The Role of Lieu Fee Programs in Wetland/Stream Mitigation Credit Trading: Illustrations from Virginia and Georgia. Wetlands, 38(6), 1211-1221.
Sueltenfuss, J. P., & Cooper, D. J. (2019). A new approach for hydrologic performance standards in wetland mitigation. Journal of environmental management, 231, 1154-1163.
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