U.S. Army Corps of Engineers: Scientific Panel's Assessment of Fish and Wildlife Mitigation Guidance
Released: 2002-05-15T00:00:00

Letter

Background

Generally, the Congress authorizes the Corps’ water resources projects every 2 years through a Water Resources Development Act. After project 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.

Water Resources Projects Authorized Since the 1986 Act That Required a Fish and Wildlife Mitigation Plan

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. 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. As of September 30, 2001, 16 of the 34 projects where construction had begun had completed 100 percent of the mitigation.

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.

Scientific Panel’s Assessment of the Quality of National Fish and Wildlife Guidance, Suggested Improvements, and Estimated Success of Mitigation

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.

Panel’s Assessment of Guidance

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

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. Several panelists indicated that the Corps’ reliance on this guidance interferes with the current thinking, which 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.

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. 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 contextand functionality 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; suggests the consideration of landscape setting and indicates a continuing evolution to a function-based approach to mitigation; 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 ratios 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 allows credit for efforts undertaken in uplands, which means that wetlands functions and values will less likely be replaced in those situations; or 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 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 values 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, which may not always be appropriate.

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

Suggestions for Improving Fish and Wildlife Mitigation Guidance

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 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-kind 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.

Panel’s Estimation of Achieving Successful Mitigation

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 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 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 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.

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.

Views of the Agencies

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.

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.

Appendix I: Objectives, Scope, and Methodology

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.

Number of Corps’ Projects

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 project- specific information, including project name, location, and purpose or type of project. The Corps solicited the information from its district offices. “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.

Scientific Panel’s Assessment of Fish and Wildlife Mitigation Guidance

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, 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.)

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

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.

Not applicable Not applicable Not applicable Not applicable Not applicable Not applicable Not applicable Not applicable Not applicable Not applicable 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

Governmentwide Policy Guidance

Executive Order 11990, Protection of Wetlands, (1977) .

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

FWS mitigation policy, (1981) .

Section 404(b)(1) Guidelines, (1980) .

EPA/Corps memorandum of agreement concerning section 404(b)(1) guidelines, (1990) .

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

Memorandum: Federal Interagency Memorandum of Understanding for Implementation of the Endangered Species Act, (1994) .

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

NMFS Regulations on Essential Fish Habitat, (1997) .

General Technical Guidance

Wetlands Engineering Handbook, Corps of Engineers, (2000) [paper copy and compact disc]. “EXHGM: Expert Hydrogeomorphic Approach,” Corps of Engineers’ Fact Sheet, (2000) . “Habitat-Net: An Interactive Network for Habitat Evaluation Professionals,” Corps of Engineers’ Fact Sheet, (2000) . “WIMS: Wildlife Information Management System,” Corps of Engineers’ Fact Sheet, (2000) . “Erosion Control for Restoration and Environmental Benefits,” Corps of Engineers’ Fact Sheet, (2000) . “Wildlife Habitat Restoration and Management,” Corps of Engineers’ Fact Sheet, (2000) .

Examples of Performance Standards for Wetland Creation and Restoration in Section 404 Permits and an Approach to Developing Performance Standards, Corps of Engineers, (1999) .

Case Study: Application of the HGM Western Kentucky Low-Gradient Riverine Guidebook to Monitoring of Wetland Development, Corps of Engineers, (1999) .

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

Design and Construction of Docks to Minimize Seagrass Impacts, Corps of Engineers, (1999) .

Guidelines for Conducting and Reporting Hydrologic Assessments of Potential Wetland Sites, Corps of Engineers, (2000) .

Installing Monitoring Wells/Piezometers in Wetlands, Corps of Engineers, (2000) .

Importing Plant Stock for Wetland Restoration and Creation: Maintaining Genetic Diversity and Integrity, Corps of Engineers, (2000) .

Evaluating Environmental Effects of Dredged Material Management Alternatives—A Technical Framework, EPA and Corps of Engineers, (1992) .

Corps of Engineers’ Civil Works Program Guidance

Digest of Water Resource Policies and Authorities, (1999) [chapters 3 and 19].

Planning Guidance Notebook, (2000) .

Corps of Engineers NEPA Procedures, (1988) .

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) .

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

Corps of Engineers’ Regulatory Program Guidance

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 .

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 .

Federal Highway Administration Guidance

Mitigation of Impacts to Wetlands and Natural Habitat, 23 C.F.R. Part 777, (2000) .

Memorandum: Participation in Funding for Ecological Mitigation, (1995) .

Memorandum: Guidelines for the Consideration of Highway Project Impacts on Fish and Wildlife Resources, (1989) .

Fiscal Year 2001 Performance Plan, (2000) .

Memorandum: Financial Assurances for Wetland Mitigation Banks, (1997) .

Memorandum: Eligibility of “Historic Wetlands” for ISTEA Funding, (1997) .

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) .

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) .

Applying the Section 404 Permit Process to Federal-Aid Highway Projects, FHWA, COE, EPA, FWS, NOAA, (1988) .

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

Appendix IV: Assessment Instrument Used by Panel

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

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. 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.

Determination Stage

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.

Numeric Ratings

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.

Various panelists indicated that strengths of the Civil Works Program’s guidance include detailed planning formulation guidance and state-of-the- art 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.

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.

Design Stage

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.

Numeric Ratings

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 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.

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.

Construction Stage

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.

Numeric Ratings

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 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 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.

Monitoring Stage

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.

Numeric Ratings

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.

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.

Evaluation Stage

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.

Numeric Ratings

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.

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.

Complete

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.

Panelists’ Assessment

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 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.

Current

In this assessment, panelists were to consider whether the three programs’ guidance reflected current laws and regulations and up-to-date technical knowledge.

Panelists’ Assessment

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 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.

Clear

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’ Assessment

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.

Broad

In this assessment, panelists were to consider whether the guidance for the three programs was broad in its subject matter coverage. Panelists 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.

Panelists’ Assessment

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.

Viable

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.

Panelists’ Assessment

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 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

Appendix VII: Panel of Scientific Experts, Technical Adviser, and Expert Reviewers

Panel of Scientific Experts

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.

Technical Adviser

Expert Reviewers

Appendix VIII: GAO Contact and Staff Acknowledgments

GAO Contact

Acknowledgments

In addition to the above, Nancy S. Bowser, James M. Fields, H. Brandon Haller, and Rosellen McCarthy made key contributions to this report.