Derek Sowers \<derek.sowers@state.or.us\>

04/06/2006 04:19 PM

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Group Ow-Docket@EPA

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Comment Submittal: EPA--HQ--OW--2006--0020 , RIN number, 0710--AA55

Dear Sir or Madam,

Please accept the attached Microsoft Word file as formal comment on the

Compensatory Mitigation for Losses of Aquatic Resources; Proposed Rule

published in the Federal Register. Please confirm the receipt of this

email.

Thank You, Derek Sowers

Wetland Restoration Specialist

Oregon Department of State Lands

P.O. Box 5417

Charleston, OR 97420

Phone: (541) 888-2581 x306

Fax 541-888-2733

**Comments on "Compensatory Mitigation for Losses of**

**Aquatic Resources; Proposed Rule"**

**4/6/06**

**Submitted By:**

Derek Sowers

Wetland Restoration Specialist

Oregon Department of State Lands\
PO Box 5417

Charleston, OR 97420

\(541\) 888-2581 x 306

**Positive elements of the proposed rules:**

-   The rule proposed to address mitigation standards for all types of
    aquatic resources (not just wetlands)

-   A watershed approach to mitigation site selection.

-   Public notice and opportunity to comment on all proposed mitigation
    sites

**Issues in Need of Improvement:\
**

-   While it is prudent to consider the quality and buffering-capacity
    of upland habitat adjacent to a mitigation site, upland habitat
    should not be eligible for inclusion in calculating mitigation
    credits. It would make more sense to negotiate the protection of
    upland habitat buffers (on a site-specific basis) adjacent to
    proposed mitigation sites as a condition of approval permit. It
    would set a dangerous precedent to allow upland area to be counted
    towards mitigation for the loss of aquatic habitat. This approach
    could easily lead to greater net losses of wetland and aquatic
    habitat over the long term.

-   The proposed rule allows the District Engineer to determine if the
    mitigation providers have secured appropriate financial assurances
    on a case-by-case basis. This approach is likely to result in an
    unacceptably high number of mitigation sites that run into financial
    problems and thus never reach their ecological potential -- again
    leading to greater net loss of wetlands. There should be clear and
    consistent regulatory requirements that assure regulators that money
    is in place to successfully complete and monitor the mitigation
    project. The easiest way to do this is to simply require a
    performance bond as would be done with any other significant public
    works construction project.

-   The proposed rule allows the District Engineer flexibility in
    determining requirements for long term mitigation site protection on
    public lands on a site specific basis. This is ambiguous and could
    result in different standards applying to mitigation sites on public
    versus private lands. Mitigation projects on public land should be
    required to have permanent conservation easements or deed
    restrictions that protect the mitigation site from incompatible
    alteration. This same standard should be applied to private
    mitigation sites.

-   The proposed rule suggests a limited proportion of projected credits
    may be released when the mitigation banking instrument and
    mitigation plan have been approved, the bank site secured, and
    required financial assurances have been established. I strongly
    disagree with this provision as proposed. The science of wetland
    restoration (let alone creation) is fraught with so much uncertainty
    that a mitigation proposal should not be assumed to be able to
    mitigate for the lost wetland functions of an impacted site until it
    demonstrates that it can do so. A mitigation bank site should be
    restored and demonstrably on its way to achieving its targeted
    functional values ***prior*** to the release of credits from that
    mitigation bank. This approach better accounts for the uncertainties
    that have been well documented for mitigation projects, and adheres
    more to the widely accepted "precautionary principle" of natural
    resource management.

-   Mitigation sites should be required to have permanent protection as
    aquatic habitat via conservation easements, deed restrictions, etc.
    These permanent legal real estate protection provisions should apply
    to all sites, whether privately or publicly owned.

-   The proposed rule lacks a section detailed enforcement/compliance
    provisions. It is currently unclear what the consequences would be
    for a mitigation project sponsor who defaults on their commitments
    to follow their mitigation plan, accurately report monitoring
    results, or properly maintain the site. This is why it should be
    mandatory that a project sponsor posts a performance bond with the
    Corps prior to the release of any mitigation credits. There should
    also be financial penalties if a mitigation bank sponsor fails to
    properly maintain a site for which they have already sold credits.
    Sponsors who fail to meet permit and/or mitigation requirements,
    should be ineligible to sponsor any additional mitigation banks. It
    is important that the Corps set a high standard of professionalism
    and responsibility, as these rules facilitate the development of
    mitigation as a entrepreneurial business opportunity. If mitigation
    banks are not held to a high ecological and fiscal responsibility
    standard, the opportunity for very real net losses in aquatic
    resources could result.

-   The proposed rules provide scant guidance on the determination of
    scientifically defensible mitigation ratios for impacted habitats.
    It is understood that the determination of specific ratios for a
    given habitat type and a site-specific development impact is a
    complex undertaking that can't reasonably be dictated by federal
    rules. However, the information that should be considered by
    individual Corps Districts or IRTs in making ratio determinations
    could be specified through the proposed rules. The rules should also
    specify that these ratios need to be calculated to err on the side
    of precaution in protecting aquatic function and integrity. In other
    words, in cases where there is significant scientific uncertainty
    about appropriate ratios, more mitigation should be required in
    order to replace impacted aquatic habitat functions. The suggested
    baseline of a 1:1 mitigation ratio proposed in the draft rules is
    not conservative enough, and is not scientifically defensible given
    the high documented rate of failure or under-performance of many
    mitigation sites that have actually been evaluated.

**Issues that the Corps Specifically Asked for Comment On:**

-   Should the rule specify minimum information requirements for use of
    the watershed approach to compensatory mitigation site selection?

[Suggestion:]{.underline} Yes. Minimum information requirements should
consist of all the elements that are needed by regulatory authorities to
gauge the appropriateness and likelihood of success of each specific
mitigation site. Of key importance is adequate documentation that the
soil characteristics and hydrologic regime at the proposed site would
have a high probability of sustaining the targeted wetland type over the
long term.

-   If the entity responsible for long-term management is a government
    agency orpublic authority, and that entity is willing to accept the
    stewardship responsibilities for the compensatory mitigation project
    site, the district engineer may accept the stewardship commitment by
    the government agency or public authority in lieu of imposing
    long-term financing requirements in the DA permit or mitigation
    banking instrument.

[Suggestion:]{.underline} Adequate financing of long term stewardship of
a mitigation site should need to be demonstrated for a public authority
accepting stewardship responsibility -- just like it should be required
for a private entity. This will ensure consistency of mitigation site
maintenance regardless of whether the responsible party is private or
public. Requiring assurance of financial capacity for mitigation sites
managed by public authorities will ensure that these organizations
realistically plan for, and have the capacity to succeed in, providing
adequate stewardship of mitigation sites. This approach will also force
the true cost of properly designing, implementing, and maintaining to be
reflected in the cost of the mitigation credits resulting from the
project. This should help ensure that developers who are impacting
aquatic sites actually pay the true costs of replacing lost habitat
values.

**Comments on Specific Provisions:**

332.6A -- Monitoring. [Suggestion:]{.underline} The Corps should specify
the minimum required reporting elements for each type of mitigation
habitat, and if possible, select standardized protocols for the
collection/reporting of monitoring data. Appropriate protocols have
been, and continue to be, developed by USFWS, state wetland programs,
U.S. Parks Service, National Estuarine Research Reserves, etc. Each
Corps District office could have protocols tailored somewhat to the
habitats found in their region, but the minimum environmental parameters
required for reporting could likely be fairly standard throughout the
nation for broad categories of aquatic habitats (wetlands, seagrass
beds, rivers, etc.). Without some minimum requirements specified, the
quality of monitoring reports submitted to the Corps will vary widely --
with a large number of reports of insufficient detail to fairly assess
the success/failure of a site. If functional assessment protocols have
been adopted in the region for the habitat type being monitoring, the
monitoring report should include an evaluation of the mitigation site
using these protocols.

332.8(c)(4)Public review and comment. [Suggestion:]{.underline} 30 days
is not enough time to give the public a chance to be notified of a
mitigation bank proposal, consider the proposal, and submit thoughtful
comments on it. Given the complexity of factors that need to be
evaluated for a mitigation site, and the likelihood that some proposals
will be controversial, the public comment period should be extended to a
minimum of 60 days.

332.8(k)(9) Adjustments to credit totals and release schedules. The
proposed rules state if a mitigation bank sponsor finds that the bank
has developed aquatic resource functions substantially in excess of
those upon which the original credit totals and release schedule were
based, he may request that the mitigation banking instrument be amended
to increase the number of credits for that site.
[Suggestion:]{.underline} Delete this provision from the rules. This
provision would be difficult to fairly apply since the assessment of
whether a site has merely met its anticipated aquatic functions or
substantially exceeded them could be quite contentious and subjective.
The bank sponsor will already be receiving fair compensation for their
mitigation work through the sale of credits -- an after-the-fact effort
to try to wring out more credits from an existing mitigation site
provides no additional environmental benefit and has the potential to be
overly contentious. A site that exceeds expectations is likely to be
rare, and should be thought of as a measure of security against many
other mitigation sites that are likely to under-perform.