Freshwater Wetlands - Hydro-Environmental Analysis: Freshwater Environments - page 528

a public notice and comment period on the permit application, and the preparation of permit deci-
sion documents. While issuing the permits is within the purview of the Corps, there are also coor-
dination requirements with other federal and state agencies to meet the requirements of the CWA,
the National Environmental Policy Act, the Endangered Species Act, and other federal statutes. In
addition, a state 401 certiication is required for a permit to be issued. These permits are based on
Section 401 of the CWA, which grants certifying authority for federal permits, which is basically
a state certifying that the activity is not expected to result in a violation of state water quality stan-
dards or criteria. Finally, the U.S. EPA (under Section 404(c)) has veto authority if it determines that
a project may result in signiicant environmental damage.
In some cases, the Corps may also issue “after the fact” permits. Basically, someone or some
organization can complete a dredge or ill project that should have required a permit and then
request a permit after the fact. If the permit is denied, then the person or organization would have
to perform restoration.
For waters that are “jurisdictional,” permits such as 404 permits are required before they can be
dredged or illed. Copeland (2010), based on information from the Corps, indicated that the Corps
evaluates more that 85,000 permits annually of which only 0.3% are denied. Of the permits issued,
over 90% were based on general permits (regional or national), so that only 9% were required to
go through the more detailed (in terms of both documentation and review) individual permit pro-
cess (Copeland 2010). While the U.S. EPA does have veto authority, as of 2010 that authority has
only been exercised 13 times, one of the most notable of which was the 2008 veto of the Yazoo
Backwater Area Pumps Project—Issaquena County, Mississippi (USEPA 2012).
19.5.2.3 Avoid-Minimize-Mitigate
The most common procedure used by the Corps is based on what could be called an avoid-
minimize-compensate (or mitigate) policy (Gardner 2011), as described in a 1990 memorandum of
agreement between the Department of the Army and the U.S. EPA. That is, the irst priority is to
avoid sensitive areas that are, for example, dificult or impossible to restore, such as fens and bogs.
The second priority is to minimize impacts where an impact is unavoidable. The third priority is
then to compensate for those unavoidable impacts. That is, the permittee must agree to restore,
create, enhance, or preserve other wetlands to offset or compensate for those unavoidable impacts
(Gardner 2011), known as compensatory mitigation.
Mitigation is a common practice in some environmental areas, but it is unusual in the context of
the CWA other than Section 404. That is, in general, the quality of “waters of the United States” are
equally protected and one cannot basically write off one waterbody in favor of another, even if, in so
doing, one improves some other waterbody of similar or even greater value (such as in the national
pollutant discharge elimination system (NPDES) permitting process). There may be different water
quality standards for different waterbodies, based on their beneicial uses, but all waters must meet
quality standards. Another practice is efluent trading, which is when a discharger cleans up some
source other than his or her own as long as the total load requirements to that speciic waterbody
are met; however, efluent trading is not comparable to compensatory mitigation since it applies to
the same waterbody.
Section 404 of the CWA deals with permitted impacts, such as dredging, and stipulates that those
permitted impacts on “aquatic resources” must be mitigated. While most commonly applied to
wetlands, “aquatic resources” also include streams, although stream mitigation has not received as
much attention (Lave et al. 2008; Doyle and Shields 2012). Regardless, common practice has been to
require compensatory mitigation as part of the 404 permitting process. That mitigation has resulted
in a reasonably large environmental industry centered on wetland mitigation. There are basically
three types of mitigation in common practice: site-speciic compensatory mitigation, in-lieu-fee
mitigation, and mitigation banking.
Site-speciic compensatory mitigation is based on a speciic permit and site to compensate for
unavoidable damage resulting from a project. The mitigation may be at the particular site or located