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November 22, 2011

U.S. Army Corps of Engineers Issues Considerations for Case-by-Case Determination of Compensatory Mitigation Ratios for 404 Permits

U.S. Army Corps of Engineers Issues Considerations for Case-by-Case Determination of Compensatory Mitigation Ratios for 404 Permits

By Andrea A. Matarazzo

The Sacramento District of the U.S. Army Corps of Engineers has issued its “Public Notice of Compensatory Mitigation Considerations” – a summary of factors and criteria the Corps will use in an effort “to improve consistency and better document its decisions for determining compensatory mitigation requirements” when it issues Section 404 permits under the Clean Water Act.  Determinations will be made using the new considerations to evaluate 404 permit applications on a case-by-case basis.  The evaluation will be qualitative and focused on comparisons between the functions of the project impact site(s) and the proposed compensatory mitigation.  The assessment of functions will included, but not be limited to:

  • Short- or long-term surface water storage
  • Subsurface water storage
  • Moderation of groundwater flow or discharge
  • Dissipation of energy
  • Cycling of nutrients
  • Removal of elements and compounds
  • Retention of particulates
  • Export of organic carbon
  • Maintenance of plant and animal communities

Additional factors the Corps will use “to arrive at appropriate and practicable compensatory mitigation on a case-by-case basis” include:

  • Mitigation site location:  Is the proposed mitigation located outside the impacted watershed?
  • Net loss of aquatic resource surface area:  Does the proposed mitigation result in a gain or loss of aquatic resource area?
  • Type conversion:  Is the proposed mitigation “out-of-kind”?
  • Uncertainty:  Are the affected resources difficult to replace?  Are there uncertainties concerning hydrology, structures and maintenance?
  • Temporal loss:  What is the estimated time between the impact to waters of the United States and the point at which proposed mitigation is expected to fully replace lost functions?
  • Indirect impacts:  Are there predictable indirect impacts associated with the proposed activity to be authorized by the 404 permit?
  • Cumulative impacts:  Are there documented cumulative impacts in the area of the proposed activity to be authorized by the 404 permit?

The Sacramento District recommends that permit applicants include information regarding these considerations as part of their proposed compensatory mitigation plans.

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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