Lisa Grant \<lgrant@sjrwmd.com\>

06/30/2006 01:07 PM

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\[Docket No: EPA-HQ-OW-2006-0020; FRL-8173-4\];\[FR Doc:
E6-07837\];\[Page

29604-29605\]; Aquatic resources losses; compensatory mitigation

Please see the attached comments

Lisa M. Grant

Technical Program Manager

FDOT Mitigation Program

St. Johns River Water Management District

P.O. Box 1429

Palatka, FL 32178-1429

June 30, 2006

USEPA Docket Center

Attn: Docket Number EPA HQ OW 2006-0020

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Thank you for the opportunity to comment on the proposed revisions to 33
CFR Parts 325 and 332 and 40 CFR Part 230 which would amend regulations
relating to compensatory mitigation.

The St. Johns River Water Management District (SJRWMD) is an agency of
the State of Florida with a wetland regulatory program pursuant to
Chapter 373, Florida Statutes. Florida has a joint Federal/State permit
application process for most activities in wetlands and has been
delegated authority to issue water quality certification pursuant to the
Clean Water Act. For these reasons we work closely with the Corps of
Engineers and permit applicants to attempt to achieve projects which
meet the criteria of both agencies.

Comments have also been submitted by the Florida Department of
Environmental Protection (FDEP) with whom we share statutory authority
for our programs. We generally concur with the comments submitted by
FDEP and would like to add the following additional comments.

The current regulations and guidance lack a clear definition of "in-lieu
fee mitigation" so it is difficult to determine the effect of the
proposal to eliminate this mitigation option. It appears that, by
default, all mitigation which is not "permitee-provided" or mitigation
bank credits could be considered as in-lieu fee. There should, at a
minimum, be clarification of third party mitigation which does not
involve sale of credits or collection of funds substantially prior to
implementation of the mitigation and for which specific mitigation
detail is provided during the permitting process. As most "permittee
provided" mitigation is usually also conducted by a third party this
clarification would help distinguish among the mitigation categories. We
believe the problem with the definition has contributed to some of the
problematic results of assessments of the different forms of mitigation.

For example, two studies by the Environmental Law Institute list the
Florida Department of Transportation (FDOT) Mitigation Program as an
"in-lieu fee" program. In their comments FDEP has provided a summary of
the FDOT Mitigation Program implemented by the water management
districts. We believe, and the Jacksonville COE has concurred, that this
program is not "in-lieu fee". The program does not accept fees or sell
credits. The water management districts are required by statute to plan
and implement project-specific mitigation, including, where appropriate,
the use of bank credits. Funding for the program remains in escrow at
FDOT and invoices are submitted for the full cost of the mitigation as
the mitigation is completed. The water management districts are
basically FDOT's agent and provide the COE with a project specific
mitigation plan for each FDOT permit application. However, as noted
above and by FDEP, the definition of in-lieu fee is not clear and it is
understandable that the program could have been incorrectly
characterized as "in-lieu fee."

If the FDOT program were categorized as "in-lieu fee" it would be
eliminated by the proposed rule amendments. This would be unfortunate as
the program has been cost-effective, has expedited the FDOT construction
process and has resulted in substantial environmental benefit. The
program can not reconstitute as a bank while meeting the necessary
timeframes for road construction. Since the program is statewide and
FDOT impacts could potentially occur in any wetland or waterbody, the
water management districts would need to contemplate in advance every
possible type of impact to every type of wetland in every regional
watershed in the state and all possible mitigation options to offset
those impacts. For those theoretical impacts and mitigation we would
then need to provide functional assessments, financial assurances,
success criteria, timeframes and contingency plans. In order to allow
for the time involved in the MBRT review process all this would need to
occur prior to FDOT identification of the roadway projects needing
mitigation and prior to FDOT funding, since mitigation funding is tied
to construction funding which occurs after permitting. Elimination of
this program would return the responsibility for mitigation to the FDOT
which is contrary to the intent of the statute which established the
program in 1995.

Another Florida provision for mitigation is provided in subsection
373.414(1)(b)1., Florida Statutes. This provision allows the Florida
Department of Environmental Protection and water management districts to
accept donations of money to implement specified environmental creation,
preservation, enhancement or restoration projects as mitigation, when it
offsets the impacts of a permitted activity. Just as with the FDOT
mitigation program, project specific mitigation plans are developed and
provided to the Corps of Engineers in the permitting process. These
mitigation projects have a very high level of success and provide
outstanding resource benefits compared to many other mitigation options
that are available. Yet depending on how the Corps defines "in lieu fee"
mitigation, the proposed regulations could eliminate this option for the
regulated public.

It is also not clear whether the proposed revisions intend to eliminate
other "ad hoc" third party mitigation options. Sometimes this occurs on
a one time basis where a mitigation opportunity and mitigation need
arise concurrently but are not of such a scale as to justify going
through the mitigation banking process. Although "ad hoc"
project-specific mitigation is not a common practice, in our experience
it has been used successfully.

In all cases of third party mitigation that we are aware of, the actual
mitigation was accomplished and the Corps reviewed and approved the
mitigation activity (not just transfer of fees) during the permitting
process. We believe that permit applicants should be allowed to elect
the mitigation option that best suits their particular circumstances as
long as the mitigation offsets the impact and is capable of being
successful. We also believe that the District Engineer should retain
sufficient flexibility to determine when use of any mitigation option is
appropriate, regardless of whether the impact occurs within the service
area of a mitigation bank.

As a final comment we note that some of the problems documented in the
studies which are the basis for these rule revisions appear to be
administrative rather than resource-based. This could be due to
insufficient level of staffing at the COE or other procedural problems
rather than inherent problems with the mitigation itself. We would
strongly urge you not to overreact to audit criticism by eliminating a
mitigation alternative that can provide very effective resource
protection.

Thank you for the opportunity to comment.

Sincerely,

![](media/image1.png){width="1.1902777777777778in"
height="0.2777777777777778in"}

Jeffrey Elledge, P.E., Director

Department of Water Resources