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Editorials
Those who know anything about the value and function of wetlands, especially in purifying water and controlling flooding and drainage issues, once again have to be disturbed by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency recent release of a new rule to clarify how to provide compensatory mitigation for unavoidable impacts to the nation's wetlands and streams.
You don’t have to be a Rush Limbaugh environmentalist “wacko” or proclaimed tree hugger to become alarmed of the language (unavoidable impacts) of the Corps and EPA ruling.
Putting sanitary sewers in wetlands (actually a floodway) has become a common practice in many municipalities, made possible by EPA waivers and through federal and state permitting processes.
The response and questions asked by the environmental groups are relative and corroborate the concerns of many individuals who view regulatory practices and this proposal in particular as a continuing assault on wetlands and a further dilution of the Clean Water Act.
Corps and EPA press release
"This rule greatly improves implementation, monitoring, and performance, and will help us ensure that unavoidable losses of aquatic resources and functions are replaced for the benefit of this Nation. This is a key step in our efforts to make the Army's Regulatory Program a winner, and the best it can be for the regulated community we serve and those interested in both economic development and environmental protection," said John Paul Woodley, Jr., Assistant Secretary of the Army for Civil Works.
"The new standards will accelerate our wetlands conservation efforts under the Clean Water Act by establishing more effective, more consistent, and more innovative mitigation practices."
The new rule changes where and how mitigation is to be completed, but maintains existing requirements on when mitigation is required. The rule also preserves the requirement for applicants to avoid or minimize impacts to aquatic resources before proposing compensatory mitigation projects to offset permitted impacts.
Property owners required to complete mitigation are encouraged to use a watershed approach and watershed planning information. The new rule establishes performance standards, sets timeframes for decision making, and to the extent possible, establishes equivalent requirements and standards for the three sources of compensatory mitigation: permittee-responsible mitigation, mitigation banks and in-lieu-fee programs.
Wetlands and streams provide important environmental functions including protecting and improving water quality and providing habitat to fish and wildlife. Successful compensatory mitigation projects will replace environmental functions that are lost as a result of permitted activities.
Environmental groups respond
The U.S. Environmental Protection Agency and the Army Corps of Engineers are announcing today that they have finalized a new regulation to guide compensatory mitigation for streams and wetlands that they permit to be filled pursuant to section 404 of the Clean Water Act.
This rule, which was proposed in March 2006, has been heavily criticized by river, stream, and wetland scientists, environmental organizations, hunting and angling groups, and many other experts. EPA and the Corps are calling the final rule an environmental “improvement” – they said the same about the draft rule, which was untrue.
While we, like the rest of the public, have not yet seen the final rule to know for certain, we believe that the final rule is unlikely to differ significantly from the approach taken in the draft (among other reasons, if the final rule was dramatically changed, as it should have been, the agencies would have had to put it out for additional public comments).
The new rule proposes a “watershed approach” to wetlands and stream mitigation – a name that sounds good but is enormously misleading as it applies to this rule. Under the draft rule, almost any kind of activity branded by the Corps as “mitigation” could be treated as if it would compensate for the destruction of streams and wetlands permitted by the Corps.
It would also allow mitigation to take place far from the area damaged. The draft rule clearly did not ensure the replacement of the values and functions, or habitat area, lost to activities permitted by the Corps. Some questions which the EPA and the Corps should be able to answer include:
1) Why should the media and the public accept at face value your claim that the final mitigation rulemaking “improves” compensation for filled and destroyed streams and wetlands when the text of the final rule has not been seen, and the proposed rule was opposed by conservation groups, scientists, and many others? Can we see a copy of the final rule to see for ourselves what it does?
2) A group of 127 river and stream scientists from across the country submitted comments on the proposed rule saying that “THE PROPOSED RULE DOES NOT MEET THE CRITICAL NEED FOR A NATIONALLY CONSISTENT, SCIENTIFICALLY BASED STREAM MITIGATION PROGRAM.” (Emphasis theirs.) How have you addressed their concerns? Are there any independent scientific experts who have endorsed this rulemaking? If so, who are they?
3) What evidence does the EPA and Corps has that a stream that is filled or buried can be replaced? Can you point to any successful stream re-creation projects in the country? If streams cannot be re-created, how does restoring a different stream (that already exists) or creating a wetland replace, on a one-to-one ratio, the functions and values of the stream that has been buried and filled?
4) Isn’t it true that many scientists who strongly support efforts to restore damaged streams strongly opposed the draft of this mitigation rule? Clearly these scientists saw differences between mitigation and restoration efforts. Have you addressed the concerns they had with mitigation?
5) What evidence does the EPA and Corps has to show that mitigation banks, which are encouraged under this rule, can successfully compensate for losses of wetlands and streams? Doesn’t most evidence show that these banks are not successful?
6) The agencies have said that the mitigation rule is based on a 2001 National Academy of Sciences report on mitigating for wetlands losses. Does the final rule adopt all of the NAS panel recommendations? If not, which did the agencies decline to follow? Did the NAS also study stream mitigation, and if so what were their recommendations and were they followed?
7) The NAS report “concludes that some types of wetlands can be restored and/or created . . . but that others cannot (e.g. fens and bogs).” Bogs, for example, require at least 10,000 years to develop, and fens need at least 5,000 years. Because they cannot be replaced, does this rule prevent the destruction of these aquatic sites?
8) Does the rule allow for the destruction of other aquatic resources even when their loss cannot be fully offset? How is that consistent with the President’s “no net loss” policy (in place since President George H. W. Bush in 1989.)?
9) How can “preservation” of existing wetlands or streams offset, on a one-to-one basis, the destruction of other wetlands and streams? Does this rule ever allow dry, upland areas to “compensate” for the loss of aquatic sites? What evidence is there that such mitigation replaces lost functions?
10) The Corps allows all kinds of ineffective mitigation for streams they continue to permit to be destroyed by mountaintop removal coalmines. Doesn’t this rule simply enshrine their existing practices of allowing the streams to be destroyed on the basis that the harm will be mitigated, even when the Corps has no evidence that there is any successful means of replacing the functions those headwater streams provide to Appalachian watersheds.
11) Have your agencies tried the watershed approach that you promote in this rule? Have you studied its success over time? What if a state doesn't have the resources to do a watershed plan?
12) Hasn't study after study revealed a dismal record of success for mitigation efforts? Will this rule lead to more permit denials based on this documentation that mitigation isn't really replacing lost functions and values?
Joan Mulhern, Earthjustice (202) 667-4500
Robin Mann, Sierra Club (610) 527-4598
Melissa Samet, American Rivers (415) 482-8150
Julie Sibbing, National Wildlife Federation (202) 797-6832
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