Proposed Mitigation Guidelines

On December 15, 2003, the Buffalo District of the U.S. Army Corps of Engineers published a request for comments regarding its proposed mitigation and monitoring guidelines. Finalization of the guidelines was anticipated in June 2004.

The language in the overview to the proposed guidelines suggests an elevated level of concern by the Corps regarding mitigation. The tone of the proposed guidelines is perhaps best illustrated by the following paragraph from the overview.

"The conceptual mitigation plan must be elaborate and contain measurable, specific, detailed information pertaining to each aspect of the proposed mitigation. Construction specifications should be detailed. The mitigation plan should include appropriate contingency plans to address possible failures in the mitigation. All mitigation plans should consider placement of the functions within the landscape’s limitations and take into account off-site influences, such as urbanization, floods, etc."

It appears that the Corps is no longer requesting a conceptual plan to be followed by a detailed plan after issuing a permit. A plan described as "elaborate" and calling for "detailed information" is certainly not conceptual, it is detailed. The extreme level of detail is apparent in the extensive checklist that constitutes the proposed guidelines.

The checklist is divided into nine categories, with numerous subcategories. Not all of the requested information would be pertinent to every situation; some details apply to compensatory wetlands and others apply to stream relocation projects. Many of the required items are currently provided with a mitigation plan, either conceptual or detailed. But there is unquestionably more detail and narrative support required, especially in terms of wetland functions, rationale for site selection, contingency plans, and monitoring. The nine major checklist categories are listed below.

	Mitigation Goals and Objectives
	Baseline Information for Impact and Proposed Mitigation Sites
	Mitigation Site Selection and Justification
	Mitigation Work Plan
	Performance Standards
	Site Protection and Maintenance
	Monitoring Plan
	Adaptive Management Plan
	Financial Assurances

Considering that the Corps requires mitigation for any wetland impacts over 1/10 acre, these guidelines will seriously complicate matters for permit applicants. The significance of these guidelines, if implemented as proposed, is even greater because the Buffalo District has not been receptive to in-lieu-fee mitigation in recent months. In-lieu-fee mitigation is a type of mitigation where an applicant provides funds to a sponsor (private or public) that uses the money to restore, create, enhance, or preserve wetlands or other valuable natural habitats. Limiting use of the in-lieu-fee option leaves restoration or compensatory creation as the only practical forms of mitigation, which could become far more time consuming and expensive than in the past.

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