Tuesday, January 11, 2005

EPA Faces Late Push To Ensure Ecological Benefits In Wetlands Guidance

Subject: Will wetlands mitigation be diluted?
Date: 1/11/2005 8:03:23 A.M. Eastern Standard Time
From: MarianR451
BCC: Reysmont

Monday, January 10, 2005

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EPA Faces Late Push To Ensure Ecological Benefits In Wetlands Guidance

Environmentalists are pushing EPA to amend its upcoming wetlands mitigation guidance to ensure the agency places a premium on ecological benefits, rather than allowing developers to design projects for replacing destroyed wetlands based on the cost or ease of construction.

Environmentalists last month met with EPA officials to express concerns that the draft guidance -- which could expand industry options for mandatory wetlands mitigation -- will allow builders to choose less expensive mitigation projects rather than projects that closely mimic the environmental functions of destroyed wetlands, an environmentalist says.

The source says environmentalists are optimistic EPA will make some changes to the upcoming guidance document reflecting their concerns since the agency has not yet released the guidance -- which was expected out in December.

A source with the U.S. Army Corps of Engineers, which is one of several other agencies developing the guidance with EPA, says officials are scheduled to meet this week and plan to release the guidance shortly. EPA sources did not return calls seeking comment.

While the guidance has been under development for years, it comes at a time when the Bush administration is seeking an “overall increase” in wetlands acreage, rather than the prior goal of ensuring only a “no net loss” of wetlands.

Specifically, the pending guidance will outline conditions under which compensatory wetlands mitigation can occur for a different kind of wetlands than those destroyed or pursued away from the site where the initial wetlands impacts occurred.

EPA sources have previously said the guidance will likely allow companies developing wetlands-damaging construction projects to compensate for those impacts anywhere in the same watershed, which some say marks a reversal from a 1990 EPA guidance that expresses a preference for on-site mitigation.

Section 404 of the Clean Water Act requires developers to compensate for wetlands damaged during construction of homes, businesses or other buildings by creating the same amount of wetlands in a nearby area. Current policy for EPA and U.S. Army Corps of Engineers, which jointly administer section 404 of the water law, favors mitigation projects located on the same construction site as the damaged wetlands.

But the agencies allow compensatory wetlands mitigation to occur off site when hydrological or other conditions would make on-site projects infeasible.

The extent to which EPA and the Corps should allow “off-site” mitigation has been debated by environmentalists, the home building industry and other stakeholders, which is one reason the agencies are developing guidance on the issue.

The National Mitigation Banking Association (NMBA) recently submitted language that offers a more flexible approach than current policy toward mitigating off site from the construction project, as well as allowing for mitigation of “out-of-kind” or different types of wetlands than those damaged.

NMBA and construction groups favor allowing off-site mitigation in cases where land elsewhere in a watershed is better suited for mitigation than land on a particular construction site.

While the environmentalist declined to name specific concerns with the forthcoming guidance, in general they are concerned it will allow developers that destroy wetlands to mitigate that damage with projects that are cheaper or easier to construct, rather than with projects that will more closely fill the same functions as the destroyed wetlands. Environmentalists have traditionally argued that wetlands mitigation must occur as close as possible to the damaged wetlands to ensure the site retains the hydrologic functions and aquatic benefits it had prior to construction.

The source says environmentalists met with EPA officials in December to lay out their concerns with a draft version of the guidance.

The source adds that requests to meet with the U.S. Army Corps of Engineers, which is developing the guidance with EPA, were rebuffed -- with Corps officials telling environmentalists it was “too late to weigh in.”

The Corps source doubts that officials refused to meet with environmentalists, saying “I find that hard to believe.”

Meanwhile, environmentalists are awaiting a new regulation from the Corps that also addresses wetlands mitigation efforts. The Corps is required to develop the regulation, to establish mitigation project performance standards by a legislative rider that was attached to the 2003 defense authorization bill. The rider mandates that the regulation be issued in 2005, and environmentalists say they expect the Corps to propose the rule in March.

Date: January 10, 2005

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