a

GAO

United States General Accounting Office

Report to Congressional Committees

May 2002 U.S. ARMY CORPS OF 

ENGINEERS

Scientific Panel’s 

Assessment of Fish 

and Wildlife Mitigation 

Guidance

GAO-02-574
Page i GAO-02-574 Fish and Wildlife Mitigation Guidance

Letter 1

Results in Brief 2

Background 3

Water Resources Projects Authorized Since the 1986 Act That

Required a Fish and Wildlife Mitigation Plan 4

Scientific Panel’s Assessment of the Quality of National Fish and

Wildlife Guidance, Suggested Improvements, and Estimated

Success of Mitigation 5

Views of the Agencies 13

Appendix I Objectives, Scope, and Methodology 15

Appendix II Corps’ 47 Projects Since the Act of 1986 with a

Fish & Wildlife Mitigation Plan & Receiving

Construction Appropriations 19

Appendix III Guidance Documents Reviewed by Panel 22

Governmentwide Policy Guidance 22

General Technical Guidance 22

Corps of Engineers’ Civil Works Program Guidance 23

Corps of Engineers’ Regulatory Program Guidance 24

Federal Highway Administration Guidance 24

Appendix IV Assessment Instrument Used by Panel 26

Appendix V Panel of Scientific Experts’ Assessment of Fish &

Wildlife Mitigation Guidance by Attribute & Stage

of Mitigation 41

Determination Stage 42

Design Stage 44

Construction Stage 46

Monitoring Stage 48

Evaluation Stage 49

Complete 51

Current 52

Contents
Page ii GAO-02-574 Fish and Wildlife Mitigation Guidance

Clear 53

Broad 53

Viable 54

Appendix VI Comments from the Department of Defense 56

Appendix VII Panel of Scientific Experts, Technical Adviser, and

Expert Reviewers 63

Appendix VIII GAO Contact and Staff Acknowledgments 64

GAO Contact 64

Acknowledgments 64

Tables

Table 1: Panelists’ Overall Quality Rating of the Mitigation

Guidance for the Three Programs 6

Table II.1: Percent of Mitigation Completed for 47 Water Resources

Projects Authorized Since the Water Resources

Development Act of 1986 That Required a Fish and

Wildlife Mitigation Plan and Received Construction

Appropriations, as of September 30, 2001 20

Table V.1 Summary of Expert Panel’s Final Assessment of the

Corps of Engineers’ and Federal Highway Administration’s

Fish and Wildlife Mitigation Guidance 41
Page 1 GAO-02-574 Fish and Wildlife Mitigation Guidance

May 15, 2002

The Honorable James M. Jeffords

Chairman

The Honorable Bob Smith

Ranking Minority Member

Committee on Environment and Public Works

United States Senate

The Honorable Don Young

Chairman

The Honorable James L. Oberstar

Ranking Democratic Member

Committee on Transportation and Infrastructure

House of Representatives

Concerns have been raised by a variety of interests about the possible

negative impacts that the U.S. Army Corps of Engineers’ construction of

water resources projects may have on fish and wildlife and their habitat.

Because projects such as deepening harbors and constructing dams could

disturb fish and wildlife, the Corps is required to mitigate potential

damage. Mitigation may include, for example, acquiring lands to replace

lost habitat, creating wetlands to replace lost wetlands, and planting

seedlings and other vegetation to stabilize soils and prevent erosion.

The Corps’ Civil Works Program manages projects dealing with

commercial navigation and flood damage, while its Regulatory Program

oversees primarily privately financed projects that affect water and related

land resources, such as residential development near a seashore. The

Federal Highway Administration’s Federal-aid Highway Program within

the Department of Transportation oversees road construction and, like the

Corps, must ensure compliance with environmental laws designed to

mitigate the impact of construction on fish and wildlife. For the purposes

of this report,1

 the five stages of a mitigation project are (1)

determination—deciding whether and how much mitigation is needed; (2)

design—deciding on the necessary features and performance

 1

 The Water Resources Development Act of 2000 (P.L. 106-541) listed four stages of

mitigation: (1) design, (2) construction, (3) monitoring, and (4) evaluation. For ease of

discussion, we chose to divide the design stage into determination and design stages.

United States General Accounting Office

Washington, DC 20548
Page 2 GAO-02-574 Fish and Wildlife Mitigation Guidance

characteristics of the project, including all preconstruction activities; (3)

construction—acquiring land, building structures, creating habitat, and

introducing animals and plants; (4) monitoring—periodically assessing the

mitigation site before, during, and after construction; and (5) evaluation—

determining the success of the project, actions needed if the project is not

successful and implications for improving future projects.

The Water Resources Development Act of 2000 required GAO to obtain

information on the U.S. Army Corps of Engineers’ efforts to mitigate for

adverse impacts to fish and wildlife resources and their habitat at water

resources projects since the Water Resources Development Act of 1986. In

discussions with the Senate Committee on Environment and Public Works

and the House Committee on Transportation and Infrastructure, we agreed

to (1) determine the number of U.S. Army Corps of Engineers’ civil works

projects for which the Corps completed less than 50 percent of mitigation

(the measure cited in the 2000 act) before starting construction and (2)

establish a panel of scientific experts to compare the Corps’ Civil Works

Program’s national guidance on fish and wildlife mitigation with mitigation

guidance for the Regulatory Program and the mitigation guidance for the

Federal-aid Highway Program. We selected our seven-member scientific

panel on the basis of their expertise in mitigation and familiarity with the

operations of these three programs. We mailed the panel members an

assessment instrument and 2,500 pages of guidance documents from the

three programs for their review. We asked the panel to assess the quality

of each program’s guidance (1) for the five stages of mitigation; (2) for five

attributes—currency, clarity, completeness, breadth, and viability of the

natural and man-made systems into the future; and (3) overall, taking into

consideration the stages and attributes. (App. I describes our scope and

methodology; app. III lists the documents reviewed; app. IV contains the

assessment instrument; app. V describes the panel’s assessment of the

guidance; and app. VII lists the panel members and their affiliations.)

According to the U.S. Army Corps of Engineers, 28 of the 47 water

resources projects authorized since enactment of the Water Resources

Development Act of 1986, that required a fish and wildlife mitigation plan,

and that received construction appropriations, completed less than 50

percent of the mitigation before project construction started. Of the

remaining 19 projects, 7 completed at least 50 percent of mitigation before

initiating construction; 2 projects had not started construction but had

done some mitigation; and 10 had not started construction or mitigation.

As of September 30, 2001, of the 34 projects where construction had

begun, 16 had completed 100 percent of the mitigation. Neither the 1986

Results in Brief
Page 3 GAO-02-574 Fish and Wildlife Mitigation Guidance

act nor subsequent Water Resources Development Acts require the Corps

to complete a specific amount of mitigation before beginning to construct

a project. In fact, according to the Corps, completing a specific amount of

mitigation might not be feasible in some cases. For example, the Corps

may need to use the material it excavates during construction to create the

mitigation project, such as the material dredged from a navigation channel

that is used to create wetlands.

The panel of scientific experts rated as similar the overall quality for the

national fish and wildlife mitigation guidance of the Corps of Engineers’

Civil Works and Regulatory Programs as well as for the Federal Highway

Administration’s Federal-aid Highway Program. Most panelists rated the

overall quality as “moderate” or “good.” The Federal-aid Highway Program,

however, received more “good” ratings than the Corps’ two programs.

When assessing the overall quality of all three programs’ guidance, some

panelists indicated that the guidance was strong because of its clarity,

currency, or the inclusion of ample technical guidance. Some panelists

were critical, however, of the three programs’ guidance. They pointed out

that the programs’ guidance emphasizes the determination and design

stages to the detriment of the monitoring and evaluation stages;

emphasizes wetlands to the detriment of other lands, such as those that

have a higher elevation and tend to be drier (uplands); or fails to require

corrective actions in those instances where projects do not succeed. The

panelists also suggested areas for improvement: a unified body of

guidance, more information on the monitoring and evaluation stages, or

more discussion of uplands species and habitat. Based on the guidance

alone, panelists expressed concerns about their ability to reliably estimate

the percent of success that mitigation projects would have in restoring the

natural hydrology and native vegetation and in supporting native fish and

wildlife species. Panelists said factors other than guidance, such as major

storms that are difficult to control or manage or invasive weeds or wildlife

species that dominate the site unexpectedly, affect the success of

mitigation projects.

The Department of Transportation reviewed the draft report and chose not

to provide comments. The Department of Defense made generalized

observations about the issues addressed in the report and offered specific

comments on the panel’s assessment of the Civil Works and Regulatory

Programs’ mitigation guidance. A copy of the Department of Defense’s

comments is included as appendix VI.

Generally, the Congress authorizes the Corps’ water resources projects

every 2 years through a Water Resources Development Act. After project Background
Page 4 GAO-02-574 Fish and Wildlife Mitigation Guidance

authorization, the Corps may request construction appropriations in order

to initiate a project; the Congress might not appropriate construction

funding for all authorized projects. The Corps uses its construction funds

to support both mitigation and construction activities.

According to staff in the Corps’ Civil Works Program, between the 1986 act

and September 30, 2001,

• 217 water resources projects were authorized,

• 150 of these received construction appropriations,

• 103 of these 150 projects did not require a fish and wildlife mitigation

plan, and

• 47 of the 150 projects required a plan.

Under the Federal-aid Highway Program, the Federal Highway

Administration must ensure compliance with federal, state, and local

environmental laws and regulations. The administration apportions funds

to state transportation departments for planning and constructing the

national highway infrastructure. State governments determine the

priorities and distribute the funds.

Of the 47 Civil Works projects authorized since the 1986 act that required a

fish and wildlife mitigation plan and that received construction

appropriations, 28 projects completed less than 50 percent of the

mitigation before project construction began, according to the Corps.2

 Of

the remaining 19 projects, 7 completed at least 50 percent of mitigation

before initiating construction; 2 had not started construction but had done

some mitigation; and 10 had not started construction or mitigation.3

 As of

September 30, 2001, 16 of the 34 projects where construction had begun

had completed 100 percent of the mitigation.

 2

 According to the Corps, the point at which 50 percent of mitigation is completed occurs in

the fiscal year in which the Corps district office’s cumulative expenditures toward the

mitigation plan total at least 50 percent of the estimated cost of these activities.

3

 Appendix II includes more details on the 47 projects authorized since the 1986 act that

received construction appropriations and required a fish and wildlife mitigation plan.

Water Resources

Projects Authorized

Since the 1986 Act

That Required a Fish

and Wildlife

Mitigation Plan
Page 5 GAO-02-574 Fish and Wildlife Mitigation Guidance

The 1986 act requires the Corps to initiate mitigation before or concurrent

with construction, but it does not specify the amount of mitigation

required—nor does any subsequent Water Resources Development Act.

According to the Corps, it may not complete 50 percent of the mitigation

prior to initiating project construction for the following reasons:

• The proposed mitigation will occur in the construction area or when

material excavated during construction is used to create the mitigation.

For example, the Corps creates wetlands with material dredged from a

navigation channel.

• Mitigation activities may be scheduled concurrently with construction

as a logical construction sequence.

• The Corps considers “construction” to begin when it receives

construction appropriations, not when it actually starts construction,

even though months or years may pass between the two dates.

Therefore, since construction appropriations fund both mitigation and

construction activities, mitigation cannot technically begin before

construction begins.

The panel of scientific experts rated as similar the overall quality of the

national fish and wildlife mitigation guidance for the Corps of Engineers’

Civil Works and Regulatory Programs as well as the Federal Highway

Administration’s Federal-aid Highway Program. Most panelists rated the

overall quality as “moderate” or “good.” The Highway Program, however,

received more “good” ratings than the Corps’ two programs. In

commenting on possible improvements to the guidance, the panelists

suggested a unified body of guidance for the three programs, more

information on the monitoring and evaluation stages, or more discussion

of uplands species and habitat. Based on the guidance alone, panelists

expressed concerns about their ability to reliably estimate the percent of

success mitigation projects would have in restoring the natural hydrology

and native vegetation and in supporting native fish and wildlife species.

Panelists said factors other than guidance, such as major storms that are

difficult to control or manage or invasive weeds or wildlife species that

dominate the site unexpectedly, affect the success of mitigation projects.

When asked to rate the overall quality of the collective guidance for each

of the three programs, panelists generally rated it “moderate” or “good,” as

Scientific Panel’s

Assessment of the

Quality of National

Fish and Wildlife

Guidance, Suggested

Improvements, and

Estimated Success of

Mitigation

Panel’s Assessment of

Guidance
Page 6 GAO-02-574 Fish and Wildlife Mitigation Guidance

shown in table 1. The distribution of moderate and good ratings varied

slightly across programs.

Table 1: Panelists’ Overall Quality Rating of the Mitigation Guidance for the Three Programs

Overall quality rating

Program Panelist 1 Panelist 2 Panelist 3 Panelist 4 Panelist 5 Panelist 6 Panelist 7

Average

rating

Civil Works Moderate Good Moderate Moderate Moderate Moderate Moderate 3.1

Regulatory Good Good Moderate Good Moderate Fair Moderate 3.3

Highway Moderate Good Good Moderate Good Good Good 3.7

Note: The response scale ranged from 0 to 5 (0=No Guidance, 1=Poor, 2=Fair, 3=Moderate, 4=Good,

and 5=Excellent). None of the respondents rated the overall quality for any program as poor or

excellent.

When assessing the quality of the three programs’ guidance collectively,

some panelists indicated that the guidance was strong because of its

clarity or currency, or the inclusion of ample technical guidance. Some

panelists, however, were critical of the three programs’ guidance overall,

noting that the guidance emphasizes the early determination and design

stages to the detriment of the monitoring and evaluation stages,

emphasizes wetlands to the detriment of uplands or adjacent lands, or fails

to require corrective actions in those instances where projects do not

succeed.

In commenting on the strengths of the Civil Work’s guidance, some

panelists indicated that the guidance emphasizes an ecosystem approach

and considers adjacent lands and uplands; includes a good integration of

other agencies’ roles and responsibilities and the various laws and

policies; or provides good technical guidance for the design, construction,

and monitoring stages. The majority of panelists, however, criticized the

Corps’ reliance on economic tradeoffs to determine the acceptable

mitigation alternatives as presented in the Economic and Environmental

Principles and Guidelines for Water and Related Land Resources

Implementation Studies.

4

 Several panelists indicated that the Corps’

reliance on this guidance interferes with the current thinking, which

 4

 The U.S. Water Resources Council originally developed these administrative guidelines in

1983 to implement the requirement of the Water Resources Planning Act that the Water

Resources Council establish principles, standards, and procedures for planning water and

land resources projects. According to the Corps, it developed its guidance to reflect the

direction of the Water Resources Council’s guidance. Funding for the Water Resources

Council ceased in fiscal year 1983 and the guidance has not been updated.
Page 7 GAO-02-574 Fish and Wildlife Mitigation Guidance

emphasizes selecting the least damaging alternative and considering

adjacent lands when determining which alternative to select. In addition,

some panelists criticized the Civil Works guidance as possibly being too

broad, too detailed, incomplete as it relates to determining how much and

what kind of mitigation should be undertaken, lacking examples of

mitigation, or not current because it does not consider mitigation activities

in a landscape context.5

In assessing the strengths and weaknesses of the Corps’ Regulatory

Program’s guidance, the panelists primarily commented on the recently

issued October 2001 Regulatory Guidance Letter.6

 The panelists generally

viewed the new guidance as an improvement over existing guidance

because it

• is clearer, simpler, and more in line with current technical findings;

• strengthens the importance of watershed context7and functionality8 of

affected areas;

• enhances the existing guidance in the areas of determination and

evaluation and places new emphasis on ecosystems rather than citing a

preference for on-site in-kind mitigation; 9

 5

 Landscape context refers to the current view of how to assure the success of mitigation

projects. It includes consideration of the impact of the project to surrounding land and

water areas, and vice versa.

6

 Regulatory Guidance Letter 01-1 on Guidance for the Establishment and Maintenance of

Compensatory Mitigation Projects Under the Corps Regulatory Program Pursuant to

Section 404(a) of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899

(2001).

7

 Watershed context refers to activities and effects from throughout the entire land area

drained by a stream or wetland, which could be quite extensive. In contrast, landscape

context refers to a more localized impact area, usually considered what can be seen with

the naked eye.

8

 Functionality is a focus on the natural activities and benefits provided by a resource such

as a wetland; therefore, depending on the richness and concentration of those benefits, one

acre of wetland could provide substantially more functionality to an ecosystem than

another acre of wetland. Also, one acre of wetland could provide many more functions

(wildlife, flood control, fish habitat, etc.) than another, thereby having higher functionality.

9

 Traditionally, mitigation projects were focused on replacing as much of the lost habitat as

possible on the site and in the same form—known as on-site in-kind.
Page 8 GAO-02-574 Fish and Wildlife Mitigation Guidance

• suggests the consideration of landscape setting and indicates a

continuing evolution to a function-based approach to mitigation; 10

• is a positive step toward helping assess and quantify the amount of

mitigation that is required;

• calls for monitoring to be included as a permit condition; or

• provides more definitive instructions on how to determine mitigation

ratios11 and types of mitigation, and addresses the long-term viability of

mitigation through establishing success criteria.

While complimenting the new guidance, panelists also identified

weaknesses. Namely, it

• still lacks the details and performance measures to truly advance

wetlands protection;

• continues to need to strengthen monitoring and evaluation activities;

• still lacks sufficient specifics on how much and what type of mitigation

is needed and what functions should be replaced;

• does not provide specifics on how landscape settings should be

considered;

• allows credit for efforts undertaken in uplands, which means that

wetlands functions and values will less likely be replaced in those

situations; or

 10 The function-based approach looks beyond the mere acreage of a resource, and evaluates

the full range and intensity of ecosystem benefits in determining replacement

requirements. Thus, one acre of high-function or multi-function wetlands might require

substantially more replacement habitat than another acre of wetlands with less

functionality.

11 Mitigation ratios refer to the amount of replacement acreage per acre of lost resources

such as wetlands. While many mitigation programs traditionally assumed a 1 to 1 ratio, the

current focus on assuring the replacement of all functions, as well as widespread

performance problems in constructed wetlands, has led to consideration of higher

replacement ratios such as 1.5 or 2 acres of mitigation for each lost acre.
Page 9 GAO-02-574 Fish and Wildlife Mitigation Guidance

• continues to lack guidance on the minimum requirements of a

conceptual mitigation plan.

In assessing the Highway Program’s guidance, panelists were generally

more complimentary of its content and presentation than of the Corps’

guidance. Several panelists found the guidance to

• be clearer and more focused;

• be more effective in communicating current thinking;

• be more user-friendly, with a step-by-step format;

• provide the right amount of background information and technical

alternatives;

• include design options and examples;

• be stronger than the Corps’ guidance in ensuring the long-run viability

of the project because it calls for a compensation ratio greater than 1 to

1; or

• be more professionally presented because it allows the exercise of

professional judgment.

Panelists cited few weaknesses with the Highway Program’s guidance, and

they did not point out the same weaknesses. For example, one panelist

noted that monitoring activities involved monitoring compliance with the

mitigation design rather than with measuring the functions and values12 to

determine replacement success. This same panelist reported that more

monitoring of construction is needed because mitigation will fail because

of construction flaws and not because of design problems. Another

panelist found that the guidance overemphasizes the use of mitigation

banks,13 which may not always be appropriate.

 12 Values are quantifications of the functions of resource areas such as wetlands. Functions

and values are related, in that functions describe the nature of the natural assets of

resources, while values describe how much of the function is present.

13 A mitigation bank is an area set aside to be restored and used for mitigation for multiple

projects.
Page 10 GAO-02-574 Fish and Wildlife Mitigation Guidance

One panelist appeared to sum up the panelists’ comments, stating “. . .

[T]he three programs reviewed are within reach of mitigating many, but

not all types of wetland habitats for fish and wildlife. . . . . With modest

improvements in guidance, the combined efforts of the three programs

could reach a higher level of successful wetlands mitigation.”

Panelists offered several suggestions for improving both the format and

the content of the three programs’ fish and wildlife mitigation guidance. In

terms of format, almost all the panelists suggested the need for a single,

unified body of guidance that would include both the regulatory and

technical details necessary to effect successful mitigation. Doing so,

according to some panelists, would improve the usability and readability

of the guidance and better achieve consistency in operations and results.

Among the suggested improvements, panelists recommended that the

unified guidance include

• user-friendly, step-by-step instructions that tell applicants when they

have to mitigate and that provide a general idea of how much

mitigation will be required;

• current guidance regularly updated on a website;

• annotated outlines, more illustrations, case studies, and examples of

lessons learned from past failures or successes and the reasons for

them;

• a requirement for an operations, maintenance, and rehabilitation

funding plan to provide greater assurance that all project services will

be provided over a broad range of contingencies;

• a technically appropriate and consistent set of sampling measures

applied throughout all stages of mitigation; or

• opportunities for flexibility and the exercise of professional judgment.

Regarding the content of the guidance, some panelists strongly urged that

more guidance be included on the monitoring and evaluation aspects of

mitigation projects. Two panelists recommended ongoing—“life cycle”—

monitoring to evaluate the effectiveness of mitigation in light of explicit

performance criteria and to provide a rationale for corrective action where

appropriate. Some panelists suggested that the expanded monitoring and

evaluation requirements should include systems to provide for feedback of

Suggestions for Improving

Fish and Wildlife

Mitigation Guidance
Page 11 GAO-02-574 Fish and Wildlife Mitigation Guidance

evaluation results or that a separate budget be designated for monitoring

and evaluation to ensure that adequate data be collected to determine

project success.

Panelists also suggested that the content of the current guidance be

expanded to more fully include discussions on uplands species and habitat

other than vegetated wetlands, such as open waters, streams, or stream

banks. In addition, most of the panelists suggested that the current

guidance more fully discuss the functions and values and how to

determine the best way to replace them. According to one panelist, once

the key functions are determined, general guidance should exist on how to

translate the replacement of these functions into compensation ratios and

combinations of in-kind and out-of-kind14 mitigation to ensure that the key

functions are replaced. Another panelist suggested that permits should be

denied if the functions and values will not be compensated and indicated

that this requirement would decrease the likelihood of environmental

degradation and increase the likelihood of successfully replacing lost

functions.

We asked the panelists to estimate the percentage of success that

mitigation projects could be expected to achieve in restoring the natural

hydrologic conditions and native vegetation, and otherwise supporting

native fish and wildlife species, under two circumstances: (1) if the

present mitigation guidance were followed and (2) if the guidance were

followed after being improved in the ways panelists proposed. Some

panelists expressed concern in providing estimates because of (1) a lack

of an empirical basis for any estimate, (2) insufficient first-hand

knowledge about how closely the guidance is being followed, (3)

insufficient basis for connecting success or failure with the degree to

which the guidance was followed, or (4) a lack of knowledge about the

competencies of the persons implementing the guidance. The panelists

emphasized that any numbers provided would not be reliable, and GAO

agrees.

Panelists did, however, provide insights to the primary factors, other than

the guidance, that could prevent a project from restoring hydrologic

 14 In-kind mitigation involves replacing the lost resource with the same kind of resource,

e.g., salt marsh wetland with new or restored salt marsh wetland. Out-of-kind mitigation

replaces the lost resource with a different type of resource, e.g., a salt marsh with a

forested wetland.

Panel’s Estimation of

Achieving Successful

Mitigation
Page 12 GAO-02-574 Fish and Wildlife Mitigation Guidance

conditions, restoring native vegetation, and otherwise supporting native

fish and wildlife species. The panel explained that project success could

be affected by

• lack of experience or competence of those doing the work, or lack of

proper project management;

• cost constraints or inadequate funding;

• poor site selection, poor construction, or improper implementation of

design;

• lack of control and/or lack of attention to surrounding landscape

conditions, or external influences from adjacent areas such as urban

development, heavy infestations of exotic species, and human and

animal impacts;

• unexpected conditions, such as major storms, that are difficult to

control or manage or invasive weeds or wildlife species that dominate

the site unexpectedly;

• inadequate monitoring for fish and wildlife values and more focus on

the easier measurement of hydrology and vegetation success;

• monitoring to determine compliance with the design plan rather than

monitoring functions and values, thus failing to account for poor

designs;

• lack of available biological materials, such as no seed bank;

• problems in creating some types of wetlands because they are

inherently difficult to replicate (peat bogs being the extreme example);

• wetlands that cover extremely small areas, or appropriate land is

unavailable;

• not ensuring that corrective measures will be taken for failures in the

restoration project after construction; or

• not fully restoring lost hydrology or vegetation if mitigation banks are

used to compensate for losses in different watersheds.
Page 13 GAO-02-574 Fish and Wildlife Mitigation Guidance

One panelist noted that a certain percentage of all restorations will fail in

the attempt to restore native vegetation and wildlife. According to the

panelist, the failure rate for “created” wetlands and other habitats is much

higher than for restored sites, so it is important to distinguish the type of

site being discussed. Another panelist stated that in some situations, lost

functions and values are impossible to replace because of their location

within the watershed, the lack of mitigation sites within the watershed, or

the type of wetlands that were damaged.

A third panelist noted that, in general, restoring “natural hydrologic

conditions” is only possible in “restoration” efforts (rather than “creation”

or “enhancement” efforts or both), and this is only a portion of the

compensation activities undertaken in these programs. According to the

panelist, restoration of natural conditions is most likely to succeed when

the impacts of projects occur only on the site under restoration. In all

other circumstances, the panelist said, the probability of success

diminishes regardless of the technical sophistication of the practitioner.

Furthermore, restoring native vegetation is theoretically possible only

when appropriate natural hydrologic conditions have been established.

Therefore, success in this effort cannot exceed the success in hydrologic

engineering. In addition, restoring native fish and wildlife species is more

difficult, generally because the surrounding area has been affected, and

thus the landscape setting is uncontrollably altered. In the panelist’s view,

restoration of a natural community of species on compensatory mitigation

sites is exceptionally difficult.

We provided the Departments of Transportation and Defense with copies

of the draft report for review and comment. The Department of

Transportation reviewed the draft report and chose not to provide

comments. The Department of Defense, in its comments, stated its view

that GAO’s study has shown that the Corps met the mitigation

requirements of section 906 of the Water Resources Development Act of

1986. However, we did not review or evaluate the Corps' overall

compliance with section 906 nor did we reach any conclusion in this

regard. Additionally, the department clarified that for three projects

identified in appendix II for which mitigation had not begun, mitigation is

scheduled for later in the construction sequence because site conditions

do not allow mitigation to occur earlier. We have added a footnote to the

table in appendix II to reflect the Corps’ explanation.

In addition, the department raised concerns about the difficulties in

comparing the fish and wildlife mitigation guidance of the three programs.

Views of the Agencies
Page 14 GAO-02-574 Fish and Wildlife Mitigation Guidance

Specifically, the department pointed out that the Corps’ two programs are

primarily water resource development-oriented, while the Highway

Program is oriented to building highways. Additionally, the department

said that both the Highway and Civil Works Programs operate on a much

longer timeline than the Corps’ Regulatory Program and the Corps’

Regulatory Program’s activities are generally on a much smaller scale and

rarely approach the scope of the Civil Works Program. While we agree that

the focus of the three programs selected for comparison is different, we

believe that the agencies’ programs include similarities in that they are

nationwide in scope and provide for mitigation against environmental

impacts to fish and wildlife in the course of their construction activities.

Additionally, our panelists did not express concern that the differences

among the three programs affected their ability to assess the content and

format of the three agencies’ fish and wildlife mitigation guidance. A copy

of the Department of Defense’s detailed comments is included as appendix

VI.

We conducted our work from February 2001 through April 2002 in

accordance with generally accepted government auditing standards.

Details of our scope and methodology are discussed in appendix I.

We are sending copies of this report to the secretaries of defense and

transportation, the principal deputy assistant secretary of the army (civil

works) and the administrator, Federal Highway Administration. We will

also provide copies to others on request.

If you or your staff have any questions about this report, please call me at

(202) 512-3841. Key contributors to this report are listed in appendix VIII.

Barry T. Hill

Director, Natural Resources

 and Environment
Appendix I: Objectives, Scope, and

Methodology

Page 15 GAO-02-574 Fish and Wildlife Mitigation Guidance

The Water Resources Development Act of 2000 (P.L. 106-541, section 224

(b)) required GAO to obtain information on the U.S. Army Corps of

Engineers’ efforts to mitigate for adverse impacts on fish and wildlife

resources and their habitat in the construction of its water resources

projects authorized since the Water Resources Development Act of 1986.

In discussions with the Senate Committee on Environment and Public

Works and the House Committee on Transportation and Infrastructure, we

agreed to (1) determine the number of U.S. Army Corps of Engineers’ Civil

Works projects for which less than 50 percent of mitigation was completed

before the start of project construction and (2) establish a panel of

scientific experts to compare the Corps’ Civil Works Program’s national

guidance on fish and wildlife mitigation activities with the mitigation

guidance for the Corps’ Regulatory Program and with the guidance for the

Federal Highway Administration’s Federal-aid Highway Program.

To determine the number of the Corps’ water resources projects subject to

the mitigation requirement of the 1986 act and the number of those

projects not completing 50 percent of the required fish and wildlife

mitigation before initiating construction, we formally requested that the

Corps provide us with the following information: (1) the universe of

projects authorized since the 1986 act; (2) of these authorized projects, the

number for which federal construction funds were appropriated; and (3)

of the authorized projects receiving federal construction funds, the

number that did and did not require a fish and wildlife mitigation plan in

accordance with the 1986 act. For those projects requiring a mitigation

plan, we asked for the number of projects that had and had not begun

construction, the number of projects that had and had not begun

mitigation activities, the percentage of mitigation completed before

construction began, and the percentage of mitigation completed as of

September 30, 2001. We also requested that the Corps provide projectspecific information, including project name, location, and purpose or type

of project. The Corps solicited the information from its district offices.

The 2000 act does not define what constitutes completion of 50 percent of

required mitigation. For the purposes of this report, the Senate Committee

on Environment and Public Works and the House Committee on

Transportation and Infrastructure asked us to request that the Corps

develop its own definition. In our request to the Corps, we asked the Corps

to apply this definition when obtaining the data from its district offices.

The Corps defined the completion of 50 percent of required mitigation as

follows:

Appendix I: Objectives, Scope, and

Methodology

Number of Corps’ Projects
Appendix I: Objectives, Scope, and

Methodology

Page 16 GAO-02-574 Fish and Wildlife Mitigation Guidance

“Construction is initiated when the first non-mitigation related construction

contract is awarded. The compensatory mitigation 50-percent completion point

occurs in the fiscal year that the district makes expenditures toward the

mitigation plan that cumulatively total at least 50 percent of the estimated cost of

these activities. The expenditures could consist of hired labor, contracts, etc., as

well as lands, easements, rights-of-way, relocations, and disposal areas required

for any compensatory mitigation plan identified in the feasibility report.”

Because the congressional committees asked us not to collect original

data, we limited our analysis to clarifying any apparent inconsistencies in

the Corps’ data with agency officials.

The 2000 act requested that we assess the Corps’ Civil Works Program’s

mitigation methods compared to those used in other publicly and privately

financed mitigation projects and did not specifically identify the other

entities. In discussions with committee staffs, we agreed that the scientific

panel should review and compare the fish and wildlife mitigation guidance

of these entities rather than assessing the methods. Therefore, we needed

to (1) identify and select other entities undertaking mitigation activities,

(2) obtain the relevant fish and wildlife mitigation guidance from the

entities, and (3) establish a scientific panel of experts.

To identify which publicly and privately financed projects should be

compared with the Corps’ Civil Works Program, we spoke with

representatives of the Corps, the Environmental Protection Agency, the

Fish and Wildlife Service, the National Marine Fisheries Service, the

Bureau of Land Management, the Forest Service, the Federal Highway

Administration, the Federal Aviation Administration, the Federal Transit

Administration, and the National Academy of Sciences to obtain

suggestions for relevant entities to select. On the basis of these

discussions, we selected the Corps’ Regulatory Program and the Federal

Highway Administration’s Federal-aid Highway Program for comparison to

the Corps’ Civil Works Program. Both programs are national in scope and

some individual construction projects undertaken could be of the same

magnitude as those of the Corps’ Civil Works Program.

To obtain the fish and wildlife mitigation guidance, we spoke with

representatives of the Corps’ Civil Works and Regulatory Programs, the

Federal Highway Administration’s Federal-aid Highway Program, as well

as the Corps’ Office of Research and Development to identify the (1) role

of national and local/regional mitigation guidance in implementing the

agencies’ projects, (2) types of guidance provided to program participants,

Scientific Panel’s

Assessment of Fish and

Wildlife Mitigation

Guidance
Appendix I: Objectives, Scope, and

Methodology

Page 17 GAO-02-574 Fish and Wildlife Mitigation Guidance

and (3) guidance the agencies considered to be the key fish and wildlife

mitigation guidance. We requested that the agencies provide us with

copies of key national policy, procedural, and scientific/technical guidance

(including applicable models) on mitigating adverse impacts on fish and

wildlife resources and their habitat. We limited our request to national

guidance because both the Corps and the Federal Highway Administration

rely on local districts, regions, or states to supplement the national

guidance to address local environmental considerations, and the potential

existed for obtaining voluminous guidance from 38 Corps districts and the

50 states. Such voluminous guidance would be unreasonable for a

scientific panel to assess in a short time frame.

Initially, the agencies provided about 78 documents—or about 5,400

pages—that they considered to be key national policy, procedural, and

scientific/technical guidance. Because of the complexity of the issues

involved in assessing this mitigation guidance, we employed a consultant

as a technical adviser. The adviser reviewed this guidance and identified

documents that potentially could be excluded from the panelists’ review.

We met with agency representatives to seek agreement on which

documents would be essential to review. From those discussions, we

decided to provide the panelists a total of about 2,500 pages of guidance in

the categories of (1) policy guidance applicable to all agencies, (2)

technical guidance applicable to all agencies, (3) Corps’ Civil Works

Program guidance, (4) Corps’ Regulatory Program guidance, and (5)

Federal Highway Administration guidance. (See appendix III for the

guidance documents the panelists reviewed.)

To establish our scientific panel of experts, we needed to identify persons

who collectively would possess the necessary knowledge, skills, and

experiences related to fish and wildlife mitigation and have a general

knowledge of the Corps’ Civil Works and Regulatory Programs and/or the

Federal-aid Highway Program. The Environmental Protection Agency, the

Fish and Wildlife Service, the National Marine Fisheries Service, the

National Academy of Sciences, and some of our staff suggested names of

potential panelists. We contacted several of the identified persons,

inquired whether they had an interest in serving on the scientific panel,

asked them for the names of additional persons whom we might want to

consider having on the panel, and received their biographical data. Our

technical adviser suggested factors to consider in developing and

assessing a pool of candidates, reviewed the list of potential candidates

and suggested additional names, and provided recommendations about the

size and makeup of the panel. (See appendix VII for a listing of the panel

members.)
Appendix I: Objectives, Scope, and

Methodology

Page 18 GAO-02-574 Fish and Wildlife Mitigation Guidance

To better ensure the panel’s consistent assessment of the three programs’

fish and wildlife mitigation guidance, we developed an assessment

instrument to rate the guidance and included a series of open-ended

questions that each panelist would complete. The assessment instrument

asked the panelists to rate each program’s guidance for five stages of a

mitigation project—determination, design, construction, monitoring, and

evaluation. The rating consisted of a numeric score (0 for no guidance to 5

for excellent guidance) for each of five attributes of the guidance

(complete, current, clear, broad, and viable) as well as a rating for the

overall quality of the guidance for each mitigation stage. For each stage,

panelists provided narrative justifications for their ratings. Panelists then

rated each program’s collective guidance and provided a narrative

summary of the strengths and weaknesses of the guidance and the relative

quality of the three programs’ guidance. We also asked the panelists to

answer a number of open-ended questions dealing with mitigation. Before

sending the assessment instrument to the panelists, we asked two

mitigation experts, who were familiar with the three programs and our

target population of panelists, to conduct an expert review of our

assessment instrument. The experts reviewed the questionnaire for clarity,

logic, and to ensure the appropriateness of the questions for the panelists.

On October 31, 2001, after we had sent the original material to the

panelists, the Corps’ Regulatory Program issued some new mitigation

guidance. We subsequently asked the panelists to respond to questions

regarding the new guidance, improvements to the mitigation guidance, and

estimating the success of mitigation projects. The panelists provided their

preliminary assessments, we compiled the responses, and then distributed

this compilation to the panelists so they had an opportunity to review and

revise their numeric and narrative responses.

We conducted our work from February 2001 through April 2002 in

accordance with generally accepted government auditing standards.
Appendix II: Corps’ 47 Projects Since the Act

of 1986 with a Fish & Wildlife Mitigation Plan

& Receiving Construction Appropriations

Page 19 GAO-02-574 Fish and Wildlife Mitigation Guidance

According to the Corps of Engineers, 47 of its 217 water resources projects

authorized since the Water Resources Development Act of 1986 required a

fish and wildlife mitigation plan and received construction appropriations.

Of these, 28 did not complete at least 50 percent of mitigation before the

start of project construction. Of the remaining 19 projects, 7 completed at

least 50 percent of mitigation; 2 projects had not started actual

construction but had done some mitigation; and 10 projects had not

started construction or mitigation as of September 30, 2001. Almost half

(21) of the 47 projects are located in three states—California (10), Florida

(6), and West Virginia (5). Of the 34 projects starting construction, 16

completed 100 percent of the mitigation as of September 30, 2001,

according to the Corps.

Nearly half (13) of the 28 projects not completing at least 50 percent of

mitigation before the start of construction were flood control projects; 11

were navigation-type projects; 3 were bluff stability-type projects; and the

remaining project was an irrigation project. Some of the mitigation

activities planned for these 28 projects included acquiring lands and

obtaining easements; creating wetlands; planting seedlings, trees, shrubs,

and other vegetation; creating artificial reefs for shore protection; and

protecting slopes with stone.

Appendix II: Corps’ 47 Projects Since the Act

of 1986 with a Fish & Wildlife Mitigation Plan

& Receiving Construction Appropriations
Appendix II: Corps’ 47 Projects Since the Act

of 1986 with a Fish & Wildlife Mitigation Plan

& Receiving Construction Appropriations

Page 20 GAO-02-574 Fish and Wildlife Mitigation Guidance

Table II.1: Percent of Mitigation Completed for 47 Water Resources Projects Authorized Since the Water Resources

Development Act of 1986 That Required a Fish and Wildlife Mitigation Plan and Received Construction Appropriations, as of

September 30, 2001

Project State Purpose

Construction

initiated

Mitigation

initiated

Percent of

mitigation

completed

before

construction

initiateda

Percent of

mitigation

completed

as of

09/30/01

Projects not completing 50 percent of mitigation before construction initiated

1 Petaluma River California Flood Control Yes Yes 25 55

2 Guadalupe River California Flood Control Yes Yes 24 75

3 West Sacramento California Flood Control Yes Yes 22 24

4 Norco Bluffs California Flood Control Yes Yes 5 60

5 Olmsted Locks and Dam Kentucky Navigation Yes Yes 1 90

6 Sitka Harbor Alaska Navigation Yes Yes 0 100

7

Coyote and Berryessa

Creeks California Flood Control Yes Yes 0 100

8 San Lorenzo River California Flood Control Yes Yes 0 100

9 Rio Grande Colorado Flood Control Yes Yes 0 100

10 Martin County Florida Shore Protection Yes Yes 0 100

11 Ft. Pierce Harbor Florida Navigation Yes Yes 0 100

12

Savanna Harbor

Deepening Georgia Navigation Yes Yes 0 100

13 Hickman Bluff Kentucky Bluff Stability Yes Yes 0 100

14 Port Fourchon Louisiana Navigation Yes Nob0 100

15 West Columbus Ohio Flood Control Yes Yes 0 100

16 McGrath Creek Texas Flood Control Yes Yes 0 100

17 Wolf and Jordan Rivers Mississippi Dredging Yes Yes 0 90

18 Aloha-Rigolette Louisiana Flood Control Yes Yes 0 78

19 Wilmington Harbor North Carolina Navigation Yes Yes 0 75

20 Houston-Galveston Ship Texas Navigation Yes Yes 0 67

21 La. State Penitentiary Louisiana Flood Control Yes Yes 0 66

22 Palm Valley Bridge Florida Navigation Yes Yes 0 50

23 Kentucky Lock Addition Kentucky Navigation Yes Yes 0 35

24

American River

Watershed California Flood Control Yes Yes 0 10

25 Ft. Pierce Beach Florida Shore Protection Yes Yes 0 10

26 Grand Prairie Arkansas Irrigation Yes Noc 0 0

27 Oakland Harbor California Navigation Yes Noc0 0

28 Duck Creek Ohio Flood Control Yes Noc 0 0

Projects completing 50 percent or more of mitigation before construction initiated

1

Tropicana & Flamingo

Washes Nevada Flood Control Yes Yes 100 100

2

Big Sioux River and Skunk

Creek South Dakota Flood Control Yes Yes 100 100

3 Moorefield West Virginia Flood Control Yes Yes 100 100
Appendix II: Corps’ 47 Projects Since the Act

of 1986 with a Fish & Wildlife Mitigation Plan

& Receiving Construction Appropriations

Page 21 GAO-02-574 Fish and Wildlife Mitigation Guidance

Project State Purpose

Construction

initiated

Mitigation

initiated

Percent of

mitigation

completed

before

construction

initiateda

Percent of

mitigation

completed

as of

09/30/01

4 Petersburg West Virginia Flood Control Yes Yes 100 100

5 Wood River Nebraska Flood Control Yes Yes 63 86

6 Kaweah River California Flood Control No Yes 50 78

7 Miami Harbor Florida Navigation Yes Yes 50 100

Projects where some mitigation occurred but construction has not been initiated

1 Brunswick Harbor Georgia Navigation No Yes

Not

applicable 3

2 Marmet Lock West Virginia Navigation No Yes

Not

applicable 2

Projects where neither construction nor mitigation has been initiated

1

Nogales Wash and

Tributaries Arizona Flood Control No No

Not

applicable 0

2 Success Dam California Dam Safety No No

Not

applicable 0

3 Wares Creek Florida Flood Control No No

Not

applicable 0

4 Bear Grass Creek Kentucky Flood Control No No

Not

applicable 0

5 Comite River Louisiana Flood Control No No

Not

applicable 0

6 Arecibo Puerto Rico Flood Control No No

Not

applicable 0

7 Rio de La Plata Puerto Rico Flood Control No No

Not

applicable 0

8 Upper Jordan River Utah Flood Control No No

Not

applicable 0

9 Greenbrier River West Virginia Flood Control No No

Not

applicable 0

10 Lower Mud River West Virginia Flood Control No No

Not

applicable 0

a

Is not applicable because construction has not been initiated.

b

Project is self-mitigating through beneficial use of dredged material.

c

Mitigation is scheduled for later in the construction sequence because site conditions do not allow

mitigation to occur earlier.
Appendix III: Guidance Documents Reviewed

by Panel

Page 22 GAO-02-574 Fish and Wildlife Mitigation Guidance

Executive Order 11990, Protection of Wetlands, (1977) [entire document].

CEQ Regulations on the National Environmental Policy Act, (1978) [entire

document].

FWS mitigation policy, (1981) [entire document].

Section 404(b)(1) Guidelines, (1980) [entire document].

EPA/Corps memorandum of agreement concerning section 404(b)(1)

guidelines, (1990) [entire document].

Joint FWS/NMFS/NOAA Regulations on the Endangered Species Act,

[entire document].

Memorandum: Federal Interagency Memorandum of Understanding for

Implementation of the Endangered Species Act, (1994) [entire document].

Multi-agency Guidance on Mitigation Banking, (1995) [entire

document].

NMFS Regulations on Essential Fish Habitat, (1997) [entire document].

Wetlands Engineering Handbook, Corps of Engineers, (2000) [paper copy

and compact disc].

“EXHGM: Expert Hydrogeomorphic Approach,” Corps of Engineers’ Fact

Sheet, (2000) [entire document].

“Habitat-Net: An Interactive Network for Habitat Evaluation

Professionals,” Corps of Engineers’ Fact Sheet, (2000) [entire document].

“WIMS: Wildlife Information Management System,” Corps of Engineers’

Fact Sheet, (2000) [entire document].

“Erosion Control for Restoration and Environmental Benefits,” Corps of

Engineers’ Fact Sheet, (2000) [entire document].

“Wildlife Habitat Restoration and Management,” Corps of Engineers’ Fact

Sheet, (2000) [entire document].

Appendix III: Guidance Documents Reviewed

by Panel

Governmentwide

Policy Guidance

General Technical

Guidance
Appendix III: Guidance Documents Reviewed

by Panel

Page 23 GAO-02-574 Fish and Wildlife Mitigation Guidance

Examples of Performance Standards for Wetland Creation and

Restoration in Section 404 Permits and an Approach to Developing

Performance Standards, Corps of Engineers, (1999) [entire document].

Case Study: Application of the HGM Western Kentucky Low-Gradient

Riverine Guidebook to Monitoring of Wetland Development, Corps of

Engineers, (1999) [entire document].

Restoration of Mangrove Habitat, Corps of Engineers, (2000) [entire

document].

Design and Construction of Docks to Minimize Seagrass Impacts, Corps

of Engineers, (1999) [entire document].

Guidelines for Conducting and Reporting Hydrologic Assessments of

Potential Wetland Sites, Corps of Engineers, (2000) [entire document].

Installing Monitoring Wells/Piezometers in Wetlands, Corps of

Engineers, (2000) [entire document].

Importing Plant Stock for Wetland Restoration and Creation:

Maintaining Genetic Diversity and Integrity, Corps of Engineers, (2000)

[entire document].

Evaluating Environmental Effects of Dredged Material Management

Alternatives—A Technical Framework, EPA and Corps of Engineers,

(1992) [entire document].

Consultation Handbook for Section 7 Consultation under the

Endangered Species Act, FWS and NMFS, (1998) [Web site location: Go to

http://endangered.fws.gov and click on “consultations” and then click on

“Endangered Species Act Consultation Handbook”. The final website is

http://endangered.fws.gov/consultations/s7hndbk/s7hndbk.htm.]

Digest of Water Resource Policies and Authorities, (1999) [chapters 3 and

19].

Planning Guidance Notebook, (2000) [chapters 1-4, appendixes C and E].

Corps of Engineers NEPA Procedures, (1988) [entire document].

Corps of Engineers’

Civil Works Program

Guidance
Appendix III: Guidance Documents Reviewed

by Panel

Page 24 GAO-02-574 Fish and Wildlife Mitigation Guidance

Economic and Environmental Principles and Guidelines for Water and

Related Land Resources Implementation Studies, (1983) [pages iii-ix, 107-

137].

Cost Effectiveness Analysis for Environmental Planning: Nine EASY

Steps, (1994) [pages iii-viii and 1-10].

FWS/Corps Agreement on funding FWCA activities, (1982) [entire

document].

Administrative Regulations, 33 C.F.R. Parts 320, 322, 323, 325 and 330.

Regulatory Guidance Letter 93-2, on Flexibility of the 404(b)(1) Guidelines

and Mitigation Banking [entire document].

Regulatory Guidance Letter 01-1 on Guidance for the Establishment and

Maintenance of Compensatory Mitigation Projects Under the Corps

Regulatory Program Pursuant to Section 404(a) of the Clean Water Act and

Section 10 of the Rivers and Harbors Act of 1899, (2001) [entire

document].

Standard Operating Procedures [section 18, Compensatory Mitigation].

Mitigation of Impacts to Wetlands and Natural Habitat, 23 C.F.R. Part 777,

(2000) [entire document].

Memorandum: Participation in Funding for Ecological Mitigation,

(1995) [entire document].

Memorandum: Guidelines for the Consideration of Highway Project

Impacts on Fish and Wildlife Resources, (1989) [entire document].

Fiscal Year 2001 Performance Plan, (2000) [chapter 5].

Memorandum: Financial Assurances for Wetland Mitigation Banks,

(1997) [entire document].

Memorandum: Eligibility of “Historic Wetlands” for ISTEA Funding,

(1997) [entire document].

Corps of Engineers’

Regulatory Program

Guidance

Federal Highway

Administration

Guidance
Appendix III: Guidance Documents Reviewed

by Panel

Page 25 GAO-02-574 Fish and Wildlife Mitigation Guidance

Memorandum: Use of Private Wetland Mitigation Banks as

Compensatory Mitigation for Highway Project Impacts, (1995) [entire

document].

Memorandum: Funding for Establishment of Wetland Mitigation Banks,

(1994) [entire document].

Memorandum: Wetland Delineation and Mitigation, (1994) [entire

document].

DOT Order 5660.1A, Preservation of the Nation’s Wetlands, (1978) [entire

document].

NCHRP Report 379: Guidelines for the Development of Wetland

Replacement Areas, Transportation Research Board, National Research

Council, (1996) [entire document].

Applying the Section 404 Permit Process to Federal-Aid Highway

Projects, FHWA, COE, EPA, FWS, NOAA, (1988) [entire document].

Highways and Wetlands: Compensating Wetlands Losses, (1986) [entire

document].
Appendix IV: Assessment Instrument Used by

Panel

Page 26 GAO-02-574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by

Panel
Appendix IV: Assessment Instrument Used by

Panel

Page 27 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 28 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 29 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 30 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 31 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 32 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 33 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 34 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 35 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 36 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 37 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 38 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 39 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix IV: Assessment Instrument Used by

Panel

Page 40 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 41 GAO-02-574 Fish and Wildlife Mitigation Guidance

The panel of scientific experts was tasked with comparing the Corps of

Engineers’ Civil Works Program’s, the Corps’ Regulatory Program’s, and

the Federal Highway Administration’s Federal-aid Highway Program’s

national fish and wildlife mitigation guidance. In assessing this guidance,

the panel was to focus on various attributes of the guidance and the five

stages of a mitigation project.1

 The panel provided numeric ratings ranging

from “0” for no guidance, “1” for poor guidance, “2” for fair guidance, “3”

for moderate guidance, “4” for good guidance, to “5” for excellent guidance

for the various mitigation stages. Summaries of the panelists’ numeric and

narrative responses follow.

Table V.1 Summary of Expert Panel’s Final Assessment of the Corps of Engineers’

and Federal Highway Administration’s Fish and Wildlife Mitigation Guidance

Attributes

Stages of Mitigation

Projects Complete Current Clear Broad Viable

Overall

rating

Determination

Civil Works Program 3.1 3.4 3.3 3.0 2.4 3.3

Regulatory Program 3.3 3.4 3.4 2.7 2.4 3.1

Highway Program 3.1 3.3 3.6 3.6 3.0 3.6

Design

Civil Works Program 3.6 3.7 3.4 2.9 3.6 3.4

Regulatory Program 3.6 3.7 3.9 3.0 3.6 3.6

Highway Program 4.1 3.7 4.1 3.6 3.6 3.7

Construction

Civil Works Program 3.3 3.4 3.4 3.1 3.6 3.6

Regulatory Program 3.4 3.3 3.6 3.6 3.7 3.7

Highway Program 4.0 4.0 4.1 4.0 3.9 4.1

Monitoring

Civil Works Program 3.6 3.4 3.0 3.1 2.9 3.1

Regulatory Program 3.6 3.4 3.3 3.1 3.0 3.0

Highway Program 3.7 3.7 3.6 3.6 3.3 3.6

Evaluation

Civil Works Program 2.0 2.7 2.6 2.1 1.9 1.9

Regulatory Program 2.4 2.7 2.7 2.3 2.4 2.3

Highway Program 2.7 3.0 3.1 2.9 2.9 2.7

 1

 While the law only included project design, construction, monitoring, and evaluation

stages of a mitigation project, we subdivided the project design stage to separate the

guidance that focuses on how the decision is made that fish and wildlife mitigation is

required, and if so, how much, and how the project is actually designed to address the need

for fish and wildlife mitigation.

Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 42 GAO-02-574 Fish and Wildlife Mitigation Guidance

Attributes

Stages of Mitigation

Projects Complete Current Clear Broad Viable

Overall

rating

Overall Rating

Civil Works Program 3.1

Regulatory Program 3.3

Highway Program 3.7

Note: Table cells include the average rating given by the seven panelists for each program, for each

attribute, in addition to an overall rating. The individual panelists’ ratings underlying these averages

are not shown. In some cases, panelists’ ratings may vary widely.

The determination stage is when the agencies decide (a) whether

compensatory mitigation is required for project impacts, and, if so, (b) the

amount of mitigation that will be required.

• Civil Works Program—3.3

• Regulatory Program—3.1

• Highway Program—3.6

Overall, the ratings for the determination stage were the third highest

among the five stages. This stage includes two separate decisions—

whether mitigation is required and, if so, how much. The panelists felt that,

in general, the guidance did a better job on the first decision than on the

second.

Most panelists cited the existence of governmentwide guidance and how it

contributes to determining whether mitigation is required. They indicated

that this determination is aided by a clear, long-standing sequential

definition of “mitigation” that requires avoidance first, then minimization

of impact, and finally mitigation of unavoidable impacts. According to one

panelist, however, while the governmentwide guidance provides

definitions and indications of desired outcomes, the governmentwide

guidance stops short of specifying exactly when or how a program should

make a case-specific determination that compensatory mitigation is

necessary and/or how much should be required. This panelist indicated

that none of the three programs have explicit guidance for determining

whether compensatory mitigation is required, and the outcome apparently

is more a result of due diligence and quality of staff than quality of

regulatory guidance.

Determination Stage

Numeric Ratings

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 43 GAO-02-574 Fish and Wildlife Mitigation Guidance

Various panelists indicated that strengths of the Civil Works Program’s

guidance include detailed planning formulation guidance and state-of-theart planning tools, emphasis on the ecosystem approach and the inclusion

of adjacent lands, or the emphasis on resource evaluation to determine the

mitigation needed. Other panelists, however, cited weaknesses in the Civil

Works’ guidance, including the confusion caused by considering economic

tradeoffs in determining which mitigation alternative to select, the lack of

currency or consistency in the information included, or the lack of

assurance that the resources and functions lost by development will be

replaced.

Regarding the Regulatory Program’s guidance, several panelists expressed

favorable comments regarding the program’s new October 2001 guidance

as it strengthens the importance of watershed context and functionality of

impacted areas in decision making, emphasizes an ecosystem approach,

integrates financial requirements into the permit, recognizes the need for

adaptive management, better explains the criteria for determining

compensation ratios, provides a more specific mechanism for determining

exactly how much mitigation will be required, or details success criteria.

Other panelists cited weaknesses, however, including that the detailed

guidance was not adequately summarized and presented for ease of use,

the guidance placed too much discretion at the Corps’ district level for

decisions, it lacked currency or consistency in materials, or the new

guidance conflicts with other Regulatory guidance on the issue of

preservation.

Panelists identified some strengths and weaknesses of the Highway

Program’s guidance. Among the strengths cited, panelists indicated that

the guidance appropriately emphasized aquatic resources and other

habitats with unique or important values under federal law, incorporated

ratio goals for wetlands replacement that were considered noteworthy,

was more current than the other two programs because of the emphasis

on using consolidated mitigation sites in the form of mitigation banks

when appropriate, emphasized resource evaluation to determine

mitigation need, more effectively conveyed the information necessary to

fully understand the process for determining whether compensatory

mitigation is required, more effectively called for a compensatory

mitigation ratio of 1.5 to 1, or included the preference to fund and then

monitor mitigation banks as a means of ensuring the long-term success of

the mitigation to increase ecosystem viability. One panelist emphasized

the strengths of the Highway Program’s guidance by indicating that it, in

sharp contrast to the Corps’ guidance, is clear, concise, summarized in an

understandable way, and makes it clear who has what responsibilities.
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 44 GAO-02-574 Fish and Wildlife Mitigation Guidance

Further, the panelist said that the guidance applies to a range of systems

and addresses wetlands and other habitats in an appropriate manner and

makes it clear that mitigation is required and that it will be done as

compared to the Corps where it leaves it open. Two panelists, however,

indicated that the Highway Program’s guidance in this stage was weak

because it did not really focus on determining the need for or amount of

mitigation required.

The design stage includes all preconstruction activities once the decision

on the need and extent of compensatory mitigation has been made. It

includes the necessary features and performance characteristics of the

mitigation project.

• Civil Works Program—3.4

• Regulatory Program—3.6

• Highway Program—3.7

Overall, the ratings for the design stage were the second highest among

the five stages, but panelists provided relatively little narrative comments

about this stage. As one panelist pointed out, the design stage is

considered more a technical element of mitigation and not as subject to

policy guidance as are other stages such as the determination and

evaluation stages. Panelists’ generalized comments related to the Wetlands

Engineering Handbook and included both strengths and weaknesses.

Specifically, some panelists believed that the handbook includes detailed

background on wetlands and statistical evaluation techniques; is relatively

complete, reasonably current, and very clear; or as one panelist put it, the

handbook provides very good technical information on the design,

construction, and monitoring of wetland ecosystems. According to the

panelist, the information is timeless and remains a standard in the field of

mitigation. Yet, other panelists cited weaknesses with the same handbook.

Namely, one panelist said that it does not provide a comprehensive

explanation of how to design a replacement wetland and puts emphasis

only on one technique to evaluate functions, even though the technique

has been criticized by wetlands professionals. The panelist further stated

that the handbook is very complicated to follow with its overemphasis on

statistical techniques over basic design procedures. Another panelist

criticized the handbook as addressing the structural aspects of viability

Design Stage

Numeric Ratings

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 45 GAO-02-574 Fish and Wildlife Mitigation Guidance

but paying little attention to long-term habitat function. Panelists pointed

out that the guidance at this stage was weak in the areas of non-wetland

fish and wildlife and upland mitigation, such as open waters, streams,

stream banks and uplands, and in fact, the guidance was heavily focused

on wetland mitigation.

Regarding the Civil Works Program’s guidance, two panelists commented

on the strength of the guidance. One panelist indicated that the guidance

generally includes a relatively complete description of the parameters

needed to design a successful and effective wetlands mitigation project

and has sufficient criteria on uplands, land use, and other offsite factors.

Another panelist said the guidance has enough information related to

policy that is pertinent in the selection of the conceptual design; and case

studies that are informative and provide constructive insight in applying

the principles and techniques to other types of mitigation work. Three

panelists, however, cited weaknesses in the Corps’ guidance for this stage.

Among the weaknesses cited were that practitioners will need more

specific technical guidance because the guidance addresses various

administrative attributes of the process rather than the mitigation aspects

of projects; the guidance includes a few examples of projects but should

include more and the examples should be discussed in greater detail; the

guidance sets out how the design criteria should be applied, but is

sometimes confusing and overly complex in its presentation; or the

guidance lacks specific technical information other than to address simple

hydrology and soil factors.

Two panelists commented about the Regulatory Program’s new guidance

when reflecting on this stage. One panelist indicated that the new

guidance strengthened existing guidance by emphasizing the need to

integrate buffer zone design into the plans. Another panelist indicated that

the new approach cited in the guidance potentially provides a better

mechanism for designing a successful replacement project; that the new

guidance begins to set out the user-friendly, step-by-step set of

instructions that previously had been missing; and that the new guidance

makes the design stage guidance clearer and broader in at least some

respects and clarifies some of the previous vagueness. While basically

complimenting the new guidance, however, this panelist indicated that in

other respects, the new guidance is not an improvement because it

provides more flexibility than it should—for example, awarding credits for

preservation—that does not serve to fulfill the goal of replacing lost

functions and values.
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 46 GAO-02-574 Fish and Wildlife Mitigation Guidance

Panelists cited some strengths in the Highway Program’s guidance for this

stage. One panelist for example, indicated that the guidance was the most

complete, current and clear guidance on the design of mitigation projects,

although it tended to include too much emphasis on wetland banking.

Further, this panelist indicated that the guidance provides excellent detail

and good examples of the design stage, offers several alternative methods

to assess wetland functions, and provides an excellent tool for learning

how to design and construct wetland replacement projects. Another

panelist indicated that while the guidance primarily relates to wetlands, it

is very user-friendly both in information and format; the overall process is

clear, logical, and comprehensive; from a viability perspective, the

guidance is more effective because it links the need to replace lost

functions at each step in the process; and the discussion on applying a

cost analysis is more instructive and easier to apply than the Corps’

guidance. Yet, this panelist also indicated that the guidance suffers from

the absence of information gained and lessons learned over the last 5 years

and that some of the guidance conflicts with other documents. Finally, a

third panelist indicated that the guidance provided good information to

help in developing mitigation designs, promoted site analysis, and included

sound and consistent logic for investigating site characteristics needed for

sustaining wetlands. However, this panelist also indicated that information

on evaluating mitigation designs, technical guidance, and standards for

measuring success is missing.

The construction stage includes land acquisition as well as all activity on

the site until the mitigation project is turned over to the nonfederal

sponsor. Construction activities include building structures, creating

habitat, and introducing animal and plant material.

• Civil Works Program—3.6

• Regulatory Program—3.7

• Highway Program—4.1

Overall, the ratings for the construction stage were the highest among the

five stages. In general, the two key technical guidance documents—the

Corps of Engineers’ Wetlands Engineering Handbook and the

Transportation Resources Board’s Guidelines for the Development of

Wetland Replacement Areas—received compliments from the panel. In

particular, one panelist indicated that although these guides address

primarily wetlands, the two documents together provide a significant body

Construction Stage

Numeric Ratings

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 47 GAO-02-574 Fish and Wildlife Mitigation Guidance

of technical information. Another panelist indicated that the guidance is

relatively current and on target with the best professional knowledge in

the area of wetland replacement construction. Further, this panelist

indicated that the guidance provides good, specific information on a broad

range of features including construction of water control structures, soils,

how to ensure proper hydrology, and the sequence of construction.

However, this panelist pointed out that the guidance does not discuss

what happens after construction or how to do site acquisition.

Where panelists commented extensively about the Wetlands Engineering

Handbook, very few additional comments about the strengths and

weaknesses of the Civil Works Program’s guidance were given. One

panelist did indicate, however, that the overall materials are not always

current with appropriate techniques, while another panelist pointed out

that the guidance lacks information about buildability and constructive

construction and that the Planning Guidance Notebook lacks helpful

information other than rough guidelines on timing.

Panelists generally limited their comments about the Regulatory Program’s

guidance. Two panelists commented on the program’s new guidance.

Specifically, one panelist indicated that the new guidance added

information related to the timing in the construction stage. Another

panelist indicated that the new guidance potentially provides an effective

mechanism for guiding the design and construction of a mitigation project

with the analysis set forth in an organized set of procedures for guiding

construction steps. In addition, this panelist indicated that the new

guidance goes a long way toward establishing performance standards. In

considering the Regulatory Program’s guidance, this panelist indicated

that the amount of information was overwhelming and unnecessary unless

it is meant to serve as a general primer to anyone with marginal expertise

on how to create or restore a wetland. Further, this panelist indicated that

“its use as a resource tool is limited because too much information must

be digested in order to get an answer or specific guidance.”

Regarding the Highway Program’s guidance, one panelist indicated that

the program has superior guidance because of the Guidelines for the

Development of Wetland Replacement Areas. According to the panelist,

this document provides additional specifications and step-by-step

guidance on wetland construction, over and above the relatively

comprehensive construction details provided in the Wetlands Engineering

Handbook. Another panelist indicated that the guidance is clear and well

organized and specifically lists project construction techniques that work

and those that have not. The panelist further indicated that the guidance
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 48 GAO-02-574 Fish and Wildlife Mitigation Guidance

provides an excellent list of plants that have been incorporated in

successful compensatory mitigation sites. Finally, a third panelist

indicated that the Highway Program’s guidance, as it does in all stages,

makes it clear that competent professional decisions by experienced

personnel will be used to answer questions and that this is not open to

negotiations. Additionally, this panelist indicated that the Highway

Program’s guidance is strong in all categories and easily understood.

The monitoring stage includes periodic assessments of the mitigation site

before, during, and after construction. A monitoring plan establishes the

requirements for the periodic assessments, the extent of federal agency

responsibility, and the applicability to others involved in the mitigation

project.

• Civil Works Program—3.1

• Regulatory Program—3.0

• Highway Program—3.6

Overall, the ratings for the monitoring stage were the second lowest

among the five stages. This rating reflects the panel’s general opinion that

the guidance emphasizes the determination stage and to a lesser extent the

other earlier stages of mitigation at the expense of the monitoring and

evaluation stages. Yet, panelists indicated that overall, the guidance

material addressing monitoring was reasonably well developed, and that

since the programs use the same basic reference material, they do a fairly

good job at addressing the issue. Three panelists specifically mentioned

the Wetlands Engineering Handbook as providing a good reference for

setting performance criteria and providing methods for sampling

everything from soils, hydrology, and vegetation to birds, fish, and

invertebrates. Several panelists, however, pointed out that the coverage of

monitoring activities fails to provide sufficient rationale or detail to

encourage this critical stage of the mitigation process; that the material

does not require upward reporting of the results so that top agency

management can monitor both project or program performance with

regard to the degree of success of mitigation; or that no real specific

guidance on site-specific design of a monitoring program exists in the

guidance.

Monitoring Stage

Numeric Ratings

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 49 GAO-02-574 Fish and Wildlife Mitigation Guidance

Most panelists did not comment on the strengths of the Civil Works’

guidance, but several panelists noted shortcomings in the guidance. For

example, one panelist mentioned that the guidance is technically sound

but addresses only wetlands for the most part and is not programmatically

helpful because it lacks the details on who should do what with the

reports. Two other panelists indicated that the monitoring discussions

focused too much on the cost considerations of monitoring, while another

panelist indicated that the guidance downplays the need for monitoring

and that the guidance tends to be dated.

Regarding the Regulatory Program’s guidance, panelists provided limited

comments. In commenting on the October 2001 guidance, three panelists

indicated that it provides a stronger emphasis on the importance of

monitoring, but “permanent” monitoring is not required; this guidance is

more explicit that monitoring should be included as a permit condition; or

it authorized the extension of the monitoring period where appropriate.

Two panelists commented that the Regulatory Program’s guidance on

monitoring needed to be strengthened if continued effectiveness of even

state-of-the-art mitigation plans were to be ensured or that the guidance

has some useful components but fails to provide any type of standardized

approach.

Panelists indicated that the Highway Program’s technical publications give

extensive treatment of monitoring as an essential element of successful

mitigation; the materials were considered excellent as they were complete,

relatively current, clear, and understandable; some of the information

provides a very good overview of monitoring and outlines strategies for

defining success; or the information is clearly presented and provides

enough technical information to be informative without being too overly

technical. One panelist, however, indicated that some of the guidance

could be adapted to address fish and wildlife and upland habitats but does

not do so, while another panelist indicated that the guidance provides an

overview of what to monitor, but does not provide any additional

specifics.

The evaluation stage includes three elements: (1) determining the overall

effectiveness and success of the mitigation project; (2) determining what

to do if a project is shown by the monitoring program, or otherwise, not to

be a complete success; and (3) determining the implications for improving

future mitigation projects.

Evaluation Stage
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 50 GAO-02-574 Fish and Wildlife Mitigation Guidance

• Civil Works Program—1.9

• Regulatory Program—2.3

• Highway Program—2.7

Overall, the ratings for the evaluation stage were the lowest among the five

stages. Panelists considered three separate aspects of project evaluation—

success of the project, capacity to take corrective action on an

unsuccessful project, and ability to make changes in future projects. From

a positive perspective, various panelists thought the guidance emphasized

why performance criteria are needed and who is responsible for the

assessment, or these panelists said the guidance contained helpful

examples of performance standards. However, several panelists generally

felt the guidance was weak among all three agencies. Two panelists

thought the Highway Program’s guidance was good, but the guidance for

the Corps’ two programs was not useful in any way. Panel members

disagreed over whether the Corps’ new Regulatory Program’s guidance

made significant improvements in the evaluation stage.

Regarding the Civil Works Program’s guidance, various panelists identified

the following as strengths of the guidance: it is current and reflects the

latest technical knowledge; it talks about how to develop performance

standards for a particular site; and it includes very pertinent information

regarding wetland monitoring and evaluating success criteria. Various

panelists cited weaknesses of the guidance in that evaluation is given short

shrift, is not addressed in a useful way, or lacked much discussion on

specifics. Among specific weaknesses cited by the panelists were: the

guidance provides little or no encouragement or support for continuing

evaluation and correction of individual Civil Works project performance

deficiencies or in developing additional guidance based on lessons learned

from completed projects; the guidance does not encourage Corps’ offices

to undertake routine or systematic evaluations of existing project

performance with the intent of either identifying on-going performance

deficiencies or providing “lessons learned” to assist in the planning of

mitigation or other project features; the guidance includes a laundry list of

factors to measure but does not require corrective actions nor does it

establish a feedback mechanism; the guidance does not include impacts

on natural systems in surrounding land and water areas as part of the

evaluation; and the guidance does not contain much discussion on the role

and responsibilities of various parties.

Numeric Ratings

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 51 GAO-02-574 Fish and Wildlife Mitigation Guidance

Regarding the strengths of the Regulatory Program’s guidance, one

panelist said it gives extensive technical guidance for developing

evaluation criteria. Two panelists said the recent Regulatory Program’s

guidance enhances the evaluation stage guidance. One of those panelists

said that the guidance attempts to provide more definition to the

components of evaluating the effectiveness and success of mitigation, and

the other panelist said that the guidance potentially provides an effective

means of tracking project success. Regarding weaknesses in the

Regulatory Program’s guidance, various panelists said the guidance

basically does not address evaluation in any useful way or continues to

need strengthening with regard to the evaluation stage. According to one

of these panelists, while the Corps talks about evaluation, it has “not

provided any method to use such evaluation in corrective actions either on

the current or future mitigation projects.”

Regarding the Highway Program’s guidance, various panelists identified

the following strengths: it includes a recommended assessment method; it

addresses fixing problems in mitigation efforts; it allows for extending the

monitoring period if the project’s goals have not been achieved at the

completion of the established period; it provides funding for additional

restoration activities if needed; it recommends maintenance for 3 to 5

years or longer to ensure the project’s success; it recommends a liberal

budget for expected and unexpected maintenance costs at 2 to 3 percent

of budget in reserve; or it makes the effort to see that learning is

incorporated into future efforts and to “fix” projects that were not

successful. Two panelists, however, said that the guidance is silent in

project evaluation or that evaluation is not covered in any significant

degree.

In this assessment, panelists were to consider whether the three programs’

guidance included, for example, designation of tasks and responsibilities;

ranges of mitigation alternatives; examples and cross-references;

discussions of quality control, feedback, and reporting; or measures of

success.

For four of the five mitigation stages, panelists’ average ratings for

completeness were higher for the Highway Program’s guidance than either

of the Corps’ two programs’ guidance. Several panelists commented that

the collective guidance emphasized wetlands replacement too heavily at

the expense of considering other habitats that support fish and wildlife.

One panelist reflected that while none of the programs did a good job of

Complete

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 52 GAO-02-574 Fish and Wildlife Mitigation Guidance

defining the amount of mitigation required, the Highway Program’s

guidance was the most detailed, written in a user-friendly, step-by-step

fashion, and the Civil Works’ guidance did not provide many technical

details and emphasized cost over the evaluation of success. Another

panelist indicated that the Highway Program’s guidance was more

complete because it set forth the range of circumstances when fish and

wildlife impacts should be mitigated and its evaluation guidance

specifically allows for the extension of the monitoring period if the

project’s goals have not been achieved. In contrast, this panelist indicated

that the Civil Works’ guidance falls short of identifying who should do the

monitoring, who should receive the monitoring reports, and who should

bear the cost of additional or off-site monitoring; and finally, that the

guidance does not include impacts on natural systems in surrounding land

and water areas. In discussing the Corps’ Regulatory Program’s recently

issued guidance, one panelist indicated that the new guidance enhances

the existing guidance particularly in the areas of determination and

evaluation as there is a new emphasis on the ecosystem approach to

mitigation. The panelist further stated that the new guidance gives more

criteria for determining compensation ratios and details the components

of a compensatory mitigation plan and success criteria to evaluate its

success.

In this assessment, panelists were to consider whether the three programs’

guidance reflected current laws and regulations and up-to-date technical

knowledge.

In general, the panelists did not provide many comments related to the

currency of the three programs’ guidance and with the exception of the

construction stage, panelists rated the currency of the guidance similarly

among the three programs. One panelist specifically noted this similarity

among the currency of the three programs’ guidance while another

panelist did not feel as if any of the programs presented a complete,

current picture of the entire process of determining what type of

mitigation is needed, designing and constructing the site, and then

monitoring and evaluating the project’s success. The panelist further

indicated that all three programs rely on a basic set of policy guidance that

may not be up-to-date with current thinking about wetland replacement,

and the programs rely on technical guidance that is not always in tune

with current thinking. Finally, another panelist indicated that none of the

programs’ guidance is as up-to-date as they might be on the effectiveness

of mitigation efforts and that much of the material is dated, and while still

conceptually good, it does not address current techniques related to

Current

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 53 GAO-02-574 Fish and Wildlife Mitigation Guidance

mitigation in many instances. Three panelists commented that the

Regulatory Program’s new guidance overall contributes to currency in that

it is more in line with current technical findings by, among other things,

including an ecologically based success criteria.

In this assessment, panelists were to consider whether the three programs’

guidance was clear on duties, responsibilities, distinction between what is

required and what are discretionary actions, and whether it was logically

organized.

Panelists provided a lower average rating for the Civil Works Program’s

guidance than the Corps’ Regulatory Program’s guidance and the Highway

Program’s guidance for all five mitigation stages as it relates to clarity. One

panelist indicated that the Corps’ Civil Works’ guidance was the clearest as

it related to the detail for determining the need for mitigation, while the

Highway Program’s guidance was the most clear as it relates to the design

of mitigation projects, and the guidance is relatively current and

understandable related to the monitoring stage. Another panelist,

however, indicated that the Civil Works’ guidance is compromised by the

less-than-clear inclusion of cost considerations, while the Highway

Program’s guidance includes explicit guidance on evaluation, including a

recommended assessment method. Another panelist criticized the Civil

Works’ guidance as providing a general listing of what will be required and

the procedures for making the determination, but falling short of providing

a clear explanation of the process. Also, related to monitoring, this

panelist said that the Civil Works’ guidance does not make clear who

should do the monitoring, who should receive the reports, or who bears

the cost of any additional or modified monitoring. Conversely, this panelist

indicated that the Highway Program’s guidance more effectively conveys

the information necessary to fully understand the process for determining

whether compensatory mitigation is required and if so, how much. While

most of the panelists indicated that the Regulatory Program’s new

guidance contributed to the overall clarity, one panelist indicated that the

new guidance was clearer than other Regulatory guidance, but did not

improve the body of material significantly and raised additional confusion.

The panelist indicated that the confusion arose because certain sections of

the new guidance were poorly written and difficult to interpret.

In this assessment, panelists were to consider whether the guidance for

the three programs was broad in its subject matter coverage. Panelists

Clear

Panelists’ Assessment

Broad
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 54 GAO-02-574 Fish and Wildlife Mitigation Guidance

considered the breadth of the three programs’ guidance as it related to the

scope of the mitigation impacts and whether hydrology, vegetation, fish

and wildlife species, adjacent lands, and wetlands were addressed.

For this attribute, the panelists’ average ratings were higher for the

Highway Program’s guidance than the Civil Works’ guidance. One

panelist, however, criticized all three programs’ guidance as not being

particularly broad because they cover only wetland habitat and not

adjacent uplands and the guidance focuses more on restoration of

hydrology and vegetation than direct design elements to deal with the loss

of fish and wildlife species. This same panelist indicated that two of the

guidance documents provide good specific information on a broad range

of features, including construction of water control structures, soils, how

to ensure proper hydrology, and the sequencing of construction. One

panelist indicated that the Corps’ Regulatory Program’s new guidance

better explains when off-site mitigation is appropriate and that it ensures

that the compensatory mitigation project will include design elements that

deal with the entire ecosystem.

In this assessment, panelists were to consider whether the guidance for

the three programs presents sufficient information to best ensure the

success of the project. Panelists considered whether the guidance

addressed the long-term viability of the ecosystem, for example the

survivability of natural and man-made systems into the future.

Assessing the viability attribute resulted in the widest variance in the

ratings among the panelists. For two stages—determination and

evaluation—most of the panelists rated the Civil Works Program’s

guidance lower than the Highway Program’s guidance. For two other

stages—design and monitoring—most panelists rated the two programs’

guidance the same. For the remaining stage—construction—an equal

number of panelists rated the Civil Works Program’s guidance the same as

or lower than the Highway Program’s guidance. One panelist indicated

that the guidance for the evaluation stage for all three programs does not

provide confidence that completed projects will successfully meet their

performance objectives. Panelists’ narrative comments generally did not

include comments for weaknesses in the Civil Works’ guidance and

strengths in the Highway Program’s guidance. One panelist, however,

criticized the Civil Works’ guidance because it contained no requirement

to reconsider the proposed project if the compensatory mitigation project

is not likely to succeed, that the information in the guidance is unlikely to

Panelists’ Assessment

Viable

Panelists’ Assessment
Appendix V: Panel of Scientific Experts’

Assessment of Fish & Wildlife Mitigation

Guidance by Attribute & Stage of Mitigation

Page 55 GAO-02-574 Fish and Wildlife Mitigation Guidance

lead to the replacement of habitat losses in at least some instances, and

that the guidance does not consider the impact of the mitigation project on

adjacent lands. Conversely, this panelist indicated that the Highway

Program’s guidance was more effective because it calls for a

compensatory mitigation ratio of 1.5 to 1, it clearly states that no net loss

goal applies only to wetlands, and the guidance allows funding for the

establishment period to increase the likelihood of project success. One

panelist indicated that the new Regulatory Program’s guidance provided

more definitive instructions on how to determine mitigation ratios and

types of mitigation and addressed the long-term viability of mitigation

through establishing success criteria while another panelist pointed out

that strengthening the financial assurances requirements also will improve

a project’s chance for long-term success.
Appendix VI: Comments from the Department of Defense

Page 56 GAO-02-574 Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the

Department of Defense
Appendix VI: Comments from the Department of Defense

Page 57 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix VI: Comments from the Department of Defense

Page 58 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix VI: Comments from the Department of Defense

Page 59 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix VI: Comments from the Department of Defense

Page 60 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix VI: Comments from the Department of Defense

Page 61 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix VI: Comments from the Department of Defense

Page 62 GAO-02-574 Fish and Wildlife Mitigation Guidance
Appendix VII: Panel of Scientific Experts,

Technical Adviser, and Expert Reviewers

Page 63 GAO-02-574 Fish and Wildlife Mitigation Guidance

Robert P. Brooks, Ph.D.

Director, Penn State Cooperative Wetlands Center and Professor of

Wildlife and Wetlands, Penn State University

G. Edward Dickey, Ph.D.

Senior Adviser, Dawson and Associates and Cassidy and Associates

Ellen Gilinsky, Ph.D.

Manager, Virginia Water Protection Permit Program, Virginia Department

of Environmental Quality

Carl Hershner, Ph.D.

Director, Center for Coastal Resources Management, and Associate

Professor, School of Marine Science, Virginia Institute of Marine Science

Robert G. Hoyt, Esq.

Principal and Founding Partner, EcoLogix Group, Inc.

Alan Wentz, Ph.D.

Group Manager for Conservation Programs, Ducks Unlimited, Inc.

David Yam, Branch Chief

Erosion and Sediment Control Branch, California Department of

Transportation, Office of Landscape Architecture District 4

William Matuszeski, Esq.

Former Director, Chesapeake Bay Program, Environmental Protection

Agency

Russell J. Bellmer, Ph.D.

Marine Ecologist, National Oceanographic and Atmospheric

Administration Restoration Center

Thomas Kelsch, Director

Mid-Atlantic Region, National Fish and Wildlife Foundation

Appendix VII: Panel of Scientific Experts,

Technical Adviser, and Expert Reviewers

Panel of Scientific

Experts

Technical Adviser

Expert Reviewers
Appendix VIII: GAO Contact and Staff

Acknowledgments

Page 64 GAO-02-574 Fish and Wildlife Mitigation Guidance

Linda L. Harmon (202) 512-8046

In addition to the above, Nancy S. Bowser, James M. Fields, H. Brandon

Haller, and Rosellen McCarthy made key contributions to this report.

Appendix VIII: GAO Contact and Staff

Acknowledgments

GAO Contact

Acknowledgments

(360038)
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