Corps Staff Explain Mitigation
It is the evening of December 8th and I am sitting in The Common Man Restaurant in Concord. I am listening to Paul Minkin and Barbara Walter, both senior biologists with the US Army Corps of Engineers. They are present to provide an overview of the Final US ACE New England District Compensatory Mitigation Guidance. This is from the folks who either wrote or administer the wetland mitigation guidance. As with all things, there is the written guidance, and then there are the unwritten nuances.
As I wrote earlier this year, the wetland mitigation ratios for upland buffer preservation are 10:1 at the state level, but have been increased to 20:1 (now called a multiplier) by this new guidance. However, unlike the state ratios that are written into rule, this is guidance. Which means that the ratio/multiplier can go higher or lower, depending on what is being protected.
The state has a fixed requirement for uplands in the upland buffer preservation. At least 50% of the protected area must be uplands. No such requirement exists with the guidance. The protected area may have very little wetland, but, for example, if a braided stream catchment area is encompassed by a large upland component, this might be acceptable mitigation.
For those of you wondering if the new guidance has any impact on the in-lieu fee program of the Aquatic Resources Mitigation (ARM) Fund, it does not. Those calculations for appropriate payment for either wetland loss or stream loss are set in stone by the agreement between the state and the Corps. So regardless of the new federal guidance, the amount of money to be paid for compensatory mitigation is fixed.
Of course there is always a “however”. If the applicant is trying to provide mitigation by wetland restoration, creation, rehabilitation or preservation as a component of an overall mitigation strategy, coupled with a payment into the ARM Fund, than the guidance certainly would play a part in the determination of sufficient mitigation.
Compensatory mitigation for secondary impacts is also part of the guidance. Secondary impacts are not filling of wetlands. Secondary impacts are the degradation of the wetland by the adjacent activity. For instance, a road crossing of a wetland has a direct impact by the placement of fill, but has a secondary impacts of the cutting of trees that open the canopy, and the runoff of sediments and salt from the road into the wetland, to name a couple. Interestingly, the term is “secondary impacts” for the 404 wetlands program, not “indirect impacts”, which is a term used by NEPA.
The application of compensatory mitigation for secondary impacts is only is based upon the scope of analysis. While the secondary impact effect may extend out from the direct impact location up to 150 feet away, it only applies to the direct impact area. The scope of analysis does not extend to the entire parcel, regardless of how close buildings or roads are adjacent to wetlands. The secondary impacts are only around the direct wetland impact area.
This does not apply to forestry. While there may be a crossing of a wetland, the secondary impacts of tree clearing is considered temporary. The forest will grow back, so it will not be a maintained tree clearing.
That does not hold true for secondary impacts associated with overhead utilities, pipelines and around airports. There, the trees are cut down and the permanent conversion of a forested wetland to and emergent or shrub wetland is maintained by the activity.
Compensatory mitigation for stream impacts has become much more technical. There are debits for crossings, dredging, channelizing, relocation and armoring. There are credits for preservation, daylighting, removal of dams, reestablishment of a riparian buffer or a natural stream channel and installation of fish ladders. The concept is that the credits will equal or outweigh the debits, so the stream impacts are mitigated.
And while this was not part of the guidance document, there is consideration of stormwater quality upgrades. In other words, taking sites that have little or no stormwater controls and putting in water quality structures can potential be a mitigating measure. This might occur on the site where the impacts are, or potentially removed from the site, provided there is a benefit to the aquatic systems.
In the near future, I hope to have details on a project that did use stormwater quality upgrades as partial compensatory mitigation.
In instances where the mitigation strategy might be innovative or out of the ordinary, the biologists suggested getting input from them before committing to a mitigation course of action. Work through the Corps project manager for the proposal, suggesting that it be reviewed by the biologists.
Who knows? You may be pleasantly surprised to find that a compensatory mitigation strategy that is out of the ordinary will work!
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