19. Mitigation: In the July 21, 1999, Federal Register notice, we proposed several changes to this general condition. Several commenters recommended combining the mitigation information in paragraph (g) of General Condition 13 with this general condition. One commenter stated that this general condition is contrary to the 1990 mitigation MOA. Numerous commenters said that General Condition 19 should specify that mitigation is required, to the maximum extent practicable, in the same watershed as the impact site.
We have combined the provisions of paragraph (g) of General Condition 13 with the provisions of General Condition 19, so that the mitigation requirements for the NWPs are in General Condition 19. The 1990 mitigation MOA applies only to standard individual permits, not general permits such as the NWPs. Although we encourage permittees to locate compensatory mitigation in the same watershed as the site of the authorized work, there are occasions where it may be necessary or more beneficial to the aquatic environment to implement compensatory mitigation outside of the watershed. For example, restoring wetlands in a degraded watershed to compensate for losses of wetlands in a watershed with less impacts may be better for the overall aquatic environment.
One commenter suggested that General Condition 19 should contain a provision that allows district engineers to determine that compensatory mitigation is unnecessary if the adverse effects on the aquatic environment are minimal without compensatory mitigation. Several commenters objected to the phrase in the second sentence of the proposed modification of General Condition 19 which states that compensatory mitigation is required "__* * * at least to the extent that adverse environmental effects to the aquatic environment are minimal." These commenters contend that this language allows the Corps to require mitigation in excess of the amount necessary to offset the authorized impacts.
In accordance with the NWP regulations, district engineers can determine that compensatory mitigation is not necessary to ensure that the authorized work results in minimal adverse effects on the aquatic environment. District engineers will require only the amount of compensatory mitigation that is needed to ensure that the net adverse effects on the aquatic environment are minimal, individually and cumulatively.
One commenter supported the inclusion of enhancement and preservation in the definition of compensatory mitigation. Another commenter said that the definition of mitigation should be expanded from restoration, creation, enhancement, preservation, and vegetated buffers to include avoiding, minimizing, rectifying, reducing, or compensating for losses of aquatic resources to make it consistent with paragraph (g) of General Condition 13, which recognizes this broader definition.
Since we have moved the provisions of paragraph (g) of General Condition 13 to General Condition 19, this general condition recognizes these types of mitigation. Rectifying impacts to the aquatic environment is similar to the enhancement and restoration of aquatic resources. Reducing impacts to the aquatic environment is similar to minimization.
A number of commenters objected to the removal of the phrase "unless the District Engineer approves a compensation plan that the District Engineer determines is more beneficial to the environment than on-site minimization and avoidance measures" which was in December 13, 1996, version of "Section 404 Only" Condition 4, from which General Condition 19 was derived. These commenters stated that the removal of this language conflicts with some recent statements by the Corps, including preferences for mitigation banks and in lieu fee programs. One commenter indicated that permittees should have options for providing compensatory mitigation, including the ability to utilize off-site compensatory mitigation (e.g., mitigation banks and in lieu fee programs) and out-of-kind compensatory mitigation (e.g., vegetated buffers next to open waters).
The modification of General Condition 19 does not conflict with our preference for using consolidated compensatory mitigation methods to offset losses of waters of the United States authorized by NWPs. General Condition 19 simply states that the district engineer will require, when necessary, the restoration, creation, enhancement, or preservation of aquatic resources to ensure that the adverse effects on the aquatic environment are minimal, individually and cumulatively. That compensatory mitigation can be provided by individual compensatory mitigation projects or consolidated mitigation methods, such as mitigation banks. District engineers have flexibility to determine the appropriate options for compensatory mitigation on a case-by-case basis. For activities authorized by NWPs, the selected compensatory mitigation method should be based on what is best for the aquatic environment and what is practicable for the permittee.
One commenter recommended modifying the vegetated buffer requirements in General Condition 19 to allow district engineers to waive these requirements if it is impractical for the permittee to establish and maintain vegetated buffers. Another commenter suggested that General Condition 19 should be modified to place more emphasis on on-site avoidance and minimization so that large scale mitigation such as vegetated buffers would be required only in exceptional circumstances. Two commenters said that the text of General Condition 19 should be rewritten to acknowledge that NWPs authorize activities that have minimal adverse effects on the aquatic environment and that most mitigation for NWP activities would consist of avoidance and small restoration projects, not the large scale mitigation that would result from establishing 50 to 125 foot wide vegetated buffers. One commenter stated that General Condition 19 does not contain specific requirements for maintaining and protecting vegetated buffers and asked how the maintenance of vegetated buffers will be guaranteed. One commenter objected to requiring vegetated buffers to be comprised of native species, because it would necessitate the removal of undesirable species in existing riparian buffers.
We have added the phrase "to the maximum extent practicable" to the second sentence in paragraph (c) to clarify that vegetated buffers next to open waters can be required as compensatory mitigation only if such a requirement is practicable for the project proponent. District engineers will determine on a case-by-case basis whether vegetated buffers are necessary and the appropriate width of those vegetated buffers. Recommended widths of vegetated buffers are discussed in a previous section of this Federal Register notice. We have also added a provision to General Condition 19 that limits the proportion of compensatory mitigation that can be provided by vegetated buffers next to open waters. If compensatory mitigation for wetland impacts is necessary to ensure that an NWP activity results in minimal adverse effects on the aquatic environment and there are open waters on the project site, any vegetated buffer will comprise no more than 33% of the remaining compensatory mitigation acreage after the permanently filled wetlands have been replaced on a one-to-one acreage basis. Of course, many vegetated buffers will be wetlands and can be included as compensatory mitigation for wetland impacts.
Vegetated buffers are an alternate method of compensatory mitigation and should be protected in the same manner as wetland compensatory mitigation sites (i.e., through deed restrictions, conservation easements, or other appropriate legal means). The language of General Condition 19 does not require the removal of non-native plant species from the area where the vegetated buffer will be established and maintained. If the permittee is planting the vegetated buffer, he or she should use native plant species. Vegetated buffer zones that are already established with mature trees or shrubs can be maintained without removing those plants to replace them with native species. This general condition is adopted with the modifications discussed above.
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