Mitigation
A large number of commenters specifically addressed the compensatory mitigation requirements of the proposed new and modified NWPs. One commenter said that the goal of compensatory mitigation is not clearly defined in the proposed NWPs. Several commenters requested that the Corps clarify when compensatory mitigation is required for activities authorized by NWP. These commenters said that there are some inconsistencies concerning compensatory mitigation requirements in the July 21, 1999, Federal Register notice. Two of these commenters referred to Corps statements in the July 21, 1999, Federal Register notice that: (1) Compensatory mitigation will normally be required for activities that require notification and, (2) in some circumstances, compensatory mitigation may be unnecessary because the adverse effects on the aquatic environment are minimal without mitigation.
For the NWP program, including the new and modified NWPs, the purpose of compensatory mitigation is to ensure that the authorized work results in minimal adverse effects on the aquatic environment. For those activities that require notification to the district engineer, compensatory mitigation may be necessary to ensure that the authorized work results in minimal adverse effects on the aquatic environment. District engineers will determine, on a case-by-case basis, when compensatory mitigation is not practicable. Our use of the word "normally" when referring to compensatory mitigation for NWP activities allows district engineers flexibility in determining when compensatory mitigation will be required and lets the regulated public know that compensatory mitigation is likely to be required for impacts that exceed PCN thresholds, except under circumstances where the adverse effects are minimal without compensatory mitigation. Activities that do not require notification are presumed to result in minimal adverse effects and do not require compensatory mitigation to ensure minimal adverse effects. Division engineers can regionally condition an NWP to lower the notification threshold to allow district engineers to determine, on case-by-case basis, if compensatory mitigation is necessary to ensure that the authorized work results in minimal adverse effects on the aquatic environment.
Many commenters opposed the use of compensatory mitigation to ensure that activities authorized by NWPs result in minimal adverse effects on the aquatic environment. Several commenters supported the use of compensatory mitigation to ensure that authorized activities result in minimal adverse effects. One of these commenters said that compensatory mitigation should not be required simply to meet a "no net loss" of wetland acreage goal. One commenter indicated that compensatory mitigation should not be required for activities authorized by NWP because NWPs can only authorize activities with minimal adverse effects.
Compensatory mitigation is often necessary to offset losses of waters of the United States and ensure that the authorized activity results in minimal adverse effects on the aquatic environment. The NWP regulations at 33 CFR 330.1(e)(3) allow permittees to provide compensatory mitigation to reduce the adverse effects of the proposed work to the minimal level. In the July 21, 1999, Federal Register notice, we stated that for the purposes of the NWP program, compensatory mitigation is required to ensure that the authorized activities result in minimal adverse effects on the aquatic environment, individually or cumulatively, not to achieve "no net loss" of wetland acreage. NWP compensatory mitigation requirements are not driven by the "no net loss" goal, but will help support that goal. A district engineer can determine, for an activity that requires notification, that compensatory mitigation is not practicable.
Two commenters said that compensatory mitigation should be required only for impacts to waters of the United States. Another commenter stated that the Corps is proposing to require mitigation for activities not subject to its regulatory authority, such as flooding, excavation, and drainage activities. One commenter indicated that the July 21, 1999, Federal Register notice requires compensatory mitigation for non-wetland impacts. One commenter remarked that compensatory mitigation for wetland or stream losses should be subject to a public notice process because mitigation is being used to avoid significant impacts.
Compensatory mitigation may be required by district engineers to offset losses of waters of the United States to ensure that the authorized work results in minimal adverse effects on the aquatic environment. Although district engineers may require out-of-kind compensatory mitigation, such as the restoration of upland riparian zones, to compensate for losses of the functions and values of waters of the United States, compensatory mitigation is required only to offset losses of waters of the United States. District engineers can require compensatory mitigation for losses of aquatic resource functions and values caused by flooding, excavation, and drainage caused by activities that are associated with activities that are regulated by the Corps (i.e., discharges of dredged or fill material). However, if the activity does not involve work in navigable waters of the United States or a discharge of dredged or fill material into waters of the United States, compensatory mitigation cannot be required because no Corps permit is necessary to conduct the activity. We do not agree that a public notice process is required for compensatory mitigation projects.
Several commenters stated that the mitigation requirements discussed in the July 21, 1999, Federal Register notice do not adequately protect wetlands. Numerous commenters said that the NWPs should be conditioned to require a full alternatives analysis. Many commenters requested that the Corps condition all NWPs to require project proponents to avoid impacts to the maximum extent practicable and implement compensatory mitigation that fully replaces all losses of wetland acreage and functions. One commenter objected to including minimization as a form of mitigation. Two commenters asserted that the NWPs should be subject to the mitigation requirements of the 1990 mitigation Memorandum of Agreement (MOA), including sequencing requirements.
The mitigation requirements of the new and modified NWPs adequately protect wetlands. General Condition 19 requires permittees to avoid and minimize discharges into waters of the United States on-site to the maximum extent practicable. General Condition 19 also states that district engineers can require compensatory mitigation to ensure that the authorized work results in minimal adverse effects on the aquatic environment. The use of minimization as mitigation is well established in Federal regulations (see the Council on Environmental Quality's regulations at 40 CFR 1508.20). The avoidance provisions of the 1990 mitigation MOA apply only to standard individual permits, not activities authorized by NWPs.
One commenter stated that some of the new NWPs (e.g., NWPs 39 and 43) require compensatory mitigation without requiring submission of a notification to the district engineer. This commenter said that compensatory mitigation should not be required unless the district engineer reviews the PCN and determines that compensatory mitigation is necessary to offset authorized losses of waters of the United States. One commenter objected to requiring compensatory mitigation for activities that require notification, but another commenter supported this requirement. Two commenters objected to allowing district engineers to make the final determination whether compensatory mitigation is required.
Compensatory mitigation is not required for NWP activities that do not require notification to the district engineer. Division engineers can regionally condition NWPs to lower PCN thresholds or require notification for all activities, if such PCN thresholds are necessary to allow district engineers to require compensatory mitigation to ensure that adverse effects to the aquatic environment are minimal. We believe that it is appropriate for district engineers to make the final decisions whether compensatory mitigation is necessary to ensure that activities authorized by NWPs result in minimal adverse effects.
A large number of commenters recommended that the Corps require acre-for-acre wetland restoration as compensatory mitigation for all activities resulting in the loss of greater than 1/4 acre of wetlands. Other commenters suggested 1/2, 1/3, and 1 acre thresholds for requiring compensatory mitigation. Many commenters said that a minimum 1:1 mitigation ratio should be required for all losses of waters of the United States authorized by NWPs. Other commenters recommended higher mitigation ratios. One commenter said that the Corps should provide compensatory mitigation guidelines that addresses site selection and design, options for compensatory mitigation, and a description of success criteria and monitoring requirements.
While final specific compensatory mitigation requirements, such as replacement ratios, are determined by district engineers on a case-by-case basis, we agree that there should be a minimum requirement of an acre-for-acre (1:1) wetland replacement as compensatory mitigation for all activities requiring notification. The Corps can require compensatory mitigation in excess of a 1:1 ratio of impact acreage to compensatory mitigation acreage to adequately replace aquatic resource functions and values that are lost as a result of activities authorized by NWPs. The Corps can also accept out-of-kind compensatory mitigation, if it is best for the aquatic environment. Existing policy and guidance for compensatory mitigation provides a preference for on-site and in-kind replacement of the functions and values of the impacted aquatic resource. If on-site compensatory mitigation is not practicable, off-site compensatory mitigation should be undertaken in the same geographic area if practicable, (i.e., in close proximity and, to the extent possible, the same watershed) or environmentally preferable. The Corps can also accept out-of-kind compensatory mitigation, if it is best for the aquatic environment.
Many commenters stated that the Corps should require in-kind, on-site replacement of wetlands. Several commenters supported the utilization of off-site, out-of-kind compensatory mitigation for losses of waters of the United States authorized by NWPs. These commenters also supported the Corps position that the appropriate compensatory mitigation required for activities authorized by NWPs should be based on what is best for the aquatic environment. One commenter remarked that the selected mitigation method should best replace site-specific functions and values of the impacted aquatic habitat. One commenter supported the use of out-of-kind compensatory mitigation, such as the establishment and maintenance of vegetated buffers next to streams, and stream restoration, and the preservation of wetland/upland complexes.
When reviewing compensatory mitigation proposals, district engineers will consider what is best for the aquatic environment, including requirements for vegetated buffers next to perennial and intermittent streams and other open waters. Wetland restoration, enhancement, creation, and, only in exceptional circumstances, preservation are not the only methods of providing compensatory mitigation for activities authorized by NWPs. Stream restoration and enhancement, including the restoration or preservation of riparian zones, can also provide compensatory mitigation for losses resulting from activities authorized by NWPs. The establishment and maintenance of vegetated buffers next to streams and other open waters as compensatory mitigation for losses of waters of the United States authorized by NWPs are discussed in the next section of this notice.
Many commenters opposed the Corps preference for the use of mitigation banks and in lieu fee programs to provide compensatory mitigation for losses of waters of the United States authorized by NWPs. A number of other commenters supported the Corps preference for consolidated compensatory mitigation methods. One commenter indicated that the preference for consolidated compensatory mitigation methods should not be limited to mitigation banks. One commenter expressed some support for using mitigation banks and other consolidated mitigation methods as alternatives for on-site compensatory mitigation because of the uncertainty for success in some individual compensatory mitigation projects. This commenter also recommended developing guidance for in lieu fee programs and other consolidated mitigation methods before allowing widespread use of these methods. Another commenter recommended that the text of the NWPs and the preamble to the notice announcing the issuance of the NWPs refer to the Federal guidance for compensatory mitigation, especially for the use of mitigation banks and in lieu fee programs. Two commenters indicated that in lieu fee programs should not be considered as compensatory mitigation until guidance has been developed for these programs. One commenter objected to the use of in lieu fee programs to provide compensatory mitigation because the commenter asserts that these programs are not subject to agency and public review and do not ensure compliance with the goal of no net loss.
Consolidated compensatory mitigation methods, including mitigation banks, are often an efficient means of compensating for losses of waters of the United States, particularly for multiple small activities. We recognize that consolidated compensatory mitigation methods are often more practicable and successful because of the planning and implementation efforts typically expended on these activities by their proponents. Individual efforts to create, restore, or enhance wetlands to replace small wetland losses may be unsuccessful because of poor planning and/or construction. Furthermore, consolidated mitigation efforts are often better monitored and maintained and often result in the establishment of larger contiguous wetland areas that benefit the overall local aquatic environment and many of the species that utilize larger aquatic habitats.
One commenter stated that where mitigation banks and in lieu fee programs are in the same watershed, preference should be given to using the mitigation bank since mitigation banks subject to more stringent requirements and more likely to be successful. Two commenters said that mitigation banks should be located in the same watershed as the site of the NWP activity. One commenter said that in lieu fee programs should not be used as compensatory mitigation for activities that result in the loss of greater than 1/10 acre of waters of the United States.
Where practicable, mitigation banks and other consolidated mitigation methods should be located in the same watershed as the site of the activity authorized by NWP. District engineers have the authority to approve or disapprove the use of specific mitigation approaches as compensatory mitigation for losses of waters of the United States authorized by NWPs. Permittees should have the flexibility to utilize compensatory mitigation methods that are within their means to accomplish and meet the requirements to offset unavoidable losses of waters of the United States. To the extent practicable, permittees should consider use of approved mitigation banks and other forms of consolidated compensatory mitigation. We do not agree that there should be an acreage limit that would preclude the use of any particular type of mitigation to provide compensatory mitigation for losses of waters of the United States authorized by NWPs.
Several commenters stated that the preservation of high value wetlands should be encouraged as a form of compensatory mitigation. A number of commenters objected to the use of preservation as compensatory mitigation, unless one-to-one replacement of aquatic habitats has been achieved. One commenter objected to the use of enhancement unless one-to-one replacement of wetlands has been accomplished.
We concur that the preservation of high value wetlands is one appropriate method of compensatory mitigation for losses of waters of the United States, but only in exceptional circumstances. Preservation of aquatic habitats should be done in conjunction with aquatic habitat restoration, creation, or enhancement to offset losses of waters of the United States. The amount of preservation or enhancement that will be accepted as compensatory mitigation for impacts authorized by NWPs will be determined by district engineers on a case-by-case basis.
To further clarify the issue of mitigation, we have removed some of the mitigation information from General Condition 13 and consolidated the mitigation requirements for the NWPs in General Condition 19.
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