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.     

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.     

Wetlands mitigation: Partnership between an electric power company and a federal wildlife refuge

Nine hectares (23 acres) of a degraded section of Patuxent Research Refuge in Laurel, Maryland, USA, were converted to wetland habitat by the Baltimore Gas and Electric Company in 1994. The wetlands were created as mitigation for 5.7 ha (14 acres) of wetlands that were impacted as part of the construction of an 8.5-km (5.3-mile) 500-kV overhead transmission line on the refuge. The area consists of a created forested wetland of 5.5 ha (13.5 acres), a seasonally inundated green-tree reservoir of 7.6 ha (6.5 acres), and an impounded pond wetland of 1.2 ha (3 acres). Construction included the planting of 6131 trees, 4276 shrubs, and 15,102 emergent plants. Part of the site has been studied intensively since completion and survival of trees and shrubs after two years was 88%. Measurements of these transplants have shown growth greater than on other created sites in Maryland. Grasses and other herbaceous vegetation were dominant plants in the meter-square plots in the first two years of sampling of the created forested wetland. Wildlife surveys for birds, mammals, amphibians, and reptiles have revealed diverse communities. Although these communities represent species consistent with open habitat, more typical forest species should colonize the area as it undergoes succession into a more mature forested wetland. The creation, management, and research of this mitigation site represents an excellent example of a partnership between a private electric power company and a federal wildlife refuge. This partnership has increased local biodiversity and improved regional water quality of the Patuxent River and the Chesapeake Bay.     

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.     

The Effect of Wetland Mitigation Banking on the Achievement of No-Net-Loss

/ This study determines whether the 68 wetland mitigation banks in existence in the United States through 1 January 1996 are achieving no-net-loss of wetland acreage nationally and regionally. Although 74% of the individual banks achieve no-net-loss by acreage, overall, wetland mitigation banks are projected to result in a net loss of 21,328 acres of wetlands nationally, 52% of the acreage in banks, as already credited wetland acreages are converted to otheruses. While most wetland mitigation banks are using appropriate compensation methods and ratios, several of the largest banks use preservation or enhancement, instead of restoration or creation. Most of these preservation/enhancement banks use minimum mitigation ratios of 1:1, which is much lower than ratios given in current guidelines. Assuming that mitigation occurs in these banks as preservation at the minimum allowable ratio, ten of these banks, concentrated in the western Gulf Coast region, will account for over 99% of projected net wetland acreage loss associated with banks. We conclude that wetland mitigation banking is a conceptually sound environmental policy and planning tool, but only if applied according to recently issued guidelines that ensure no-net-loss of wetland functions and values. Wetland mitigation banking inevitably leads to geographic relocation of wetlands, and therefore changes, either positively or negatively, the functions they perform and ecosystem services they provide. KEY WORDS: Mitigation banking; Wetlands; Army Corps of Engineers; No-net-loss     

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.     

Determinants of Spatial and Temporal Patterns in Compensatory Wetland Mitigation

Development projects that impact wetlands commonly require compensatory mitigation, usually through creation or restoration of wetlands on or off the project site. Over the last decade, federal support has increased for third-party off-site mitigation methods. At the same time, regulators have lowered the minimum impact size that triggers the requirement for compensatory mitigation. Few studies have examined the aggregate impact of individual wetland mitigation projects. No previous study has compared the choice of mitigation method by regulatory agency or development size. We analyze 1058 locally and federally permitted wetland mitigation transactions in the Chicago region between 1993 and 2004. We show that decreasing mitigation thresholds have had striking effects on the methods and spatial distribution of wetland mitigation. In particular, the observed increase in mitigation bank use is driven largely by the needs of the smallest impacts. Conversely, throughout the time period studied, large developments have rarely used mitigation banking, and have been relatively unaffected by changing regulatory focus and banking industry growth. We surmise that small developments lack the scale economies necessary for feasible permittee responsible mitigation. Finally, we compare the rates at which compensation required by both county and federal regulators is performed across major watershed boundaries. We show that local regulations prohibiting cross-county mitigation lead to higher levels of cross- watershed mitigation than federal regulations without cross-county prohibitions. Our data suggest that local control over wetland mitigation may prioritize administrative boundaries over hydrologic function in the matter of selecting compensation sites.     

Wetland protection as land-use planning: The impact of section 404 in Wisconsin,USA

The ability of Section 404 of the Clean Water Act to act as an effective, efficient, and equitable land-use planning tool was assessed through a survey of Section 404 permits in Wisconsin. In a six-month period of permitting, the 404 program reduced wetland losses in the state by 15%. Several factors were examined that may affect permit decisions; these factors are water dependency, alternatives, project type, wetland type, and public or agency comments. Only the water dependency of the project had a statistically significant effect on permit decisions, although development projects that were perceived to provide public good were more likely to be permitted. Environmental impacts of a proposed fill project were not adequately assessed in any of the permit decisions. Because of the way Section 404 is interpreted and administered by the US Army Corps of Engineers, increasing net benefits and achieving an equitable distribution of those benefits is difficult. The corps does not perform any functional evaluations of wetlands nor do they attempt to measure economic value and environmental impacts. In addition, the 404 review process is, in effect, inaccessible to the public. The de facto interpretations of the Section 404 regulations and a lack of program funding and trained personnel all contribute to the program's ineffectiveness.     

Wetland development trends in coastal North Carolina,USA, from 1970 to 1984

Coastal wetlands are a valuable resource to North Carolina, USA, representing important habitat for marine organisms and providing flood control areas and buffer zones from marine storms. An analysis of wetland development trends in coastal North Carolina from 1970 to 1984 was conducted using over 3000 files containing 15 years of permitting records. The total amount of coastal wetland area altered due to authorized development under the Coastal Area Management Act (CAMA), the Dredge and Fill Law, and Section 404 of the Federal Water Pollution Control Act is 1740 ha. This represents nearly 2% of the salt marsh wetlands along the coast of North Carolina. The number of permits issued steadily increased during the 1980s; however, the total amount of wetland loss decreased each year. A few large projects in the early 1970s accounted for nearly 70% of all wetland area developed during the 15-year period. Nearly two-thirds of all projects involving wetland destruction involved impacts on high marsh ecosystems. Bulkheads, canals, and filling activities made up 80% of the projects requiring permits; 62% of the permits were issued to private landowners, but this group accounted for only 16% of the losses of wetland area. Utility companies, which accounted for less than 1% of the permits issued, were responsible for 46% of the permitted wetland loss during the 15-year study period. Future studies should address agriculture and forestry practices which are exempt under CAMA laws and therefore their effects on wetland alteration have not been quantified.     

Losing Function Through Wetland Mitigation in Central Pennsylvania,USA

In the United States, the Clean Water Act requires mitigation for wetlands that are negatively impacted by dredging and filling activities. During the mitigation process, there generally is little effort to assess function for mitigation sites and function is usually inferred based on vegetative cover and acreage. In our study, hydrogeomorphic (HGM) functional assessment models were used to compare predicted and potential levels of functional capacity in created and natural reference wetlands. HGM models assess potential function by measurement of a suite of structural variables and these modeled functions can then be compared to those in natural, reference wetlands. The created wetlands were built in a floodplain setting of a valley in central Pennsylvania to replace natural ridge-side slope wetlands. Functional assessment models indicated that the created sites differed significantly from natural wetlands that represented the impacted sites for seven of the ten functions assessed. This was expected because the created wetlands were located in a different geomorphic setting than the impacted sites, which would affect the type and degree of functions that occur. However, functional differences were still observed when the created sites were compared with a second set of reference wetlands that were located in a similar geomorphic setting (floodplain). Most of the differences observed in both comparisons were related to unnatural hydrologic regimes and to the characteristics of the surrounding landscape. As a result, the created wetlands are not fulfilling the criteria for successful wetland mitigation.     

Diversity of hydric soils in North Carolina,USA

Hydric soils are used as supportive evidence for wetland delineations by federal and state agencies and by the private sector in North Carolina, USA. An analysis of hydric soil distribution and hydric soil characteristics was conducted with county soil surveys and soil taxonomy of the USA. Approximately 100 hydric soils have been used for soil mapping in North Carolina, and they represent seven of the ten soil orders in soil taxonomy. An estimated 23% (2.9 million ha) of the land surface area in North Carolina supports hydric soils. Approximately 96% of the known hydric soil acreage was found in the coastal plain of North Carolina. Over one-third of the soils were hydric Ultisols, which represented close to 10% of the land surface area. The other soil orders with extensive hydric soil acreage included Histosols, Inceptisols, and Entisols. The soil orders were separated into great groups of soil taxonomy to discuss soil profile characteristics. Landscape positions and associated wetland communities were also presented. In North Carolina, a statewide inventory of wetlands does not exist and soil surveys offer a resource for a first approximation of wetland boundaries.     

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.     

Does Wetland Location Matter When Managing Wetlands for Watershed‐Scale Flood and Drought Resilience?

Wetland protection and restoration strategies that are designed to promote hydrologic resilience do not incorporate the location of wetlands relative to the main stream network. This is primarily attributed to the lack of knowledge on the effects of wetland location on wetland hydrologic function (e.g., flood and drought mitigation). Here, we combined a watershed‐scale, surface–subsurface, fully distributed, physically based hydrologic model with historical, existing, and lost (drained) wetland maps in the Nose Creek watershed in the Prairie Pothole Region of North America to (1) estimate the hydrologic functions of lost wetlands and (2) estimate the hydrologic functions of wetlands located at different distances from the main stream network. Modeling results showed wetland loss altered streamflow, decreasing baseflow and increasing stream peakflow during the period of the precipitation events that led to major flooding in the watershed and downstream cities. In addition, we found that wetlands closer to the main stream network played a disproportionately important role in attenuating peakflow, while wetland location was not important for regulating baseflow. The findings of this study provide information for watershed managers that can help to prioritize wetland restoration efforts for flood or drought risk mitigation.     

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.     

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.     

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 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.     

Compliance with Wetland Mitigation Standards in the Upper Peninsula of Michigan, USA

The United States has lost about half its wetland acreage since European settlement, and the effectiveness of current wetland mitigation policies is often questioned. In most states, federal wetland laws are overseen by the U.S. Army Corps of Engineers, but Michigan administers these laws through the state's Department of Environmental Quality (MDEQ). Our research provides insight into the effectiveness of the state's implementation of these laws. We examined wetland mitigation permit files issued in Michigan's Upper Peninsula between 2003 and 2006 to assess compliance with key MDEQ policies. Forty-six percent of files were out of compliance with monitoring report requirements, and forty-nine percent lacked required conservation easement documents. We also conducted site assessments of select compensatory wetland projects to determine compliance with MDEQ invasive plant species performance standards. Fifty-five percent were out of compliance. We found no relationship between invasive species noncompliance and past site monitoring, age of mitigation site, or proximity to roads. However, we found wetland restoration projects far more likely to be compliant with performance standards than wetland creation projects. We suggest policy changes and agency actions that could increase compliance with wetland restoration and mitigation goals.