Mitigation

Paramount in any discussion regarding the regulation of wetlands is the concept of mitigation. There are several competing but compatible definitions of mitigation that are utilized by various government agencies. In general terms, the EPA has said that mitigation “refers to the restoration, creation, or enhancement of wetlands to compensate for permitted wetland losses” (Lewis, 1989)[ ]; whereas the Council on Environmental Quality was more specific in defining mitigation for the NEPA regulations (40 CFR 1508.20) to mean:

•avoiding the impact by not taking a certain action or parts of an action;
•minimizing impacts by limiting the degree or magnitude of the action and its implication;
•rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
•reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and
•compensating for the impact by replacing or providing substitute resources or environments.

In order to provide a standard terminology for those agencies involved in wetlands mitigation, The Federal Geographic Data Committee formed a Wetlands Subcommittee and has established the following definitions that are accepted by a wide range of agencies including: (Source: USEPA)

US Department of Interior	National Marine Fisheries Service
US Fish and Wildlife Service	National Aeronautical and Space Agency
Bureau of Land Management	Department of Energy National Park Service
Tennessee Valley Authority	US Geological Survey Army
Corps of Engineers	Bureau of Reclamation
Department of the Army	Office of Surface Mining
US Marine Corps	Bureau of Indian Affairs
US Navy	US Department of Agriculture
US Air Force	Office of Management and Budget
US Forest Service	National Capital Planning Commission
Environmental Protection Agency	Department of Housing and Urban Development
Natural Resources Conservation Service

The only real reason for putting up the list is to indicate that there is widespread support for these definitions and to note that the Department of Transportation is not among them. Considering that highway projects have such a dramatic impact on wetlands, it is disturbing that those responsible for them have decided to act in a manner that is often out of concert with the other federal agencies involved.

Definitions Relating to Mitigation (Source: USEPA)

Restoration: the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to former or degraded wetlands. For the purpose of tracking net gains in wetland acres, restoration is divided into:

•Re-establishment: the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former wetland. Re-establishment results in rebuilding a former wetland and results in a gain in wetland acres.

• Rehabilitation: the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural/historic functions of degraded wetlands. Rehabilitation results in a gain in wetland function, but does not result in a gain in wetland acres.

Establishment: the manipulation of the physical, chemical, or biological characteristics present to develop a wetland that did not previously exist on an upland or deepwater site. Establishment results in a gain in wetland acres.

Enhancement: the manipulation of the physical, chemical, or biological characteristics of a wetland (undisturbed or degraded) site the heighten, intensify, or improve specific function(s) or for a purpose such as water quality improvement, flood water retention or wildlife habitat. Enhancement results in a change in wetland function(s) and can lead to a decline in other wetland function, but does not result in a gain in wetland acres. This term includes activities commonly associated with the terms enhancement, management, manipulation, directed alteration.

Protection/Maintenance: the removal of a threat to, or preventing the decline of wetland conditions by an action in of near a wetland. Includes purchase of land or easement, repairing water control structures or fences, or structural protection such as repairing a barrier island. This term also includes activities commonly associated with the term preservation. Protection/Maintenance does not result in a gain of wetland acres or function.

The Failure of Mitigation

Recent studies in Florida, California and Pennsylvania have questioned the value of wetland creation as a viable mitigation strategy. At issue is whether it is possible to create new wetlands that have the same functionality as those that have been destroyed. The studies identify a high failure rate that in part may be caused by a variety of factors including poor site selection, the failure to properly implement plans and inadequate follow-up. The nature of the failures runs from nearly total in some cases to instances where the biodiversity neither replaces that which was destroyed or meets the mitigation plan’s expectations. Regardless of the reasons given, the reality is that man is nowhere as capable as nature when it comes to creating ecosystems.

For example, when “establishing” new wetlands to replace those that have been destroyed, one may be able to create the hydric conditions needed and plant the appropriate vegetation, but one can not duplicate the hydric soils that are generally found in naturally occurring wetlands. It is true that given enough time, the soils at the mitigation site may take on hydric qualities, but at the outset and for years to come, they will not. It is interesting to note that a new wetland, even one established with the full blessing of the Corps, could not meet the Corps’ own standards to be considered a wetland since the hydric soil requirement cannot be met.

Other factors also make recreating wetland areas difficult. In urban/suburban areas and in wetlands constructed near highway infrastructure, salt spray and high nutrient loads will always limit the success of establishment projects and significantly impact other mitigation methodologies as well. In Pennsylvania, the failure of the mitigation associated with the construction of the Blue Route near Philadelphia clearly illustrates the problems that are faced.

Considering the high failure rate of “established” wetlands, the question of who is responsible if they fail or otherwise function at a substandard level is of significant importance. Is the project sponsor responsible for the maintenance of the “established” wetland and, if so, for how long? Should the Corps be responsible for monitoring the wetland until it develops to the degree that it would meet their own definational standards? Is there any justification for the taxpayers to bear the burden to rectify failed mitigation attempts? There are a multitude of issues that remain largely un/under addressed by the current regulations and which need to be resolved.

Wetlands Banking

Increasingly popular and utilized in Pennsylvania as well as numerous other states is the concept of wetland banking. In simplistic terms, if a developer is required to mitigate a wetland loss and he is unable to do so on the project property, he is allowed to make a financial contribution to the regulating agency which, in turn, will use the money to create new wetlands or otherwise mitigate the loss by restoring or protecting other areas.

There are several obvious questions that arise immediately. Where will the “new” wetlands be? Under Pennsylvania law there is no hard and fast rule that they must be in the same area as the wetlands that were destroyed. Thus the value of the wetland to be destroyed, in both environmental and economic terms, may well be transferred to a location where the “mitigation” has no benefit to the community enduring the loss.

A second question is equally thorny. How does one establish a “value” of a wetland for the purposes of exacting a charge for mitigation? Are the construction costs of the “new” wetland the only item to consider, or should the maintenance of mitigation area and the long term negative impact to the community that lost the wetland also be quantified?