Along with the reissuance of the Nationwide Permits (NWPs), the Corps reissued General Conditions that apply when a Nationwide Permit is used. General Condition Number 19, which sets forth standards for mitigation, is of interest to many of our clients. This revised condition reflects, to some extent, policy guidance released in Regulatory Guidance Letter No. 01-1 (dated October 31, 2001). Some of the noteworthy aspects of the current mitigation requirements are summarized below.

    The ground rules for NWP mitigation are fairly straightforward. Whenever possible, impacts must be avoided or minimized. Unavoidable impacts must be mitigated in some manner, through restoration, creation, preservation (rarely acceptable), or by vegetated buffers. Because NWP impacts are by definition very small, the use of mitigation banks and in-lieu fee arrangements is encouraged.

    Tucked within the Corps' discussion of these changes are a few notable shifts in policy, all of which suggest that the regulations are heading in the direction of common sense and sound ecological principles.

    Mitigation based on a ratio of one-for-one had previously been required of each applicant. The Corps has modified that policy and will now attempt to achieve a one-for-one ratio, collectively, on an acreage basis, within each Corps district, rather than insisting on that level of mitigation each time a NWP is used. As before, a ratio of greater than one-for-one may be required, while something less than one-for-one will suffice in other situations. The Corps' rationale is that this approach provides the flexibility needed in setting reasonable mitigation levels on a case-by-case basis.

    The idea of in-kind mitigation seems to have fallen by the wayside, at least as it pertains to Nationwide Permits. In the past, it was common for the Corps, as well as other regulatory agencies, to insist that any compensatory wetland creation provide the same type of wetland that was impacted. Wetlands vary in their value. Some are of high quality and effectively provide important wetland functions. Others are of limited, or minimal, value. Requiring that a high quality wetland be replaced in-kind made sense. Replacing a low quality wetland with another low quality wetland never made sense.

    The language in the new version of General Condition 19 makes no mention of in-kind mitigation. One commentor to the proposed changes called for in-kind mitigation, but the Corps wisely disagreed and claimed to be taking a "watershed and holistic approach when requiring mitigation". In doing so the Corps seeks greater flexibility in decision-making, rather than adhering to some predetermined standard that may or may not be reasonable.

    Several models have been developed over the years in an attempt to quantify wetland functions and certain characteristics of wildlife habitat. The Wetland Evaluation Technique (WET) is one of the most notable. This approach and others like it have been used to assign numerical significance to wetland and ecological characteristics that can then be used to determine the extent and nature of mitigation, as well as to measure the success of mitigation.

    Such models typically have three shortcomings. First, sometimes the output can be predetermined by selecting certain assumptions and criteria used in the analysis. Second, the results are frequently of little decision-making value. For example, the WET approach rates the probability (high, medium or low) that a wetland is performing a certain function, with no indication regarding how effectively the function is being performed. And third, the results are usually intuitively obvious to any competent biologist and could have been determined absent the analysis.

    Although the Corps continues to advance a hydrogeomorphic approach to assessing wetlands, and did not dismiss such models outright, it is clear that the Corps intends to defer to the professional judgment of its staff in making such decisions, at least regarding NWPs. This might speed the review of applications and foster a more reasonable discussion of such matters.

    Another gem of common sense found buried in the Corps' discussion of the revised NWPs concerns whether mitigation should be on the site where the impact occurs or at an off-site location.

"Onsite mitigation is typically best for water quality measures including vegetated buffers and stormwater management. However, onsite mitigation for loss of habitat, such as wetlands is usually less preferable to offsite. Moreover, consolidated mitigation such as that in mitigation banks and in lieu fee operations is generally more successful than project specific mitigation."

    This reasoning divides mitigation into two logical components, water quality and habitat. It supports providing vegetated buffers along bodies of open water, and at the same time recognizes that sound stormwater management techniques can replace the role wetlands play in influencing water quality.

    Allowing off-site mitigation for habitat loss, including mitigation banks, recognizes that greater benefits can be realized from a few large wetlands than from numerous, small, on-site wetlands. Large wetlands can provide either the habitat diversity needed by some species, or large expanses of homogenous habitat preferred by other species. Rarely, if ever, can this be achieved by tiny, on-site wetland creation efforts.

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