Trends and patterns in section 404 permitting requiring compensatory mitigation in Oregon and Washington,USA

The effects of permitting decisions made under Section 404 of the Clean Water Act for which compensatory mitigation was required were examined. Information was compiled on permits issued in Oregon (January 1977–January 1987) and Washington (1980–1986). Data on the type of project permitted, wetland impacted, and mitigation project were collected and analyzed. The records of the Portland and Seattle District Offices of the US Army Corps of Engineers and of Environmental Protection Agency Region X were the primary sources of information. The 58 permits issued during the years of concern in Oregon document impacts to 82 wetlands and the creation of 80. The total area of wetland impacted was 74 ha while 42 ha were created, resulting in a net loss of 32 ha or 43%. The 35 permits issued in Washington document impacts to 72 wetlands and the creation of 52. The total area of wetland impacted was 61 ha while 45 ha were created, resulting in a net loss of 16 ha or 26%. In both states, the number of permits requiring compensation increased with time. The area of the impacted and created wetlands tended to be ≤0.40 ha. Permitted activity occurred primarily west of the Cascade Mountains and in the vicinity of urban centers. Estuarine and palustrine wetlands were impacted and created most frequently. The wetland types created most often were not always the same as those impacted; therefore, local gains and losses of certain types occurred. In both states the greatest net loss in area was in freshwater marshes. This study illustrates how Section 404 permit data might be used in managing a regional wetland resource. However, because the data readily available were either incomplete or of poor quality, the process of gathering information was very labor intensive. Since similar analyses would be useful to resource managers and scientists from other areas, development of an up-to-date standardized data base is recommended.     

Wetland loss and substitution by the Section 404 permit program in southern California,USA

To test the effectiveness of the 404 permit program in preventing a net loss of wetland resources, 75 Section 404 projects permitted in the years 1987–1989 and located in a portion of southern California were evaluated. From this group of projects, 80.47 ha of wetlands were affected by Section 404 permits and the Army Corps of Engineers required 111.62 ha of wetland mitigation. To verify the successful completion of each mitigation project, all 75 project sites were visited and evaluated based on the amount of dead vegetation, growth and coverage, and the number of invasive species. Based on the field verification results, the actual amount of completed mitigation area was 77.33 ha, resulting in a net loss of 3.14 ha of wetland resources in the years 1987–1989. By comparing the types of wetlands lost to the types of wetlands mitigated, it is apparent that, in particular, freshwater wetlands are experiencing a disproportionately greater loss of area and that riparian woodland wetlands are most often used in mitigation efforts. The net result of these accumulated actions is an overall substitution of wetland types throughout the region. Results also indicate that, typically, large-scale mitigation projects are more successful compared to smaller projects and that successful compliance efforts are not evenly distributed throughout the region. We recommend that better monitoring, mitigation in-kind, mitigation banking, and planning on a regional or watershed scale could greatly improve the effectiveness of the Section 404 permitting program.     

Review and comparison of wetland impacts and mitigation requirements between New Jersey,USA, Freshwater Wetlands Protection Act and Section 404 of the Clean Water Act

A review of wetland impacts authorized under the New Jersey Freshwater Wetlands Protection Act (FWPA) was conducted based on permitting data compiled for the period 1 July 1988 to 31 December 1993. Data regarding the acreage of wetlands impacted, location of impacts by drainage basin and watershed, and mitigation were analyzed. Wetland impacts authorized and mitigation under New Jersey's program were evaluated and compared with Section 404 information available for New Jersey and other regions of the United States.Under the FWPA, 3003 permits were issued authorizing impacts to 234.76 ha (602.27 acres) of wetlands and waters. Compensatory mitigation requirements for impacts associated with individual permits required the creation of 69.20 ha. (171.00 acres), and restoration of 16.49 ha (40.75 acres) of wetlands. Cumulative impacts by watershed were directly related to levels of development and population growth.The FWPA has resulted in an estimated 67% reduction [44.32 ha (109.47 acres) vs 136.26 ha (336.56 acres)] in annual wetland and water impacts when compared with Section 404 data for New Jersey. For mitigation, the slight increase in wetland acreage over acreage impacted is largely consistent with Section 404 data.Based on this evaluation, the FWPA has succeeded in reducing the level of wetland impacts in New Jersey. However, despite stringent regulation of activities in and around wetlands, New Jersey continues to experience approximately 32 ha (79 acres) of unmitigated wetland impacts annually. Our results suggest that additional efforts focusing on minimizing wetland impacts and increasing wetlands creation are needed to attain a goal of no net loss of freshwater wetlands.     

Regulatory context for cumulative impact research

Wetlands protection has become a topic of increased public attention and support, and regulation of wetlands loss under Section 404 of the Clean Water Act has received high priority within the US Environmental Protection Agency (EPA). Despite this, the nation is continuing to experience serious wetlands losses. This situation reflects the contentious nature of wetlands protection; it involves fundamental conflicts between environmental and development interests. Better information is needed to support regulatory decision making, including information on cumulative impacts. Currently, consideration of cumulative impacts, although required by various federal regulations, is limited. One reason is that most regulatory decisions are made on a permit-specific, site-specific basis, whereas cumulative impacts must be assessed on a broader, regional scale. In addition, scientific information and methods necessary to support cumulative impact assessment have been lacking. An anticipatory, planning-oriented framework to complement the existing site-specific permit review program is needed to support more effective consideration of cumulative impacts; such an effort is beginning to emerge. In addition, EPA is supporting research to provide better information on cumulative effects. It is recommended that the EPA program place initial emphasis on synthesis and analysis of existing information, on maximizing its use in decision making, and on information transfer. Recommended approaches include correlation of historic wetlands losses with loss of wetlands function and values, regional case studies, and development of indices of cumulative impact for use in permit review.Formerly Director, Office of Federal Activities, US Environmental Protection Agency     

Section 404 wetland mitigation and permit success criteria in Pennsylvania,USA, 1986-1999

Twenty-three Section 404 permits in central Pennsylvania (covering a wetland age range of 1–14 years) were examined to determine the type of mitigation wetland permitted, how the sites were built, and what success criteria were used for evaluation. Most permits allowed for mitigation out-of-kind, either vegetatively or through hydrogeomorphic class. The mitigation process has resulted in a shift from impacted wetlands dominated by woody species to less vegetated mitigation wetlands, a trend that appears to be occurring nationwide. An estimate of the percent cover of emergent vegetation was the only success criterion specified in the majority of permits. About 60% of the mitigation wetlands were judged as meeting their originally defined success criteria, some after more than 10 years. The permit process appears to have resulted in a net gain of almost 0.05 ha of wetlands per mitigation project. However, due to the replacement of emergent, scrub–shrub, and forested wetlands with open water ponds or uplands, mitigation practices probably led to a net loss of vegetated wetlands.     

The US Clean Water Act and habitat replacement: evaluation of mitigation sites in Orange County,California, USA

Both permit requirements and ecological assessments have been used to evaluate mitigation success. This analysis combines these two approaches to evaluate mitigation required under Section 404 of the United States Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act, which allow developers to provide compensatory mitigation for unavoidable impacts to wetlands. This study reviewed permit files and conducted field assessments of mitigation sites to evaluate the effectiveness of mitigation required by the US Army Corps of Engineers for all permits issued in Orange County, California from 1979 through 1993. The 535 permit actions approved during this period allowed 157 ha of impacts. Mitigation was required on 70 of these actions, with 152 ha of enhanced, restored, and created habitat required for 136 ha of impacts. In 15 permit actions, no mitigation project was constructed, but in only two cases was the originally permitted project built; the two cases resulted in an unmitigated loss of 1.6 ha. Of the remaining 55 sites, 55% were successful at meeting the permit conditions while 11% failed to do so. Based on a qualitative assessment of habitat quality, only 16% of the sites could be considered successful and 26% were considered failures. Thus, of the 126 ha of habitat lost due to the 55 projects, only 26 ha of mitigation was considered successful. The low success rate was not due to poor enforcement, although nearly half of the projects did not comply with all permit conditions. Mitigation success could best be improved by requiring mitigation plans to have performance standards based on habitat functions.     

A better rationale for wetland management

The present US Federal wetland management strategy under Section 404 of the Clean Water Act does not account for the differences in the natural values of wetlands and their different vulnerability to development pressure. The strategy, aimed at reducing the regulatory burden, provides for different levels of wetland protection, primarily by designating certain activities in or affecting wetlands as essentially harmless, having only minor impacts even when considered for their cumulative effects. Such activities are authorized under general permits precluding any evaluation of project impacts. A sounder, yet practical, rationale for wetland management and regulatory relief should be linked to the scarcity of certain wetland habitats, the habitat diversity or carrying capacity, the degree of degradation from past development, and the incremental losses already incurred within the same wetland ecosystem. The regulatory effort should be concentrated where these characteristics indicate high-value wetlands.Wetland impacts appear to fit into five basic orders of magnitude; these pertain to the relative cost and difficulty of impact mitigation. Up to 13 ecological and public-interest variables can modify the seriousness of the basic impact. Together, the basic orders of impact and modifying variables describe the theoretical framework for wetland management. However, a practical rationale for better wetland management must be constrained to factors not requiring a field investigation in advance of project planning for construction and development.This article was produced in part from work funded by the Office of Technology Assessment (OTA) of the United States Congress for use in its study, Wetlands: Their Use and Regulation. The views expressed do not necessarily represent those of OTA.     

State wetlands and riparian area protection programs

The protection of wetlands and riparian areas has emerged as an important environmental planning issue. In the United States, several federal and state laws have been enacted to protect wetlands and riparian areas. Specifically, the federal Clean Water Act includes protection requirements in Sections 301 and 303 for state water quality standards, Section 401 for state certification of federal actions (projects, permits, and licenses), and Section 404 for dredge and fill permits. The Section 401 water quality state certification element has been called the “sleeping giant” of wetlands protection because it empowers state officials to veto or condition federally permitted or licensed activities that do not comply with state water quality standards. State officials have used this power infrequently. The purpose of this research was to analyze the effectiveness of state wetland and riparian programs. Contacts were established with officials in each state and in the national and regional offices of key federal agencies. Based on interviews and on a review of federal and state laws, state program effectiveness was analyzed. From this analysis, several problems and opportunities facing state wetland protection efforts are presented.     

ENVIRONMENTAL IMPACT MITIGATION UNDER THE CLEAN WATER ACT AND THE NATIONAL ENVIRONMENTAL POLICY ACT: THE CASE OF TWO FORKS DAM1

ABSTRACT: The role of environmental mitigation in permitting decisions under Section 404 of the Clean Water Act and the National Environmental Policy Act is examined, addressing the extent to which compensatory mitigation is acceptable. The role of mitigation is examined both generically and specifically: first in the requirements of the Clean Water Act and NEPA, and then in the case study of the proposed Two Forks Dam. In both cases, the paper describes dual purposes of environmental protection legislation and mitigation: to protect the biophysical environment and maintain associated human values. Mitigation is found to be sometimes necessary and acceptable as compensation for unavoidable impacts of project development. However, the Two Forks case exemplifies that compensatory mitigation has also been employed as a mechanism to facilitate project development when practicable alternatives entailing less environmental impact are available. Acceptance of compensatory mitigation in such cases violates both the Guidelines of the Clean Water Act and the intent of that Act and NEPA to protect the biophysical environment and human welfare. A recent memorandum of agreement between the Corps and the EPA clarifies this policy, and suggests that permit applications which rely on compensatory mitigation when impacts are available may be denied.     

Section 404 Permitting in Coastal Texas: A Longitudinal Analysis of the Relationship Between Peak Streamflow and Wetland Alteration

As early as the passage of the 1972 Federal Water Pollution Control Act the U.S. government has sought to protect the nation’s water resources through regulatory tools. While there has been a large amount of research on wetlands and wetland mitigation, very little is known about the impact of Section 404 permitting on water quantity. This research examines the impact of Section 404 permit types on peak annual streamflow in Coastal Texas from 1996 to 2003. Results of cross-sectional time-series regression analyses indicate that all four permit types have positive and significant effects on peak streamflow. These effects also vary by permit type, with Individual permits having the highest per-permit impact on peak annual flow.     

ESTABLISHING PRIORITIES FOR WETLAND MANAGEMENT1

Wetlands provide a variety of ecological services, but are attractive sites for many development activities. Between the mid-1950's and mid-1970's about 550,000 acres, or about 0.5 percent, of the vegetated wetlands remaining in the conterminous states were converted to other uses each year. About 80 percent of these losses involved draining and clearing of inland wetlands for agricultural purposes. Recent reductions in national wetland conversion rates are due primarily to declining rates of agricultural drainage and secondarily to government programs that regulate wetlands use. Several governmental policies and programs exist that either encourage or discourage wetland conversions. Section 404 of the Clean Water Act is the major tool for Federal involvement in controlling the conversion of wetlands to other uses. The 404 program, in combination with State regulatory programs, is responsible for reducing annual conversions nationwide by about 50 percent of what is applied for, or 50,000 acres of wetlands per year, primarily through project modifications. Coastal wetlands are reasonably well protected. Inland, freshwater wetlands are generally poorly protected. Efforts to protect wetlands, given a set level of resources, could be improved by categorizing wetlands according to their relative importance and focusing existing wetland programs on high value wetlands.     

Conflict,controversy, and compromise: The Concho water snake (Nerodia harteri paucimaculata) versus the Stacy Dam and Reservoir

The Colorado River Municipal Water District (CRMWD) of Big Spring, Texas, planned to construct the Stacy Reservoir and Dam on the Colorado River near Paint Rock, Texas, yet needed a Section 404 permit from the US Army Corps of Engineers pursuant to the Clean Water Act. In 1986 the Concho water snake (Nerodia harteri paucimaculata) was listed as threatened under the Endangered Species Act (ESA). Much of its remaining range included the stretch of the Colorado River that would be flooded by the proposed dam. After initially rejecting CRMWD proposals for mitigation, and informing the Corps of Engineers that it would issue a jeopardy opinion regarding the 404 permit pursuant to Section 7 of the ESA, the US Fish and Wildlife Service reversed its stand. The final biological opinion stated that reasonable and prudent alternatives previously rejected as unfeasible would remove the threat of jeopardy. This paper concludes that experimental management techniques proposed by FWS to allow dam construction do not adequately ensure survival of the Concho water snake and an alternative water source should have been found.     

ECONOMIC ANALYSIS OF WETLAND RESTORATION ALONG THE ILLINOIS RIVER1

Creating and restoring wetland and riparian ecosystems between farms and adjacent streams and rivers in the Upper Mississippi River Basin would reduce nitrogen loads and hypoxia in the Gulf of Mexico and increase local environmental benefits. Economic efficiency and economic impacts of the Hennepin and Hopper Lakes Restoration Project in Illinois were evaluated. The project converted 999 ha of cropland to bottomland forest, backwater lakes, and flood‐plain wetland habitat. Project benefits were estimated by summing the economic values of wetlands estimated in other studies. Project costs were estimated by the loss in the gross value of agricultural production from the conversion of corn and soybean acreage to wetlands. Estimated annual net benefit of wetland restoration in the project area amounted to US$1,827 per ha of restored wetland or US$1.83 million for the project area, indicating that the project is economically efficient. Impacts of the project on the regional economy were estimated (using IMPLAN) in terms of changes in total output, household income, and employment. The project is estimated to increase total output by US$2,028,576, household income by US$1,379,676, and employment by 56 persons, indicating that it has positive net economic impacts on the regional economy.     

SOCIOLOGICAL ASPECTS OF WATER DEVELOPMENT1

Decisions to develop water resources systems so far have been primarily taken on the basis of engineering and economic feasibilities. Very rarely, if ever, sociological feasibility has been considered, except in a very broad sense. Planning is for the people, and it should improve the quality of life. Hence, it is argued that water resources decisions ought to be primarily social ones, and that the success or failure of any resource development should not only be judged by its techno-economic excellence but also by its impact on people. Water resources planning process is discussed, and the difficulties associated with the evaluation of sociological feasibility of projects are enumerated. The social consequences of water development projects are traced through planning, construction, operation and management impacts. Finally, it is suggested that the foremost factor in the success of any water management program is the public understanding and acceptance of that program.     

INCOME DISTRIBUTION IMPACTS OF A WATER DEVELOPMENT PROJECT - BOISE PROJECT,IDAHO, 1950–19701

ABSTRACT: Public investments in water resource development projects are continually under scrutiny in terms of economic, environmental, and social impacts. Results of an analysis of a water development project that supplies irrigation water in Idaho are discussed in terms of the impact on income distribution and income growth 44 to 64 years after the project was initiated. Gini ratios for the rural farm population of these counties were consistently lower than they were for the United States as a whole and for the state of Idaho. In addition, income distributions tended to become more equitable over time in the water project counties. Rural farm population income growth rates were found to be similar to those for the nation as a whole. Some of the reasons for these results may be related to the tendency for income distribution to become more equitable as income increases, and the fact that average farm size is relatively small.     

Wetland ecological and compliance assessments in the San Francisco Bay Region, California, USA

The San Francisco Bay Region of the California Regional Water Quality Control Board (SFB CRWQCB) and the San Francisco District of the US Army Corps of Engineers (US ACOE) are looking for an expeditious means to determine whether regulated wetland projects produce ecologically valuable systems and remain in compliance with their permits (i.e. fulfill their legal requirements) until project completion. A study was therefore undertaken in which 20 compensatory wetland mitigation projects in the San Francisco Bay Region were reviewed and assessed for both permit compliance and habitat function, and this was done using a rapid assessment method adapted for this purpose. Thus, in addition to determining compliance and function, a further goal of this study was to test the efficacy of the assessment method, which, if useful, could be applied not only to mitigation projects, but also to restoration projects and natural wetland systems. Survey results suggest that most projects permitted 5 or more years ago are in compliance with their permit conditions and are realizing their intended habitat functions. The larger restoration sites or those situated between existing wetland sites tend to be more successful and offer more benefits to wildlife than the smaller isolated ones. These results are consistent with regulatory experience suggesting that economies of scale could be realized both with (1) large scale regional wetland restoration sites, through which efforts are combined to control invasive species and share costs, and (2) coordinated efforts by regulatory agencies to track project information and to monitor the increasing number and size of mitigation and restoration sites. In regard to the assessment methods, we find that their value lies in providing a consistent protocol for evaluations, but that the ultimate assessment will rely heavily on professional judgment, regulatory experience, and the garnering of pre-assessment information.     

Federal and state management of inland wetlands: Are states ready to assume control?

As inland wetlands face increasing pressure for development, both the federal government and individual states have begun reevaluating their respective wetland regulatory schemes. This article focuses first on the effectiveness of the past, present, and proposed federal regulations, most notably the Section 404, Dredge and Fill Permit Program, in dealing with shrinking wetland resources. The article then addresses the status of state involvement in this largely federal area, as well as state preparedness to assume primacy should federal priorities change. Finally, the subject of comprehensive legislation for wetland protection is investigated, and the article concludes with some procedural suggestions for developing a model law.     

Assessing Public Perceptions of Computer-Based Models

Although there is a solid body of research on both collaborative decision-making and on processes using models, there is little research on general public attitudes about models and their use in making policy decisions. This project assessed opinions about computer models in general and attitudes about a specific model being used in water planning in the Middle Rio Grande Region of New Mexico, United States. More than 1000 individuals were surveyed about their perceptions of computer-based models in general. Additionally, more than 150 attendees at public meetings related to the Middle Rio Grande planning effort were surveyed about their perceptions of the specific Rio Grande-based model. The results reveal that the majority of respondents are confident in their ability to understand models and most believe that models are appropriate tools for education and for making policy decisions. Responses also reveal that trust in who develops a model is a key issue related to public support. Regarding the specific model highlighted in this project, the public revealed tremendous support for its usefulness as a public engagement tool as well as a tool to assist decision-makers in regional water planning. Although indicating broad support for models, the results do raise questions about the role of trust in using models in contentious decisions.     

ENERGY,ENVIRONMENTAL, AND ECONOMIC IMPLICATIONS OF SOME RECENT ALBERTA WATER RESOURCES PROJECTS1

ABSTRACT: Most of us are aware, or feel we are aware, of the impacts of major water resources projects on our lives. “Dam-lovers” note the life-saving flood-risk reduction and recreational benefits of a proposed reservoir, while “dam-haters” bemoan the future drowning out of the wildlife habitat of its river valley, and the recreational disbenefits to stream (as opposed to lake) fishermen. Water supply projects can often be given such a revered status, assuming the “obvious” tenet that water, air, food, and shelter are basic requirements of decent living, that the economic viability of the project may not even be assessed. Water resources planners are supposed to impartially weigh the environmental and economic benefits, and especially now, the energy implications of all proposed water projects, but many times the partial views of political or public advocates may be hard to ignore. The assumptions used in the planning of four recent water projects in the Province of Alberta will be presented and some revisions suggested which materially affect their Benefit/Cost ratios. In one project that is still in the public hearing stage, the economic analysis will be revealed, indicating that the original B/C ratio of about 1.6:1 might be more realistically placed at 0.6:1. In another project just completed, the apparent lack of an economic or energy analysis that has resulted in a perpetual and unnecessary energy load on the province, will be described.     

ASSESSING ENVIRONMENTAL EFFECTS OF SEVERE SUSTAINED DROUGHT1

ABSTRACT: Evaluation criteria for reservoir and stream resources were developed to provide decision makers with feedback on environmental consequences of water allocation decisions under conditions of severe sustained drought within the Colorado River Basin by using the AZCOL gaming simulation model. Seven categories of flow dependent resources were identified which highlight resource states associated with reservoirs or river reaches within the AZCOL model. AZCOL directly simulates impact of water management decisions on five resource categories: threatened, endangered or sensitive fish; native nonlisted fish; wetland and riparian elements; national or state wildlife refuges; and hatcheries or other flow dependent facilities. Two additional categories - cold and warm water sport fish - are not modeled explicitly but are incorporated in the evaluation of monetary benefits from recreation on Colorado River waters. Each resource category was characterized at each time step in the simulation according to one of four environmental states: stable, threatened, endangered, or extirpated. Changes in resource states were modeled by time and flow-dependent decision criteria tied to either reservoir level or stream flows within the AZCOL model structure. Gaming results using the AZCOL model indicate environmental impacts would be substantial and that water allocation decisions directly impacted environmental resource states.