Bob Zeigler \<ZEIGLBCZ@DFW.WA.GOV\>

04/24/2006 08:25 PM

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Subject

Docket Number EPA-HQ-OW-2006-0020 and or RIN 0710 AA55

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State of Washington

Department of Fish and Wildlife

Mailing Address: 600 Capitol Way N, Olympia WA 98501-1091, (360)
902-2200, TDD (360) 902-2207

Main Office Location: Natural Resources Building, 1111 Washington Street
SE, Olympia WA

April 24, 2006

Subject: Docket Number **EPA-HQ-OW-2006-0020 and or RIN 0710 AA55**

Washington Department of Fish and Wildlife appreciates the opportunity
to comment upon the rule for compensating unavoidable Clean Water Act
permit impacts in mitigation banks and in a watershed context. This has
been a culmination of several years work by Mitigation Action Plan. We
appreciate the technical review of literature that has gone into this
effort.

Sequential comments follow on the following topics in the rule:

Page 4, Page 22-24, Page 54

# In-Lieu Fee Program

We appreciate the requirement that future in-lieu fee programs would
need to be consistent with mitigation bank requirements. It seems to be
difficult to ensure replacement of lost function with in-lieu fees so,
for example, if water quality was impacted then was water quality
enhanced to compensate impacts.

Where in-lieu fees may have a role to play is not in regular permitting
but in offsetting cumulative impacts of multiple projects that fall
below permit thresholds and in conjunction with Nationwide Permits. Also
a fee that could be used to restore watershed functions might be
appropriate on permits issued when impervious threshold reaches a level
that impacts the ability of the watershed to function or deliver water
at right times to sustain functions. What we need to avoid in most cases
is creating a pond with fringe marsh to offset stream impacts (as has
been done at times).

The need for consistency between in-lieu fee programs with mitigation
banks would depend upon whether they are replacing lost functions or
not. Are they appropriate or not in restoring ecological integrity to
waters? This is a question that we will need to continue to ask
ourselves and be a component of monitoring and adaptive management.

Page 7

# Preservation

Preservation has role to play in protecting critical resource areas but
unless there is high risk of degradation, preservation alone most often
produces a let loss. Preservation of areas outside of permit authority
can be essential in maintaining functions of a site. For example,
significant natural buffers around sphagnum bogs are needed to sustain
those systems over time in changing land use conditions. When a
sensitive site is at risk of loss or serious degradation, preservation
as compensation makes sense. It is good to limit the use of preservation
by itself to those exceptional circumstances.

To function, many sensitive areas in urban or coastal areas also need
restoration and rehabilitation. Compensation should not be limited to
preservation in these areas. Our largest cities are located on rivers
and coastal estuaries. There are sovereign indigenous nations that live
upstream and depend upon the fish resources of those systems. Federal
court decisions guarantee those nations the right to fish habitat
protection. Also in Washington State three species of fishes and one
marine mammal have been listed as threatened or endangered. What has
happened in the past to estuary and nearshore fish rearing areas and
forage fish breeding sites are limiting those listed species. So
restoration and rehabilitation are needed in urban and coastal areas as
well as preservation.

Page 7, Page 13

# Mix of on-site and off-site mitigation

We strongly agree with the position that within a watershed context, it
may be appropriate to replace certain aquatic resource functions on-site
and other functions offsite.

Page 8, Page 36-38 and 60-61

**III Watershed Approach**

Washington State currently has watershed plans and state and federal
agencies are working on tools that could enhance those plans. Watershed
plans have been adopted and have varying degrees of sophistication.
There is currently an effort to use these plans to develop compensatory
mitigation this year in Clarke County through the Washington State
Office of Regulatory Assistance Alternative Mitigation Program.

Three different state agencies have developed landscape/watershed GIS
tools:

1.  Washington State Department of Transportation (Dick Gersib) has
    developed a Watershed Characterization tool that uses photo
    interpretation and ground truthing to look at watershed processes
    and functions and rank areas as "fully functioning," "at risk," and
    "not properly functioning". It has been helpful in assessing wetland
    condition, connectivity and riparian conditions as well as to
    provide a prioritized list of restoration opportunities.

2.  Washington Department of Ecology (Stephen Stanley) has developed a
    Landscape Planning tool that characterizes watersheds based upon
    surface and subsurface water movements. There may be potential to
    identify restoration sites to compensate unavoidable non-point
    pollution impacts with this tool.

3.  Washington Department of Fish and Wildlife has developed a landscape
    fish and wildlife planning tool to assist local land use decision
    makers. This identifies priority fish and wildlife habitats and
    areas of high biodiversity and priority species locations.

An interagency work group that consists of EPA, Puget Sound Action Team,
Washington Department of Ecology, Washington Department of Fish and
Wildlife, U.S. Fish and Wildlife Service is meeting to find a local
government and tribe that will work with the

state and federal agencies to combine the three state agency
watershed/landscape planning tools plus local and tribal information
into one product that can be accessed for multiple purposes. It is hoped
that this pilot could develop a tool that could provide baseline
information to analyze watershed and biological processes. If
incorporated in the state, it would be a tool that could be used by
local government and state agencies to identify and prioritize
restoration sites to protect or repair watershed processes and identify
those potential mitigation options that would be most likely to be
sustainable on the landscape now and at build out. This could also be a
tool used in Clean Water Act permitting and planning for watershed-based
mitigation. It would be a tool that could be used to identify sensitive
areas and important fish and wildlife habitats and assist the local
governments in their long range planning. This would provide a tool that
has value added for Watershed Lead Entity efforts and Salmon Recovery
efforts. It would provide a database that is helpful in designing
mitigation that more completely replaces losses incurred.

Page 9

# Watershed Approach Definition

As a result of watershed work in Washington, we should be closer to
reaching consensus on the definition of "watershed approach" in
Washington State the near future.

Page 12, 13 and 14

# Values 

Native peoples remind us that areas and plants and animals can have
cultural and spiritual value. Coordination with affected tribes and
nations is essential now. They are seriously affected by what happens in
their watersheds. If a restoration site is planned but it has cultural
significance, extensive archeological investigation will need to be
done. This can significantly increase the cost of the restoration
project. Developing relationships with affected Native peoples is
essential in doing watershed-based work.

To mitigate stream impacts in a bank scenario, there will need to be
greater sophistication than "linear feet" if one is to compensate for
unavoidable impacts to stocks of salmonids that may have breeding and/or
rearing functions provided in a particular stream reach.

When providing out-of- kind mitigating, it is important to grade up. For
example replace a degraded, low functioning site with a high functioning
site.

Page 15 and Page 63

# Buffers

Buffers and riparian are part of wetland and aquatic systems. They
provide biological energy to these systems as well as sediment and wood.
These areas not only protect aquatic resources but also are part of
aquatic resources. In watershed context, wetlands, floodplains buffers
and riparian areas are interrelated. See comment below.

"The functioning of many wetland animal populations on a long-term basis
is inherent to the source-sink dynamics of metapopulations that require
connectivity in the terrestrial landscape. (Gibbs 1993; Burke et al.
1995; Semlitsch 2000) National Research Council 2001, Compensating
Wetland Losses Under the Clean Water Act, Page 42.

There are critical aquatic areas in Washington State that are not
regulated in Clean Water Act permits. These are intertidal lands above
Mean Higher High Water (average of high tides) that can provide spawning
habitat for surf smelt and also habitat for sand lances - two forage
fishes important in the diets of salmonid fishes including ESA-listed
species. Washington State uses Ordinary High Water Line instead of Mean
Higher High Water in state permitting. Ordinary High Water is landward
of Mean Higher High Water in most cases. There is a resource need to
protect these aquatic lands above Mean Higher High Water in Washington
State.

Page 16

Failure of Compensatory Mitigation Projects Due to Floods, Droughts or
Pest Infestations

If a public resource is lost, even with unavoidable impacts of permits,
there would appear to be an obligation to replace those losses. If
mitigation is improperly planned or sited and is not successful, that
previous obligation is not met. For example in Washington State there
are heavy rainfall events in winter followed by mid to late summer
droughst. Except for the most extreme events, losses due to normal
patterns of droughts and flooding need to be replaced. In Washington
State it can be difficult to get trees to survive in deep peat with
fluctuating water tables because they are too wet part of the year and
too dry other parts of the year. They have always been slow to reforest.
An alternative migration site should have access to water to irrigate
the plantings if dry weather requires it until the vegetation components
are established.

Page 17, Page 43

# Monitoring 

Most of the time, five years of monitoring is insufficient to determine
success of mitigation. See information from National Research Council:

"Long-term management is especially important because wetland
restoration and creation sites seldom achieve functional equivalency
with reference sites or comply with permit requirements within 5 years.
Up to 20 years may be needed for some wetland restoration or creation
sites to achieve functional goals." National Research Council 2001,
Compensating Wetland Losses Under the Clean Water Act, Page 5.

and

"An obvious conclusion from these results . . . is that the generally
observed 5-year limit on monitoring is insufficient when evaluating
whether a site has reached parity with a reference system." National
Research Council 2001, Compensating Wetland Losses Under the Clean Water
Act, Page 36

Page 20, Page 48-49, Pages 73-74

# Dispute Resolution to resolve mitigation bank concerns

While it is appropriate to involve higher levels of review up to agency
headquarters, the extremely short turn around (15 days in some cases)
may make it infeasible actually to use dispute resolution.

Page 39, Page 62 and Page 75-76

# Amount of Compensatory Mitigation

Amount of Compensatory Mitigation needed is dependent upon a number of
factors such as impacts over time, risk involved in establishing
replacement habitat and sustaining the restoration site in the
landscape. In designing replacement wetlands, it is often not possible
to have hydrology long enough to maintain wet soil conditions. The
success rate of replacement habitat is reduced in basins with high
levels of impervious surfaces.

"Based on the difficulty of restoring or creating wetland type, the
permit could require more than an acre of replacement for each acre
permitted -- a mitigation ratio greater than 1:1." National Research
Council 2001, Compensating Wetland Losses Under the Clean Water Act,
Page 124

# Page 44 and Page 68

# Site Protection

Washington Department of Fish and Wildlife has used cattle to manage
invasive plant species, increase plant species diversity by controlling
aggressive native plants such as cattail in selective wetland sites but
in those cases cattle were used as a vegetation management tool. When
the purpose is no longer invasive species management but feeding and
watering cattle, the results are not the same. Grazing rights are
totally different.

We have observed cattle eating and trampling trees and shrubs planted in
wetlands and riparian areas and compacting soils and collapsing stream
banks after removing vegetation on both public and private lands.
Grazing rights seem to us to be an incompatible use of a mitigation bank
site or restoration site that is to compensate for impacts to water
quality and fish and wildlife resources.

The above comments were provided by Bob Zeigler, Habitat Biologist,
Habitat Program, Washington Department of Fish and Wildlife, 600 North
Capitol Way, Olympia, WA 98501-1091, phone (360) 902-2578 and e-mail
<zeiglbcz@dfw.wa.gov>.

We hope you find our comments helpful in the rulemaking process.

Sincerely,

Bob Zeigler

Habitat Biologist

Habitat Program

Washington Department of Fish and Wildlife

600 North Capitol Way

Olympia, WA 98501-1091

e-mail: <zeiglbcz@dfw.wa.gov>

phone (360) 902-2578

fax (360) 902-2946