Fourth Stakeholder Forum on Federal Wetlands …...Fourth Stakeholder Forum on Federal Wetlands...

E N V I R O N M E N T A L L A W I N S T I T U T E

Fourth Stakeholder Forum on FederalWetlands Mitigation

Sponsored by:

Federal Highway Administration

Florida Department ofEnvironmental Protection

USDA Natural ResourcesConservation Service

NOAA National Marine FisheriesService

Southwest Florida WaterManagement District

Stetson University – College ofLaw

Tampa Bay Estuary Program

U.S. Army Corps of Engineers

U.S. Environmental ProtectionAgency

U.S. Fish and Wildlife Service

Forum Report

Fourth Stakeholder Forum on Federal Wetlands Mitigation

Sponsored by:

Federal Highway Administration

Florida Department of Environmental Protection

USDA Natural Resources Conservation Service

NOAA National Marine Fisheries Service

Southwest Florida Water Management District

Stetson University – College of Law

Tampa Bay Estuary Program

U.S. Army Corps of Engineers

U.S. Environmental Protection Agency

U.S. Fish and Wildlife Service

September 20–22, 2004

William Reece Smith Jr. Courtroom

Stetson University – College of Law

Tampa Campus & Law Center

Tampa, Florida

Prepared by the

Environmental Law Institute

December 2004

Forum Report

Acknowledgements

The Fourth Stakeholder Forum on Federal Wetlands Mitigation was sponsored by the Federal

Highway Administration, Florida Department of Environmental Protection, USDA Natural

Resources Conservation Service, NOAA National Marine Fisheries Service, Southwest

Florida Water Management District, Stetson University – College of Law,Tampa Bay Estuary

Program, U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and U.S. Fish and

Wildlife Service.

Funding for administration of the forum and for this report was provided by NOAA National

Marine Fisheries Service and the U.S. Environmental Protection Agency. Environmental Law

Institute staff on the project included Jessica Wilkinson, Roxanne Thomas, and Maria Placht.

Steven Martin (U.S. Army Corps of Engineers), Katie McGlynn (NOAA National Marine Fisheries

Service), and Brian Topping (U.S. Environmental Protection Agency) provided much appreciated

information for the writing of this report.

ii Environmental Law Institute

About ELI Publications—

ELI publishes Research Reports and briefs that present the analysis and conclusions of thepolicy studies ELI undertakes to improve environmental law and policy. In addition, ELIpublishes several journals and reporters—including the Environmental Law Reporter, theEnvironmental Forum, and the National Wetlands Newsletter—and books, which contributeto education of the profession and disseminate diverse points of view and opinion tostimulate a robust and creative exchange of ideas. Those publications, which express opinionsof the authors and not necessarily those of the Institute, its Board of Directors, or fundingorganizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomessuggestions for article and book topics and encourages the submission of draft manuscriptsand book proposals.


Copyright © 2005 Environmental Law Institute®, Washington, D.C. All rights reserved. ISBN No. 1-58576-090-0, ELI Project No. 0422-03.

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(Environmental Law Institute®, The Environmental Forum®, and ELR® – TheEnvironmental Law Reporter® are registered trademarks of the Environmental LawInstitute.)

Cover Photos:

Brandt Henningsen and Mark Brown display a map of the Cockroach Bay field trip site.

The Fourth Stakeholder Forum on Federal Wetland Mitigation was held at Stetson UniversityCollege of Law in Tampa, Florida.

Forum participants learn about the Schultz Nature Reserve Park on a field trip.

All photos by Rob Wood, U.S. Environmental Protection Agency.

Forum Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of Presentations and Facilitated Discussions . . . 5

The Regional and Local Perspective

Statewide Approaches to Linking Mitigation and Restoration Needs . . . . . . . . . . . . . . 6

Connie Bersok, Florida Department of Environmental Protection

Use of Mitigation to Accomplish Watershed Planning Goals – A Pasco County Case Study . . . . . 7

Clark Hull, Southwest Florida Water Management District

Creative Options for Mitigation Banking for Small Projects . . . . . . . . . . . . . . . . . . . . 9

Ron Van Fleet, Sarasota County GovernmentCindy Woods, U.S. Army Corps of Engineers

SESSION I: Review of Mitigation Action Plan and Completed Action Items

Review of National Mitigation Action Plan and Regulatory Guidance Letter (RGL 02-2) . . . . . 10

Kathy Trott, U.S. Army Corps of EngineersPalmer Hough, U.S. Environmental

Protection Agency

Guidance on the Use of the TEA-21 Preference for Mitigation Banking to Fulfill Mitigation Requirements Under Section 404 of the Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Alex Levy, Federal Highway Administration

Grants to Improve Compensatory Mitigation . . . . 12Palmer Hough, U.S. Environmental

Protection Agency

Stream Mitigation Compendium . . . . . . . . . . . . . . 13Jeanette Gallihugh, U.S. Fish and

Wildlife Service

Analysis of Existing Performance Standards Research . . . . . . . . . . . . . . . . . . . . . . . . . 14

Joanne Barry, U.S. Army Corps of Engineers

Federal Guidance on the Use of Off-Site and Out-of-Kind Compensatory Mitigation Under Section 404 of the Clean Water Act . . . . . . . 16

Susan-Marie Stedman, NOAA National Marine Fisheries Service

Model Mitigation Checklist and Incorporation of National Research Council’s Guidelines into the Clean Water Act Section 404 Program (District Mitigation and Monitoring Guidelines) . . . . . . . . . 17

Joanne Barry, U.S. Army Corps of Engineers

Demonstration of New Section 404 Database (ORM) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tori White, U.S. Army Corps of Engineers

SESSION II: 2004 Draft Action Items

Guidance for Aquatic Resources that are Difficult to Replace . . . . . . . . . . . . . . . . . . 21

Melanie Harris, NOAA National Marine Fisheries Service

Guidance on the Use of Preservation as Compensatory Mitigation . . . . . . . . . . . . . . . . . . . . 25

Jeanette Gallihugh, U.S. Fish and Wildlife Service

Vegetated Buffer Guidance. . . . . . . . . . . . . . . . . . . 29Steve Martin, U.S. Army Corps of Engineers

SESSION III: Future Action Items

Watershed Context Guidance . . . . . . . . . . . . . . . . . 31Bob Brumbaugh, U.S. Army Corps of EngineersPalmer Hough, U.S. Environmental

Protection Agency

Performance Standards Guidance . . . . . . . . . . . . . 35Bob Brumbaugh, U.S. Army Corps of EngineersSteven Martin, U.S. Army Corps of Engineers

Wrap-up and Closing Statements. . . . . . . . . . . . . . . . . . . . 37Kathy Trott, U.S. Army Corps of EngineersPalmer Hough, U.S. Environmental

Protection Agency

Looking Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Appendices

Appendix A:Final Agenda for Fourth Stakeholder Forum on Federal Wetlands Mitigation . . . . . . . . . . . . . . . . . 41

Appendix B:National Wetlands Mitigation Action Plan . . . . . . 43

Appendix C:National Mitigation Action Plan Production Schedule . . . . . . . . . . . . . . . . . . . . . . . . 49

Appendix D:Participant Contact Information . . . . . . . . . . . . . . 51

Table of Contents

Fourth Stakeholder Forum on Federal Wetlands Mitigation iii

Forum Participants

Noel ArdoinLouisiana Department ofTransportation and Development

Brian S. BarnettFlorida Fish and WildlifeConservation Commission

Joanne BarryU.S. Army Corps of Engineers

Constance BersokFlorida Department ofEnvironmental Protection

Joshua BoanFlorida Department ofTransportation

Peg BostwickMichigan Department ofEnvironmental Quality

Doug BransfieldStetson University – College of Law

Jim BrawnerUtility Water Act Group

Mark BrownSouthwest Florida WaterManagement District

Robert BrumbaughInstitute for Water ResourcesU.S. Army Corps of Engineers

Derb CarterSouthern Environmental LawCenter

Diane CavesU.S. Government AccountabilityOffice

Jeanne ChristieAssociation of State WetlandsManagers

Andre ClewellSociety for Ecological Restoration

Stephen CollinsFlorida Power and Light Company

Kim ConnollyUniversity of South Carolina, Schoolof Law

Hildreth CooperU.S. Fish and Wildlife Service

Craig DenisoffNational Mitigation BankingAssociation

Desmond DukePanther Island Mitigation Bank

Mark EasleyURS Corporation, Southern

Richard EckenrodTampa Bay Estuary Program

Jason EsterStetson University – College of Law

Rhonda EvansU.S. Environmental ProtectionAgency

Don EwoldtLake Erie Land Company National Mitigation BankingAssociation

Tina FischerStetson University – College of Law

Jeanette GallihughU.S. Fish and Wildlife Service

Royal GardnerStetson University – College of Law

George GetsingerNOAA National Marine FisheriesService

Jennifer GonzalezStetson University – College of Law

Shannon GonzalezBiological Research Associates

Charles HarmanInterstate Technology andRegulatory Council

Melanie HarrisNOAA National Marine FisheriesService

Thaddieus HartU.S. Army Corps of Engineers,Jacksonville District

Scott HausmannWisconsin Department of NaturalResources

Robert HolbrookWetland Technologies

Palmer HoughU.S. Environmental ProtectionAgency

Clark HullSouthwest Florida WaterManagement District

John IliffNOAA Restoration Center

Chet JanikU.S. Government AccountabilityOffice

Haynes JohnsonU.S. Environmental ProtectionAgency, Region 4

Robert KesslerCH2M Hill, Inc.

Suzanne KlimekNorth Carolina EcosystemEnhancement Program

JoDale LeggNew Jersey Department ofEnvironmental Protection

Alex LevyFederal Highway Administration

Sheri LewinMitigation Marketing, LLC

Tom LinkousOhio Department of Transportation

Dennis LongknifeFort Belknap Indian Community

Robin MannSierra Club

Cherise MaplesSeminole Tribe of Florida

Steven MartinInstitute of Water ResourcesU.S. Army Corps of Engineers

Katie McGlynnNOAA National Marine FisheriesService

David McKayUSDA Natural ResourcesConservation Service

John MeagherU.S. Environmental ProtectionAgency

Richard MogensenEarthMark Companies

Chandler MorseNational Association of HomeBuilders

Vicki MurilloGulf Restoration Network

Tracie-Lynn NadeauU.S. Environmental ProtectionAgency

Doug NorrisMinnesota Department of NaturalResources, Board of Water and SoilResources

Eric OlsenHopping Green & Sams, P.A.

Jeffrey PardueBreedlove, Dennis & Associates, Inc.

Keith ParsonsGeorgia Department of NaturalResources

Craig PittmanSt. Petersburg Times

iv Environmental Law Institute

Ann RedmondWilsonMiller, Inc.

Ken ReisingerPennsylvania Department ofEnvironmental Protection

Elizabeth RockhillStetson University – College of Law

Don RossEarthBalance Corporation

John RyanLand and Water Resources, Inc.

Ray ScottFlorida Department of Agricultureand Consumer Services

Susan-Marie StedmanNOAA National Marine FisheriesService

Tim SteeleStetson University – College of Law

Brian ToppingU.S. Environmental ProtectionAgency

Katherine TrottU.S. Army Corps of Engineers

Ron Van FleetSarasota County Government

Daniel Wade ZenoU.S. Government AccountabilityOffice

Tori WhiteU.S. Army Corps of Engineers

Cynthia WoodU.S. Army Corps of Engineers

Robert WoodU.S. Environmental ProtectionAgency

ELI Staff/Support:

Maria PlachtEnvironmental Law Institute

Roxanne ThomasEnvironmental Law Institute

Jessica WilkinsonEnvironmental Law Institute

Fourth Stakeholder Forum on Federal Wetlands Mitigation 1

EXECUTIVE SUMMARY

The Fourth Stakeholder Forum onFederal Wetlands Mitigation washeld September 20-22, 2004, in

Tampa, Florida.The forum wassponsored by the Federal HighwayAdministration, Florida Department ofEnvironmental Protection, USDANatural Resources Conservation Service,NOAA National Marine FisheriesService, Southwest Florida WaterManagement District, StetsonUniversity – College of Law,Tampa BayEstuary Program, U.S. Army Corps ofEngineers, U.S. EnvironmentalProtection Agency, and U.S. Fish andWildlife Service.

The 2 1/2-day meeting was designed toachieve the following objectives:■ Review progress on the actions set

forth in the 2002 National WetlandsMitigation Action Plan

■ Solicit feedback on MitigationAction Plan tasks to be completedin 2004; and

■ Solicit input on future MitigationAction Plan actions and goals for2005.

The primary goal of the meeting was toprovide a forum for representativesfrom a broad range of stakeholderinterests to comment on and discussthese documents in order to informefforts to improve federal wetlandmitigation.The forum was not meantto yield consensus-based directives forthe agencies. However, several themesthat were revisited repeatedly by theforum participants warrant mention.


■ Several participants supported afocus on preservation, with adviceto “buy now and restore later.”

■ Participants expressed concern overhow the individual guidancedocuments relate to existingguidance, to each other, and to theforthcoming guidance oncompensatory mitigation and thewatershed approach.

■ Participants raised several issuesrelated to assigning credits foractivities to offset mitigationrequirements. Participantsemphasized the need to avoidassigning mitigation credit forimpacts approved under otherregulatory programs.The criteriaused to determine credits for DTR,buffers, and preservation, should beclear and publicly available.

■ The permit review “time clock” mayinhibit adequate review ofmitigation plans.

■ Participants felt that additionalguidance is needed on streammitigation and assessment.Theyalso stated that the existing body ofinformation on stream assessmentmethods might fail to fully considerthe special conditions of wetlandsand streams in the arid west.

■ Participants discussed theappropriate scale for makingcompensatory mitigation decisions.There was significant debate aboutthe relative strengths of relyingupon ecosystem versus watershedscales.

■ Participants repeatedly stressed theimportance of regulatory agenciesadhering to sequencingrequirements when making permitdecisions.

■ Participants stated that long-termmanagement issues, such asstewardship endowments and siteprotection mechanisms, need to beclarified.

■ Participants stated that theguidance documents should allowfor sufficient flexibility to enableregulators to address regional needsand concerns.

■ Participants expressed an interest inseeing the MAP guidancedocuments supporting the effortsof other existing regulatoryprograms (i.e., nonpoint sourcepollution and stormwatermanagement programs) in meetingthe overall objectives of the CleanWater Act.

■ In regards to the issue of publicparticipation and local input,participants noted that “regional”MAP teams could be established toregionalize some of the nationalguidance documents.

■ Several themes emerged related toORM. Representatives from severalother federal and state agenciesexpressed interest in theinformation in ORM andrecommended that the database beable to link up to, and becompatible with, other datamanagement programs.

EXECUTIVE SUMMARY

2 Environmental Law Institute

This report is designed as arepresentative record of the issuesdiscussed at the stakeholders forum. Itcan serve as a resource for thoseinterested in improving compensatorywetland mitigation under §404 of theClean Water Act. It can also serve as afoundation for federal and stateagencies and others to develop specificand concrete actions for improvingmitigation success.

Photos from the field trip on Day I,PowerPoint presentations, several audiorecordings of the forum, and links tomany of the policy and technicaldocuments discussed in this report areavailable through the EnvironmentalLaw Institute’s website at: (<http://www.eli.org/research/wetlandsmitigationforum2004.htm>).

EXECUTIVE SUMMARY

The Mitigation Action Plan website,which includes information on thestatus of action items as well as finaland draft policy documents, is: <http://www.mitigationactionplan.gov>.Other information related to federalwetlands mitigation can be found onthe websites of EPA’s Wetlands Division(<http://www.epa.gov/owow/wetlands>) or the Regulatory Program of theU.S. Army Corps of Engineers(<http://www.usace.army.mil/inet/functions/cw/cecwo/reg/index.htm>).


INTRODUCTION

Photos from the field trip on Day I,PowerPoint presentations, several audiorecordings of the forum, and links tomany of the policy and technicaldocuments discussed in this report areavailable through the EnvironmentalLaw Institute’s website at: (<http://www.eli.org/research/wetlandsmitigationforum2004.htm>).The MitigationAction Plan website, which includesinformation on the status of actionitems as well as final and draft policydocuments, is: <http://www.mitigationactionplan.gov>. Otherinformation related to federal wetlandsmitigation can be found on thewebsites of EPA’s Wetlands Division at:<http://www.epa.gov/owow/wetlands> or the Regulatory Program of theU.S. Army Corps of Engineers at:<http://www.usace.army.mil/inet/functions/cw/cecwo/reg/index.htm>.

The forum was designed to capture avariety of opinions on the progress ofthe Mitigation Action Plan. It was notdesigned to generate consensusopinions or develop consensus-basedrecommendations.

Background

This stakeholder forum is the fourth ina series designed to provide anopportunity for the federal wetlandsagencies to exchange information andsolicit feedback on the development offederal wetland mitigation policy witha broad group of stakeholders.

The first forum, held in 1999 inWashington, D.C., was designed tosolicit input on the development ofjoint interagency guidance on the useof in-lieu-fee (ILF) arrangements tomeet compensatory mitigationrequirements for impacts to aquatic

On September 20-22, 2005, theFourth Stakeholder Forum onFederal Wetlands Mitigation was

held in Tampa, Florida at StetsonUniversity – College of Law’s TampaCampus & Law Center.The forum wassponsored by the Federal HighwayAdministration, Florida Department ofEnvironmental Protection, USDANatural Resources Conservation Service,NOAA National Marine FisheriesService, Southwest Florida WaterManagement District, StetsonUniversity – College of Law,Tampa BayEstuary Program, U.S. Army Corps ofEngineers, U.S. EnvironmentalProtection Agency, and U.S. Fish andWildlife Service.The forum provided anopportunity for a diverse group ofstakeholders to provide feedback to theMitigation Action Plan Workgroup oncompleted, draft, and developingmitigation policy. Stakeholdersincluded representatives from federaland state government, non-profitorganizations, academia, and theprivate sector (i.e., homebuilders,agriculture, and third-party mitigationproviders).

The 2 1/2-day meeting was designed toachieve the following objectives:■ Review progress on the actions set

forth in the 2002 National WetlandsMitigation Action Plan;

■ Solicit feedback on MitigationAction Plan tasks to be completedin 2004; and

■ Solicit input on future MitigationAction Plan actions and goals for2005.

resources authorized under §404 of theClean Water Act. Final interagencyguidance on the use of ILF mitigationwas released in 2000.

In 2001, several studies were releasedthat sought to address the status offederal compensatory mitigation in theUnited States. In May 2001, the GeneralAccounting Office (GAO) released areport entitled,“Wetlands Protection:Assessments Needed to DetermineEffectiveness of In-Lieu-FeeMitigation,” and in June 2001, theNational Academy of Sciences’ NationalResearch Council (NRC) released itsstudy,“Compensating for WetlandLosses Under the Clean Water Act.”

In October 2001, the EnvironmentalLaw Institute (ELI), in coordination withseveral federal agencies, the MarylandDepartment of the Environment, andthe Baltimore National Aquarium,administered the Second StakeholderForum on Federal Wetlands Mitigationin Baltimore, Maryland.The forum wasdesigned to give participants thechance to discuss the conclusions andrecommendations of the NAS and GAOreports, as well as other reports andstudies on compensatory mitigation. Areport issued by the EnvironmentalLaw Institute summarized thepresentations and discussions from theforum and was used by the federalagencies to guide development offuture guidance on mitigation.Thatreport, as well as audio recordings andthe PowerPoint presentations, areavailable on ELI’s website at:<http://www.eli.org/research/wetlandsmitigationforum.htm>.

INTRODUCTION


In December 2002, the Corps issued arevised Regulatory Guidance Letter(RGL), which replaced an earlier onereleased in October 2001.The revisedRGL was developed with input from thefederal agencies that play a role inwetlands protection.The RGL wasintended to improve compensatorymitigation implemented under theClean Water Act in support of theAdministration’s “no net loss” ofwetlands goal. For a copy of the RGLsee: <http://www.usace.army.mil/inet/functions/cw/cecwo/reg/RGL2-02.pdf>.

The RGL was part of the NationalWetlands Mitigation Action Plan(MAP), which was released inDecember 2002, by the U.S. Army Corpsof Engineers (Corps) and the U.S.Environmental Protection Agency(EPA), in conjunction with theDepartments of Agriculture, Commerce,Interior, and Transportation.The Plan isintended to provide the participatingfederal agencies with a roadmap toassist them with the development of anumber of guidance documents,research, and other activities through2005.The MAP lists 17 action itemsthat are intended to improve theeffectiveness of compensatorymitigation under §404 of the CleanWater Act.

Following the release of the MitigationAction Plan, a federal interagencyteam, the Mitigation Action PlanWorkgroup (MAP Workgroup), wasformed to coordinate work on theaction items outlined in the plan. Foradditional information about the MAP,

and an update on the status of theaction items, see the National WetlandsMitigation Action Plan website at:<http://www.mitigationactionplan.gov/>.

In July 2003, ELI hosted the ThirdStakeholder Forum in Portland, Oregon.The forum was co-sponsored by theCity of Eugene, Federal HighwayAdministration, NOAA National MarineFisheries Service, USDA NaturalResources Conservation Service, OregonDepartment of Transportation, OregonDivision of State Lands, Port ofPortland, U.S. Army Corps of Engineers,U.S. Environmental Protection Agency,U.S. Fish and Wildlife Service, andWashington Department of Ecology.The event was designed to reviewprogress on the actions set forth in theAction Plan, solicit feedback on ActionPlan tasks to be completed in 2003,and Solicit input on future Action Planitems and goals for 2004-2005.

The following is a summary of thepresentations and discussions that tookplace during the Fourth StakeholderForum. The meeting facilitators havesummarized the comments ofparticipants based primarily on notestaken during the discussion. Pointsmade by participants are summarizedand attributed where appropriate. ELIapologizes in advance for anymisrepresentation of the speakers’meaning or intent.


SUMMARY OF PRESENTATIONSAND FACILITATED DISCUSSIONS

The first day of the forum was devoted to anoptional field trip, discussions of mitigationissues from a regional and local perspective, and

the first part of Session I, which included an overviewand update on the Mitigation Action Plan andcompleted action items.

The Southwest Florida Water Management District(SWFWMD) sponsored the field trips and tour. Fieldtrip participants visited two restoration sitesconstructed and managed by SWFWMD: CockroachBay Habitat Restoration Project and Schultz NaturePreserve Park. Brief descriptions of the sites, as wellas photos of the field trip, are available through ELI’swebsite: (<http://www.eli.org/research/wetlandsmitigationforum2004.htm>).

Following the fieldtrip, the remainder of the first daywas devoted to presentations. Participants convenedat Stetson University – College of Law’s TampaCampus & Law Center. Opening remarks were givenby Jessica Wilkinson, Environmental Law Institute;John Meagher, U.S. Environmental Protection Agency;and Royal Gardner, Stetson University – College ofLaw. These remarks were followed by severalpresentations on local and regional wetlandmitigation issues in Florida. Connie Bersok fromFlorida Department of Environmental Protectiondiscussed statewide approaches to linking mitigationand restoration needs. Clark Hull of SWFWMDreviewed a case study from Pasco County wheremitigation was used to accomplish watershedplanning goals. Finally, Cindy Woods, U.S. Army Corpsof Engineers, and Ron Van Fleet, Sarasota CountyGovernment, discussed creative options for mitigationbanking for small projects.

Session I provided an overview of the MitigationAction Plan and completed action items. Kathy Trott,U.S. Army Corps of Engineers, and Palmer Hough,EPA, first reviewed the National Mitigation ActionPlan and Regulatory Guidance Letter (RGL 02-2). Adiscussion of completed action items followed. AlexLevy, Federal Highway Administration, outlined thecompleted guidance on the use of the TEA-21preference for mitigation banking to fulfill mitigationrequirements under §404 of the Clean Water Act.Palmer Hough discussed grants to improvecompensatory mitigation. Jeanette Gallihugh, U.S.Fish and Wildlife Service, continued Session I with a

presentation on the Stream Mitigation Compendium.Joanne Barry, U.S. Army Corps of Engineers, thenconcluded Day One with a summary of currentresearch on performance standards. Eachpresentation was followed by a facilitated discussion.

Session I continued on the second day with furtherreview of completed action items. Susan-MarieStedman, NOAA National Marine Fisheries Service,discussed guidance on on-site/off-site and in-kind/out-of-kind mitigation. Barry then presented the modelmitigation checklist and outlined completed guidanceon how to incorporate the National ResearchCouncil’s guidelines into the Clean Water Act §404Program. Finally, Tori White, U.S. Army Corps ofEngineers, gave a demonstration of the new §404database. The remainder of Day Two was devoted toSession II: 2004 Draft Action Items.

Session II included presentations describing the 2004draft action items, which were followed by facilitateddiscussions designed to solicit feedback from theforum participants. Melanie Harris, NOAA NationalMarine Fisheries Service, began Session II with apresentation on draft guidance for aquatic resourcesthat are difficult to replace. Gallihugh and BobBrumbaugh, U.S. Army Corps of Engineers, thenproceeded with a discussion of the draft preservationguidance. Steve Martin, U.S. Army Corps of Engineers,concluded with an overview of the draft vegetatedbuffer guidance.

The third and final day of the forum was devoted toSession III: Future Action Items and closingstatements. Session III featured a review anddiscussion of items to be completed in 2005-2006.First, Brumbaugh and Hough discussed guidance onmaking compensatory mitigation decisions in awatershed context. Brumbaugh and Martin thenoutlined guidance that will direct performancestandards. These presentations were also followed byfacilitated discussions designed to captureparticipants’ comments and suggestions.

The forum concluded with a lunchtime wrap-up andclosing statements given by Kathy Trott, U.S. ArmyCorps of Engineers, and Palmer Hough, EPA.

Details of each presentation and facilitateddiscussion are summarized below.

SUMMARY 0F PRESENTATIONS AND FACILITATED DISCUSSIONS


STATEWIDE APPROACHES TO LINKING MITIGATIONAND RESTORATION NEEDSConnie Bersok, Florida Department ofEnvironmental Protection

Florida’s wetland acreage has significantly decreasedover the past 40 years due to population growth andassociated rapid development. In 1960, Florida’spopulation was five million people. In 2000, thepopulation reached 16 million and has continued toincrease.

Florida’s state wetland regulatory program hasexisted since the mid-1970s and has undergone manychanges as environmental perceptions andregulations have evolved. Florida currently has a stategoal of no net loss of wetland functions. Regulatorydecisions attempt to balance development with thenatural environment in an effort to meet this goal.

Florida has a number of substantial state land andwater management programs. Florida Department ofEnvironmental Protection (FL DEP) works with stateparks, aquatic preserves and buffers, nationalestuarine research reserves, the Florida KeysNational Marine Sanctuary, and state and nationalforests. Other state programs include localgovernment parklands, regional water managementdistrict plans, and Surface Water ImprovementManagement. Florida has 158 state parks, includingsome buffer preserves. These parks comprise over700,000 acres that the state tries to manage in theirnatural condition. The state also manages 45 aquaticpreserve sites and co-manages nearly five millionacres of aquatic and submerged lands with a varietyof federal agencies. In addition, there are 31 stateforests encompassing over 900,000 acres. Given theseextensive lands, the state struggles to reconcile thepressures related to the rate of development andpopulation growth with land preservation.

Three Florida programs seek to link the state’s landmanagement needs with regulation: the FloridaEcological Restoration Inventory (FERI), theMitigation Banking Program, and the FDOTMitigation Program. FERI (<http://www.dep.state.fl.us/water/wetlands/feri/index.htm>) is a GIS-basedinventory of current and proposed ecologicalrestoration projects on public owned and managedlands. The database can be queried by agency, county,habitat, drainage, basin, and restoration type ortechnique. FERI is structured to help determine

where mitigation projects can be implemented onstate lands.

Bersok then presented an example of how FERI hasbeen used in Hillsborough County. A query of thecounty generates all local restoration projects.Selecting a specific restoration project reveals basicinformation for that project within these managedareas. If no managed areas are listed, then noprojects exist in the inventory for the specifiedsearch. The list of restoration projects in HillsboroughCounty includes Cockroach Bay State Buffer Preserve(FL DEP, Office of Coastal and Aquatic ManagedAreas), which is located adjacent to one of thefieldtrip sites (<http://www.dep.state.fl.us/coastal/sites/tampabay/cockroachb/info.htm>). Selecting thisoption reveals that Cockroach Bay State BufferPreserve was not fully inventoried for this project.However, the query shows that there are Brazilianpepper removal and natural community restorationneeds associated with past uses of this area asvegetable fields. Maps are also included. If the sitematches the searcher’s mitigation needs, they cancontact the preserve management for moreinformation regarding these and other restorationneeds of the managed area.

While the FERI program is an excellent resource, it isnot being used as much as FL DEP would like orexpected. It is unclear whether this is because peopleare unaware of it or because its use is not mandated.FL DEP continues to publicize the advantages of thisprogram and maintain it as an option to linkmitigation and restoration needs.

Florida’s Mitigation Banking Program is another wayin which the state attempts to unite landmanagement needs and regulation. In 1993, Floridabecame one of the first states to enact legislationestablishing a mitigation banking program. Thespecific rules outlined in the statutes detail the goalsof mitigation banks. First, banks must includerestoration and enhancement of degraded systems,preservation of uplands and wetlands as intactecosystems, and ecological communities that werehistorically present. Banks must also improve theecological condition of regional watersheds. FL DEPis endeavoring to take a watershed approach in thebanking program.

Since 1993, 38 banks have been permitted by thestate, most of which also have federal authorization.The average bank size is 2,654 acres, with a range of

The Regional and Local Perspective


USE OF MITIGATION TO ACCOMPLISH WATERSHEDPLANNING GOALS – A PASCO COUNTY CASE STUDYClark Hull, Southwest Florida Water ManagementDistrict (SWFWMD)

The goal of the Pasco Corridors Pilot Project is topromote the establishment of ecologically meaningfulmitigation alternatives where none presently exist.The challenge is that some basins (watersheds) haveno available alternatives to traditional on-sitemitigation. As a result, mitigation is often conductedon-site.

In the 16 counties of SWFWMD there are fivepermitted banks, fewer banks than in other districts.The district was concerned about the reasons forsuch a lack of interest. Consequently, they began toresearch mitigation alternatives with the knowledgethat there is a need to consider the cumulativeimpacts in a drainage basin. SWFWMD adopted theprimary USGS watersheds as their basins. The onlyway to avoid cumulative impacts in these basins is tomitigate in the same drainage basin.

The Florida statutes contain a provision that states,“the Department [FL DEP] and the watermanagement districts are directed to participate inand encourage the establishment of public andprivate mitigation banks and offsite regionalmitigation.”2 SWFWMD decided to develop mitigationbanks themselves, and are working to encourage theestablishment of public and private mitigation banks.

The Governing Board considered several mitigationalternatives, including using district-owned lands fordistrict mitigation banks, public/private mitigationbanks, regional offsite mitigation areas (ROMAs), andindividual mitigation projects. After carefuldeliberation, the Governing Board decided that theseoptions were not appropriate. The Board determinedthat providing ecologically meaningful mitigationalternatives to permit applicants would be beneficialto the economy and the environment. They realizedthat existing statutory impediments impair anagency’s ability to collect funds for future landacquisition or restoration projects. Furthermore, theboard determined that in lieu fee operations are notviable in Florida. The Board preferred that publicagencies do not provide mitigation alternatives that

82 – 23,900 acres. Mitigation banks total 103,501acres of land. The total number of potential credits is33,016. Most service areas are found on the east coastand in the south. While there is the potential tolocate banks on public lands, most are on privatelands. When private projects are undertaken they areoften not linked to the state lands program.

The third and final program that addresses landmanagement needs and regulation is the FloridaDepartment of Transportation’s (FDOT) mitigationprogram. This program was established in 1996 by thestate legislature1 based on the belief that FDOTshould let more qualified agencies mitigate wetlandimpacts. The water management districts (WMDs),therefore, are given the responsibility of producingmitigation plans each year. There are five regionalwater management districts in Florida, with SouthFlorida the largest geographically.

FDOT develops an inventory of areas where they haveproposed to build roads that will involve wetlandimpacts. They then present the inventory to theWMDs. Since 1997 there have been 260 proposed roadprojects that have impacted 1,551 acres of wetlands.There are funds associated with each one of theseacres of impacts. A total of $129 million has beenappropriated for this mitigation work, resulting in 120mitigation projects that the WMDs are implementing.Consequently, a large number of individual roadprojects have been consolidated into fewer mitigationprojects.

Every year, each WMD prepares a plan for theirregion to address anticipated wetland impacts due toFDOT road projects. Each WMD tries to locatemitigation plans within their regional watersheds andbasins. An effort is made to combine separate roadprojects into a single mitigation project that willoffset the road project impacts in the samewatershed.

In the vicinity of Tampa Bay there are 38 FDOTTransportation Projects, but just a handful ofmitigation projects. The concept of consolidatingmitigation into areas that are more meaningful seemsto be one of the most effective components of thisprogram. Meanwhile, other WMDs are trying toconsolidate projects on WMD lands, county lands, andother public lands to offset FDOT impacts.


1 Fla. Stat. ch. 373.4137 (2004). 2 Fla. Stat. ch. 373.4135 (2004).

as short a time as two years. It is extremely importantto buy land now and restore later, as these lands maynot be available in the future. Pasco County was alsochosen because this project complements therecently passed “Penny for Pasco” tax, anenvironmental land acquisition act. In addition, thecounty conducted a study that identified theenvironmental lands that most merited acquisition,about 90 thousand acres of land in total. The studynoted that the most important lands were found inseven corridors, areas of land often following streamsthat provide the most environmentally desirableconnections. Focusing on these corridors will resultin more environmental bang for your buck.

The kickoff meeting for the Pasco Corridors PilotProject was held in July 2004. SWFWMD, the Corps,Pasco County, private sector representatives, and onecitizen activist representative attended the meeting.The project is seeking to identify how manymitigation sites would be necessary to preserve theseven corridors. Instead of waiting for a mitigationbanker’s assessment, mitigation credits would beestimated up-front. SWFWMD recognizes that federalagency involvement is critical to the success of theproject. Pasco County and local water supplyauthorities will also be involved. Thus far there hasbeen interest from mitigation bankers and largemitigation users. Pasco County is exploring additionalincentives such as density transfers, since much ofthe land must be acquired from private landowners.

The Pasco Corridors Pilot Project has many benefits.For example, the project identifies best banklocations, does not compete with private sector, anduses private dollars to preserve private lands (i.e.private landowners will find it economical to build abank instead of homes). In addition, it is less affectedby hydrologic uncertainties since it is largely apreservation proposal, shortens permittingtimeframes, and reduces permitting uncertainties(appropriateness, number of credits, service area, useof credits, etc.).

may undercut or provide market disincentives toprivate sector involvement. They also recognized thatenvironmental restoration of public lands mightdivert dollars from the environmental restoration ofprivate lands. Based on two examples from theadjacent South Florida Water Management District, itcan take five to eight years after securing approvalbefore a private-public mitigation bank is conductingrestoration activities or selling mitigation credits.Finally, a recent SWFWMD study found thatrestoration of wetlands and aquatic habitats oncurrent district-owned lands could be completed by2011 without relying on mitigation funds to achievethe restoration goal.

There are three premises at the foundation ofSWFWMD’s mission to provide alternative mitigationoptions to permit applicants. First, the mitigationalternative should provide more ecological benefitthan traditional mitigation options. Second, it shouldnot undercut existing private sector mitigationproviders or provide market disincentives for futureprivate sector involvement. Third, the alternativeshould encourage preservation and restoration ofprivately owned lands with private mitigation dollars.

The Governing Board invited mitigation bankers toexplain why mitigation banks have not been locatedin northern Tampa Bay. Two reasons cited were highland costs and hydrologic uncertainties, both due, inpart, to rapid development. Lengthy and uncertainpermitting processes are additional disincentives forprivate banks in the area.

The Governing Board chose to overcome thesebarriers by collaborating with local governments andprivate sector interests to promote preservation ofwildlife corridors that link publicly owned mitigationlands. This will provide added value to the public landby providing connectivity between islands ofpreservation.

SWFWMD proposed and approved the Pasco CorridorsPilot Project to encourage preservation of wildlifecorridors linking publicly owned lands using privatesector mitigation dollars. Pasco County was chosenbecause it demonstrates “exceptional circumstances”due to its skyrocketing population. In the face of suchdevelopment pressures, plans may become obsolete in





Opportunities to restore freshwater systems that havebeen altered through man-made drainage activitiesare seen as another way to restore freshwater flows toestuary systems. If accomplished through an inter-disciplinary approach, hydrologic restoration projectsmay also enhance existing floodplain storage andimprove surface water quality by increasing residencetimes. Examples of Sarasota County’s hydrologicrestoration projects include Sarasota Ranchlands,Redbug Slough, Caspersen, and Blind Pass Park. Eachsite uses a restoration model to predict its restorationpotential.

CREATIVE OPTIONS FOR MITIGATION BANKING FOR SMALL PROJECTSCindy Woods, U.S. Army Corps of EngineersRon Van Fleet, Sarasota County Government

It is extremely important for the Corps to work withlocal agencies in the states to help them meet theirobligations for mitigating small wetland impacts. TheCorps can help identify mitigation opportunities usingthe watershed approach. For example, the Corps canapprove umbrella permits to facilitate the permittingof several smaller sites where one bankinginstrument covers all applicable sites.

One of the largest obstacles for mitigation banks inSarasota County, Florida, is the extremely high cost ofland. The County is concerned about the percentageof undeveloped land that is still available formitigation sites. To ascertain where to placemitigation banks on the available land, Sarasota usesGIS modeling to determine wetland, water, andgreenway proximity, soil type, and relation toagricultural lands.

A large component of Sarasota County’s work is theHydrologic Restoration Program. The first of theproject’s goals is to protect water quality bypreventing further degradation of water resourcesand enhancing water quality where appropriate. Toachieve this, the county will focus on protecting andimproving surface water quality. The project alsoseeks to prevent and mitigate the losses, cost, andhuman suffering caused by flooding, and to protectthe natural and beneficial functions of floodplains.The natural function of floodplains will be protectedby developing and implementing cost effectivemanagement strategies. The third goal of the projectis to enhance, protect, and conserve the hydrologicand ecologic functions of natural systems includingestuaries, freshwater, and groundwater systems. Thetwo accompanying objectives to this goal are: 1)determine and restore more natural hydrologicregimes to the natural water systems; and 2) protectand restore ecological habitat.



REVIEW OF NATIONAL MITIGATION ACTION PLANAND REGULATORY GUIDANCE LETTER (RGL 02-2)Kathy Trott, U.S. Army Corps of EngineersPalmer Hough, U.S. Environmental ProtectionAgency

In 2001, several studies were released that sought toaddress the status of federal compensatory mitigationin the United States. In May 2001, the GeneralAccounting Office released a report entitled,“Wetlands Protection: Assessments Needed toDetermine Effectiveness of In-Lieu-Fee Mitigation.”In June 2001, the National Research Council releasedits study, “Compensating for Wetland Losses Underthe Clean Water Act.” These independent studiesraised significant concerns about the effectiveness ofcompensatory mitigation conducted under §404 ofthe Clean Water Act (CWA).

In response to these reports, an interagencyworkgroup released the Mitigation Action Plan onDecember 26, 2002, with the goal of improving theecological performance and results of wetlandcompensatory mitigation under the CWA and relatedprograms. The plan lists 17 tasks, to be completed by2005, that will integrate compensatory mitigation intoa watershed context, improve compensatorymitigation accountability, clarify performancestandards, and improve data collection andavailability. The National Wetlands Mitigation ActionPlan homepage3 was created in order to track thestatus of these tasks and provide the public with draftand completed documents.

In conjunction with the release of the MAP, the Corpsissued a revised Regulatory Guidance Letter (RGL) inDecember 2002, replacing an earlier RGL released inOctober 2001. The revised RGL, developed with inputfrom the federal agencies that play a role in wetlandsprotection, was intended to improve compensatorymitigation conducted under the Clean Water Act andto support the national “no net loss of wetlands” goal.RGL 02-2 focuses on the following major issues: thewatershed approach to compensatory mitigation,functional assessment, stream mitigation, definitionsof mitigation, preservation and buffers as mitigation,mitigation plans, and the NRC guidelines.

In 2003, the MAP Workgroup released guidance onthe use of the Transportation Equity Act for the 21stCentury (TEA-21) preference for mitigation bankingover other forms of compensatory mitigation. Theguidance addresses the application of the TEA-21preference for mitigation banking for compensatorymitigation requirements under CWA §404 andoutlines factors for consideration when makingcompensatory mitigation decisions, such asdetermining the suitability of banking to compensatefor the proposed project’s impacts and the choice ofbanking when multiple mitigation alternatives exist.The guidance also discusses streamliningenvironmental review, early coordination on thedevelopment of mitigation plans in the NEPA and§404 process, and participation in the bankingprocess through a Mitigation Bank Review Team(MBRT).

The 2004 Department of Defense spending bill taskedthe Secretary of the Army with developing consistentstandards for all mitigation options. In response, theCorps is working to create uniform standards formitigation across all Corps districts by June 2004.Public notices were sent to the 38 Corps districts inDecember of 2003. Each district was provided with 15examples of mitigation guidelines to help them createguidelines specific to their district, including twocompleted MAP workgroup products: the “ModelCompensatory Mitigation Plan Checklist” (2003) andguidance on “Incorporating the National ResearchCouncil’s Mitigation Guidelines into the Clean WaterAct Section 4040 Program” (2003).

Another MAP task is the development of guidanceaddressing the use of off-site and out-of-kindcompensatory mitigation (site/kind guidance). The2001 NRC study found that the current automaticpreference for on-site, in-kind mitigation contradictsa watershed approach. Since compensatory mitigationdecisions are not currently being made in awatershed context on a widespread basis, thesite/kind guidance will guide mitigation decisionsuntil the watershed approach is more widely applied.

The MAP Workgroup was also charged withdeveloping guidance clarifying considerations formitigating impacts to streams. In 2004, EPA and theCorps released, “Physical Stream Assessment: AReview of Selected Protocols for Use in the Clean

SESSION I:Review of Mitigation Action Plan and Completed Action Items

3 See: <http://www.mitigationactionplan.gov>.



complete buffer guidance, preservation guidance, andguidance on aquatic resources that are difficult toreplace (DTR) by the end of 2004. Additional tasksscheduled for completion in 2005 includeperformance standards guidance, a shared database,a national report card, and guidance on makingcompensatory mitigation decisions in a watershedcontext.

Significant efforts to understand the fundamentals ofa watershed approach to compensatory mitigation areunderway. With the assistance of the EnvironmentalLaw Institute, the MAP Workgroup has identified 18watershed-based planning tools and/or resources thatcan be used as models for making mitigationdecisions in a watershed context. In May 2004, ELIhosted the National Symposium on CompensatoryMitigation and the Watershed Approach. Thesymposium provided the MAP Workgroup with anopportunity to hear from a diverse group of expertsand to discuss the strengths and weaknesses ofexisting planning tools and/or resources. Participantsreviewed the identified watershed-based tools andresources, discussed the criteria used to analyzepriorities and restoration options, and explored thepotential use of the watershed approach in aregulatory context. The symposium provided theopportunity for participants to share their ideas andpropose recommendations for how to pursue awatershed approach to compensatory mitigation.

Questions and Facilitated Discussion

It would be helpful to have smaller stakeholderforums for field personnel on a regional basis(Johnson). The MAP Workgroup should take intoconsideration, and be aware of, the relationshipbetween an ecoregional approach and a watershedapproach (Cooper). The MAP Workgroup shouldclarify whether or not it is going to develop guidanceon the use and identification of reference sites(Parsons).

A participant inquired about the origins of a recentstudy released by the Interstate Technology andRegulatory Council that provides technical andregulatory guidance on mitigation wetlands. Thestudy seems to have been at least partially funded bythe U.S. Environmental Protection Agency(Hausmann).

Water Act Section 404 Program.” The report is acompendium of technical approaches to streamassessment. This resource manual compiles andreviews 50 stream mitigation protocols from acrossthe country.

The MAP was also tasked with clarifying performancestandards, which led to the release of a report inJune of 2004 titled, “Measuring Mitigation: A Reviewof the Science for Compensatory MitigationPerformance Standards.” The need for analysis ofecological performance standards for mitigation sitescame about due to historic problems measuringsuccess. The report summarizes the status of peer-reviewed literature on selected biological indicators,abiotic factors, functional assessments, anddevelopmental trajectories to help evaluate thesuccess of compensatory mitigation for authorizedimpacts to wetlands and other aquatic resourcesunder Clean Water Act Section 404. This report willinform the development of performance standardsand monitoring guidance in 2005.

Another of the MAP tasks, an evaluation of existing§404 permit tracking databases, has resulted inreplacing the Corps’ Regulatory Analysis andManagement System (RAMS) database with theOMBIL Regulatory Module (ORM). The Corps iscurrently piloting ORM in nine districts. ORM greatlyenhances the Corps’ ability to track §404 permitting.Specifically, there has been a significantimprovement in tracking the type and amount ofresources impacted, as well as the type and amountof mitigation performed. The Corps and EPA arepresently partnering to add advanced GeographicInformation Systems (GIS) to ORM and to ensure theaccessibility of data.

Coordination between various stakeholders has beenimportant to the completion of the MAP tasks. The2003 stakeholder forum in Portland, Oregon includeda review of the action items completed in 2003 andsolicited input on the 2004 and 2005 items. Thisprocess continued with this stakeholder forum inTampa, Florida, and will conclude with a finalstakeholder forum in 2005.

There are several additional MAP tasks that are andwill be the main focus of the MAP Workgroup in 2004and 2005. The MAP Workgroup is planning to



GUIDANCE ON THE USE OF THE TEA-21 PREFERENCEFOR MITIGATION BANKING TO FULFILL MITIGATIONREQUIREMENTS UNDER SECTION 404 OF THE CLEANWATER ACTAlex Levy, Federal Highway Administration

The purpose of the guidance document, “Guidance onthe Use of the TEA-21 Preference for MitigationBanking to Fulfill Mitigation Requirements UnderSection 404 for the Clean Water Act,” is to direct theapplication of the TEA-21 preference for wetlandsbanks to meet compensatory mitigation requirementsunder CWA §404. Factors to consider in applying theTEA-21 banking preference include the suitability ofbanking, early coordination, streamlining the process,integration with NEPA and CWA §404, and the MBRTprocess. The guidance also states the importance ofevaluating multiple alternatives.

The guidance document was signed by FHWA, USACE,and EPA on July 11, 2003 and is presently undergoinga domestic scan. In 2005, a series of field visits areplanned with the purpose of discussingimplementation and other mitigation issues with fieldpersonnel.


Ardoin asked whether or not FHWA will considerlooking at non-DOT banks. Ryan suggested that FHWAconduct a study comparing the success of theirmitigation investments in public lands to thosecompleted on private lands. Mann expressed herimpression that the banking preference applies onlyto private sector bankers. Connelly suggested that theguidance and field visits should address non-successstories. Denisoff inquired into how the states willaddress long-term monitoring and maintenancerequirements.

GRANTS TO IMPROVE COMPENSATORY MITIGATIONPalmer Hough, U.S. Environmental ProtectionAgency

The U.S. Environmental Protection Agency’s WetlandProgram Development Grant (WPDG) program wasestablished in 1990. Its purpose is to provide directsupport to states, tribes, and local governments(S/T/LG) to increase their participation in wetlandprotection. The program’s initial appropriation was $1million for State and Tribal Assistance Grants(STAGs). It currently appropriates $15 million forSTAGs.

The grant program was authorized by CWA§104(b)(3) and supports research, investigations,experiments, training, demonstrations, surveys, andstudies related to the causes, effects, extent,prevention, reduction, and elimination of waterpollution. Eligible applicants include S/T/LG,intertribal consortia, interstate agencies, andnongovernmental organizations (NGOs). The WPDGprogram guidelines state that regional offices areresponsible for grant applications from S/T/LG,intertribal consortia, and interstate agencies, whileEPA Headquarters reviews all NGO grant requests.CWA §104(b)(3) activities are aimed at developingand refining wetland management programs.

The grant program is competitive and requires a 25percent match. The WPDG program has three fundingpriorities: improving compensatory mitigation,developing monitoring and assessment programs, andprotecting vulnerable wetlands. For compensatorymitigation, the grants can be applied to developingand verifying assessment methods and/or trackingsystems that document the technical adequacy ofmitigation project plans, the ecological suitability ofmitigation project sites, mitigation projectcompliance, and cumulative impacts.

Hough provided some examples of how states andorganizations are using this grant program to improvecompensatory mitigation. Florida is currently using aWPDG grant to evaluate the effectiveness ofmitigation banking. North Carolina is expanding andupdating its computerized tracking system for theirFreshwater Wetland Permitting Program. WashingtonState is revising mitigation guidelines and developing“Landscape-Scale” wetland management guidance.



STREAM MITIGATION COMPENDIUMJeanette Gallihugh, U.S. Fish and Wildlife Service

The Corps and EPA released a report, “PhysicalStream Assessment: A Review of Selected Protocolsfor use in the Clean Water Act (CWA) Section 404Program,” also know as the Stream MitigationCompendium, in September 2004. The report wascreated because wetlands and streams arefundamentally different ecosystems and very limitedguidance exists for field staff on how to managestream ecosystems. The report was developed inresponse to one of the MAP tasks, which called forthe federal agencies to clarify considerations formitigating impacts to streams in the §404 program.

The compendium is a compilation and review ofexisting stream assessment and mitigation protocols.It also identifies target scales, geographicapplicability, levels of effort, training requirements,and potential utility of the protocols to regulatoryprograms. Two research methodologies were used tocompile information for the report. First, aquestionnaire was developed for federal, state, andlocal agencies and private and NGO practitioners. Thequestionnaire is comprised of 28 questions designedto collect information on general programmatic usesof assessment methods, technologies, data reductionand synthesis, and future needs. Questionnaires havebeen sent to 11 federal agencies and 50 states. Todate, responses have been received from 9 agencies,20 states, and 1 municipality. The second method wasan inventory and review of existing stream mitigationmethods and protocols. Programmatic attributes ofprotocols are first reviewed to understand the targetresource type, geographic applicability, and need forreference conditions. Technical attributes ofprotocols are then reviewed to assess their potentialutility for the §404 program. The collection ofqualitative and quantitative data and documentedgeomorphological and habitat characteristics is alsoreviewed. The evaluation of technical attributes alsosupplies details on the level of effort, expertise, andprecision required to perform effective streammitigation. The protocols contained in the streamcompendium must be tailored to address regionalvariability.

The San Francisco Estuary Institute, SouthernCalifornia Coastal Water Research Project, andCalifornia Coastal Commission are working togetherto develop a California Rapid Assessment Method.California State Water Resources Control Board isalso assessing mitigation effectiveness. VenturaCounty, California, is using a WPDG grant to conductimpact assessments and develop mitigationguidelines. The Iowa Department of Transportation isconducting an assessment of compensatorymitigation. Finally, NatureServe, which received itsgrant through headquarters, is conducting amitigation site performance standards pilot program.

EPA is currently developing national guidelines forthe 2005 WPDG program. The guidelines are underreview and likely to maintain the S/T/LG priorities.Compensatory mitigation will also remain a prioritywith an emphasis on developing, improving, and/orrefining performance standards.



The compendium includes a list of five characteristicsthat are recommended for programmaticallycomplete stream assessment protocols to use in theCWA §404 regulatory program: 1) Classification –stream assessment should be preceded byclassification to narrow the natural variability ofphysical stream variables; 2) Objectivity – theassessment procedure should remove as muchobserver bias as possible by providing well-definedprocedures for objective measures of explicitlydefined stream variables; 3) Quantitative Methods –the assessment procedure should utilize quantitativemeasures of stream variables to the maximum extentpracticable; 4) Fluvial Geomorphological Emphasis –stream assessments undertaken to prioritizewatersheds or stream reaches for management, or aidthe design of stream enhancement or restorationprojects, should be based on fluvial geomorphicprinciples; and 5) Data Management – data fromstream assessments should be catalogued by designedentities in each region of the country.

ANALYSIS OF EXISTING PERFORMANCE STANDARDS RESEARCHJoanne Barry, U.S. Army Corps of Engineers

In April 2004, the Environmental Law Institutereleased a report, “Measuring Mitigation: A Review ofthe Science for Compensatory MitigationPerformance Standards,” which examines the sciencebehind compensatory mitigation performancestandards. Distinguishing between design andperformance standards, the ELI study examined peerreviewed literature of biological indicators, abioticfactors, functional assessments, and developmentaltrajectories as they relate to performance standardsfor wetland mitigation. The ELI study providedbackground research that will help the federalagencies develop performance standards andmonitoring guidance by 2005.

Several reports have called for mitigation standards.In 2001 the NRC report “clearly specifiedperformance standards be adopted to enhancemitigation effectiveness.” The 2001 GAO report alsospecified the need for carefully establishedperformance standards. This call for standards waspartly due to the fact that the success of in-lieu-feemitigation was impossible to assess because datawere not collected and no standards were set.

In 1999, the Corps’ Wetlands Research Programpublished a report, “Examples of PerformanceStandards for Wetland Creation and Restoration inSection 404 Permits and an Approach to DevelopingPerformance Standards.”4 The report, which wasincluded in the NRC report as an appendix, definesperformance standards as “observable or measurableattributes that can be used to determine if acompensatory mitigation project meets itsobjectives.” The challenge in generating theseperformance standards is to develop and implementscientifically based performance standards that willwork within a regulatory structure. Standards shouldto be clear, measurable, and pertain to the desiredecological function of the replacement wetland. Theyshould be developed from mitigation goals and

4 “Examples of Performance Standards for Wetland Creation and Restoration in Section 404 Permits and an Approach to Developing Performance Standards.” January 1999. WRP Technical Note WG-RS-3.3.



Questions and Facilitated Discussion:

More standardized stream mitigation procedures areneeded (Mogensen). Additional guidance will beneeded on stream mitigation to parallel the differentguidance documents developed as part of the MAP(Christie). The stream compendium should includethe southwest; performance standards should beapplied to all forms of mitigation (Denisoff).

Bankers should invest in landscape level assessmentand long-term monitoring (Parsons). Guidance on“difficult to replace” wetlands may require states totighten stream protocols and federal guidelines(Mann). Additional literature on performancestandards needs to be studied (Martin).

Compensatory mitigation in the watershed contextmust involve all water resources, including streams(Nadeau). Riparian corridors combine streams andadjacent wetlands (Norris). The surface water andwetland communities must collaborate at all levels,formally and informally (Wood). Total Maximum DailyLoads (TMDLs) represent an opportunity for streammitigation (Parsons).

objectives and outline a clear set of criteria that willidentify the extent to which mitigation is functioningas a replacement for lost functions and values.

It is important to note that the science of wetlandrestoration is still relatively young. Literature in thisfield is dominated by studies of sites less than tenyears old. The 1990 MOA was the first call formitigation requirements.

The ELI study found that few long-term monitoringstudies exist. Research typically takes place over justa few growing seasons or two years. In addition, thereis often relatively little baseline information withwhich to compare data. Another finding is that it isimportant to have a landscape level perspective formonitoring and assessment. It is also necessary toenhance standardization in data collection andaccess, language and definitions, and samplingprotocols. Finally, the transferability of standardsshould be facilitated between different regions andwetland types.

In general, the study suggests that performancestandards can be developed and implemented.However, multiple parameters are necessary toaccentuate strengths while minimizing theweaknesses of various metrics. The report surveyedthe status of the peer-reviewed literature in threedifferent categories: biological indicators(amphibians, fish, invertebrates, birds, algae,mammals, vegetation); abiotic factors (hydrology, soil,sediment, substrate, nutrients); and landscapeperspectives and methodologies (HGM,developmental trajectories).

The study concluded that biotic parameters showedpromise as potential biological indicators, but thatthere are problems using them as a sole parameter.Abiotic parameters are also a possibility, yet theyrequire long monitoring periods. In regards to thelandscape level parameters, hydrogeomorphic (HGM)reference sites are complicated and time consumingand may not always translate into replacementfunctions. Finally, trajectories are seldom availableand difficult to establish.



FEDERAL GUIDANCE ON THE USE OF OFF-SITE ANDOUT-OF-KIND COMPENSATORY MITIGATION UNDERSECTION 404 OF THE CLEAN WATER ACT (Site/Kind Guidance)Susan-Marie Stedman, NOAA National MarineFisheries Service

The 1990 Mitigation MOA includes a preference foron-site and in-kind compensatory mitigation.However, the 2001 NRC study found that an automaticpreference for on-site and in-kind compensatorymitigation contradicts a watershed approach. Thebest way to address the appropriateness of on-site,off-site, in-kind, or out-of-kind mitigation is through awatershed plan or a watershed approach. Becausewatershed plans are not widely available, andinteragency guidance on the watershed approach isnot yet complete, the MAP Workgroup felt itnecessary to develop federal guidance to help guidedecisions about the use of off-site and out-of-kindcompensatory mitigation.

A workgroup comprised of field staff from theagencies on the MAP Workgroup developed draftsite/kind guidance in March 2003. This draft waspresented at the 2003 stakeholder forum in Portland.Participants recommended that the guidance bemore structured and specific. A second draft wasreleased for public comment in April 2004. TheWorkgroup received approximately three-dozencomment letters from environmental groups, theregulated community, and state or federal regulators,containing roughly 200 individual comments. Abouthalf of the comments contained specific suggestionsfor changing language. The remainder were eithergeneral comments about the document or commentson topics not directly related to the draft guidance.

The environmental community generally expressedconcern that the guidance exceeded the intent of theNRC report by allowing off-site and out-of-kindcompensation outside the context of a watershedplan. These groups would prefer that the MAPWorkgroup not issue the guidance and not allow off-site or out-of-kind compensation without a watershedplan. However, the use of off-site and out-of-kindcompensation already occurs under existing Corpsregulations, and the MAP Workgroup is seeking toclarify the context in which site/kind decisions should

be made. However, some changes were made to theguidance to clarify that the goal is to implement theenvironmentally preferable option.

Comments from the regulated communitydemonstrated general approval of the guidance as itwas written. A few members of the regulatedcommunity stated that the guidance does not go farenough and suggested that all references to on-siteand in-kind preference should be removed. However,the MAP Workgroup maintains that there are goodreasons for maintaining a preference for on-site andin-kind compensation when no other option isenvironmentally preferable.

The site/kind guidance also reiterates the preferencefor making compensatory mitigation decisions in awatershed context, stating, “[t]he best tool fordetermining whether on-site, off-site, in-kind, or out-of-kind compensatory mitigation is environmentallypreferable is a holistic watershed plan incorporatingmitigation or restoration priorities.” In the absence ofa holistic watershed plan, “a watershed-basedapproach to mitigation decisions is the mostappropriate way to address the appropriateness of on-site, offsite, in-kind, or out-of kind mitigation.”

The site/kind guidance emphasizes environmentallypreferable mitigation. For example, the text statesthat an off-site mitigation option is consideredacceptable when it is “identified as environmentallypreferable to on-site mitigation in a holisticwatershed plan.”

The workgroup also made several structuraladjustments to the site/kind guidance. Thebackground was condensed and the actual guidancemoved to the beginning of the document. There areseparate sections for the out-of-kind and off-sitecomponents. Language relating to difficult-to-replacewetlands and invasive species was removed. Finally,language addressing combined mitigation was added.

This guidance is currently in the process of beingcleared for signature by the MAP agencies.



MODEL MITIGATION CHECKLIST ANDINCORPORATION OF NATIONAL RESEARCHCOUNCIL’S GUIDELINES INTO THE CLEAN WATER ACTSECTION 404 PROGRAM (District Mitigation andMonitoring Guidelines)Joanne Barry, U.S. Army Corps of Engineers

The MAP calls for the development of a modelmitigation plan checklist. The purpose of thechecklist is to facilitate the submission of informationby permit applicants early in the process, to identifythe types and extent of information that agencypersonnel need to assess the likelihood of success ofa mitigation proposal, to allow for more effectiveparticipation and project review during public notice,and to minimize delays in the permit decision-makingprocess.

The following are the main components of thechecklist: mitigation goals and objectives, baselineinformation for impact site and proposed mitigationsite, mitigation site selection and justification,mitigation work plan, performance standards, siteprotection and maintenance, monitoring plan,adaptive management plan, and financial assurance.

The Corps also issued a memorandum to the field inOctober 2003 to provide guidance on incorporatingthe NRC’s ten guidelines into the planning andimplementation of successful mitigation projects. Theten guidelines are: ■ Whenever possible, choose wetland restoration

over creation;■ Avoid over-engineered structures in the wetlands’

design;■ Restore or develop naturally variable hydrological

conditions;■ Consider complications associated with creation

or restoration in seriously degraded or disturbedsites;

■ Conduct early monitoring as part of adaptivemanagement;

■ Consider the hydrogeomorphic and ecologicallandscape and climate;

■ Adopt a dynamic landscape perspective;■ Pay attention to subsurface conditions;


The guidance offers only a generic definition of awatershed plan. Stakeholders need clarification(Ross). The guidance should clarify who isresponsible for the development of a holisticwatershed plan (Olson). Another participant askedhow the interim guidance fits into the watershedguidance (Connelly).

There was some discussion on the need to limit thewatershed size. For example, limiting it to an 8-digithydrologic unit code (HUC) or subregion (Carter).However, others thought the HUC size should be leftfor states to determine (Cooper).

There was also some concern among participantsregarding off-site mitigation. Olson asked about thelikelihood of success for off-site mitigation. Norrisasked about the appropriateness of off-site in heavilyimpacted areas. He also asked about the MAPWorkgroup’s thoughts on a common request receivedin Minnesota. Permit applicants often ask if they cansatisfy their compensatory mitigation requirementsfor impacts to wetlands in the southern parts of thestate through mitigation in the northern area of thestate (Norris). Stedman responded that there is apreference to preserve the existing wetland mosaic,rather than pooling all mitigation into large wetlandmitigation projects.

Mann stated that it seemed as though the MAPWorkgroup had tried to address the concerns of theenvironmental groups. She requested that the term“on-site” be interpreted to include contiguous areas.Morse asked about the role of practicability in thisguidance.



■ Pay particular attention to appropriate plantingelevation, depth, soil type, and seasonal timing;and

■ Provide appropriate heterogeneous topography.

The above ten guidelines have been organized intotwo categories: basic requirements for success andmitigation site selection. Supplementary text has alsobeen added to the guidance in order to aid regulatorsin interpreting and implementing the guidelines andhelping to achieve the goal of integration with the§404 Program.

Public notices on the district mitigation guidelineswere sent to the 38 Corps districts in December of2003. Each district was provided with 15 examples ofmitigation guidelines to facilitate the creation ofspecific guidelines for their district, scheduled to befinalized in June 2004. These mitigation guidelinesincluded two completed MAP Workgroup products:“Model Compensatory Mitigation Plan Checklist”(2003) and guidance on “Incorporating the NationalResearch Council’s Mitigation Guidelines into theClean Water Act Section 4040 Program” (2003).

As of September 2004, 24 districts have postedchecklists and guidance on their websites. Two states,Texas and Arkansas, have been given extensions tocomplete their consolidated checklists, and 12districts have not yet posted their checklists.


The guidelines developed in each district should beconsistent and uniform at the state level for thosestates that are covered by multiple Corps districts.Presently, the Corp handles mitigation plans on acase-by-case basis (Linkous).

There was a concern that statewide permitting maynot be compatible with different states (Johnson).However, states can take the lead and create theirown, agreed upon checklist that makes guidelinesuniform—as in Wisconsin (Hausmann).

A participant asked if there is any specific procedurefor streamlining a project that will meet the checklistrequirements. The response was that presenting aproject in a checklist format will expedite review(Olson). Consolidation of permitting in one district isalso a concern (Mann).

The most difficult aspect of a checklist is dealing withtime lag and risk. More specific guidelines are neededon how to handle risk (Hull). The Corps should beclear that although applicants are being asked tomake a significant time investment into completingthe checklist, the avoidance and minimizationaspects of sequencing are not going to becircumvented (Carter). Another participant statedthat the checklist expedites the review process, and itis important to remember that “no” is always anoption in reviewing mitigation proposals (Hausmann).

Discussion of the checklist raised additionalquestions about the dissemination of information onthe performance of mitigation. A participant askedwhether or not the Workgroup provided the findingsof national, regional, and local studies to the public inorder to advise applicants on risk and time lagfactors. Johnson asked if the findings of differentmitigation studies could be reflected in thechecklists. Redmond added that generally, thereshould be better dissemination on the findings ofstudies on mitigation success and failures. Sheexpressed concern that the public has not beeninformed about the failures reported across thecountry since 1991 and suggested that the MAP



DEMONSTRATION OF NEW SECTION 404 DATABASE (ORM)Tori White, U.S. Army Corps of Engineers

The OMBIL Regulatory Module (ORM) is the new,automated information system for the CorpsRegulatory Program. It is a component of theOperations and Maintenance Business InformationLink (OMBIL). ORM will replace current automatedinformation systems such as RAMS, RAMSII, andother proprietary systems used in six Corps districts.

The development of ORM began in 1999 with the goalof providing standardized and consistent collection ofdata that may be used to assess the RegulatoryProgram’s performance. It is an important tool foranalyzing performance-based management andbudgeting.

ORM consists of a central database with the option todeploy locally. It will be a standardized regulatorydatabase used in all 38 Corps districts with Windows-standard functionalities. The system design is basedon the Corps Regulatory Business Process. ORMsupports the use of an electronic permit application,posting permit application status information on theInternet, and information exchange betweenregulatory agencies, states, and others. Althoughbasic GIS capability is built into ORM, a moreadvanced GIS system is currently being developed.The ORM Steering Committee is also evaluatingrecommendations for changes to ORM.

An electronic permit application allows the public tosubmit permit applications and supportingdocumentation to the Corps via the Internet. Nightlydata exchange occurs between ORM and the E-permitwebsite, including submission of the E-application tothe specified district and status updates of currentapplications. ORM is currently being tested by theCorps’ Jacksonville District.

ORM is capable of recording and interlinking 86 tasksand subtasks (“Regulatory Actions”). Some examplesof these tasks include: Evaluate Standard Permit,Evaluate Nationwide Permit, and Danger Zone, aswell as subtasks such as Application CompleteDetermination, Public Notice, and ESA consultation.For each task, ORM is capable of entering associated

website provide links to these mitigation studies.Another participant agreed and said the MAP websiteshould include mitigation information, i.e. theWashington Department of Ecology reports, and aforum for “lessons learned.”

Once the Corps receives a complete application, theformal review process begins and the Corps’regulations5 dictate that the regulatory program mustmeet certain deadlines. Parsons expressed concernsabout the amount of time it may take to completemitigation plans. He stated that by the time amitigation plan is provided to the state for theirreview, little time remains before the Corps mustmake a decision and the state is pressured to issue aninstant turnaround on §401 water qualitycertification, with little time for review. A participantresponded by asking why the mitigation checklist isnot used as the trigger for considering when anapplication is considered complete. The Corpsresponded that their regulations dictate when thepermit review “time clock” starts. Parsons suggestedthat the Corps redefine when an application isconsidered complete. The Corps responded that theagency is refining the pre-application process. Theagency believes that the mitigation checklist will bemore helpful to the applicant in the preparation of amitigation plan. Another participant agreed andstated that the appropriate parties should be giventhe opportunity to participate in the process(Parsons).

Project failure is often due to the follow-through onmitigation plans. Follow-through is often horrendousin terms of contract management (Van Fleet).

5 33 U.S.C. §325.2, available at<http://www.wetlands.com/coe/coe325p2.htm>.



currently developing data-entry checklists and “often-used” form letters for the ORM letter generator andto test the electronic application system. Long-termgoals include improving linkage to location, supportfor the watershed analysis, and addingtasks/attributes as Regulatory Program and dataneeds evolve.


A question was raised as to whether or not ORM willbe compatible with the Corps’ Regional Internet BankInformation Tracking System, or RIBITS, which isused by the Mobile District. The Corps respondedthat ORM will be compatible with RIBITS.6

White added that ORM will have the capacity to sendout electronic public notices twice a week withnotifications of comments.

Norris asked how states could coordinate their ownpermit tracking systems with ORM. The Corps iscurrently working on this in Florida but has not yetresolved the issue (White).

ORM can add additional layers to track performancecompliance and performance standards but at a largedata entry cost. The Corps is also expanding thenumber of mandatory screens to share decision datawith EPA (White).

Morse stated that permit applicants (homebuildersand consultants for example) would be willing toenter as much data as possible into ORM themselvesif doing so will facilitate the permit decision-makingprocess. White responded that only the Corps canenter data into the database (White).

Cooper asked when ORM will be able to provide otheragencies with cumulative impact information.Historical data is necessary for cumulative impactanalysis (Nadeau).

The Corps’ Online Permit Application Center can befound at: <https://epermit.usace.army.mil> (White).

data (“attributes”) such as dates and acres. ORM canhandle up to 1,000 possible unique entries, as well asmultiple sites.

Inside ORM, each request from the public is placedinto a folder. Each permit application is identified aseither critical or normal, based on due dates forregulatory decisions. Electronic documents can beattached to the application entry. ORM can alsodefine one or multiple site locations, subdivide a siteinto one or more areas, and reuse the location onmultiple requests.

Geographic coordinates and a descriptive location arerequired for entry. However, there is also the optionto enter the watershed, waterway, county, public landsurvey, etc. There is work underway to enhance thisGIS tool by linking it to other local GIS systems. ORMuses National Wetland Inventory and HGM data toclassify each site and contains matching data-typesfor compensatory mitigation. Mitigation types arebased on definitions in the RGL 02-2. If tasks occurduring review, ORM can add the formal and informalconsultations.

The extensive capabilities of ORM also presentchallenges. Data entry is time consuming and must bebalanced with other program tasks, such as site visitsand permit analysis. In addition, it is difficult todetermine the appropriate level of detail that shouldbe included.

At present, Corps Headquarters has issued interimguidance on data entry and districts are alsorequiring the use of some of the optional attributes.Thus far, data will be needed for identifying staffingbased on the number and type of tasks, and for therollup of type, acres, and debits by watershed.

Eleven Corps districts have already received trainingon ORM and are in the deployment stage. Fouradditional districts are scheduled for training anddeployment over the next few months. The remainingdistricts are scheduled for early 2005.

ORM’s release in Florida has not been withoutdifficulties. The district experienced technicalglitches with deployment and the learning curve wassteeper than anticipated. There is still a large backlogof data that has yet to be entered. The district is 6 U.S. Army Corps of Engineers, Mobile District. October 27, 2004.

Regional Internet Bank Information Tracking System. <https://samribits.sam.usace.army.mil/ribits/>.



If impacts to DTR are unavoidable, planning andimplementation of compensatory mitigation shouldoccur well in advance of the impacts. Mitigationshould focus on the spatial and temporal loss offunctions associated with project impacts.Combination compensation, where compensationoccurs in multiple locations that may be on-site, off-site, in-kind, and/or out-of-kind, may be the bestoption (see Site-Kind Guidance).

The establishment (creation) of DTRs is rarelypracticable. However, in-kind restoration and/orenhancement may be feasible. In-kind mitigation maynot re-establish pre-disturbance conditions but it mayreplace functions in-kind. Out-of-kind compensationfails to replace the specialized functions of DTR.When deciding between in-kind and out-of-kindmitigation, the risk of failure must be weighed againstthe need to replace that particular kind of habitat.When performing in-kind mitigation, special attentionshould be paid to monitoring, contingency planning,adaptive management, and the use of best availablescience. Restoration plans should incorporateperformance bonds or other enforceable financialmeasures that can be used to conduct alternativemitigation if in-kind mitigation fails. Recognizing theuncertainty of success, in-kind mitigation may requirehigher mitigation ratios.

Out-of-kind mitigation could be used in addition to, orinstead of, in-kind mitigation. It is important to focuson the lost functions, with a preference for usingaquatic resource types similar to the affected aquaticresource. Out-of-kind mitigation may involve thelocation of mitigation at multiple sites in order toreplace as many functions as possible. Suchmitigation may involve combining on-site, off-site, anddifferent resource types (classes that naturally occurin the watershed). Although it is not ideal to recreatethe resource as a collection of independent features,each mitigating for a separate function, it is vital toaccount for all lost functions.

DTR. DTR lists are considered advantageous becausethey would provide more predictability and help toavoid over-application of the term DTR. However,disadvantages of such lists include the possiblelimitation or exclusion of some resources due todiffering assessments of what constitutes a DTRaquatic resource, the length and expense of thelisting process, and limitations on the flexibility ofcase-by-case determinations.

A robust evaluation of alternatives provides the bestprotection of DTR. Avoiding impacts to DTR should beemphasized since mitigation is unlikely tocompensate for impacts to these resources. Theguidelines already include the rebuttablepresumptions found at 40 CFR §230.10(a)(3).Additionally, when a proposal involves impacts toDTR aquatic resources, the review process shouldinclude a sequential rebuttable presumption thatalternatives exist that do not involve adverse effectson DTR and these alternatives should be exhaustedfirst. This may include considering alternatives thatimpact other resources (aquatic or non-aquatic).

The alternatives analysis should be comprehensiveand consider the likelihood of restoration or creationsuccess, recognizing the uncertainty associated withsuccessful DTR restoration. The analysis may result inchoosing an alternative that adversely affects a largerarea of “non-DTR” over an alternative that adverselyaffects a smaller area of DTR. The analysis may resultin a decision to not authorize a proposed projectbecause the adverse effects would be contrary to thepublic interest or cause significant environmentaldegradation of the waters of the United States.

Corps Districts may wish to use programmatic tools tofacilitate the protection of DTR, i.e., AdvancedIdentification, Special Area Management Plans(SAMPs), and Regional Special Conditions. Districtsshould also consider providing additional protectionto DTR that could be affected by activities authorizedunder General Permits (GPs) by using theirdiscretionary authority. For example, Corps districtsmay require an individual permit (versus GP) for allactivities affecting DTRs. In addition, districts mayadd regional conditions for certain GPs or suspendone or more GP for activities within a region or state.




Bostwick stated that although the guidance does agood job of capturing the different types of DTR andspecifying that impacts to DTR should be avoided, sheis concerned that the guidance does not adequatelyclarify that it does not cover landscape level DTR, forexample, wetlands adjacent to headwater troutstreams. It is important to note that the system as awhole may be DTR, not only the specific wetland.Guidance should clarify what is not considered DTRand what DTR should and should not include on asite-specific level. Guidance also needs to clarifywhether the DTR lists, which should be determinedregionally, will serve as the definitive and completelist for the region.

Vernal pools, prairie potholes, and streams areconsidered DTRs. Local Corps districts should berequired to provide a “preponderance of evidence”that a resource is DTR before adding it to a regionallist. This determination should be based on thetechnical feasibility of replacement, not the intrinsicvalue of the resource (Denisoff).

The guidance emphasizes avoidance, but seems tooverlook the part of the §404(b)(1) guidelines thatencourages permit denial when a proposed impactwould cause “significant degradation.” And, this is notmentioned in the conclusion (Carter).

Gardner stated that the guidance emphasizesavoiding impacts, but does not clarify whether or notthis emphasis supersedes other existing Corpsguidance. He asked about the interplay between thisguidance and flexibility for small impacts.

Regarding regional listing, the Sierra Club is glad tosee an emphasis on avoidance, but it is concernedthat this would lead to a decreased emphasis onavoidance of non-DTR in the sequencing process.Regional listing gives a “red light-green light”approach. A case-by-case, project-specific analysis ofthe DTR classification is preferable to regional listing(Mann). Bersok responded that regional listing mayexclude “yellow” categories that could be enhancedor restored. DTR implies creation but othermitigation options should not be overlooked.

The preservation of DTR with a high mitigation ratiomay provide a good option for in-kind compensation ifthere is a demonstrable threat of loss or degradation,and if the approach supports the identified needs ofthe watershed (see Preservation Guidance). Out-of-kind mitigation may be combined with in-kindpreservation to achieve the broadest possiblecompensation.

Site protection is particularly important forprotecting DTR aquatic resources. Compensatorymitigation plans should include a description of thelegal means for protecting each site. Legal meanscould include conservation easements, deedrestrictions, or title transfer for example. As stated inRGL 02-2, all aquatic resources in mitigation projectsshould be permanently protected.

In conclusion, special emphasis should be placed onavoidance of DTR in the alternatives analysis. Ifimpacts are unavoidable, project managers shouldweigh the risk of failure against the need to replacethat habitat in deciding between in-kind or out-of-kind mitigation. If in-kind fails or is not practicable,out-of-kind mitigation should be designed to replaceas many lost functions as possible, even if thisrequires multiple sites or resource types. In-kindpreservation may be appropriate, but a combinationof restoration and preservation may be the bestapproach. Compensation should be considered in awatershed context. Finally, Corps districts shouldwork collaboratively in determining DTR aquaticresources in their regions.



Determination of DTR may be a circular argument.For example, if it can be replaced, is it not DTR(Olsen)? Bostwick responded that DTR does notmean that creation is not possible. Therefore, DTRsshould remain on the list as aquatic resources thatshould be avoided.

Morse stated that permit applicants and inter-districtcoordinators would greatly appreciate a very clear listof what constitutes DTRs. It is currently quitefrustrating because the lists of “Aquatic Resources ofNational Importance” seem arbitrary. Herecommended that the MAP guidance force the Corpsto be as specific as possible when making DTR lists.

DTR implies creation, but there are also mitigationoptions that include enhancement. This should not beoverlooked (Bersok).

Redmond stated that a typical assumption is that theimpact site is in good condition. She inquiredwhether or not the condition of the site will affectwhether or not a site is DTR. For example, if the DTRis degraded and few of its functions are left, there is aquestion about whether or not it is still DTR withfunctions that are irreplaceable. The guidance shouldaddress the condition of the DTR. In addition, thecondition of a DTR should also guide the appropriatemitigation, i.e., enhancement, creation, etc.(Redmond).

The definition of DTR is problematic. There is a needfor clear, regional lists so that DTR will not be appliedsubjectively. Local agencies and the public shouldparticipate in the listing effort (Mogensen). Parsonsagreed that listing should occur at the district leveland should be fully transparent for all stakeholders.Periodic review of the lists will help drive the listingprocess. Furthermore, Corps districts should handlethe regionalization of the DTR list and use wetlandcharacteristics to determine DTR. In Georgia,bottomland hardwood forest/old climax communitiescould possibly be DTR. It is necessary to consider theage (maturity) of the site when making DTRdeterminations (Parsons). The MAP Workgroupwelcomes the use of existing lists of DTRs (Stedman).

In regards to the legal protection section of theguidance, the phrase “in most cases” is confusing andshould be explained. In addition, the discussion of

permanent protection needs to be addressed moreclearly (Connelly). There is also a need to furtherdefine the reference to riffle and pool complexes inthe document (Mogensen).

The guidance should be clear about the need forpermanent protection through legal mechanisms (i.e.the mountaintop mining issue). The guidance shouldalso require, not suggest, higher ratios for impacts toDTRs (Mann). If impacts are unavoidable, thenhigher mitigation ratios are appropriate (Mogensen).Boan suggested that there should not be higher ratiosfor out-of-kind mitigation.

There was some discussion about the size of DTRs.Ryan suggested that DTRs must be clearly mapped.He added that ADIDs are not DTR, they just coverlarge areas. During the process of creating regionallists, the Corps should not assume that all ADIDs areDTRs (Ryan).

Johnson asked how regional lists will be defined. Aneight digit HUC may be more appropriate than a stateline. When looking at substantial areas of land, largesystems like elk habitat would be difficult to replace.We should cross reference the regional 1987 manualto see how many DTR are left (Johnson).

Bostwick commented that large areas consideredDTR because of size, value, or location should bespecified in the guidance. Understanding biodiversity,functions, and values is important to designatingDTRs (Bostwick).

Large areas like coastal and coral resources shouldbe included as special aquatic sites (Boan).

Regulatory Guidance Letter 02-2 specifies thatwatershed and ecosystem approaches should be usedwhen determining compensatory mitigationrequirements. Protection, maintenance, orpreservation should be carried out to remove a threatto, or prevent the decline of, wetland conditions by anaction in or near a wetland. RGL 02-2 reiterates thesection of the 1995 banking guidance that states thatcredit will be given for preservation only when it isdone in conjunction with restoration, creation, orenhancement activities, and when it is demonstratedthat preservation augments functions of the restored,created, or enhanced aquatic resources. It alsoreiterates that preservation can only be used as thesole basis for generating credits in banks inexceptional circumstances.

At the 2003 stakeholder forum, the MAP Workgrouphad not yet started drafting the preservationguidance. At the forum, the MAP Workgroup solicitedinput from stakeholders on what should be includedin the guidance. Stakeholders expressed concern thatthe guidance would lead to a net loss of acres andfunctions and that the significance of preservedresources would be lessened. Stakeholders statedthat the agencies would need to articulate howregulators would evaluate the reality of “threats”posed to aquatic resources and that determining whatis “at-risk” would need to be evaluated on a regionalor watershed basis. Stakeholders asked aboutdeveloping ratios and evaluating functional lift, andhow the agencies would assign credits forpreservation. Finally, they asked if the guidancewould clarify whether agencies should give apreference to restoration, enhancement, and creationover preservation.

The 2003 stakeholder forum also raised somequestions and issues. For example: Does overlappingprotection really protect? Does it protect publiclands? What about the supplanting of public landsacquisition? What are the allowable uses of protectedwetlands? Should they only be used in excess of nonet loss? Should they be used rarely, i.e. forthreatened unique resources? Are substantial buffersneeded? These questions are addressed in the draft2004 preservation guidance.



GUIDANCE ON THE USE OF PRESERVATION ASCOMPENSATORY MITIGATIONJeanette Gallihugh, U.S. Fish and Wildlife Service

One of the MAP tasks is the development of guidanceon the appropriate use of preservation forcompensatory mitigation. The MAP states, “theagencies will develop specific guidance that willclarify the exceptional circumstances described incurrent guidance in which preservation may serve asan effective and environmentally appropriateapproach to satisfy compensatory mitigationrequirements.” The guidance will clarify the role ofpreservation articulated in earlier guidancedocuments, such as the 1990 MOA, 1995 mitigationbanking guidance, and RGL 02-2.

The 1990 MOA asserts that the purchase orpreservation of existing aquatic resources may onlytake place in exceptional circumstances. It alsostates that EPA and the Corps will develop specificguidance for preservation.

The 1995 mitigation banking guidance builds on the1990 MOA by stating that credit will be given whenpreservation is implemented in conjunction withrestoration, creation, or enhancement activities andwhen it is demonstrated that preservation augmentsfunctions of the restored, created or enhancedaquatic resources. The banking guidance states thatpreservation may only be used as the sole basis forgenerating credits in banks in exceptionalcircumstances. The guidance instructs that, whenattempting to determine if preservation is anappropriate mitigation option, one should consider ifthe preservation of the aquatic resource’s physicaland/or biological functions is important to the regionand if there is a demonstrable threat of loss orsubstantial degradation, or, when “clear evidence ofdestructive land use changes which are consistentwith local and regional land use trends and are notthe consequences of actions under the control of thebank sponsor.”



The draft 2004 preservation guidance relies on thedefinitions for “protection/maintenance(preservation),” and “demonstrable threat” found inRGL 02-2. This draft guidance also includes additionalrecommendations beyond those found in the 1995banking guidance and RGL 02-2. The guidance statesthat preservation should “generally only beconsidered as a compensatory mitigation componentwhen the preserved resources will demonstrablyaugment or be integral in sustaining the functions ofnewly established, restored, or enhanced aquaticresources.” Preserved resources need not becontiguous and may serve to augment the protectionof associated functions within a region.

The draft preservation guidance also discusses theuse of preservation as the sole method ofcompensation. It states that if preservation is the solemethod of compensation, the site in question must: 1)“perform regionally important physical, chemical,and/or biological functions and 2) be “underdemonstrable threat of loss or substantialdegradation.” Sites that perform regionally importantfunctions may include those that are adjacent to orconnect regionally important public lands. They canbe specially designated aquatic areas or oldgrowth/climax communities with unique habitatstructural complexity likely to support rare nativeplants or animals. The sites may also be those thatinclude habitat for listed species or are thoseidentified as Source Water Protected Areas.

When preservation is used as the sole method ofcompensation to protect resources that are under ademonstrable threat of degradation or loss, the threatmay not be the consequence of actions under thecontrol of the applicant. In such cases it is crucial toexamine the extent of potential adverse impacts orlosses, the source and seriousness of the threat, andwhether or not it is an aquatic resource protected bycurrent rules and regulations.

The draft preservation guidance also includes generalguidelines for selecting appropriate areas forpreservation, either as a component of compensatorymitigation or as the sole method of compensation.The guidance recommends considering watershedobjectives, targeting lands that have been identifiedin land acquisition and conservation programs, and

protecting lands in or adjacent to areas of national,state, or regional ecological significance. Sites mayalso provide connectivity to other systems and takeadvantage of refuges, buffers, and other green spaces.Furthermore, the guidance suggests that preservationsites may include those that are considered difficultto acquire or unlikely to be preserved by federal,state, or local acquisition programs.

Finally, the guidance addresses how compensatorymitigation credit should be granted for preservation.Since preservation does not directly replace aquaticresource areas or functions, the amount ofcompensation credit given for preservation activitiesmay be less than that for other forms of mitigation.When evaluating the amount of compensation credit,the following should be considered: a) the extent ofprobable adverse impact; b) the value of hydrologicalrelationships between preserved wetlands, othersurface waters, and uplands; c) the proximity to areasof ecological importance; d) the ability of the parcelto provide connectivity; and e) its ability to meetwatershed objectives.

A holistic watershed plan is the best tool for planningthe appropriate form of compensatory mitigation. Inthe absence of such a plan, a watershed-basedapproach should be used because it takes intoaccount a wide range of factors. The MAP Workgroupis currently developing guidance on makingcompensatory mitigation decisions in a watershedcontext that complements the other MAP guidancedocuments, including the draft preservationguidance.

participants recommended removing this test ofdemonstrable threat. Morse agreed, stating that theland should be available for preservation even whenthe threat is under the applicant’s control. Theguidance should also clarify that threats are not onlydue to anthropogenic factors, and should include anunderstanding that preservation could protect againstnatural threats such as erosion (Ardoin). It isimportant to avoid a situation where developmentthreats lead to the approval of more preservation.Allowing preservation when the developer controls athreat may lead to more perceived threats and moreapprovals. Exceptions to this are the preservation ofhigh quality, rare, or DTR lands under the applicant’scontrol (Mann).

Furthermore, the guidance does not distinguishbetween those sites that can be mitigated and thosethat cannot. When looking for potential adverseimpacts, the difference between these two should beconsidered (Hull). Hull proposed allowing for theacquisition of non-jurisdictional wetlands, or at leastconsidering the impacts to non-jurisdictionalwetlands. For example, if an applicant comes in witha plan for a 3-acre impact to jurisdictional waters anda 1-acre impact to non-jurisdictional waters,regulators should take into consideration the factthat minimizing jurisdictional impact may lead to theincreased destruction of non-jurisdictional waters.

A participant noted that it is important that theguidance includes criteria for preservation as the solemethod and that the crediting section refers to theconsideration of watershed objectives. However,Section A of the guidance should also addresspreservation as a component of watershed objectives(Klimek).

The guidance should require permanent protectionfor all preservation projects. The Sierra Club supportspreservation where a watershed plan exists and onlyin conjunction with other forms of mitigation, such asrestoration (Mann). Morse disagreed, stating thatmitigation should not have to include other forms ofcompensation because the no net loss goal isprogrammatic, not project specific. Preservation putsthe no net loss policy at risk. It should be used only inaddition to the minimum 1:1 ratio (Denisoff).




The guidance should explicitly state that uplandpreservation is an option (with qualifiers) and thatconnections can be uplands. Connections should nothave to be anchored by a mitigation site. Perhaps theguidance should discuss the benefits that wetlandsprovide in connecting two water bodies. It isimportant to preserve sites now. We should assumethat these sites can be targeted for restoration later(Hull).

Ross responded that upland preservation is importantto meet watershed goals and should be a part of thewatershed approach. Uplands are less expensive thanaquatic lands. However, uplands will not be preservedif there are no incentives or requirements for theirprotection.

Wood stated that the preservation guidance should beflexible and preservation should be allowed if it isdetermined to be the most environmentallypreferable mitigation option. Gonzalez agreed andsaid that the guidance should allow flexibility inacquiring uplands within a mosaic or as a connectionbetween wetlands/systems/complexes. Uplands have apreservation value. Without the surrounding uplands,protecting wetlands is difficult if not impossible (S.Gonzalez). Connelly pointed out that flexibility shouldnot lead to the degradation of resources.

Caves asked if this guidance requires the protectionof preservation sites in perpetuity. Hough respondedthat the guidance does state that “Preservationparcels should be permanently protected withappropriate real estate instruments,” but perhapsthat could be stressed more clearly (Hough).

Forum participants discussed language in theguidance that states demonstrable threat must be“based on clear evidence of destructive land usechanges that are not the consequences of actionsunder the permit applicant’s control.” However, thedeveloper is often offering high value property. Inreality, the applicant is forfeiting this land and shouldpossibly receive preservation credit (Hull). Several



The third bullet of Section III(C) is misleading. Itdiscusses “large contiguous land areas,” but does notconsider the complexities of smaller wetlandsconsolidated in certain areas. Preserving “largecontiguous” land areas could be contrary to awatershed approach (Mann).

Preservation credits should be limited to aquaticresources, not uplands. Carter expressed concernthat money for land acquisition is drying up. Wetlandmitigation funds should not be used to replace landacquisition programs. In general, the guidance shouldbe linked more to §404(b)(1) guidelines (Carter).

The language on permanent protection is stronger inthe preservation guidance than in the DTR guidance.Nonetheless, some improvements can be made. InSection III(B)(1), the second bullet’s reference toessential fish habitat (EFH) is too broad. Not all EFHwould be a good candidate for preservation and,therefore, it is misleading. Perhaps it would be betterto change EFH to Habitat Areas of ParticularConcern. EFH should not apply to the entire coast,but should rather be limited to special areas(Connolly).

The guidance neglects to consider how much wetlandresources remain in an area. Michigan’s UpperPeninsula is one half wetlands and therefore adifficult area in which to find mitigation sites. This isa case where preservation makes the most sense. Theguidance should address this idea and help statesclarify what is appropriate, as well as what to dowhere there are a high percentage of wetlandscombined with a low percentage of historical loss. Ingeneral, preservation should be considered in areaswith a high percentage of wetlands, low percentage ofloss, and few restoration options (Bostwick). Ryanresponded that one should consider opportunities forenhancement before jumping to preservation (Ryan).

Murillo recommended the guidance includeprovisions for monitoring. However, there was aconcern that the “sole method” language will lead tohigher rates of preservation, lower rates ofestablishment and restoration and, therefore, a netloss of wetlands. Murillo also expressed concern overhow “exceptional circumstances” will be defined. Alarge portion of Los Angeles’ wetlands would beconsidered exceptional. Allowing a lot of preservation

in this large area could result in net loss. Theguidance should clarify whether or not exceptionalcircumstances include areas where there is a highpercentage of permit approvals. Murillo added that ahigh percentage permit approval could be argued toequal an exceptional threat. Ross commented thatthe manner in which exceptional circumstance isdefined in the RGL and in the preservation guidanceis a big jump that facilitates the use of preservation.

The first bullet of Section III (D) also needsclarification. The guidance should clarify whether ornot full credits can be given to SWANCC wetlandslocated in a mitigation bank site (Hart). Trottresponded that credits could be assigned in suchcircumstances.

The §404 program rarely denies permits. Even thoughregulators are concerned about property rights issues,avoidance and denial should be considered moreacceptable options. This fact, coupled with theconsideration of preservation, will increase themonetary value of wetlands as wetlands (Gardner).

Bersok expressed concern that the guidance does notaddress management plans. Perhaps this could beincluded under Section III(D). Legal means may notbe enough for the protection of functions.

There are often enhancement opportunities in areaswith a high percentage of wetlands. The SWANCCbank justifies those resources as jurisdictional. Ryanasked if when SWANCC banks create non-jurisdictional waters, they must voluntarily relinquishjurisdiction over the wetlands in the bank (Ryan).Other participants had mixed responses.



VEGETATED BUFFER GUIDANCESteve Martin, U.S. Army Corps of Engineers

The draft guidance defines a buffer as an uplandand/or riparian area that protects aquatic resourcefunctions at mitigation sites from disturbances oradjacent land uses. A riparian area is defined as thetransitional area between terrestrial and aquaticecosystems that connects aquatic ecosystems withadjacent uplands through surface and subsurfacehydrology. These areas are usually found adjacent tostreams, rivers, lakes, and estuarine-marineshorelines.

Riparian areas and buffers can enhance or providethe following functions: sediment removal anderosion control, excess nutrient and metal removal,stormwater runoff moderation, water temperaturemoderation, habitat diversity, and reduction of humanimpacts on aquatic resources.

Existing guidance that addresses vegetated buffersincludes the 2000 Nationwide Permits and the CorpsRegulatory Guidance Letter 02-2.

The vegetated buffer guidance includesrecommendations for designing buffers. Mitigationplans should include buffers when it is necessary toprotect aquatic resource functions at a mitigation sitefrom disturbance or adjoining land use. Their primaryfunction is to protect the integrity of a mitigation site.Required buffer widths vary based on the targetedfunctions. For example, a buffer width of 50-100 feetis recommended for water quality and 95-330+ feet tomaintain wildlife habitat.

The “Buffer Design Considerations” section of theguidance may be revised. It might be moreappropriate to say buffers are valuable when it isnecessary to protect the quality, sensitivity, orfunctions of aquatic resources from disturbance oradjoining land use. A more suitable primary functionmay be to protect and enhance the integrity of theaquatic resource. Width requirements would be theminimum width necessary to perform the targetedfunction.

When deciding the proper buffer width, it isimportant to consider adjacent land use, type ofaquatic resource, size and shape of the resource to beprotected or enhanced, soil conditions, slope, andvegetation.

It is appropriate to assign credit for riparian areasand buffers to the extent that they enhance aquaticresource function and the function of the mitigationsite or other aquatic resources in the watershed.Credits should be granted if they are best for theaquatic environment on a watershed basis, and if theassociated aquatic resources 1) perform importantfunctions to the region and 2) are underdemonstrable threat of loss or degradation. Creditsmay be limited if they are compromised or providequestionable protection due to width, shape,condition, or other factors.


Denisoff voiced concern over the specificrecommended buffer widths in Section III(A). Hesuggested not using numerical values because thefield staff may interpret them too literally. Hesuggested that it may be more appropriate to includea table in an appendix. Denisoff added that the thirdbullet of Section III(A) is unnecessary. Morsedisagreed and said the table will not provideadequate guidance since the range is so large. Theliterature review table should be dropped and theranges kept in the text. The first bullet of SectionIII(A) should include “future land use” (Morse).Murillo agreed and said low impact land use can bechanged to high impact if buffers are not present.Reisinger added that the riparian buffer width(Section III(A)) should be determined by width,length, and connection.

There was significant discussion on crediting buffers.Klimek asked what additional credits might be givenif mitigation goes beyond what is required. Martinresponded that quantitative credits could be offered,for example, ten to twenty percent of the value of thebuffer. This could be specified in Section III(B) of theguidance. However, Mann felt that because buffersare necessary for success, they should not becredited. Mogensen responded by stating that there isno current requirement to include buffers inmitigation projects. They are only included if the



Corps requires them or credit is offered.Consequently, a formulaic approach is necessary. Forexample, if an applicant provides a 30-foot buffer oneach side of a stream they could receive a mitigationratio of 10:1. If the plan includes some preservationand a buffer, the ration may be 8:1, and so on. Headded that wetland and stream buffers need to beconsidered separately. Mann commented thatbecause buffers depend on wetland type andlandscape criteria, a formulaic approach is notappropriate. One should look at the wetland typerather than its size. It is important that Section IIIstates that the primary function of a buffer is toprotect the mitigation site.

The discussion of buffer widths continued. Whitestated that current regulations and guidance do notgive the Corps clear authority to require buffers. It isdifficult to get an applicant to include buffersbecause they know that although national regulationsprovide clear authority for requiring open waterbuffers, the authority is not as strong for bufferingisolated mitigation areas. Credit should be providedfor buffers, even if only indirectly by assigning lowermitigation ratios (White). Hausmann suggestedlooking at nonpoint source and stormwater programsbecause they have had significant experience withrequiring buffers.

There was agreement that buffer widths should bebased on the functions they are designed to protect(White, Morse), and that the widths should bedetermined on a case-by-case basis. There was alsoagreement that the guidance is unclear on what isrequired and what will receive credit. Homebuilderswill definitely want credit for buffers (Morse).

Hull suggested that credit should be applied when thebuffer is wider than the required width. In this case,the guidance would need “added value” language.Parsons added that if credits are to be applied to abuffer, the buffer should provide a demonstrable liftin functions. Furthermore, monitoring should ensurethat buffers perform their intended functions (i.e.,protection against demonstrable threat).

There was some confusion about the definitions ofupland and riparian areas. The definition of riparianareas suggests that an upland bridge betweenwetland areas would be a riparian buffer. What the

Southwest Florida Water Management District refersto as “uplands,” the guidance refers to as “riparian”(Hull).

The guidance is also unclear on whether creditshould be provided for preservation or establishmentof buffers. It should clarify whether or not credit willbe assigned for the preservation of existing buffers oronly as limited to Section B, paragraph two, whichdiscusses “establishment of buffers.” The currentversion of the guidance only applies to establishment,rather than protection of existing buffers (Carter).

The first sentence of Section III(B) is confusing,particularly the phrase “under limited circumstances”(Redmond). Denisoff also felt that the secondparagraph of Section III(B), beginning with “Inmaking this determination…1) perform….; and 2)are under….” should not have the “and.” Hesuggested changing it to an “or” or deleting number 2in its entirety.

Redmond asked how the buffer guidance differs fromthe preservation guidance. The buffer guidance needsto clarify what it means by “enhance.” She added thatthe design considerations are appropriate.

The guidance over-emphasizes water quality asopposed to habitat functions. For an example, thethird bullet of Section III states that credit for buffersshould be built into the habitat assessment method(Cooper).

Denisoff asked why Section IV is necessary. Thewatershed approach is enough. We do not need aholistic watershed plan.

WATERSHED CONTEXT GUIDANCEBob Brumbaugh, U.S. Army Corps of EngineersPalmer Hough, U.S. Environmental ProtectionAgency

There have been many reports highlighting the needfor a watershed approach to compensatory mitigation.The 1995 Federal Banking Guidance encouraged awatershed-based approach to making mitigationbanking decisions. The 2001 NRC report,“Compensating for Wetland Losses Under the CleanWater Act,” recommended a watershed approach toimprove permit decision-making. The U.S. Army Corpsof Engineers’ Regulatory Guidance Letter 02-2 echoedthis recommendation, instructing districts to “usewatershed and ecosystem approaches whendetermining compensatory mitigation approaches”and “consider the resource needs of the watershedwhere impacts will occur, and also consider theresource needs of neighboring watersheds.”

The 2001 NRC report maintains that site selection forwetland conservation and mitigation should beconducted on a watershed scale in order to maintainwetland diversity, connectivity, and appropriateproportions of upland and wetland systems needed toenhance the long-term stability of wetland andriparian systems. Regional watershed evaluationshould greatly enhance the protection of wetlandsand/or the creation of wetland corridors that mimicnatural distributions of wetlands in the landscape.

The 2001 NRC report outlines some important aspectsof a watershed approach. A watershed approach isthe structured consideration of wetland type,function, and location. It involves collaborationwithin the region and integration with otherprograms. It must be emphasized that a watershedplan is not necessary for making compensatorymitigation decisions in a watershed context.Developing a watershed plan may be impractical inmany regions.



The MAP lists several action items for integratingcompensatory mitigation into a watershed context:

■ Develop guidance on the use of on-site versus off-site and in-kind versus out-of-kind compensatorymitigation (by the end of 2003)

■ Develop guidance on the use of vegetated buffersas a potential component of compensatorymitigation (by 2004)

■ Develop guidance on the appropriate use ofpreservation for compensatory mitigation (by2004)

■ Building on the guidance above, analyze the use ofcompensatory mitigation within a watershedcontext and identify criteria for makingcompensatory mitigation decisions in this context(by 2005)

The MAP charges the agencies to “develop guidanceto encourage placement of mitigation where it wouldhave the greatest benefit and probability for long-term sustainability.” This guidance, in turn, “will helpdecision-makers utilize the watershed-based planningtools/ resources already developed.”

The National Symposium on CompensatoryMitigation and the Watershed Approach, held in May2004 in Washington, D.C., was designed to provide theMAP Workgroup with direction and input on thedevelopment of watershed guidance. Details of thissymposium can be found at: <http://www.eli.org/research/watershedsymposium.htm>.

The desired outcomes of the symposium were to ■ Identify and clarify what the science says about

making compensatory decisions in a watershedcontext;

■ Examine existing watershed-based tools,resources, and case examples of use in aregulatory context;

■ Identify the most important criteria used byexisting watershed-based planning tools andresources to analyze priorities and restorationoptions; and

■ Clarify the “Logical Steps” of a watershed-basedapproach to compensatory mitigation.

SESSION III:Future Action Items



What the Science Says About Making Compensatory Decisions in a Watershed Context

Preliminary research conducted by ELI and thediscussions that took place at the 2 1/2-daysymposium established several importantconsiderations for making compensatory mitigationdecisions in a watershed context. Theseconsiderations include: defining critical issues andobjectives; determining the appropriate scale, i.e.watersheds or eco-regions; understandingwatershed/landscape functions; conductingwatershed/landscape assessments to determine howthe landscape works; and establishing what are thecurrent conditions, what happened in the past, whatare future trends and, therefore, how sensitive theecosystem is to future land management.

The above information will help decision-makersassess the importance of an individual wetland tooverall hydrologic functions, thus helping to prioritizepotential mitigation/restoration sites in a watershedcontext.

Relevant Case Studies

As part of the Watershed Symposium, the MAPWorkgroup also reviewed case studies of watershed-based tools and resources that are being used in aregulatory context. Individuals involved in theseefforts were invited to participate in the WatershedSymposium, including experts involved in thedevelopment of the Southern California Special AreaManagement Plans and the Advanced Identificationstudy conducted in Blackberry Creek, Illinois. For theSouthern California SAMPs, researchers are usingGIS to examine the ecologic integrity of riparianecosystems and restoration potential. The BlackberryCreek project uses GIS to conduct hydrologicsimulation and alternative futures analysis.

Criteria Used to Analyze Priorities and Restoration Options

Another symposium objective was to identify criteriaused by existing watershed-based planning tools. Thesymposium participants felt that the appropriatecriteria will depend on scale and that rather thanbeing prescriptive, the MAP Workgroup shoulddevelop flexible categories of criteria. When analyzingpriorities and restoration options, ecological factorssuch as site and landscape condition should be

considered. Social and logistical factors such as siteand community constraints must also be considered.

The “Logical Steps” of a Watershed-based Approach toCompensatory Mitigation

In preparation for the symposium, the MAPWorkgroup offered participants five proposed “logicalsteps” to a watershed-based approach tocompensatory mitigation for further consideration.These included:■ Landscape assessment ■ Historic assessment■ Assessment of remaining resources ■ Analysis of priorities and restoration options■ Determination of where, when and how much

aquatic resources to be restored

At the May 2004 watershed symposium, these logicalsteps were modified. The participants suggested thatthe following steps would more effectively meet theMAP Workgroup’s objectives:■ Identification of issues, goals, and objectives■ Inventory and assessment of the historic, current,

and expected future conditions■ Establishment of desired future outcomes and

references ■ Analysis of opportunities and constraints ■ Determination of priorities and recommendations■ Development of an ongoing implementation plan,

monitoring and assessment provisions, feedbackand adaptive management, and financing and datamanagement details

Each of these steps includes collaboration withstakeholders and integration with other relatedprograms, such as water quality and the threatenedand endangered species programs.

In summary, the primary objective of the watershedcontext guidance is to provide a “logic” for regulatorsand to stimulate mitigation providers to use existingwatershed information and assessment tools. Itssecondary objective is to encourage watershedplanners to include analysis that supports mitigationsite selection. The scale of analysis should be relatedto the functions lost or impacted. A true watershedapproach should include the use of GIS data andtools. It should also follow the MAP’s watershedapproach, RGL and district mitigation guidelines, andbe integrated with ORM/GIS.


There is a need to reconcile landscape priorities withland acquisition priorities. Another problem is thatmitigation bankers find appropriate sites, but long-term management is not available if the agencies arenot interested (Ryan).

A specific issue in Georgia involves the availability ofland and opportunities for acquisition. One obstacleto watershed planning is that in order to relocatemitigation offsite or to a mitigation bank, propertymust be available from a willing seller. Pubic agencieswill never be able to manage mitigation banks. Itremains to be seen how agencies will ensure the long-term stability of private land. In addition, theobligation to consider on-site mitigation is aconstraint for state agencies (Parsons).

Johnson responded that on the west coast, thirdparties such as NGOs often accept the long-termownership of mitigation sites. Hough agreed that thisis a constructive approach, but said the federalagencies needed to conduct more outreach topropagate these types of ideas and options. In regardsto constraints, watershed partnerships need to gobeyond state boundaries. Opportunities for landstrusts should be advertised (Johnson). Anotherparticipant agreed and said it is important to buildthe capacity of land trusts for becoming long-termstewards of mitigation sites. Land trusts could usesome assistance in finding third party participants.Perhaps the Land Trust Alliance should be involved(Eckenrod).

Watershed planning has been around for a long time.The Association of State Wetland Managers iscompleting its own report on watershed planning,which seeks to characterize different types ofwatershed plans. Two major categories have beenidentified: 1) rural watershed plans, which areusually habitat based, and 2) urban watershed plans,which usually have multiple objectives (includingstormwater control, etc.). Urban watershed plansgenerally fail to include habitat considerationsbecause the systems are highly engineered and



hydrology changes rapidly. These plans are usuallyunsuccessful. Much of the permitting happens inthese areas and, therefore, this is where protection ismost needed (Christie). Eckenrod disagreed, statingthat National Estuary Programs (NEP) do have ahabitat focus.

Watershed planning should be conducted at theregional level rather than the field level. It is difficultto carry out watershed planning at the field level ofthe 404 Program. Watershed planning reverts to waterquality and quantity. The MAP watershed contextguidance should consider referring to wetlandwatershed planning (Cooper).

The watershed framework may not be applicable forsmall project developers (Morse). Morse asked who isresponsible for doing watershed analyses in thesecases. Martin replied that the responsibility foridentifying mitigation sites does not fall on thepermittee. Watershed planning needs to provide arange of options. At present it seems to be focused onwater quality and quantity (Morse).

It is necessary to consider scale and physiographicprovinces when discussing a watershed. Scale needsto be linked to functions that are lost at the site-specific level. Otherwise, functions are moved towhere the land is cheap (Evans). Permitees should beable to mitigate functions separately (Easley). Norrisresponded that if the mitigation guidance is driven bywatershed needs, care should be taken to ensure thatthe guidance does not facilitate the fragmentation offunctions. Headwater protection needs to remain theprimary focus of a watershed approach (Norris).

Florida recently completed a study on the cumulativeeffects of mitigation. The researchers quickly threwout watershed boundaries and instead the assessmentboundaries focused on resource parameters. In orderto evaluate ecological considerations, it may benecessary to expand the scale (Easley). Linkousresponded that an ecological perspective must beincorporated into the watershed approach.

The range of comments during this session is anindication of the complexity of the watershedapproach. Watershed planning efforts fall along acontinuum, which on one end includes very detailedand well-funded plans and on the other end includesplans that rely upon the input of citizen groups. The



challenge is to develop guidance that will use thewatershed context with or without a detailedwatershed plan in place. The role of the federalgovernment does not include planning on private ornon-federal land, therefore, partnerships are veryimportant. The MAP Workgroup needs input from theforum participants to help define this process(Nadeau).

In response to Nadeau’s request for input, Whitestated that additional partnerships with state andlocal agencies would be helpful. Also, more proactiveplanning, such as pre-application meetings, wouldhelp improve permitting predictability. Off-site/out-of-kind guidance is a positive step away from the 1990MOA, but this guidance needs to be integrated intothe watershed approach. The watershed guidanceshould recommend the use of General Permits, whichare the best tools for prioritizing mitigation areas andactions. Finally, there should be more focus onshaping the environment, not the project. Agenciesfocus too much on minimization, rather than definingthe environment or identifying priority areas formitigation, development, and other land uses. It maybe necessary to reconsider the effectiveness ofmitigation sequencing (White).

Parsons disagreed with White’s comments aboutmitigation sequencing. He stated that lowering thestandards for mitigation sequencing will not helpmeet habitat protection goals. The narrative part ofwater quality standards can be used to identifyhabitat considerations (Parsons).

Connelly expressed concern about the timing of thewatershed guidance in relation to the other guidancedocuments. The buffer, DTR, preservation, and site-kind guidance documents rely on the watershedapproach, yet this will be the last guidance documentreleased. She added that the MAP is not payingattention to the long-term objective.

Klimek asked how flexibility fits into the watershedapproach. She asked if the guidance would addresscrediting incentives for actions carried out in thewatershed context. Guidance should includespecifications on functional units, such as acres andmiles, as well as flexibility (Klimek).

The watershed should be considered in context.There is no need for a formal plan, which takes timeto develop. The phrase watershed “plan” is in many ofthe documents, but it should be “context.”Furthermore, the mitigation priorities identified inthe guidance should be recommended, not required.Planning should include ecosystem considerations.Finally, too often the government provides tools andrecommendations and then tries to regulate, which iscounterproductive (Denisoff).

Regulators should use de facto tools rather thancreate new ones, i.e. recovery plans (Martin). Thebest incentives are credits (Ross). The guidanceshould outline a general framework but allow theflexibility for states to try and address localobjectives. An excellent model is Florida’sachievements with the Uniform MitigationAssessment Method (UMAM). UMAM assigns creditsbased on a variety of considerations such as thelocale of the mitigation in the watershed. Thisexample needs to be examined more closely. Finally,the guidance should caution against providingmitigation credit for engineered stormwatertreatment (Bostwick).

PERFORMANCE STANDARDS GUIDANCEBob Brumbaugh, U.S. Army Corps of EngineersSteven Martin, U.S. Army Corps of Engineers

Performance standards consist of criteria used todetermine a project’s attainment of specificstructural or functional goals as intended by design(Wetland Engineering Handbook 2000). The 2001NRC report defines performance standards as“measures of wetland structure or type or afunctional assessment score.” The Model MitigationPlan Checklist of 2003 describes them as “clear,precise, quantifiable parameters that can be used toevaluate the status of desired functions.” Mitigationperformance standards need to assure ecologicallysustainable outcomes and be enforceable.

Examples of mitigation performance standardsinclude specific hydrologic, soil, and vegetationconditions, percentage of vegetation cover, plantspecies survival, slope, sinuosity, bankfull width,percent cover of invasive species, and specific aquaticinvertebrate taxa.

The 2001 NRC report listed several concerns withcurrent mitigation practices. These include failure toconstruct/complete mitigation, unclear permitrequirements, failure to satisfy permit conditions,failure to offset impact acreage/function, superficialdescription of intended functions, and lack of legaland financial mechanisms to ensure completion andprotection.

The report also concluded that performancestandards are often not included in permit/bankingdocuments, are not measurable/observable, are oftenvague and unenforceable, and can be narrowlyfocused on vegetation.

The MAP Workgroup plans to use existing research onbiological indicators/functional assessments toevaluate performance standards. The Workgroup willsolicit and consider feedback from stakeholders andregulators and will clarify key concepts related toperformance standards. Based on this analysis, theWorkgroup will develop performance standards andmonitoring/adaptive management guidance formitigation sites by 2005.

Performance standards have several constraints. Tobe effective, they must be measurable, observable,repeatable, enforceable, cost-effective, and contain



direct and uncomplicated measures.

The MAP Workgroup has developed a framework thatacknowledges different types of performancestandards. These include administrative standards,physical and ecological standards, and adaptivemanagement standards. Administrative performancestandards consist of financial assurances, siteprotection, assignment of responsibility, constructionschedules, monitoring, maintenance, and long-termmanagement.

Physical and ecological standards are comprised ofstructural components and community or functionalperformance components. Structural componentsinclude site descriptions, hydrology, soils, vegetation,and stream characteristics. Community or functionalcomponents seek to address whether specificcommunity objectives have been met and functionsperformed. These components are used to analyzeindicators of biological and functional attainment.

Adaptive management standards are importantbecause wetlands are complex and dynamic systems.The ability to predict a response is limited, as areavailable resources. It is difficult to know if the bestresults will be achieved by focusing on function,community, or process. There is a clear need forsustainable mitigation in the face of such uncertainty.Adaptive management standards involve acomprehensive feedback process that entails threesteps: 1) monitor site and implementation, 2) analyzeoutcomes, and 3) incorporate results into futureactions. These standards encourage experimentation,link administrative and physical/ecological standards,and increase the likelihood of sustainability.


Redmond suggested that the MAP Workgroupconsider looking at functional feeding guilds, such asaviary populations based on structure, in combinationwith the Wetland Evaluation Technique functionalassessment technique. She also supported the use ofbest professional judgment. Vegetated performancestandards warrant further study. She stated that ifadditional funding is available for complianceenforcement, performance standards become evenmore necessary.

Johnson asked if the MAP Workgroup had solicitedstakeholders for information on existing performance



standards. He recommended looking to the districtsto see if they have constructive examples ofperformance standards, biological indicators, andreference sites. He added that EPA funded a watermanagement district study on compliance withpermit conditions. The study requires one more yearof research before it can be completed.

Mogensen expressed concern about relying uponpristine reference sites when assessing mitigationrequirements for impacts to degraded systems. Morseresponded that reference sites should represent theexpected conditions. Parsons commented thatappropriate ecological models should be utilized.Wood suggested that the MAP Workgroup examine theOhio Water Quality Standards as possibleperformance standards, as they are based on theexpected condition.

Wildlife usage of a wetland may not always correlatewith the status of that wetland. Wildlife habitat usageshould be evaluated and monitored as a routine partof functional analysis (Barnett). Performancestandards must include a full description of baselineconditions (Parsons).

The Society for Ecological Restoration (SER) hascovered many of the MAP issues independently. Seethe SER Primer on Ecological Restoration(<http://www.ser.org/content/ecological_restoration_primer.asp>). SER will issue universal restorationstandards in the next one to two months. Theperformance standards guidance should clearly staterestoration goals, otherwise it is not possible todevelop specific objectives. Without clear objectives,there is no basis for performance standards.Performance standards must be sustainable andenforceable. Often mitigation focuses on vegetation ina narrow sense, such as dominants. Vegetationstandards must focus on community composition andassemblage. “Ecological function” is really referringto structure. Ecosystems should be restored forcomplexity, functions, and social services, not whatexisted there in the past. Development ofperformance standards must occur in the context ofimplementation. The USFWS reference monographsthat describe aquatic resources may provide a modelfor developing performance standards (Clewell).

Adaptive management requirements need toappropriately specify which parties are responsible

(Morse, Reisinger). The implementation ofperformance standards must be discussed during thedevelopment stage. Mitigation is getting moreexpensive, but if risks are being minimized by the useof better performance standards, mitigation ratiosshould be lowered in accordance with decreased risk(Morse).

Regulatory staff need more time and training for theregular review of mitigation plans. Regional agenciesmust be careful about being too prescriptive and notpaying enough attention to the development ofperformance standards (Iliff). Hausmann replied thatit is better to hire experienced mitigation reviewersthan to train regulators. Wisconsin decided not totrain at all. Instead, they hired three additional staffpeople to perform only mitigation reviews(Hausmann).

It is important to identify thresholds for determiningwhen deed restrictions are necessary for protectingmitigation sites. Reference sites are critical fordeveloping performance standards and can be linkedto domains. The monitoring and assessment processmust be easy and replicable given the high turnoverof staff. Mitigation should focus on environmentalimprovement, not replacement (Reisinger).

Reference wetlands are needed for some types ofwetlands like seagrass. Sampling amphibians is notreliable because of the daily fluctuations inpopulations. Performance standards should be costeffective (Easley). They should be reasonable andequitable, and their achievement should beconsidered a success (Denisoff).

Another participant agreed with Denisoff.Performance standards are key for banks andprojects. However, regulators have often implied thatattaining performance standards at a mitigation bankis not adequate. Meeting performance standardsshould infer achieving success. When performancestandards of a site-specific project are not met, theconsequences are often rebuilding, recreating,starting from scratch, etc. Adaptive managementshould mean there is the option to buy credits at abank if on-site mitigation fails (Ryan). The MAPWorkgroup should focus on developing smarterperformance standards, not more performancestandards (Bersok).

Kathy Trott, U.S. Army Corps of EngineersPalmer Hough, U.S. Environmental ProtectionAgency

Hough stated that the MAP Workgroup iscommitted to improving the long-termsustainability of compensatory mitigation. The

Workgroup will consider and absorb all theinformation from the forum.

Hough and Trott extended their thanks to theparticipants at the forum for all their input on thevarious documents and issues discussed during thethree days. They recognized the Environmental LawInstitute staff for organizing and facilitating theforum. The MAP Workgroup is greatly appreciative ofall the feedback and input from the non-governmental organizations, regulated community,public, and state and local agencies. Hough and Trottalso recognized local partners, including the FloridaDepartment of Environmental Protection, SouthwestFlorida Water Management District, Tampa BayNational Estuary Program, EPA Region 4, and StetsonUniversity.

Hough then emphasized that individuals from theagencies that serve on the MAP Workgroup werepresent and registered the comments of theparticipants. These agencies include: U.S. Army Corpsof Engineers, U.S. Environmental Protection Agency,National Oceanic and Atmospheric Administration,U.S. Fish and Wildlife Service, USDA NaturalResources Conservation Service, and Federal HighwayAdministration.

Hough and Trott highlighted some of the majorthemes and issues discussed at the forum. There wasa continuous focus on preservation, with advice to“buy now and restore later” due to the rising cost ofproperty. Common concerns included how theindividual guidance documents relate to each otherand the existing guidance, and how they will fittogether with the forthcoming guidance oncompensatory mitigation and the watershedapproach. The Corps is aware that they need to

WRAP UP/CLOSING STATEMENTS


specifically clarify how the documents will beintegrated and not conflict with each other.

Participants emphasized the need to avoid assigningmitigation credit for actions undertaken to meetregulatory requirements of other programs. Thecriteria used for classifying special resources andcrediting practices should be clear and publiclyavailable (i.e., DTR, determining buffer widths, andmitigation ratios for preservation). Many stakeholdersalso raised concerns over constraints created by thetiming limitations of the permit application reviewprocess.

There is a need for more information on, andattention paid to, the special conditions of wetlandsand streams in the arid west. Participants also calledfor more guidance on stream mitigation andassessment.

A common theme throughout the discussions was theissue of the appropriate scale for makingimplementing compensatory mitigation decisions,specifically whether the ecosystem or watershedscale is more appropriate. Trott stated that the Corpswould produce very clear guidance on the dynamicsof the watershed approach and how they relate toecosystems. Another common theme was the need tonot undercut sequencing requirements. Participantscautioned that when the MAP Workgroup focuses onimproving the third step in mitigation sequencing,compensation, they must be mindful not to undercutthe first two steps.

Participants stated that long-term managementissues, like stewardship endowments and siteprotection mechanisms, need to be clarified. Houghacknowledged that the MAP Workgroup has not donea sufficient job of articulating these issues.Participants also stated that regulators must have theflexibility to adapt guidance to meet regional needsand concerns, particularly when trying to discern theappropriate scale for watershed and/or ecoregionalanalysis.

Participants agreed that the MAP Workgroup’s effortsto improve compensatory mitigation should beintegrated with the efforts of other existing programs(i.e., nonpoint source pollution and stormwatermanagement programs) to achieve common water


LOOKING FORWARD

quality goals. There is also a need for “regional” MAPteams to regionalize some of the national guidance.

Several themes emerged related to ORM. Participantsnoted that other federal and state agencies areinterested in the information in ORM. ORM should belinked up to, and be compatible with, other datamanagement programs. Eventually, the Corps willwork to allow these agencies to have access to theCorp’s website. In the future, other agencies will havethe ability to comment on public notices directly onthe website instead of mailing in their comments. TheCorps appreciates that the regulated community iswilling to help with information management anddata entry. Ultimately, civil works projects, dams,locks, and ecosystem restoration projects will allcoexist on the same database.

The MAP team struggles with illustrating how thisnew guidance will tie in with the existing guidance.They are still unclear as to how it will all fit together,and what the final format will entail so users canquickly find what they are seeking. A solution theyare contemplating is an electronic mitigationdirectory with two chapters. One chapter woulddiscuss mitigation from a general perspective, with anoverview of the avoid, minimize, and compensatesteps. A second chapter would specifically addressthe third step, compensatory mitigation. There couldbe an additional section that would be aclearinghouse for recent evaluations or studies ofcompensatory mitigation.

Hough and Trott concluded with soliciting writtencomments or suggestions on the draft documentspresented at the forum. Comments should be sent toPalmer Hough at EPA. Participants should alsoindicate if they are interested in reviewing andcommenting on future guidance and policy or inattending future stakeholder forums.

This mitigation forum was the fourth in a seriessponsored by the federal agencies participatingin wetland protection activities. This forum was

sponsored by the federal agencies that have served onthe Mitigation Action Plan Workgroup: the U.S. ArmyCorps of Engineers, U.S. Environmental ProtectionAgency, NOAA National Marine Fisheries Service, U.S.Fish and Wildlife Service, USDA Natural ResourcesConservation Service, Federal HighwayAdministration, and the U.S. Army Corps ofEngineers, Institute for Water Resources.

For more information on this and future mitigationforums, please contact:

U.S. Army Corps of Engineers:Mark SudolChief, Regulatory BranchU.S. Army Corps of Engineers441 G Street, NWWashington, DC 20314-1000Phone: (202) 761-4750Fax: (202) 761-4150Email: [email protected]

Kathy TrottU.S. Army Corps of Engineers441 G Street, NWWashington, DC 20314-1000Phone: (202) 761-4617Fax: (202) 761-4150Email: [email protected]

U.S. Environmental Protection Agency:John MeagherU.S. Environmental Protection AgencyWetlands Division (4502T)1200 Pennsylvania Avenue, NW, Washington, DC 20460Phone: (202) 566-1374Fax: (202) 566-1353Email: [email protected]

Palmer F. HoughU.S. Environmental Protection AgencyWetlands Division (4502T)1200 Pennsylvania Avenue, NWWashington, DC 20460Phone: (202) 566-1374Fax: (202) 566-1375E-Mail: [email protected]

NOAA National Marine Fisheries Service:Susan-Marie StedmanNOAA National Marine Fisheries Service Office of Habitat Conservation1315 East-West HighwaySilver Spring, MD 20910Phone: (301) 713-2325Fax: (301) 713-1043E-Mail: [email protected]

U.S. Fish and Wildlife Service:Robin Nims-ElliottU.S. Fish and Wildlife Service4401 North Fairfax DriveArlington, VA 22203Phone: (703) 358-2183Fax: (703) 358-1869Email: [email protected]

Jeanette GallihughU.S. Fish and Wildlife Service4401 North Fairfax Drive, Room 400Arlington, VA 22203Phone: (703) 358-2183Fax: (703) 358-1869Email: [email protected]

USDA Natural Resources Conservation Service:David McKayBranch ChiefUSDA-NRCS, Watershed and Wetlands Division1400 Independence Ave SW, Rm 6023SWashington, DC 20013Phone: (202) 720-1835Fax: (202) 720-4265Email: [email protected]

Federal Highway Administration:Fred BankFederal Highway AdministrationOffice of Natural and Human Environment400 7th Street, SWHEPN-30Washington, DC 20690Phone: (202) 366-5004Fax: (202) 366-3409Email: [email protected]

LOOKING FORWARD


U.S. Army Corps of Engineers, Institute for WaterResources:Bob BrumbaughArmy Corps of Engineers CEIWR-PD77 Telegraph Road, Casey BuildingAlexandria, VA 22315-3868Phone: (703) 428-7069Fax: (703) 428-6124Email: [email protected]

Additional information about this forum, includingphotos from the field trip on Day I, PowerPointpresentations, and links to many of the policy andtechnical documents discussed in this report areavailable through the Environmental Law Institute’swebsite at: <http://www.eli.org/research/wetlandsmitigationforum2004.htm>. The MitigationAction Plan website, which includes information onthe status of action items, as well as final and draftpolicy documents, is: <http://www.mitigationactionplan.gov>. Other policy documents related to federalwetlands mitigation can be accessed through thewebsites of U.S. Environmental Protection Agency’sWetlands Division at: <http://www.epa.gov/owow/wetlands> or the Regulatory Program of the U.S.Army Corps of Engineers at: <http://www.usace.army.mil/inet/functions/cw/cecwo/reg/index.htm>


APPENDIX A

FINAL AGENDA:Fourth Stakeholder Forum on Federal Wetlands Mitigation

September 20 – 22, 2004

Stetson University, College of LawWilliam Reece Smith Jr. Courtroom – First Floor Tampa Campus & Law Center1700 North Tampa Street, Tampa, Florida

Sponsored by:Federal Highway Administration Florida Department of Environmental ProtectionUSDA Natural Resources Conservation ServiceNOAA National Marine Fisheries ServiceSouthwest Florida Water Management DistrictStetson University, College of Law Tampa Bay Estuary ProgramU.S. Army Corps of Engineers U.S. Environmental Protection AgencyU.S. Fish and Wildlife Service

Objectives:

I. Review progress on the actions set forth in the 2002 NationalWetlands Mitigation Action Plan

II. Solicit feedback on Mitigation Action Plan tasks to becompleted in 2004

III. Solicit input on future Mitigation Action Plan actions andgoals for 2005

DAY 1 – Monday, September 20, 2004

8:00–8:30am CONTINENTAL BREAKFAST (provided)

8:30–12:00pm Optional Field TripReport to William Reece Smith Jr. Courtroom on the First Floor. Transportation provided. Tour guides courtesy of Southwest Florida Water Management District.

12:00–12:45pm LUNCH (provided)

12:45–1:00pm WELCOME & OVERVIEW• John Meagher, U.S. Environmental

Protection Agency• Royal Gardner, Stetson University College

of Law• Jessica Wilkinson, Environmental Law

Institute (Facilitator)

1:00–2:15pm The Regional and Local Perspective■ Statewide Approaches to Linking Mitigation

and Restoration Needs• Connie Bersok, Florida Department of

Environmental Protection

■ Use of Mitigation to Accomplish Watershed Planning Goals – A Pasco County Case Study• Clark Hull, Southwest Florida Water

Management District

■ Creative Options for Mitigation Banking for Small Projects• Cindy Woods, U.S. Army Corps of

Engineers• Ron Van Fleet, Sarasota County

Government

2:15–2:30pm BREAK

SESSION I: Review of Mitigation Action Plan and Completed Action Items

2:30–2:50pm Presentation:■ Review of National Mitigation Action Plan

and Regulatory Guidance Letter (RGL 02-2)• Kathy Trott, U.S. Army Corps of Engineers • Palmer Hough, U.S. Environmental

Protection Agency

2:50–3:00pm Questions & Facilitated Discussion

3:00–3:40pm Presentation: Completed Action Items

■ Guidance on the Use of the TEA-21 Preference for Mitigation Banking to Fulfill Mitigation Requirements Under Section 404 of the Clean Water Act

■ Grants to Improve Compensatory Mitigation• Alex Levy, Federal Highway

Administration • Palmer Hough, U.S. Environmental

Protection Agency


3:55–4:10pm BREAK

4:10–4:30pm Presentation: Completed Action Items (Continued)

■ Stream Mitigation Compendium Analysis of Existing Performance Standards Research• Jeanette Gallihugh, U.S. Fish and Wildlife

Service • Joanne Barry, U.S. Army Corps of

Engineers


4:45–4:50pm Summary and Wrap-Up• Jessica Wilkinson, Environmental Law


4:50pm ADJOURN


APPENDIX A

DAY 2 – Tuesday, September 21, 2004

SESSION I (Continued): Review of Mitigation Action Plan and Completed Action Items


8:30–8:40am Review of Agenda• Jessica Wilkinson, Environmental Law


8:40–8:50am Presentation:■ On Site/Off Site In-kind/Out-of-kind

Guidance • Susan-Marie Stedman, NOAA Fisheries

8:50–9:10am Questions & Facilitated Discussion

9:10–9:30am Presentation:■ Model Mitigation Checklist & Incorporation

of National Research Council’s Guidelines into the Clean Water Act Section 404 Program (District Mitigation and Monitoring Guidelines)• Joanne Barry, U.S. Army Corps of

Engineers


9:50–10:10am BREAK

10:10–10:30am Presentation:■ Demonstration of New §404 Database

(ORM)• Tori White, U.S. Army Corps of Engineers


SESSION II: 2004 Draft Action Items

10:50–11:10am Presentation:■ Guidance for Aquatic Resources that are

Difficult to Replace• Melanie Harris, NOAA Fisheries

11:10–12:10pm Facilitated Discussion

12:10–1:10pm LUNCH (provided)

1:10–1:30pm Presentation:■ Preservation Guidance

• Jeanette Gallihugh, U.S. Fish and Wildlife Service

• Bob Brumbaugh, U.S. Army Corps of Engineers


2:30–2:50pm BREAK

2:50–3:10pm Presentation:■ Vegetated Buffer Guidance

• Steve Martin, U.S. Army Corps of Engineers


4:10pm ADJOURN

DAY 3 – Wednesday, September 22, 2004


8:30–8:40am Review of Agenda• Jessica Wilkinson, Environmental Law


SESSION III: Future Action Items

8:40–9:00am Presentation:■ Watershed Context Guidance


• Palmer Hough, U.S. Environmental Protection Agency


10:00–10:20am BREAK

10:20–10:35am Presentation:■ Performance Standards Guidance


• Steven Martin, U.S. Army Corps of Engineers


11:35–12:20pm LUNCH (provided) and Wrap Up/Closing Statements

• Kathy Trott, U.S. Army Corps of Engineers

• Palmer Hough, U.S. Environmental Protection Agency

12:20pm ADJOURN

APPENDIX B

The Bush Administration affirms its commitment to the goal ofno net loss of the Nation’s wetlands. The Administration ishopeful of achieving that goal and in the near future to begin

increasing the overall functions and values of our wetlands throughthe combined efforts of the numerous governmental programs andinitiatives, including the Clean Water Act, and non-regulatorywetland conservation initiatives and partnerships among federalagencies, state, tribal and local governments, and the private andnot-for-profit sectors. The primary purpose of this Action Plan is tofurther achievement of the goal of no net loss by undertaking aseries of actions to improve the ecological performance and resultsof wetlands compensatory mitigation under the Clean Water Actand related programs. The actions, listed below and outlined inmore detail in the attached Action Plan, will help ensure effectiverestoration and protection of the functions and values of ourNation’s wetlands, consistent with the goals of our clean water laws.The themes guiding these actions include:■ working in consultation with the Tribes, States, and interested

parties to provide a consistent voice on compensatory mitigationmatters;

■ focusing our guidance, research, and resources to advanceecologically meaningful compensatory mitigation, informed byscience;

■ emphasizing accountability, monitoring, and follow-through inevaluating compensatory mitigation;

■ applying the same compensatory mitigation provisions toFederal projects and on Federal lands as we do to privateparties, consistent with existing laws and policies;

■ providing information and options to those who need to mitigatefor losses of wetlands functions; and

■ providing technical and research assistance to those whoundertake the work of mitigation.

An interagency team will guide the development andimplementation of the following action items. Recognizing thatadvances in science and technology will continue to improve ourability to protect and restore the Nation=s aquatic resources, someof the following action items may be modified by the teamconsistent with our evolving understanding of effective wetlandsmanagement.

Clarifying Recent Mitigation Guidance

■ The Army Corps of Engineers (Corps), in consultation with theEnvironmental Protection Agency (EPA), the Department ofAgriculture (USDA), the Department of the Interior (DOI), theFederal Highway Administration (FHWA), and the NationalOceanic Atmospheric Administration (NOAA), has re-evaluatedits mitigation Regulatory Guidance Letter and is reissuing it toimprove mitigation implementation provisions.

Integrating Compensatory Mitigation into a Watershed Context

■ The Corps and EPA, in conjunction with USDA, DOI, and NOAA,working with States and Tribes, will co-lead the development ofguidance on the use of on-site vs. off-site and in-kind vs. out-of-kind compensatory mitigation by the end of 2003.

■ EPA and the Corps, in conjunction with USDA, DOI, and NOAA,working with States and Tribes, will co-lead the development ofguidance on the use of vegetated buffers as a potentialcomponent of compensatory mitigation by 2004.

■ The Corps and EPA, in conjunction with USDA, DOI, and NOAA,working with States and Tribes, will develop guidance on theappropriate use of preservation for compensatory mitigation by2004.

■ Building on the guidance above, EPA and the Corps, workingwith USDA, DOI, and NOAA, will co-lead an analysis with Tribesand States on the use of compensatory mitigation within awatershed context and identify criteria for making compensatorymitigation decisions in this context by 2005.

Improving Compensatory Mitigation Accountability

■ EPA, the Corps, and the FHWA will develop guidance thatclarifies implementation of the TEA-21 preference for mitigationbanking in 2003.

■ EPA will continue to provide financial assistance through itswetlands State grants program to encourage Tribes, States, andothers to increase the success of mitigation in theirjurisdictions.

■ EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will develop guidance by 2004 for protecting those wetlands forwhich mitigation, restoration, or creation is not feasible orscientifically viable.

■ EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will clarify considerations for mitigating impacts to streams inthe Section 404 program in 2003.

Clarifying Performance Standards

■ The Corps, EPA, USDA, DOI, and NOAA, working with States andTribes, will develop a model mitigation plan checklist for permitapplicants in 2003.

■ EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will review and develop guidance adapting the NationalAcademies of Sciences’ National Research Council-recommended guidelines for creating or restoring self-sustainingwetlands to the Section 404 program in 2003.

National Wetlands Mitigation Action PlanDecember 24, 2002


APPENDIX B


■ EPA will analyze existing research to determine theeffectiveness of using biological indicators and functionalassessments for evaluating mitigation performance in 2003.

■ Building upon the biological indicators and functionalassessments research, EPA, in conjunction with the Corps,USDA, DOI, and NOAA, and working with States and Tribes, willlead the development of performance standards guidance onmonitoring and adaptive management of mitigation sites by2005.

■ EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will clarify key concepts related to performance standards.

Improving Data Collection and Availability

■ The Corps, EPA, USDA, DOI, and NOAA, in conjunction withStates and Tribes, will compile and disseminate informationregarding existing mitigation-tracking database systems in 2003.

■ Building upon the analysis of existing mitigation data basesystems, the Corps, EPA, USDA, DOI, and NOAA will establish ashared mitigation database by 2005.

■ Utilizing the shared database, the Corps, in conjunction withEPA, USDA, DOI, and NOAA, will provide an annual public reportcard on compensatory mitigation to complement reporting ofother wetlands programs by 2005.

The signatories or their designated representatives shall meetannually to review the progress being made regarding theimplementation of the Action Plan. EPA and the Corps may inviteother relevant federal agencies to participate in one or more of theaction items.

This plan may be modified as necessary, by mutual writtenagreement of all the parties.

The participating agencies intend to fully carry out the terms of thisagreement. All provisions in this agreement, however, are subject toavailable resources and authorities of the respective gencies underSection 404 of the Clean Water Act.

/Signed/ ______________________________________12/24/02Les BrownleeActing Assistant Secretary for Civil WorksDepartment of the Army (Civil Works)

/Signed/ ______________________________________12/24/02G. Tracy Mehan, IIIAssistant Administrator for WaterU.S. Environmental Protection Agency

/Signed/ ______________________________________12/24/02Scott B.Gudesfor Vice Admiral Conrad C. Lautenbacher, Jr.U.S. Navy (ret.)Undersecretary of Commerce for Oceans and AtmosphereU.S. Department of Commerce

/Signed/ ______________________________________12/24/02Lynn ScarlettAssistant Secretary of Policy, Management, and BudgetDepartment of Interior

/Signed/ ______________________________________12/24/02Mark E. ReyUnder Secretary for Natural Resources and the EnvironmentU.S. Department of Agriculture

/Signed/ ______________________________________12/24/02George E. Schoenerfor Emil H. FrankelAssistant Secretary for Transportation PolicyU.S. Department of Transportation

APPENDIX B

Introduction

Several recent independent analyses and public commentaries haveprovided a critical evaluation of the effectiveness of compensatorymitigation for authorized losses of wetlands and other waters of theUnited States under Section 404 of the Clean Water Act. Theseanalyses and commentaries highlighted a number of shortfalls andidentified a variety of technical, programmatic, and policyrecommendations for the Federal agencies, States, and otherinvolved parties.

In particular, the agencies are mindful of the comprehensiveevaluation of wetlands compensatory mitigation completed by theNational Academies of Sciences’ National Research Council (NAS)last year. This report, in addition to the General Accounting Office(GAO) report on in-lieu-fee mitigation and others recentlycompleted, provided the basis for a broad, independently facilitatedstakeholder gathering in October 2001, during which the agenciesgathered feedback from those with an interest in the future ofcompensatory mitigation, including representatives from academia,States, mitigation bankers, in-lieu-fee mitigation providers,environmental organizations, home builders, and industry. Werecognize that success in our ultimate goal is dependent oneffective interactions with these stakeholders as we proceed.

Background

The Bush Administration affirms its commitment to the goal of nonet loss of the Nation’s wetlands. The Administration is hopeful ofachieving that goal and in the near future to begin increasing theoverall functions and values of our wetlands through the combinedefforts of the numerous governmental programs and initiatives,including the Clean Water Act, and non-regulatory wetlandconservation initiatives and partnerships among Federal agencies,state, tribal and local governments, and the private and not-for-profit sectors. A fundamental objective of the Clean Water ActSection 404 program is that authorized losses of wetlands and otherwaters are offset by restored, enhanced, or created wetlands andother waters that replace those lost acres and functions and values.Importantly, the regulatory program provides first that allappropriate and practicable steps be taken to avoid impacts towetlands and other waters, and then that remaining impacts beminimized, before determining necessary compensatory mitigationto offset remaining impacts. This mitigation sequence parallels thatwhich is embodied in the National Environmental Policy Actgoverning the review of other Federal actions as well. Compliancewith these mitigation sequencing requirements is an essentialenvironmental safeguard to ensure that Clean Water Act objectivesfor the protection of the Nation’s remaining wetlands are achieved.

Federal guidance on compensatory mitigation has been provided inseveral interagency documents, including the 1990 Memorandum ofAgreement between the Environmental Protection Agency and theDepartment of the Army Concerning the Determination ofMitigation under the Clean Water Act Section 404(b)(1) Guidelines(MOA). In 1995, EPA and the Department of the Army were joinedby the Departments of the Interior, Commerce, and Agriculture indeveloping the Federal Guidance on the Establishment, Use andOperation of Mitigation Banks (Banking Guidance). In 2000, themulti-agency Federal Guidance on the Use of In-Lieu-FeeArrangements for Compensatory Mitigation under Section 404 ofthe Clean Water Act and Section 10 of the Rivers and Harbors Act(In-Lieu-Fee Guidance) was issued. These interagency efforts havehelped clarify compensatory mitigation objectives, endorseentrepreneurial mechanisms to achieve mitigation goals, and guidepermit applicants in developing environmentally sound andenforceable mitigation projects. It is in light of this backgroundthat the agencies outline the following specific actions to improvewetlands compensatory mitigation under the Clean Water Act andrelated programs.

Clarifying Recent Mitigation Guidance

The Corps, in consultation with EPA, USDA, DOI, FHWA, andNOAA, has re-evaluated its mitigation Regulatory GuidanceLetter and is reissuing it to clarify mitigation implementationprovisions. The GAO noted that in some circumstances wheremitigation involved third-party providers that were not mitigationbankers or in-lieu-fee providers, permits did not clearly state whowas responsible for the success of the compensatory mitigation.Consistent with previous joint guidance and independentrecommendations, the Corps will reissue the mitigation RegulatoryGuidance Letter to clearly identify the party responsible for theecological performance and results of the compensatory mitigation,the level of documentation necessary by applicants and mitigationproviders, and other relevant implementation issues to ensure thatmitigation is properly completed.

Integrating Compensatory Mitigation into a Watershed Context

The Corps and EPA, in conjunction with USDA, DOI, and NOAA,working with States and Tribes, will co-lead the development ofguidance on the use of on-site vs. off-site and in-kind vs. out-of-kind compensatory mitigation by the end of 2003. Existingguidance provides that “compensatory actions…should beundertaken, when practicable, in areas adjacent or contiguous tothe discharge site (on-site compensatory mitigation)” and that“generally, in-kind compensatory mitigation is preferable to out-of-


Action Plan

APPENDIX B


kind.” Existing guidance provides flexibility, however, by allowingthe use of off-site mitigation where it is determined to bepracticable and environmentally preferable to on-site mitigationand allows use of out-of-kind mitigation in circumstances where itis environmentally desirable, in the context of consolidatedmitigation. To ensure effective and consistent use of off-site andout-of-kind compensatory mitigation, the agencies will clarify, and ifnecessary, expand upon, existing guidance. This effort will build onexisting language developed for the 1990 MOA, Federal BankingGuidance, In-Lieu-Fee Guidance, and Mitigation RGL and provideexamples illustrating when it may be appropriate to use off-siteand/or out-of-kind mitigation in lieu of on-site and/or in-kindmitigation.

EPA and the Corps, in conjunction with USDA, DOI, and NOAA,working with States and Tribes, will co-lead the development ofguidance on the use of vegetated buffers as a potentialcomponent of compensatory mitigation by 2004. Lands borderingopen waters (e.g., rivers, lakes, estuaries) play important rolesincluding but not limited to maintaining water quality, providinghabitat for fish and wildlife, and providing flood storage benefits. Todate, limited guidance has been provided to agency field staff onthe appropriate use of vegetated buffers as a component of anoverall compensatory mitigation plan. To ensure appropriate andconsistent use of vegetated buffers, the agencies will provideguidance to clarify the use of vegetated buffers as mitigation in theSection 404 program. This effort will utilize performancegoals/standards in recommending vegetated buffers and includeexamples of methodologies for determining mitigation credit forvegetated buffers. This effort will draw upon buffer informationcomplied for the non-point/agricultural water programs andexisting wetlands/forestry best management practices.

The Corps and EPA, in conjunction with USDA, DOI, and NOAA,working with States and Tribes, will develop guidance on theappropriate use of preservation for compensatory mitigation by2004. Typically, the preservation of existing aquatic resources hasbeen accepted as compensatory mitigation only in exceptionalcircumstances. To ensure the appropriate and consistent use ofpreservation as compensatory mitigation, the agencies will developspecific guidance that will clarify the exceptional circumstancesdescribed in current guidance in which preservation may serve asan effective and environmentally appropriate approach to satisfycompensatory mitigation requirements. This effort will build onexisting language developed for the 1990 MOA and Federal BankingGuidance and provide examples of acceptable preservation projects.

Building on the guidance above, EPA and the Corps, workingwith USDA, DOI, and NOAA, will co-lead an analysis with Tribes

and States on the use of compensatory mitigation within awatershed context and identify criteria for makingcompensatory mitigation decisions in this context by 2005.As a general matter, compensatory mitigation decisions are madeon a case-by-case basis and often do not consider the properplacement of mitigation projects within the landscape context, theecological needs of the watershed, and the cumulative effects ofpast impacts. The Federal agencies will analyze the issuesassociated with better use of compensatory mitigation within awatershed context, with assistance from the States and agencies.Following this analysis, the agencies will develop guidance toencourage placement of mitigation where it would have the greatestbenefit and probability for long-term sustainability. The guidancewill help decision-makers utilize the watershed-based planningtools/resources already developed by the agencies as well as state(Basinwide Management Approach), regional (SynopticAssessment, Southeastern Ecological Framework), and local(watershed plans, land suitability models) watershed planningefforts. This guidance will complement other non-regulatorywatershed management initiatives and partnerships.

Improving Compensatory Mitigation Accountability

EPA, the Corps, and the FHWA will develop guidance thatclarifies implementation of the TEA-21 preference for mitigationbanking in 2003. The statutory preference for mitigation bankingin offsetting impacts to aquatic resources and natural habitats fromfederally-funded highway projects has caused some confusion incircumstances where onsite mitigation opportunities are available.The agencies will clarify how the mitigation banking preferencemay be used to most effectively mitigate for such rojects with linearand scattered impacts to wetlands.

EPA will continue to provide financial assistance through itswetlands State grants program to encourage Tribes, States, andothers to increase the success of mitigation in theirjurisdictions. EPA has identified improving wetlands ecologicalperformance and results of compensatory mitigation as a priority,along with wetlands monitoring and assessment and the protectionof vulnerable wetlands and aquatic resources. The Wetland ProgramDevelopment Grants, administered by EPA, provide recipients anopportunity to conduct projects that promote coordination andaccelerate research, investigations, experiments, training,demonstrations, surveys, and studies relating to the causes, effects,extent, prevention, reduction, and elimination of water pollution.Priority is given to proposals that address EPA=s priority areas,including improving the effectiveness of compensatory mitigation.EPA will announce a set of Wetland Program Development Grantsfor projects that support the improvement of mitigation success in

achieving wetlands performance and results, in the context ofbuilding or enhancing wetlands protection, restoration, ormanagement programs, and will publicize the annual availability ofgrants for this purpose.

EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will develop guidance by 2004 for protecting those wetlands forwhich mitigation, restoration, or creation is not feasible orscientifically viable. As concluded by the NAS, there are a numberof aquatic resource systems for which successful re-creation orrestoration has not been effectively demonstrated and thereforeavoidance of impacts to these resources was strongly recommended.Certain aquatic resource types require a specific combination ofplant types, soil characteristics, and water supply that are currentlydifficult to create. To ensure that we meet our Clean Water Actgoals, the agencies will provide guidance emphasizing theprotection of the Nation’s wetlands resources that are difficult torestore.

EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will clarify considerations for mitigating impacts to streams inthe Section 404 program in 2003. Historically, impacts to streamsystems such as filling, impoundment, and channelization, havebeen compensated with wetland mitigation. To date, limitedguidance has been provided to agency field staff in the appropriateconsiderations for mitigating impacts to streams. To ensureappropriate and consistent mitigation for impacts to streams, theagencies, working with States, will clarify considerations formitigating impacts to streams in the Section 404 program. Manyagency field offices are independently developing a variety ofstream assessment approaches and stream standard operatingprocedures (e.g., NC, SC, GA, TN, KY, MS, and AL). Also, a numberof stream and stream/wetland mitigation banks have beenestablished or are currently under review by agency field offices.These and other ongoing stream restoration training efforts willhelp inform development of the guidance.

Clarifying Performance Standards

The Corps, EPA, USDA, DOI, and NOAA, working with Statesand Tribes, will develop a model mitigation plan checklist forpermit applicants in 2003. The type of information needed formitigating impacts to wetlands and other waters is often unclear topermit applicants. Taking advantage of State and Corps Districtexamples, this effort would result in a model compensatorymitigation checklist to facilitate permit applicants providingnecessary information early in the permitting process. The checklistwould also allow more effective participation during public noticeand help minimize delays in the permit decision-making process.

The checklist could be regionally adapted to respond to specificneeds of different areas of the country. A number of mitigationchecklists are currently in use by various Districts, States, andMitigation Bank Review Teams and could be readily consulted.

EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will review and develop guidance adapting the NAS-recommendedguidelines for creating or restoring self-sustainingwetlands to the Section 404 program in 2003. The NAS proposedten operational guidelines that would aid agency personnel andmitigation practitioners in designing projects to becomeecologically self-sustaining. As stated by the NAS, to become self-sustaining, aquatic resource mitigation sites must have the properhydrological processes present and be able to persist over time. Theagencies will adapt the NAS guidelines for use in the Section 404program. The NAS-recommended guidelines could be adapted into aseries of questions (e.g., checklist) that could be made available topermit applicants and answered by regulatory staff in consultationwith other resource agencies during project review.

EPA will analyze existing research to determine theeffectiveness of using biological indicators and functionalassessments for evaluating mitigation performance in 2003.Independent evaluations of mitigation raised concerns that therewas an over-reliance on the use of vegetation to measure wetlandsmitigation success. Biological assessments (bio-assessments) arebased on the premise that the community of plants and animalsliving in a wetland will reflect the health of a wetland. Typically,bio-assessments evaluate wetland health and could be used inconjunction with functional assessments, which are primarilydesigned to inform management decisions regarding proposedimpacts to wetlands and restoration of wetlands to compensate forwetland losses. EPA will lead an effort to review potential biologicalindicators, functional assessments, and other reference siteparameters for assessing compensatory mitigation. Literaturereviewed by NAS in the completion of its report and work done bythe Corps and EPA to develop several assessment methodologieswill serve as a starting point.

Building upon the biological indicators and functionalassessments research, EPA, in conjunction with the Corps,USDA, DOI, and NOAA, and working with States and Tribes, willlead the development of performance standards guidance onmonitoring and adaptive management of mitigation sites by2005. Current guidance does not provide sufficient consistencyregarding how to evaluate achievement of wetlands ecologicalperformance and results, nor does current guidance establishappropriate monitoring and adaptive management activities. TheGAO recommended that the agencies establish criteria for

APPENDIX B



APPENDIX B

evaluating performance of mitigation projects and develop andimplement procedures for assessing achievement of wetlandsecological performance and results. The NAS concluded that moreeffective monitoring, as part of adaptive management, as well ascompliance evaluations, would increase the performance ofcompensatory mitigation sites and allow for adaptive management.EPA will lead the effort to build upon the guidelines for maintainingself-sustaining wetlands, draw upon published approaches toperformance standards, and use the results of thebiological/functional assessments analysis.

EPA and the Corps, in conjunction with USDA, DOI, and NOAA,will larify key concepts related to performance standards.

Improving Data Collection and Availability

The Corps, EPA, USDA, DOI, and NOAA, in conjunction withStates and Tribes, will compile and disseminate informationregarding existing mitigation-tracking data base systems in2003. The independent evaluations of mitigation highlighted a needfor improved data to track mitigation. While a system currentlyexists to track acreages of permitted impacts and compensatorymitigation required, the lack of wetlands function information andother parameters hampers efforts to accurately measureachievement of wetlands performance goals and results. The Corpsand the other Federal agencies will compile and evaluate themerits of the various mitigation-tracking data base systems in use,including the Corps’ RAMS/RAMS2 data base as well as regionaldata bases established by agency field offices.

Building upon the analysis of existing mitigation data basesystems, the Corps, EPA, USDA, DOI, and NOAA will establish ashared mitigation database by 2005. Based on the results of theanalysis, the agencies will establish a database that can be sharedwith federal and state regulatory and resource agencies and thepublic. An interagency team is currently working on a pilotinternet-based tool to assist in tracking large scale mitigationprojects such as mitigation banks. This tool is being designed tomanage and monitor information regarding mitigation bankcredit/debit transactions, attainment of performance standards,credit release, and bank documents. The system is being designedto reside on a District’s server and allow different levels ofaccess/input for the public, bank sponsors, Corps staff, and otherMitigation Bank Review Team members.

Utilizing the shared database, the Corps, in conjunction withEPA, USDA, DOI, and NOAA, will provide an annual publicreport card on compensatory mitigation to complementreporting of other wetlands programs by 2005. The NAS reportedthat “the goal of no net loss of wetlands is not being met forwetland functions by the mitigation program.” To ensure that thepublic is informed about the status of the Administration’scommitment to the no net loss of wetlands goal, the Corps wouldlead the development of an annual public report card on thecontributions of the Section 404 program to the no net loss ofwetlands goal, to complement reporting of other wetlandsprograms. Shared databases would allow relatively easy queriesregarding credit/debit transactions and the status ofrestoration/enhancement for mitigation projects and sites.

APPENDIX C


National Mitigation Action Plan (MAP) Production ScheduleUPDATED by MAP Team – November, 2004

The MAP, released by EPA, the Corps, FWS, NOAA, NRCS and DOTin December 2002, commits these agencies to completing 17 tasksby the end of 2005 designed to improve the ecological performanceand results of compensatory mitigation carried out under Section404 of the Clean Water Act. The following tables summarize the

status of work on each of the action items and various stakeholdercoordination efforts. To date, eight of the tasks have beencompleted (or are completed/ongoing), one is currently beingfinalized, three are undergoing external review, and work has beeninitiated on the five remaining tasks.

ACTION ITEM ProposedCompletion Date

Status Description

Status of 17 MAP Action Items

1 Regulatory Guidance Letter 2002 Completed – 2002 Interagency revision of RGL 01-1, the first compensatory mitigation RGL.(RGL 02-2) revision

2 Grants to improve mitigation 2002 + Completed/Ongoing – Annual grants from EPA to States, Tribes and Local governments for 2002+ projects that will improve the effectiveness of compensatory mitigation.

3 Clarify terms (as needed) N/A Completed/Ongoing – Terms related to mitigation site performance standards are being clarified 2003+ as needed in MAP guidance and technical documents.

4 TEA-21 banking guidance 2003 Completed – 2003 This document provides guidance to the field on implementing the TEA-21 preference for mitigation banking consistent with the CWA 404 Program.

5 Model mitigation checklist 2003 Completed – 2003 This document serves as a technical guide for permit applicants preparing mitigation plans. It identifies the types and extent of information that agency personnel need to assess the likelihood of success of a mitigation proposal.

6 Adapt NAS-guidelines to 2003 Completed – 2003 This document adapts the NAS 2001 Guidelines for Creating and Restoring 404 program Self-Sustaining Wetlands into the 404 program.

7 Analysis of existing 2003 Completed – 2004 This technical report summarizes the status of peer-reviewed literature performance standard related to biotic and abiotic mitigation site performance standards (200+ research and literature pages).

8 Stream Mitigation Protocol 2003 Completed – 2004 A Bibliography/Compendium of Stream Mitigation Protocols intended as a Compendium reference for regulatory agencies and resource managers to consult in

order to select, adapt, or devise stream assessment methods appropriate for impact assessment and mitigation of fluvial resources. (200+ pages).

9 Off-Site and Out-of-Kind 2003 Finalizing for release This document provides clarifying guidance on the circumstances when it guidance (Site/Kind Guidance) is environmentally preferable to use off-site and/or out-of-kind

compensatory mitigation.

10 Evaluate existing data bases 2003 Compiling information This effort will compile information on existing mitigation tracking databases in Districts, States, etc.

11 Vegetated buffer guidance 2004 Preliminary draft under This document will clarify the appropriate use of vegetated buffers as external review compensatory mitigation.

12 Preservation guidance 2004 Preliminary draft under This document will clarify the use of preservation as compensatory external review mitigation.

13 Guidance for aquatic 2004 Preliminary draft under This document will provide guidance on protection and mitigation of resources that are difficult external review aquatic resource types that are difficult to replace (DTR). to replace (DTR)


14 Watershed-context guidance 2005 Compiling information This document will provide guidance to encourage placement of mitigation(Completed 5/04 where it would have the greatest benefit and probability for long-term National Symposium) sustainability. National Symposium website:

http://www.mitigationactionplan.gov/watershed_context.html

15 Performance standards 2005 Compiling information This document will provide guidance on mitigation site performance guidance standards, monitoring and adaptive management (will build on Analysis in

item #7 above).

16 Develop common, shared 2005 Compiling information Corps and EPA are exploring potential modifications to ORM database to mitigation data base make it the national mitigation tracking system.

17 Annual mitigation 2005 + Compiling information Annual reporting functions will be built into national tracking system. report card


Status Description

Status of 17 MAP Action Items (Continued)


Status Description

MAP Stakeholder Coordination

1 2003 Stakeholder Forum 7/2003 Completed – 7/2003 The Forum held in Portland, Oregon, brought together a diverse group of 60individuals representing the regulated community, environmental organizations, academia, non-governmental organizations, and mitigation providers. The participants provided valuable feedback on completed action items and important input on future action items. Forum summary report available at: www.mitigationactionplan.gov/stake.html

2 Interagency Website 1/2004 Completed – 2/2004 ( www.mitigationactionplan.gov ) This interagency site is an important tool for the MAP team agencies to share information regarding MAP implementation with stakeholders and the public. The site provides information about the MAP, status of the various action items called for in the MAP, and links to completed MAP action items.

3 2004 Stakeholder Forum 9/2004 Completed – 9/2004 The Forum held in Tampa, Florida, at the Stetson University College of Law brought together a diverse group of over 80 individuals representing the regulated community, environmental organizations, academia, non-governmental organizations, and mitigation providers. The participants provided valuable feedback on completed action items and important input on future action items A report summarizing the Forum is under development.

4 2005 Stakeholder Forum 9/2005 Planning Planning to hold the event on September 19-21, 2005 in Madison, Wisconsin in conjunction with WDNR.

APPENDIX C


APPENDIX D

Participant ContactInformation

Noel ArdoinAssistant Environmental EngineerLouisiana Department of Transportationand DevelopmentP. O. Box 94245Baton Rouge, LA 70804Phone: (225) 242-4504Fax: (225) 242-4500Email: [email protected]

Brian S. BarnettDirectorOffice of Policy and StakeholderCoordinationFlorida Fish and Wildlife ConservationCommission620 South Meridian StreetTallahassee, FL 32399-1600Phone: (850) 488-6661Fax: (850) 922-5679Email: [email protected]

Joanne BarryProject ManagerU.S. Army Corps of Engineers441 G Street, NWWashington, DC 20314Phone: (202) 761-7763Fax: (202) 761 5096Email:[email protected]

Constance BersokEnvironmental AdministratorFlorida Department of EnvironmentalProtection2600 Blair Stone Rd. MS #2500Tallahassee, FL 32399Phone: (850) 245-8479Fax: (850) 245-8499Email: [email protected]

Joshua BoanState Wetland Programs AdministratorFlorida Department of Transportation605 Suwannee Street, MS-37Tallahassee, FL 32399Phone: (850) 410-5893Fax: (850) 410-5808Email: [email protected]

Peg Bostwick404 Program CoordinatorGeological and Land Management DivisionMichigan Department of EnvironmentalQualityP.O. Box 30458Lansing, MI 48909Phone: (517) 335-3470Fax: (517) 241-8098Email: [email protected]

Doug BransfieldStetson University, College of Law2141 Ibis Dr.Clearwater, FL 33764Phone: (727) 504-4713Email: [email protected]

Jim BrawnerSenior Environmental SpecialistUtility Water Act Group700 Universe Blvd.Juno Beach, FL 33408Phone: (561) 691-7051Email: [email protected]

Mark BrownEnvironmental ScientistSouthwest Florida Water ManagementDistrict2379 Broad StreetBrooksville, FL 34604-6899Phone: (352) 796-7211Fax: (352) 544-2328Email: [email protected]

Robert BrumbaughSenior Policy AnalystInstitute for Water ResourcesU.S. Army Corps of Engineers7701 Telegraph RoadAlexandria, VA 22314Phone: (703) 428-7069Fax: (703) 428-6686Email: [email protected]

Derb CarterSenior AttorneySouthern Environmental Law Center200 W. Franklin St, Ste 330Chapel Hill, NC 27516Phone: (919) 967-1450Fax: (919) 929-9421Email: [email protected]

Diane CavesSenior Analyst Natural Resources & EnvironmentU.S. Government Accountability Office2635 Century Parkway, Suite 700Atlanta, GA 30345Phone: (404) 679-1925Fax: (404) 679-2255Email: [email protected]

Jeanne ChristieExecutive DirectorAssociation of State Wetlands Managers2 Basin Rd.Windham, ME 04062Phone: (207) 892-3399Fax: (207) 892-3089Email: [email protected]

Andre ClewellScience and Policy Working GroupSociety for Ecological Restoration5351 Gulf Drive #5Homes Beach, FL 34217Phone: (941) 778-4727Fax: (941) 778-4721Email: [email protected]

Stephen CollinsAsset ManagerFlorida Power and Light CompanyP.O. Box 14000Juno Beach, FL 33408Phone: (561) 691-2244Fax: (561) 691-2190Email: [email protected]

Kim D. ConnollyAssociate Professor and DirectorEnvironmental Law ClinicUniversity of South Carolina, School ofLawMain and Greene StreetsColumbia, SC 29208Phone: (803) 777-6880Fax: (803) 777-3401Email: [email protected]

Hildreth CooperU.S. Fish and Wildlife Service1601 Balboa AvenuePanama City, FL 32405Phone: (850) 769-0552 x221Fax: (850) 763-2177Email: [email protected]


Craig DenisoffPresidentNational Mitigation Banking Association3855 Atherton RoadRocklin, CA 95765Phone: (916) 435-3555Fax: (916) 435-3556Email: [email protected]

Desmond DukeVice President of Business DevelopmentPanther Island Mitigation Bank3215 NW 10th Terrace, Suite 209Fort Lauderdale, FL 33309Phone: (954) 462-1707, ext. 106Fax: (954) 462-4131Email: [email protected]

Mark EasleyManagerEnvironmental ServicesURS Corporation, Southern7650 W. Courtney Campbell CswyTampa, FL 33607-1462Phone: (813) 636-2113Fax: (813) 286-6587Email: [email protected]

Richard EckenrodExecutive DirectorTampa Bay Estuary Program100 8th Avenue S.E.MS I-1 / NEPSt. Petersburg, FL 33701Phone: (727) 893 2765Fax: (727) 893-2767Email: [email protected]

Jason EsterStetson University, College of Law1222 Fruitland Ave.Clearwater, FL 33764Phone: (727) 692-1250Email: [email protected]

Rhonda EvansU.S. Environmental Protection Agency,Region 461 Forsyth St. SWAtlanta, GA 30303Phone: (404) 562-9369Email: [email protected]

Don EwoldtPresidentWetland Banking DivisionLake Erie Land Company & NMBA1010 Sand Creek Drive SouthChesterton, IN 46304Phone: (219) 395-5361Fax: (219) 395-5333Email: [email protected]

Tina FischerStetson University, College of Law1501 Hull St. SouthGulfport, FL 33707Phone: (727) 341-1728Email: [email protected]

Jeanette GallihughBiologistBranch of Federal ActivitiesU.S. Fish and Wildlife Service4401 N. Fairfax Dr., Rm 400Arlington, VA 22203Phone: (703) 358-2183Fax: (703) 358-1869Email: [email protected]

Royal GardnerVice DeanStetson University, College of Law1401 61st St. S.Gulfport, FL 33707Phone: (727) 562-7864Fax: (727) 347-3030Email: [email protected]

George GetsingerEcologistHabitat Conservation DivisionNOAA Fisheries6620 Southpoint Drive, S., Suite 310Jacksonville, FL 32216-0958Phone: (904) 232-2580 x138Fax: (904) 232-1640Email: [email protected]

Jennifer GonzalezStetson University, College of Law4707 N. Eddy Dr.Tampa, FL 33603Phone: (813) 872-7991Email: [email protected]

Shannon GonzalezSenior EcologistBiological Research Associates3910 U.S. Highway 301 S.Tampa, FL 33603Phone: (813) 664-4500Fax: (813) 664-0440Email: [email protected]

Charles HarmanPrincipal EcologistInterstate Technology and RegulatoryCouncil285 Davidson Ave, Suite 100Somerset, NJ 08873Phone: (732) 302-9500Fax: (732) 302-9504Email: [email protected]

Melanie HarrisMarine Habitat Resource SpecialistOffice of Habitat Conservation NOAA Fisheries1315 East-West Hwy, F/HC2Silver Spring, MD 20910Phone: (301) 713-4300 x 154Fax: (301) 713-4305Email: [email protected]

Thaddieus HartProject Manager/Environmental ProtectionSpecialistU.S. Army Corps of Engineers,Jacksonville District602 N. Palm AvePalatka, FL 32178Phone: (386) 325-2028Fax: (386) 325-2029Email:[email protected]

Scott HausmannWetland Policy and Science AdvisorWisconsin Department of NaturalResourcesP.O. Box 7921 (101 S. Webster St.)Madison, WI 53707Phone: (608) 226-7360Fax: (608) 266-2244Email: [email protected]

APPENDIX D


Robert HolbrookManagerWetland Technologies4080 McGinnis Ferry Rd, #1203Alpharetta, GA 30005Phone: (770) 541-4200Fax: (770) 664-6020Email: [email protected]

Palmer HoughEnvironmental ScientistU.S. Environmental Protection AgencyWetlands Division, Mail Code 4502T1200 Pennsylvania Ave, NWWashington, DC 20460Phone: (202) 566-1374Fax: (202) 566-1375Email: [email protected]

Clark HullDirectorEnvironmental Resource PermittingProgramSouthwest Florida Water ManagementDistrict2379 Broad StreetBrooksville, FL 34604-6899Phone: (352) 796-7211Fax: (352) 544-2328Email: [email protected]

John IliffTeam Leader, SE RegionNOAA Restoration Center9721 Executive Center Drive, N.St. Petersburg, FL 33702Phone: (727) 570-5713Fax: (727) 570-5390Email: [email protected]

Chet JanikAssistant Director Natural Resources & EnvironmentU.S. Government Accountability Office 441 G. St., NWWashington, DC 20548Phone: (202) 512-6508Fax: (202) 512-6880Email: [email protected]

Haynes JohnsonLife ScientistU.S. Environmental Protection Agency,Region 461 Forsyth St. SWAtlanta, GA 30303Phone: (404) 562-9407Fax: (404) 562-9343Email: [email protected]

Robert KesslerDirector of Mitigation BankCH2M Hill, Inc.3011 SW Williston RoadGainesville, FL 32608Phone: (352) 352-5877, ext. 2238Fax: (352) 352-2959Email: [email protected]

Suzanne KlimekDirector of OperationsNorth Carolina Ecosystem EnhancementProgram1652 Mail Service CenterRaleigh, NC 27699-1652Phone: (919) 715-1835Fax: (919) 715-2219Email: [email protected]

JoDale LeggSenior Environmental SpecialistLand Use Regulation ProgramNew Jersey Department of EnvironmentalProtectionP.O. Box 439Trenton, NJ 08625-0439Phone: (609) 633-6563Fax: (609) 777-3656Email: [email protected]

Alex LevyEcologistHeadquarters Water and Ecosystems TeamFederal Highway Administration 400 7th Street, SWWashington, DC 20590Phone: (202) 366-1862Fax: (202) 366-3409Email: [email protected]

Sheri LewinVice PresidentMitigation Marketing LLCP.O. Box 540285Orlando, FL 32854Phone: (407) 481-0677Fax: (407) 648-3866Email: [email protected]

Tom LinkousEnvironmental LiaisonOhio Department of Transportation1980 West Broad StreetColumbus, OH 43223Phone: (614) 466-5075Fax: (614) 728-7368Email: [email protected]

Dennis LongknifeWetland SpecialistTribal EPA 104 (B)(3) Wetland ProgramFort Belknap Indian CommunityR.R.1 Box-66Harlem, MT 59526Phone: (406) 353-8431Fax: (406) 353-4358Email: [email protected]

Robin MannChairNational Wetlands Working GroupSierra Club Pennsylvania266 Beechwood DriveRosemont, PA 19010Phone: (610) 527-4598Fax: (610) 527-7775Email: [email protected]

Cherise MaplesAssistant DirectorWater Resource ManagementSeminole Tribe of Florida6300 Stirling Rd.Hollywood, FL 33024Phone: (954) 966-6300 x1121Fax: (954) 967-3501Email: [email protected]

APPENDIX D


Steven MartinEnvironmental ScientistInstitute of Water ResourcesU.S. Army Corps of EngineersCasey Building7701 Telegraph RoadAlexandria, VA 22315Phone: (703) 428-7760Fax: (703) 428-6124Email:[email protected]

Katie McGlynnMarine Habitat Resource SpecialistNOAA Fisheries 1315 East-West Highway, Room 14200Silver Spring, MD 20910Phone: (301) 713-4300, ext. 148Fax: (301) 713-4305Email: [email protected]

David McKayBranch ChiefWatershed and Wetlands DivisionUSDA-NRCS1400 Independence Ave SW, Rm 6023SWashington, DC 20013Phone: (202) 720-1835Fax: (202) 720-4265Email: [email protected]

John MeagherDirectorU.S. Environmental Protection AgencyWetlands Division, Mail Code 4502T1200 Pennsylvania Ave, NWPhone: (202) 566-1374Fax: (202) 566-1353Email: [email protected]

Richard MogensenDirectorEarthMark’s Mid-Atlantic Mitigation, LCCEarthMark Companies9301 Aviation Blvd., Suite CE-1Concord, NC 28027Phone: (704) 782-4133Fax: (704) 782-4148Email: [email protected]

Keith ParsonsSection 401 WQ Cert CoordinatorEnvironmental Protection DivisionGeorgia Department of Natural Resources4220 International Prkwy, Ste 101Atlanta, GA 30354Phone: (404) 675-1631Fax: (404) 675-6245Email: [email protected]

Craig PittmanReporterSt. Petersburg Times490 First Avenue SSt. Petersburg, FL 33701Phone: 727-893-8530Fax: 727-893-8675Email: [email protected]

Ann RedmondRegional ManagerEcological and Water ResourcesWilsonMiller, Inc.1441 Maclay Commerce Dr., Sutie 101Tallahassee, FL 32301Phone: (850) 878-5001Fax: (850) 878-5941Email: [email protected]

Ken ReisingerDivision ChiefWaterways, Wetlands and Erosion ControlPennsylvania Department ofEnvironmental ProtectionP.O. Box 8775Harrisonburg, PA 17105-8775Phone: (717) 787-6827Fax: (717) 772-5986Email: [email protected]

Elizabeth RockhillStetson University, College of Law130 Seventh AveIndialantic, FL 32903Phone: (321) 536-3038Email: [email protected]

Don RossPresidentEarthBalance Corporation2579 Toledo Blade Blvd.North Port, FL 34289Phone: (941) 426-7878Fax: (941) 426-8778Email: [email protected]

Chandler MorseEnvironmental Policy AnalystNational Association of Home Builders1201 15th Street, NWWashington, DC 20005Phone: (202) 266-8327Fax: (202) 266-8056Email: [email protected]

Vicki MurilloProgram Director for Water ResourcesGulf Restoration NetworkP.O. Box 2245New Orleans, LA 70176Phone: (504) 525-1528 x 204Fax: (504) 525-0833Email: [email protected]

Tracie-Lynn NadeauEnvironmental ScientistU.S. Environmental Protection AgencyWetlands Division, Mail Code 4502T 1200 Pennsylvania Avenue, NWWashington, DC 20460Phone: (202) 566-1369Fax: (202) 566-1375Email: [email protected]

Doug NorrisWetlands Program CoordinatorBoard of Water and Soil ResourcesMinnesota Department of NaturalResources500 Lafayette Rd., Box 25St. Paul, MN 55155-4025Phone: (651) 296-0779Fax: (651) 296-1811Email: [email protected]

Eric OlsenShareholderHopping Green & Sams, P.A.123 S. Calhoun St.Tallahassee, FL 32301Phone: (850) 222-7500Fax: (850) 224-8551Email: [email protected]

Jeffrey PardueSenior Vice PresidentBreedlove, Dennis & Associates, Inc.330 West Canton AvenueWinter Park, FL 32789Phone: (407) 677-1882Fax: (407) 657-7008Email: [email protected]

APPENDIX D

APPENDIX D

John RyanLand and Water Resources, Inc.9575 W. Higgins Rd, Suite 470Rosemont, IL 60018Phone: (847) 692-7170Fax: (847) 318-9793Email: [email protected]

Ray ScottConservation and Water Policy FederalPrograms CoordinatorFlorida Department of Agriculture andConsumer ServicesThe Capital PL-10Tallahassee, FL 32399-0810Phone: (850) 410-6714Fax: (850) 922-4936Email: [email protected]

Susan-Marie StedmanWetland Team Leader Office of Habitat ConservationNOAA Fisheries 1315 East-West HighwaySilver Spring, MD 20910Phone: (301) 713-4300 ex. 132Fax: (301) 713-4305Email: [email protected]

Tim SteeleStetson University, College of Law1401 61st South B-101Gulfport, FL 33707Phone: (480) 227-2518Email: [email protected]

Brian ToppingU.S. Environmental Protection AgencyWetlands Division, Mail Code 4502T1200 Pennsylvania Ave, NWWashington, DC 20460Phone: (202) 566-1388Fax: (202) 566-1375Email: [email protected]

Katherine TrottSenior Project ManagerRegulatory BranchU.S. Army Corps of Engineers441 G Street, NWWashington, DC 20314-1000Phone: (202) 761-5542Fax: (202) 761-1685Email:[email protected]

Ron Van FleetPermitting, Mitigation, and RestorationManagerSarasota County Government1001 Sarasota Center Blvd.Sarasota, FL 34240Phone: (941) 861-0757Fax: (941) 861-0593Email: [email protected]

Daniel Wade ZenoAnalystNatural Resources & EnvironmentU.S. Government Accountability Office 2635 Century Parkway, Suite 700Atlanta, GA 30345Phone: (404) 679-1820Fax: (404) 679-1819Email: [email protected]

Tori WhiteTeam LeaderU.S. Army Corps of Engineers879 SE Polynesian Ave.Port St. Lucie, FL 34983Phone: (561) 472-3517Fax: (561) 626-6971Email: [email protected]

Cynthia WoodTeam LeaderTampa Regulatory Field OfficeU.S. Army Corps of Engineers1066 Blackbird Street, MacDill AFBTampa, FL 33621Phone: (813) 840-2908 x247Fax: (813) 840-2123Email:[email protected]

Robert WoodDeputy DirectorU.S. Environmental Protection Agency,Wetlands Division, Mail Code 4502T1200 Pennsylvania Ave, NWWashington, DC 20460Phone: (202) 566-1822Fax: (202) 566-1349Email: [email protected]


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