National Wetlands Mitigation Action Plan

Lawrence R. Liebesman

On Dec. 26, 2002, the Army Corps of Engineers and the U.S. Environmental Protection Agency issued significant new guidance on improving wetlands mitigation and furthering the goal of “no net loss” of wetlands under the Clean Water Act Section 404 Program. The mitigation guidance issued on Dec. 26 reaffirmed the Bush administration’s commitment to achieve a “no net loss” of wetlands – a policy that was put into effect by the first President Bush in 1989. The mitigation guidance responds to 2001 studies by the National Academy of Sciences (NAS) and the General Accounting Office (GAO) concluding that, despite progress over the last 30 years, the goal of no net loss of wetlands is not being met for wetlands functions lost under the 404 regulatory program. The guidance notes that since the late 1700s, over half of the nation’s wetlands have been lost due to development and other activities, and that almost half of all states have lost more than 50 percent of their historic wetlands resources. The guidance consists of two major pieces: (1) an updated Corps Regulatory Guidance Letter for Corps Districts to follow in making permit decisions under the Section 404 Program [summarized above]; and (2) an action plan designed to improve the performance of mitigation authorized under the program to “help ensure effective restoration and protection of wetlands functions and values.” The Action Plan is summarized in this article.

The Bush administration’s Wetlands Action Plan reflects a coordinated effort by the Corps, EPA, NOAA, Interior, USDA and DOT to achieve the goal of “no net loss” of wetlands in the near future. The Plan outlines very specific actions that the agencies will complete over the next few years to achieve the “no net loss goal.” The Plan sets out a number of themes that the agencies must follow such as working towards better coordination with states, tribes and other groups and emphasizing accountability, monitoring and follow-through. The Plan also indicates that an interagency team will be set up to guide the development and implementation of the seventeen action items in the plan. Key elements of the plan include:

• Integrating compensatory mitigation into a watershed context by such means as developing guidance for on site versus off site mitigation and the use of vegetative buffers;
• Improving compensatory mitigation accountability through better guidance on feasibility considerations for particular types of mitigation;
• Clarifying performance standards through model mitigation plan checklists and adopting the NSF’s guidelines for creating and restoring self sustaining wetlands; and
• Improving data collection and availability by expanding and coordinating the relevant agency data base