Video: Mitigation - Regulatory
Video by Annie Chambers
This video is an introduction to mitigation. For detailed information on this topic please visit the U.S. Army Corps of Engineers' website. Under the Clean Water Act, the U.S. Army Corps of Engineers authorizes activities where dredged or fill material is discharged into waters of the United States. The objective of this law is to restore and maintain the chemical, physical and biological integrity of the nation’s waters, including wetlands. When a proposed project or action will create unavoidable impacts on the nation’s aquatic resources, the Corps may require mitigation as a condition of the Department of the Army permit. What is meant by “mitigation?” How is the requirement for mitigation met? It is important to understand that mitigation is a sequential process . Mitigation, or reducing impacts to aquatic resources, is accomplished through avoidance, minimization and compensation. When submitting a project proposal for a permit, an applicant must clearly demonstrate that every effort has been made to avoid impacts to waters of the United States. Avoiding impacts to waters and wetlands can be accomplished in several ways. One way is by planning to construct the project on an alternate site or alternate portion of the site that doesn’t impact wetlands. If impacts to wetlands are completely avoided, no permit is required. If impacts to aquatic resources cannot be avoided, the applicant must then demonstrate efforts to decrease, or minimize, impacts to wetlands and water bodies. Impacts may be minimized by reducing the footprint, or size, of a proposed project, or by moving the project to an area of the site that affects fewer acres of wetlands. The applicant can also minimize the impact by the placement of silt fences and sod to prevent soil and storm water runoff from entering wetlands. The first two steps of avoidance and minimization must be addressed first, and in that order. Even after these steps are addressed, a project that impacts aquatic resources typically requires some form of compensation. Compensation means to make up for unavoidable adverse impacts to wetlands. The Corps and the U.S. Environmental Protection Agency have agreed that the Corps would “strive to avoid or offset unavoidable adverse impacts to existing aquatic resources.” The Corps will also strive to achieve a goal of “no overall net loss of functions and services of wetlands.” Mitigating environmental impacts of development actions on the nation’s wetlands and other aquatic resources is a central premise of federal wetlands programs. It is just one of the ways in which the Corps balances decisions to meet both economic and environmental needs. Most commonly, compensatory mitigation involves the creation, enhancement or restoration of wetlands and their functions. Wetland functions include food chain production, habitat, shoreline protection, and water filtration, purification, storage and recharge. In some cases, compensatory mitigation can include the preservation of unique and valuable wetlands and their associated upland areas. The Corps’ goal is to have sustainable compensation that will meet the needs of the watershed in which the impacts occurred. A wetlands mitigation bank is a wetland area that has been restored, established, enhanced or preserved and is then set aside to compensate for future conversions of wetlands for development activities. Banking consolidates small, fragmented projects into one large site as compensation for unavoidable wetland losses. In-lieu fee mitigation occurs when a permittee provides funds to an in-lieu-fee sponsor, like a public agency or non-profit organization. The sponsor collects and manages the funds to build and maintain the mitigation site, and is responsible for its success. In addition, an applicant may propose to implement their own mitigation plan. Such compensation can be in a watershed context, done onsite or offsite, and can be in kind or out of kind. Basically, onsite means replacing the wetlands you impacted on your project site and offsite means replacing those wetlands on some other property. And in-kind means, for example, replacing a wet prairie with a wet prairie. Whereas out-of-kind means replacing that wet prairie with a fresh water marsh. According to Section 404 of the Clean Water Act, before proposing compensatory mitigation, the applicant should demonstrate that they have taken all measures possible to avoid and minimize impacts. Mitigation, or reduction of impacts, helps the nation achieve “no net loss” of the valuable functions that aquatic resources provide for people, wild life and a healthy ecosystem. [Footnote]: Before beginning any project in waters of the United States, be sure to find out if a Department of the Army permit is required. While this video attempts to give a general overview of the regulatory process, viewers should refer to the actual laws, regulations and guidance for complete and current information.