Federal officials have revised the guidance for determining what sort of mitigation is required when construction results in a loss of wetlands. A key element of the new Environmental Protection Agency and Army Corps of Engineers directive to their field staffers, announced Dec. 27, is to consider the impact of wetlands loss on a broader, watershed-wide basis, rather than just the impact in the immediate vicinity of a project.

Wetlands "action plan"
includes several new guidance documents by 2005
(photo Credit:Environmental Protection Agency)

The revised guidance on mitigation is one item in a 17-part federal wetlands "action plan," which aims to improve compensatory wetlands mitigation under the Clean Water Act. To do that, the plan lays out a series of further regulatory guidance over the next two years to help agency staffers navigate the contentious issues of how to offset wetlands damage.

According to EPA, the lower 48 states had an estimated 105.5 million acres of wetlands in 1997, the most recent year for which such data are available. That represents a decline of more than 50% from the wetlands acreage believed to have existed in the 17th century in what is now the lower 48.

Officials envision using the action plan, dated Dec. 24, "as kind of a blueprint on some of the things we wan to do in the future" on wetlands mitigation, says Mark Sudol, chief of the Corps' regulatory branch. The biggest issue, he says, is approaching mitigation on a watershed basis, rather than taking a site-by-site approach

For example, a housing development near a creek might result in the loss of an acre of wetlands. In the past, the developer might be required to restore or construct another acre of wetlands to offset the loss. Federal officials might also have required an offset of an additional acre if the original wetland area lost was deemed to be environmentally important.

Under the new guidance, builders will have to consider their projects' wetlands effects in a broader geographical context. If that same housing development's lost wetland area had a negative impact on, say, water quality of the bay into which the creek flowed, the Corps now might require the developer to carry out even more extensive offsetting wetlands restoration.

Existing regulatory guidance under the Clean Water Act requires that developers try to avoid harming wetlands as they plan their projects and minimize any damage to such tracts. When a project results in some wetlands loss, that must be offset by restoring, improving or constructing other wetlands.

Besides the Corps' mitigation guidance, the plan also says agencies will develop other directives, including: a document on the use of "on-site vs. off-site and in-kind vs. out-of-kind compensatory mitigation" by Dec. 31, 2003; and another guidance document next year on the Transportation Equity Act for the 21st Century's preference for mitigation banking

Also on the action plan's agenda are guidance on use of vegetated buffers, due out by 2004; and another directive on wetlands mitigation "within a watershed context" by 2005.

The Corps had issued draft regulatory guidance in October 2001, after the National Academy of Sciences had published a report on the wetlands program. But other agencies and interest groups objected that they were not consulted in developing the draft guidance.

That led the Corps to meet with other agencies and groups and the result was the Dec. 24 document. The new guidance has "minor changes" from the October 2001 version, says the Corps' Sudol.

The Corps' various regional offices differ on how they interpret wetlands mitigation. "Some districts are ahead, some districts are behind," says Sudol. With the new guidance letter, he explains, "The idea is to try to standardize at some base level how we do compensatory mitigation."

The wetlands action plan and guidance letter on mitigation are available at www.usace.army.mil/inet/functions/cw/hot_topics/corps_epa.htm or www.epa.gov.owow/wetlands.