Environmental Engineering Reference
In-Depth Information
elsewhere, generally within the same watershed. Most commonly, some environmental group or
irm is hired to perform the mitigation, but the responsibility (and liability) still lies with the permit-
tee. The mitigation activities could involve:
Creating a new wetland
Restoring a former wetland
Enhancing a degraded wetland
Preserving an existing wetland
and the mitigation is a condition of the permit.
In-lieu-fee mitigation involves the payment of a fee, which is placed in a pooled fund. The idea
is simply to pool money from a series of small projects to fund a larger one by a third party. By pro-
viding funds, the permittee is relieved of his or her mitigation responsibility, and the responsibility
then shifts to the third party.
Mitigation banks are also a form of third-party mitigation and are generally larger-scale
mitigation projects constructed speciically to sell mitigation credits to others. These are usu-
ally created by for-proit organizations, but they may also be created by nonproit or govern-
ment agencies. For example, some of the earliest mitigation banks were State Departments of
Transportation (DOT), such as the Montana DOT (Gardner 2011), where the Montana DOT
entered into an agreement to establish wetlands before its road projects and then “banked” these
credits for later use. Similar to in-lieu-fee mitigation, the purchase of these credits can be used
to remove the liability for mitigation from the permittee, and the responsibility shifts to the
management of the mitigation bank.
The process of mitigation and the evolution of the mitigation process is described in detail in
Gardner's (2011) Lawyers, Swamps and Money . Until relatively recently, one of the problems was
that the responsibility for the success (or failure) of the mitigation was largely that of the permittee,
for site-speciic mitigation.
As described in Gardner (2011), if an agency is failing to enforce laws to which it is assigned
responsibility, then private citizens or organizations can sue to force the agency to do so. For
example, the enforcement of Section 303(d) of the CWA requiring the establishment of total maxi-
mum daily loads largely occurred following lawsuits against the U.S. EPA and most states, as a
result of which they were required to do so. But, can an individual or organization sue because
permit requirements have not been met? That seems to depend on the type of permit. For example,
in Section 505 of the CWA, Congress speciically provided for citizen suits for the violation of
permits under Section 402, such as for the violation of water quality standards. However, there is
no such language for Section 404 and, as described by Gardner (2011), the courts have decided
that this was intentional. Therefore, if the Corps does not choose to enforce the 404 permit com-
pensatory mitigation requirements, the public cannot sue because permit requirements have not
been met. Another issue, as raised by Gardner (2011), is whether in third-party mitigations, such
as in-lieu-fee mitigation or mitigation banks, responsibility equates with liability. His response is,
somewhat surprisingly, “probably not” since the third party is not actually “engaging in an unau-
thorized discharge.” The impact was that until recently, in the absence of regulatory oversight, the
success rate for mitigating wetlands was somewhat less than desirable. As a result, a series of criti-
cal reviews of the compensatory mitigation process was undertaken by organizations such as the
NRC (2001), the Government Accounting Ofice (GAO 2005), and others. In 2008, the U.S. EPA
and the Corps issued a new rule ( Federal Register April 10, 2008) that (from USEPA and USACE
2006) (Figure 19.12):
Emphasizes that the process of selecting a location for compensation sites should be driven
by assessments of watershed needs and how speciic wetland restoration and protection
projects can best address those needs
Search WWH ::




Custom Search