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Results of the FHWA Domestic Scan of Successful Wetland Mitigation Programs

Appendix B. Summary of Responses to the Preliminary Questionnaire

Each State completed a questionnaire prior to the scan team site visit. The following is a summary of the responses.

1. Please provide the full title of your State's wetland mitigation program.

Texas: Untitled
North Carolina: N.C. Ecosystem Enhancement Program
Alabama: State of Alabama Department of Transportation's Wetland Mitigation Bank
Nebraska: EPU
Ohio: N/A, Ohio DOT has not named its wetland mitigation program.
Pennsylvania: No specific name; the State DOT doesn't consider itself to have a wetland program.
Kentucky: KYTC Stream and Wetland Mitigation Program
Minnesota: Minnesota Wetland Mitigation Banking Cooperative for Public Roads

2. Provide the primary point of contact for information regarding this program.

TX: Duncan Stewart, dstewar@dot.state.tx.us
NC: Bill Gilmore, Director, bill.gilmore@ncmail.net
AL: John Shill, Assistant Environmental Coordinator, Alabama DOT, shillj@dot.state.al.us
NE: Jason Jurgens, EPU Unit Supervisor, jjurgens@dor.state.ne.us
OH: Bill Cody, Assistant Environmental Administrator, ODOT Office of Environmental Services
PA: Stuart Kehler, Environmental Manager, skehler@state.pa.us
KY: John Dovak, John.Dovak@ky.gov
MN: Sarma Straumanis, MnDOT, sarma.straumanis@dot.state.mn.us

3. If there is a Web site affiliated with this program, please provide the URL.

TX: N/A
NC: www.nceep.net
AL: N/A
NE: N/A
OH: N/A
PA: N/A
KY: N/A
MN: www.bwsr.state.mn.us

4. In what year did your wetlands program begin operation?

TX: The wetland mitigation banking program started in 1992. The general wetland mitigation program was in operation prior to 1992 for on-site mitigation efforts.

NC: The Ecosystem Enhancement Program began operations in July 2003.

AL: We had a small 80 acre bank in 1991 at Wheeler Wildlife Refuge. Our present bank agreement was completed in 1996.

NE: 1990.

OH: ODOT's first wetland mitigation site (Gallia County US Route 35 wetland mitigation area) was constructed in June of 1990.

PA: Wetland mitigation was initiated in the 1980s as response to regulatory requirements. Not viewed as a program. Wetland Mitigation Banking Program - was conceptualized in the early 1990s, initiated with two pilot Engineering Districts under the name "Advanced Wetland Compensation" and a Statewide Agreement for Wetland Banking was executed with the permitting agencies in 2002. Our Engineering District 9-0 and 2-0began an aggressive program in 1995.

KY: KYTC began wetland mitigation in 1995. The new KYTC Stream and Wetland Mitigation Program partnership with USFWS is just now being implemented.

MN: 1991 legislation - The Wetlands Conservation Act (WCA), 1994 WCA implementation, 1996 local road wetland replacement program.

5. Who and/or what events served as the major catalysts for the program?

TX: Economies of scale-vs- cost of on-site (piecemeal) mitigation efforts.

NC: During the mid-1990s, the State began to experience increased project delays in transportation-infrastructure improvements because of shortcomings in meeting Federal clean-water permitting requirements. In response, the State began a process-improvement initiative in 2001 that involved input from 10 State and Federal environmental agencies. The task force examined the procedures of two State departments - Transportation and Environment and Natural Resources - working independently to compensate for development through wetland and stream mitigation. The panel found significant inefficiency in both systems and recommended a bold new approach. North Carolina would address the challenge of balancing needed growth with environmental protection by making the State's environmental agency - not its transportation agency - responsible for providing all off-site mitigation to compensate for the unavoidable environmental impacts of new transportation infrastructure. And, in carrying out this mission, North Carolina would base its mitigation on a solid foundation of watershed planning that goes beyond mere environmental-permitting compliance. The most compelling aspect of EEP's fresh approach is the proactive nature of its mission. Funds are invested in advance by the State's transportation leadership for environmental protection, before damage to wetlands and waterways will occur. EEP thus allows North Carolina to stockpile offsets years in advance of the time when they will be needed to clear permitting hurdles for transportation improvements and other economic development.

AL: Projects were being held at the permit stage due to disagreements over mitigation ratios. Mitigation on-site was becoming more and more difficult, not very productive and very difficult to maintain. President George H.W. Bush's policy of no net loss made it easier to negotiate the memorandum for a bank with the resource agencies.

NE: NDOR received a Cease and Desist Order from the COE.

OH: The Gallia County roadway project required compensatory mitigation under the 404 permit from the COE.

PA: Requests for significant replacement ratios due to anticipated "lag" time in replacing wetland habitats that are impacted served as a catalyst. Advanced Wetland Compensation was initiated in Pennsylvania by two of our District Environmental Managers/Assistant Environmental Managers, Stuart Kehler and Sandra Tosca.

KY: The new program will help KYTC expedite the 404/401 permitting process. The driving force behind the development of the new program is the USFWS and their desire to merge the development of KYTC stream and wetland mitigation sites with their agency mission of improving wildlife habitat in Kentucky.

MN: In the mid-1980's, Frank Pafko (MnDOT) and Jim St. John (FHWA - Minnesota Division Office) attended the USFWS course "Habitat Evaluation Procedures". After attending the course, they worked with the USFWS (the COE allowed the USFWS to act as their proxy) and implemented in 1987 a Wetland Habitat Mitigation Bank. This bank became the catalyst to include banks in the subsequent WCA legislation in 1991.

6. How many months/years of preparation were required to launch the program?

TX: Approximately 2 years for the banking program.

NC: The process-improvement initiative that led to EEP's creation began in the summer of 2001. Along with NCDOT, NCDENR and COE, the task force included representatives from State and Federal regulatory agencies with interests in water quality, endangered-species protection, coastal resource management, highway-infrastructure development and environmental protection. The task force was charged with finding a new approach to compensating for unavoidable damage from transportation construction and other economic development. Among the problems to be addressed were unacceptable delays because of inadequate or inappropriate mitigation; substandard environmental results of implemented mitigation; and a lack of consistency in mitigation oversight among regulatory agencies.

AL: The memorandum took about 3 years. Our first attempt at a memorandum had approval from all of the agencies in 1994 except EPA. The EPA balked at it because they were developing guidance for mitigation banks. We had to wait for them to complete their guidance before we could complete our memorandum.

NE: 1-2 Years for staffing and process development.

OH: The first project was designed and built as part of the major new construction project for the U.S. Route 35, 4 lane new location highway in Gallia County.

PA: It took about 5 years to reach the demonstration project stage, another 5 years to attain the Statewide Agreement and implementation of wetland banks is off to slow start, due primarily to the lack of dedicated project money to wetland banking and competing priorities for staff time. District 9-0 had there program running in approximately 1 year.

KY: MOA under discussion for 6 (?) months and it is now currently being implemented.

MN: Three years after legislation (1994).

7. What were the key obstacles or challenges that had to be addressed at this early stage?

TX: No official guidance was established by the USAC. State owned mitigation banks had never been established before in Texas. Justifying preservation (Blue Elbow) was worthy of consideration in Texas for this type of wetland habitat.

NC: The process-improvement initiative that led to EEP's creation identified early on a key factor that would influence the fate of rethinking mitigation practices in North Carolina. If a bold new approach were to succeed, then the program's sponsors would have to learn to abandon the status quo. Specifically, the collaborating sponsors would need to resist denial of the needed change, avoid direct resistance to moving forward, creatively explore new roles and relationships, and commit fully to the concept of EEP.

AL: Another obstacle was the fact that Alabama has nine river basins and the agencies wanted each basin to have a mitigation area. It would have been impossible to get nine banks on line quickly enough to supply credits in each basin to keep the highway construction program going statewide. We developed a method where we would commit to developing a site in each basin, but, in the mean time, we were allowed to borrow credits from the completed bank sites to us in the sites that were not complete.

NE: Changing NDOR's corporate attitude that wetlands should not be a key consideration in project design was a very large obstacle. Setting up the process of communication between the Roadway Design, Bridge and Project Development Divisions was a challenge. Obtaining the trust of the COE was also a challenge.

OH: ODOT had to secure legislative authority to utilize transportation funding for the purchase of property for the purpose of wetland mitigation. Other key obstacles and challenges included our lack of experience with wetland design, construction, and monitoring.

PA: Initial obstacles were the result of wetland banking being a new concept that had not reached acceptance of the permitting agencies at the time, thus the effort to dub it "advanced wetland compensation" as opposed to "wetland banking". The Statewide Agreement languished in development due primarily to one COE District being fundamentally opposed to the overall concept. This District remains philosophically opposed and to date no wetland banks have been established in that COE District. The critical roadblock to full implementation at this time is the lack of dedicated funding or a mandate to MPOs and LDDs to program wetland banking projects on the TIP. Wetland Banking projects must compete with road projects and therefore under political pressures or budgetary constraints they are bumped from the TIIP.

KY: FUNDING, FUNDING, FUNDING!!!!!

MN: The key challenges were the following: philosophical battle - concentric circles versus quantum leap (i.e. on-site mitigation versus off-site mitigation); northern part of State versus southern part of State; diverse geography; diverse stakeholder perspectives; diverse wetland types; diverse land use; diverse Federal and State agency involvement; diverse hydrology; the nomenclature - the system versus sites; making the same assumptions for both debits and credits; commitment to no net loss; equating habitat units with banks. Pre-WCA - habitat function were the most important, other functions and values were ignored.

8. Did any new obstacles/challenges present themselves following the program launch?

TX: The 1995 COE guidance on establishing wetland mitigation banks. TxDOT had already established two wetland banks prior to the COE guidance being issued. The third bank that was proposed to be established had to follow the guidance and was therefore approached differently by the MBRT and "new" to contend with. Another issue at times continues to be justifying use of credits from an MBRT approved preservation style bank depending on what COE District TxDOT is requesting approval from.

NC: Executing the change process did not always go smoothly and some implementation issues have been slow to resolve. The sponsoring agencies have wrestled with integrating new business processes laid out in the memorandum of agreement, which in turn affected EEP's timelines and its ability to carry out its mission. For example, NCDOT did not fully realize the importance of its evolving role in the arrangement in terms of planning, project management and determining accurately the impacts that would require mitigation. COE needed to adjust for the effects of EEP on its own regulatory procedures involving mitigation crediting and accounting. And, NCDENR was forced to resolve issues including new roles for the department's internal enforcement divisions in mitigation, and creation of effective auditing processes to validate water-quality permitting requirements.

AL: Recently the Mitigation Bank Review Team has really gotten organized. They oversee not just ALDOT's Bank but private and other governmental banks around Alabama and Mississippi. Our documentation of the mitigation plan and our monitoring has really increased. Lately the time needed to get a bank site project underway has really increased.

NE: Yes, a large backlog of projects to be delineated and permitted created an obstacle to getting projects let to construction in a timely manner. Development of a wetland mitigation banking program and banking instrument was a challenge in the infancy of our program as well as it being in its infancy at the COE. Changing policies, guidance and regulations through the years has always been a challenge. Finding willing sellers of mitigation ground is a lot of work and can be both a challenge or an obstacle late in the acquisition stage. New legislation was needed to allow for condemnation of mitigation sites.

OH: Yes, new challenges included changing regulations, which made planning and implementation difficult. ODOT had to work through a long learning curve. We had to develop a mitigation design, construction and post construction monitoring protocols for the wetland mitigation.

PA: See above and also locating suitable sites.

KY: FUNDING, FUNDING, FUNDING!!!!!

MN: Yes. BWSR worked for the local transportation agencies because it was too extensive for the local agencies to handle themselves. Local governmental units needed to be trained technically to implement the act. Diminimus rules - implementation standards too onerous. Measures to earn replacement credits were expanded. The COE perspective was different from the State of Minnesota perspective.

9. What is the annual operating budget for your program? How is it funded? What are the major budget line items?

TX: TxDOT Districts provide mitigation and monitoring funds for each mitigation project from the overall project budget, or in some cases, Right of Way funds may be available. The three mitigation banks were purchased in fee simple and are managed by the Texas Parks and Wildlife Department.

NC: The EEP is funded on a fee structure proportional to demand. The N.C. Department of Transportation authorized spending by the EEP for advance programmatic mitigation as forecasted in the State's seven-year Transportation Improvement Plan at a level of about $189 million for the current biennium. The total included $15 million for administration, $47 million for restoration activities, $121 million for high-quality preservation site acquisition, and $6 million for project research and development. About 60 percent of the EEP's funding derives from this source to offset real and anticipated environmental impacts from transportation-infrastructure improvements.

AL: We develop PE, ROW, and construction budgets for each project as it begins. This money usually has Federal participation. There is no set annual budget for our program except for our maintenance budget which is approximately $30,000 per year. Most of our sites are in some stage of development and are still being covered by the original budgets with Federal participation.

NE: We do not have our annual budget broken down into line items by program. The entire environmental section's portion of the Divisions budget is approximately $900,000/year. Our budget is primarily State funds.

OH: Ohio DOT does not have a stand alone annual operating budget for a wetland mitigation program. Funding is mostly thorough project development. Funds are usually contract line items that are developed as part of the roadway construction project.

PA: An operating budget does not exist. In the absence of dedicated funding attempts are made to identify projects with adequate budgets in each service area requiring mitigation and utilize those project budgets to construct/restore greater amounts of wetland than required for the individual project. In some instances 100% State and or County Maintenance funds have been utilized to establish wetland banks/advanced wetland compensation sites.

KY: Approximately $2 million dollars in Federal and State transportation funds support the program. The major line items are construction and monitoring.

MN: $3 Million ($2 Million in State bonding money and $1 Million MnDOT funds). Funded by the State general fund. Acquisition, design, construction (development), administration, monitoring, and site management are the major budget line items.

10. What kind of partnerships or cooperative agreements are currently in place to support the program's long-term administration and maintenance?

TX: Texas Parks and Wildlife Department manages the three banks and each TxDOT District is responsible for all compensatory mitigation.

NC: The program was created under a memorandum of agreement among the N.C. Department of Transportation, the N.C. Department of Environment and Natural Resources and the COE in July 2003. Furthermore, in order to create a spirit of commitment and cooperation critical to EEP's development, a distinctive organizational approach was devised: EEP would rely on the counsel of a program-assessment advisory panel comprised of Federal and State regulatory agencies, which reviews policy decisions made by EEP management. The panel addresses ongoing issues affecting EEP's operations, evaluates program accomplishments and shortfalls, and helps to manage interagency process improvements. Finally, to ensure that EEP's accountability and credibility with external stakeholders would not be undermined, the program took the proactive step of establishing a liaison council made up of non-governmental mitigation stakeholders. The panel has provided recommendations on EEP's structure, mission and operations, and is briefed on progress three times annually. Members include representatives of the State's environmental, business, contracting, engineering and land-trust communities.

AL: We have a memorandum with Montgomery County to use our 1250 acre Catoma Creek Wetland Mitigation Area as a county environmental park. Upon completion of our mitigation activities the site will be given to the County. Several are proposed with the Alabama Department of Conservation and Natural Resources, but none of these have been completed. One of these is a site in Jackson County where we have developed a waterfowl management area to be deeded to the Alabama Wildlife and Freshwater Fisheries Division.

NE: Wetland Banking Instrument with the COE, NEPA Merge Agreement between COE, USFWS, Nebraska Game and Parks Commission, USEPA, Nebraska Dept. of Environmental Quality.

OH: Ohio DOT does not have any overall formal agreements for a wetland mitigation program with other agencies; projects are developed on a case by case basis. OHIO DOT has worked with the Ohio Department of Natural Resources, School districts, and local governments to build wetland mitigation areas. Long term administration and maintenance, beyond regulatory agency required monitoring periods, is accomplished by the agency that owns the land.

PA: Cooperative agreements to locate sites on State gamelands, parklands and forest land exist, also with a State correctional facility. These agreements eliminate ROW costs and provide a long-term maintenance entity. Note, however, that not all sites are located on these lands although attempts are made to attempt to identify potential sites on these lands first. Perpetual conservation easements and fee simple land purchases are also used. The Statewide wetland banking agreement/instrument provides maintenance and administration requirements. The COE Mitigation and Monitoring Guidelines grandfather banks established under this and other similar agreements. In other words the requirements in these documents are controlling in regard to requirements for planning, design, construction and maintenance of wetland banking/advanced wetland compensation sites.

KY: The USFWS Cooperative Agreement.

MN: See attached draft MnDOT/BWSR Agreement. Also, old COE/State agreement, new cooperative agreement, and site specific MOU's for MnDOT sites turned over to the Minnesota Department of Natural Resources (MnDNR) for management.

11. Including funded positions, innovative inter-agency cooperation, and functional replacement, are there other non-traditional approaches to wetland mitigation that you credit with helping your program succeed?

TX: The wetland mitigation banks are managed by another State agency.

NC: EEP makes a practice of leveraging funds with other State and Federal programs to increase project viability. The program's high-quality preservation aspect employs an interagency, science-based review process for selection of appropriate preservation sites. The program also relies on an advisory panel comprised of Federal and State regulatory agencies which reviews policy decisions made by EEP management, addresses ongoing issues affecting EEP's operations, evaluates program accomplishments and shortfalls, and helps to manage interagency process improvements.

AL: The initial inter-agency cooperation was great. We were able to accomplish a lot of good mitigation at a good price; however, with the advent of private banking the MBRT has become increasingly more rigid with their guidelines to the point that agency cooperation is not as innovative.

NE: N/A

OH: Ohio EPA has an ODOT funded 401 review position which streamlines our review process and affords us the opportunity to set agencies priority for the review of our projects. Whenever feasible ODOT works with other State and local government agencies to build wetlands on their property (no land cost for ODOT and they agree to keep and maintain the wetland in perpetuity).

PA: Some technical assistance and support (beyond scoping field views and project review) has been provided through funded position/interagency funding agreement with USFWS. The Partners for Wildlife Program has provided this assistance provided it involves wetland restoration in advance of known wetland impacts (i.e. not directly mitigation related). Some individuals within the COE Pittsburgh District provided assistance in locating sites on their lands with designs pre-prepared that they did not have adequate funding to complete. Unfortunately, their Counsel and Management objected to PennDOT constructing these sites as wetland banks - citing inconsistency with their mission. Attempts were made to utilize preservation of a rare/unique balsam fir wetland community and all agencies save one reached agreement on this approach. State DEP wetland regulations prevented the use of this site for credits except in instances where ratios for mitigation would have been greater than 1:1, so it was not prudent for PennDOT to pursue the preservation site. The regulations in question are being revised. PennDOT will attempt to encourage revisions of the DEP regulations that recognize preservation wetland banks as potential replacement for all impacts. In addition, the assistance of The Western PA Conservancy and the Allegheny National Forest was provided in conducting a "bio-blitz" of the potential site - documenting rare species and significant vegetative diversity. In District 9-0 (specifically) there are no detailed design plans for our sites and decisions are made in the field. The District Environmental Unit had a person on site who was familiar with wetland construction to oversee day to day operations and provide guidance to the equipment operators on how to build the sites. We also used our own county maintenance forces to perform the work and were not bound by a written construction contract. This allowed for changes to be made during construction based on the actual field conditions and permitted "rough" grading, tree transplanting, and other wetland construction techniques that made each site unique and diverse. An as-built plan was then developed after each site was constructed.

KY: N/A

MN: Private wetland mitigation banks, active research program (e.g. restoration methods and technologies), BWSR assuming the mitigation responsibilities for local agency road projects and MnDOT projects, five-year active site management plans, attempting to restore the wetland type which naturally fits within an area (ecosystem and plant community approach), consistent and standardized reporting, strict hydrologic and vegetation restoration standards, specifying native species only and high biological diversity, specifying weed free mulch, and invasive species management and control.

12. Have you observed clear differences between created wetlands and restored wetlands in your program? How would you characterize these?

TX: Currently, there is a research project underway to assess this question.

NC: Not at this time; five years of monitoring has yet to occur and EEP is in the process of developing mitigation success criteria.

AL: We have some created wetlands that have been very successful, but on the whole restored and enhanced wetlands begin showing their potential in a more timely manner. In some constructed wetlands you have to be very concerned with hydrology regimes, and soils. To have a good constructed wetland, both of these constituents must be present. The hydrology is the most important. Given enough time the soils may develop on their own, but it is best if these soils are there from the beginning.

NE: We have observed clear differences between the two. Restored wetlands have a more rapid and diverse vegetative response, and often a greater variety of wetland types. Created wetlands represent more of a management problem for control of woody invasive species, whereas restorations typically do not. The soil profile and seedbank is present at restoration sites, whereas created sites typically entail massive soil moving and disturbance, resulting in sterile subsoil. Unless organic matter with topsoil is introduced, success is difficult. The secret to our success has been the stockpiling of the hydric soils from the impact sites, mixing it with topsoil and re-spreading it onto the creation site. Small created sites along projects may fulfill acreage replacement requirements, but more quickly change to woody vegetation, typha- or phalaris-dominated sites than do restored sites.

OH: Yes. Created wetlands always require more planning and tend to be more expensive to build (more earth work, concern about hydrology, more plantings). Restoration sites tend to be harder to locate on site with the project (within one mile). Ohio DOT strives to develop wetland restoration and enhancement projects for mitigation projects.

PA: Restoration sites are typically more successful and more cost effective. Restoration sites traditionally do not require liners, require fewer water control structures and other hard engineering components, exhibit wetland characteristics much more rapidly, exhibit greater vegetative diversity, etc. In District (9-0) all sites have been built in drained hydric soils and involved the construction of low level berms to trap and store surface water that normally would have flowed through the drainage systems. Depending on the definition one chooses, the sites could all be classified as wetland restoration sites because they were all most likely wetlands before the drainage systems were installed (late 1950's & early 1960's).

KY: Created wetlands function poorly, may require active management and are generally discouraged by the regulatory agencies. KYTC has chosen to purchase and restore Prior Converted wetlands for its program.

MN: Minnesota defines created wetlands as creation of a wetland where one never existed. Few wetlands in Minnesota are created. Creation means excavation. Most wetland projects consist of a combination of creation and restoration. Those few wetlands that have been created have been successful but they have cost a lot of money and required more attention for the same results as restoration.

13. To what extent, if any, has preservation of existing wetlands, whether adjacent to or independent of other creation or enhancement activities, served a role in your mitigation program successes?

TX: Currently, there is a research project underway to assess this question.

NC: As of January 31, 2005, approximately 5,800 acres of wetlands have been purchased through the high quality preservation initiative. All of these high quality preservation sites are independent of creation or enhancement activities. Transportation improvement projects that were permitted with this wetland preservation as part of the compensatory mitigation package impacted approximately 1,100 acres of wetlands. Preservation that has been acquired adjacent to restoration projects have primarily been an 'add-on' component of the project. In some cases we are purchasing restorable areas that are continuous with functioning streams, buffers, and wetlands and depending on the relative size (length or area) of the preservation we try to include that in the acquisition. For stretches of stream preservation upstream of a project it is most certainly a protective measure. Preservation is especially critical to projects where development pressures are likely to change land use directly next to conservation easement boundaries. Many wetland projects will be a mosaic of restoration, enhancement, and preservation. The benefit is to protect the functions that exist within the continuum of restoration to preservation (e.g., buffer functions).

AL: We were able to preserve a 600 acre site in Barbour and Pike Counties. This site was slated to be cut by a lumber company. It consists of old growth hardwood and cypress with a number of Tupelo gum sloughs. It is a very beautiful site.

NE: Preservation has served a minimal role in our mitigation program success, primarily because of the high mitigation ratios assigned to it (10:1 or greater). Sometimes part of a mitigation site will contain pre-existing wetland where preservation credit is granted. It is rare and minimal.

OH: The preservation of existing wetlands has only played a minor role in our overall program. State law requires that only the highest quality wetlands can be used for preservation. Also, mitigation credits only apply to impacts above the minimum 1 to 1 replacement ratio required by law (no net loss).

PA: Rarely has preservation been pursued as mitigation for a specific project. Generally, the concept has met with limited agency agreement and the potential for other opportunities must be exhausted first. In respect to wetland banking the one related experience is detailed in the response to question 11 above. Preservation was pursued in this instance due to the opportunity to preserve a rare and unique habitat. District 9-0 has preserved existing wetlands at four of our sites as a good faith effort to further demonstrate our commitment to environmental stewardship. The preservation of these wetlands made sense in the overall land agreement for each of the sites because of the location and extent of the wetlands.

KY: In Kentucky, KYTC has several wetland mitigation projects that have preserved existing jurisdictional wetlands as part of the total compensation plan.

MN: Have not used this approach, but could, according to the rule, in unique cases (a tool in the toolbox).

14. To what extent, if any, has the specification, protection, and management of non-wetland buffers served a role in your mitigation program successes?

TX: Currently, there is a research project underway to assess this question.

NC: Non-wetland buffers are protected in association with high quality stream preservation sites. The high quality preservation rules require that tracts meet two or more of a series of stringent criteria, and have mature woody vegetation in the buffer area. 300' of buffer, measured from the top of each stream bank, is protected by the EEP easements or fee simple purchases. All functions of the riparian areas are protected by the wider buffers, including riparian wildlife habitats and connectors.

AL: Non-wetland buffers have been used in only a few of our sites.

NE: Buffers have served a very small role in our success. Project success appears to be independent of buffers.

OH: The specification, protection, and management of non-wetland buffers have only played a minor part in our program. It is now required on all wetland mitigation projects. Wetland Buffers increase the size of the site, the cost to purchase the land, and long term management. We have received up to 0.25 acres of wetland mitigation credit for each acre of buffer on some wetland mitigation sites (case by case, negotiated).

PA: Landscape position seems to contribute to perceived success during monitoring. Sites that are buffered seem to receive acceptance by the resource agencies more readily than those surrounded by populated areas and urban land uses. In some instances it is not necessary to acquire the buffer areas to have a positive benefit to this perception, for example sites on State gamelands, parkland or forestland are provided with existing preserved buffers. Comprehensive, multi-component project specific natural resource mitigation plans have been viewed favorably. In these instances wetland, stream and terrestrial mitigation components are integrated into a package deal whereby stream and terrestrial components may provide buffer for the wetland component. District (9-0) has incorporated non-wetland buffers at four of our sites as a good faith effort to further demonstrate our commitment to environmental stewardship. Again, the buffer areas made sense in the overall land agreement for each of the sites because of their location and ability to provide additional valuable wildlife habitat at the mitigation areas.

KY: Non-wetland buffers have not played a significant role in our current wetlands program but with the implementation of the new program it is anticipated to play a very large role in its success.

MN: The program gives credit for upland buffers (public value credit), but only above the 1:1 replacement ratio. In urban areas, a 25-foot minimum is required and in rural areas, a 50-foot minimum is required for wetland mitigation banks. There is on-going discussion concerning buffer widths (they are possibly too small). Buffers are a controversial issue.

15. Does your State have a policy, position, or experience with using eminent domain laws for procuring mitigation sites and/or banks?

TX: While is would be legal to do so, such action would be under exceptional circumstances.

NC: EEP does not employ eminent domain. Acquisitions associated with our projects are voluntary.

AL: Presently, our policy is not to use eminent domain; however, we have considered changing this policy. We have no plans at this time to change the policy.

NE: NDOR uses eminent domain law to procure mitigation sites when necessary. We have avoided using it for bank sites to date. We try to avoid it for mitigation sites if possible.

OH: ODOT has legislative authority to utilize eminent domain for the acquisition of lands for the purpose of wetland mitigation. To date Ohio DOT eminent domain authority for wetland mitigation has not been tested in court.

PA: Many potential wetland mitigation/wetland bank restoration sites are currently in agricultural land uses (tile-drained - prior converted wetlands) in Pennsylvania. The State however, has a State regulation(s) that require the approval of an independent approval board (governor appointed) that reviews and approves projects in a hearing setting when condemnation of land in agricultural use is required. The "test" that this approval board must apply in their review is similar to a 4(f) test - otherwise known as the ALCAB Prudent and Reasonable Alternative Test. The approval board has been clear in case law that they will not approve condemnation of agricultural land for the purposes of wetland mitigation. Condemnation of other lands could be pursued, however, particularly in the case of wetland banks. To date Penndot' pursued voluntary willing land owners and acquires perpetual conservation easements deed restrictions, and land purchase agreements.

KY: We currently do not use eminent domain in this State for procuring mitigation sites.

MN: Specific project on-site mitigation uses eminent domain. Others, no.

16. Are all your compensatory mitigation sites and/or banks acquired as fee-simple real estate with deed-restricting covenants? Have you experiences with compensatory mitigation being conducted on lands via alternative legal instruments, including conservation easements? If so, have these presented challenges/opportunities not found with fee-simple property?

TX: In FY 2003, the Texas legislators approved fee in lieu for mitigation. The program has been used in Dallas, Houston and Yoakum Districts.

NC: The majority of our acquisitions are through conservation easements, but we have made some fee-simple purchases. Long-term stewardship of all properties acquired by EEP remains a challenge.

AL: All of ours are fee-simple with covenants. We have considered other methods. We are not aware of all the problems these types of arrangements would present.

NE: All of our mitigation and bank site acquisitions have been fee simple except for one. On the one conservation easement site we were invited to join some other natural resource agencies to complete a funding package to restore hydrology to an outstanding wet meadow. The conservation easement was already set up when we joined, so it offered us an opportunity to acquire mitigation credits while participating in an interagency effort.

OH: No. OHIO DOT's compensatory mitigation sites and/or banks are acquired fee-simple & as part of the highway right of way (no restrictions or covenants on the deed unless we partner with a different land owner). OHIO DOT has no experience with compensatory WETLAND mitigation being conducted on lands via alternative legal instruments, including conservation easements. OHIO DOT is currently using conservation easements for compensatory STREAM mitigation.

PA: See above. We have built 6 sites to date and they have involved the following right of way actions. District (9-0) has used the following:

  • Cambria - written permission/agreement to build the site on State Gamelands. The property is still owned and governed by the PGC.
  • Huntingdon - land transfer agreement to transfer the land from the State Correctional Institution at Huntingdon to PENNDOT
  • Fulton - Fee simple acquisition
  • Somerset - written permission/agreement to build the site on PA Turnpike property.
  • Whitsel - perpetual conservation easement
  • Mowry - perpetual conservation easement

KY: KYTC has chosen to acquire most of its wetland mitigation sites in fee simple. Stream mitigation on private property requires some form of permanent protection and this has proven to be a difficult issue as many landowners will not agree to permanent stream protection restrictions.

MN: Both fee-simple and easements. MnDOT owned mitigation sites are usually reconveyed to the MnDNR. However, because there are so many sites, the MnDNR is requesting money to maintain the sites. How do we build in an upfront fee system? State parks, State-owned land and MnDOT restoration and mitigation. Easements have presented challenges and opportunities - e.g. maintenance responsibility and long-term care, invasive species management. The system is relatively new (it has not aged), only 15 years old. Sometimes the site has not been engineered so the berm blows up - who is responsible? Maintaining structures - under agreement BWSR Engineer will review all designs. With easements - people can not recreate. With fee owned - people can recreate because it is publicly owned. Cost share money has strings attached, e.g. land owner can not run cattle. Perhaps easements are not followed through with perpetuity with change in ownership. Who enforces these conditions? All real estate documents allow regulatory agencies access to the land.

17. How many banks constitute your program? Where are they located?

TX: Three:

  1. Anderson Tract: Tyler District, southeast of Mineola along the Neches River in Smith County
  2. Blue Elbow Swamp: Beaumont District, just east of Orange in Orange County
  3. Coastal Bottomlands: Houston District, just southwest of Barzoria in Brazoria County

NC: N/A

AL: We have one Memorandum of Agreement for the development of our bank. We have eleven sites which range in size from 30 acres to 1250 acres:

  1. The Lillian Swamp Site is approximately 640 acres is located in Baldwin County adjacent to Perdido Bay. We are introducing a prescribed burn regime to return the area to a wet savanna.
  2. The Styx River Site which is approximately 30 acres in size is also in Baldwin County. It is an old borrow pit which developed into pitcher plant and other insectivorous habitat. We have introduced a burn regime on this site to maintain the plants.
  3. The Fowl River Site is approximately 700 acres in Mobile County. We are also trying to restore this area to a savanna habitat through the introduction of a prescribed burn regime.
  4. The Dozier Site is approximately 500 acres on the Conecuh River in Crenshaw County. Our management plan is almost approved by the MBRT. We are enhancing a hardwood bottom wetland. Some of the adjacent uplands have been set aside for hunting by handicapped persons.
  5. The Brantley Site is approximately 80 acres on the Conecuh River in Crenshaw County. We have restored a wetland along the banks of the Conecuh River.
  6. The Pea River Site is located on the Pike and Barbour County Line. It is totally preservation of old growth cypress, hardwood, and tupelo gum swamp. It is approximately 600 acres.
  7. The Catoma Creek Site is approximately 1250 acres in Montgomery County. We proposed to enhance a hardwood bottom wetland. We have a MOA with Montgomery County to develop this area into an environmental park for education and recreation.
  8. The Sypsey Swamp is approximately 500 acres and is located in Tuscaloosa County. It is mostly preservation of a tupelo gum swamp with old growth hardwood wetland. This portion of the Sypsey River has been designated as a Natural Wonder of Alabama.
  9. The Canoe Creek Site is approximately 100 acres and is located in St. Claire County. This is the restoration of a hardwood bottom wetland with some construction of an emergent wetland.
  10. The Crow Creek Site is approximately 450 acres and is located in Jackson County. This is a combination of restoring a hardwood bottom wetland and creating a waterfowl management area.
  11. The Town Creek Mitigation Site is approximately 500 acres in Lawrence County. This is a restoration of a hardwood bottom wetland.

NE: 18 sites statewide.

OH: To date OHIO DOT has only one site that is being called a mitigation bank for wetlands (permit pending with the Louisville ACE). OHIO DOT has been successful at using consolidated sites (several projects are mitigated at the same location) and/or pooled sites (mitigation site is developed beyond the needs of a single project and extra credits are held for future use).

PA: Seventeen Banks exist or are in advanced design/construction. Will provide this upon the teams arrival in HBG. District (9-0) are located in the following: We have six sites on the ground and are looking for at least one more. The sites are located in distinct watersheds, also called sub-basins, based on PADEP mapping (West Branch Susquehanna River, Juniata River, Potomac River, Casselman River, Aughwick Creek, Conemaugh River). The goal of the program is to build at least one site in each sub-basin and multiple sites in our largest sub-basin (Juniata River). Currently we have sites in five of our sub-basins and have been actively looking for something in the sixth watershed (Conemaugh River).

KY: KYTC has 8 properties that were bought for the purpose of wetland mitigation, with several more being considered for purchase. They are located in all parts of the State, with the goal of having at least one per major watershed.

MN: Many BWSR banks. There are approximately 20 MnDOT banks.

18. Is there an active MBRT in your State/region/COE district? If yes, what role does it play in the review, approval, and oversight of your banks/banking program?

TX: The MBRT reviews the use of the mitigation banks but has no oversight authority.

NC: N/A

AL: We have two separate mitigation bank review teams within the State. The largest area is within the COE's Mobile District. The Mobile District chairs this MBRT. The Nashville Corps of Engineers chairs the MBRT in the Tennessee Valley.

NE: We have an MBRT in our State. In the beginning they played a very important and active role in development of the banking instrument, as well as review, approval and oversight of our banking program. In recent years some of the original proponents of the program have moved on and it is getting more difficult to get many members to visit sites or provide coordinated reviews. To our knowledge the MBRT has not met much within the last 2 years, except occasionally to look at bank sites. It has been our experience that only a couple of the member agencies have shown up to look at our proposed sites. As a result, our most recent bank approval process was extended and difficult without a face to face meeting with the applicant and the MBRT.

OH: Yes there is an active MBRT in Ohio however Ohio DOT has elected not to go through their process. OHIO DOT develops wetland mitigation exclusively for transportation projects and has never tried to sell wetland credits (i.e., mitigation bank).

PA: The MBRT representatives vary depending upon region of the State. The make-up of the MBRT is basically the resource agency representatives that traditionally review PennDOT projects in the State. Many of the participants are funded positions.

KY: Yes, They review, approve, and oversee the wetland banking program.

MN: TEPs are required under the Minnesota WCA. These TEP's are an MBRT-like team. COE has generally concurred with the TEP. The TEP essentially functions as the MBRT in Federal guidance. With the TEP - BWSR is the lead, with MBRT - COE is the lead. The COE has allowed the TEP to function as an MBRT. The WCA covers all wetlands.

19. What kind of consideration was given to establishing the bank service areas? Are there any spatial restrictions to mitigation?

TX: Bank usage is limited to certain watersheds. These boundaries were negotiated between COE, TxDOT and the resource agencies.

NC: N/A

AL: The service area for each mitigation area was set at individual river basins and a coastal mitigation bank. We have so many major rivers in Alabama, we felt like that was a good way to start. As bank sites are completed and new ones are needed we try to find sites close to where highway development is anticipated. We also try to find sites which can be used by the public for recreation, fishing, hunting and education.

NE: It took five years to reach agreement among the agencies regarding bank service area boundaries. Initially the EPA proposed the HUC-8 boundaries. NDOR and other agencies felt that those watershed boundaries were too limiting and that the MLRAs used by the NRCS would be more appropriate. After 5 years of discussion and negotiation the MLRA was selected as the official boundary of the bank service areas. Spatial restrictions result in higher mitigation ratios if we propose to mitigate outside of the MLRA boundary.

OH: All Ohio DOT pooled and consolidated mitigation sites have service areas negotiated through the 404/401 permitting process. OHIO DOT's one mitigation bank site (pending approval) will follow the eight digit watershed HUC for Ohio. The HUC's are based on watershed boundaries.

PA: Considerable consideration by a large interagency team that developed the Statewide Wetland Banking Agreement was given to the establishment of service areas. (9-0) is divided up by specific watersheds called sub-basins as per Department of Environmental Protection.

KY: Wetland bank service areas correspond to the major watersheds of Kentucky.

MN: WCA identifies greater than 80%, 50% - 80%, and less than 50% of historical wetland drainage base. The COE has identified 8 service areas based on watersheds. Trying to reconcile the two approaches. Yes, the spatial restrictions to mitigation is that three WCA service areas can not be crossed.

20. What kind of assessment process do you use to determine banking credits or debits?

TX: This is negotiated with COE on a project by project basis.

NC: N/A

AL: In the Mobile District, the MBRT has developed a template for determining credits. Basically, our credits were designated as two acres of restoration for one credit; three acres of constructed wetlands for one credit; and four acres of enhancement for one credit. For preservation credits we negotiate with the MBRT on a case by case method.

NE: Currently we use the Cowardin wetland classification system with acres as the currency. Site plans for each mitigation bank list ratios for created, restored, enhanced or preserved wetland acres.

OH: Mitigation debits are defined through the 404/401 permitting process. Mitigation credits (acres) are tracked and tabulated for each mitigation site. When credits are utilized a mitigation balance sheet is submitted to the COE and Ohio EPA.

PA: Assessment is based upon requirements in the agreement/banking instrument that the wetland bank is built under and on wetland monitoring results. (9-0) Upon completion of the sites, an as-built plan is developed and wetland acreage and type are estimated based on water elevations and future wetland planting efforts. An "accounting spreadsheet" is then developed and the sites are used on an acre for acre basis by type of wetland (ie. 0.12 acre PEM).

KY: Wetland mitigation is acreage based depending on the level of wetland functions being lost. The minimum ratio is 2:1.

MN: Acres by wetland type and also functional assessment is allowed.

21. Through TEA-21, Federal funding was made available to purchase mitigation bank credits. Are you using Federal funds accordingly in your program? Why or why not?

TX: No Federal funds were used to establish any of the TxDOT wetland mitigation banks. TxDOT reserves the use of Federal funding for construction of projects, if credits are used from the TxDOT banks no fee is charged, since they own the credits outright. If private bank credits are purchased then the costs for those purchased credits are charged to the Federal-aid highway project number as a part of the construction cost.

NC: N/A

AL: We have bought credits from a private bank with State funds only. We will probably use Federal funds to acquire more of these type credits in the future.

NE: We do not buy credits from private banks. We use State funds for our wetland bank site purchases.

OH: Yes. In Ohio a combination of State and Federal funds are used to develop mitigation.

PA: Not to my knowledge. Entities offering wetland banking credits have not been successful in Pennsylvania. The number of wetland acres impacted by all permit applicants statewide is too minimal and too scattered over watersheds to entice entrepreneurs. The only existing entrepreneurial wetland bank in the State (that we are aware of) was initiated (propped up) through the existence of a significant highway project. If not for that project the bank would not exist.

KY: Yes, we are trying! TEA-21 was so vague in its explanation of how to go about using Federal funds to purchase banking credits; it has been the hardest obstacle to overcome.

MN: No. The Area Transportation Partnerships control the Federal funds in Minnesota and Minnesota uses their Federal funds primarily for construction. Possibly used some Transportation Enhancement funding.

22. Does your program involve the use of entrepreneurial or public banks? In your estimation, which have more success and why?

TX: As stated above, the in lieu fee program is relatively new, and has not been evaluated.

NC: N/A

AL: Yes, we have acquired approximately 50 credits from a private bank. We plan to acquire approximately 200 more credits from this bank. There are so few private banks in Alabama that it would be hard to say if they are successful or not.

NE: N/A

OH: ODOT has used both entrepreneurial and public banks. The entrepreneurial banks have been more successful because they are located in more watersheds and are available for use.

PA: Only in one instance. See above.

KY: KYTC has not used entrepreneurial wetland banks in the past as few exist in Kentucky. In the future, we are exploring the use of for-profit stream mitigation banks.

MN: Yes, both. Most are subpar with today's standards. Quality is less consistent and they are smaller sites. Entrepreneurial sites are used minimally. Public sites tend to be better, designed by professionals, held to a higher standard by regulatory agencies. Science has advanced after the first private ones.

23. What percentage of your mitigation needs are met through your own single-use banks? What percentage through purchases at third-party banks?

TX: TxDOT is very decentralized and these figures are not compiled.

NC: N/A

AL: About ninety-five percent of our credits come from our bank and approximately five percent from private banks.

NE: 100% through single-use banks and none through purchases at third-party banks.

OH: Overall we estimate that 60 % of wetland mitigation for OHIO DOT projects are developed as pooled mitigation sites and 40 % at third party banks. Although Ohio DOT utilized single-use banks many of our mitigation sites are developed as consolidated or pooled mitigation areas where multiple projects are mitigated.

PA: 99% through our own project specific or our own wetland mitigation banks. (9-0) Our District's mitigation needs are primarily met through our own AWC sites (~90%). We still need to construct a site in the Conemaugh River sub-basin so we are currently using conventional means of wetland mitigation in those areas. The main intent of our AWC program was to use the AWC sites for our smaller bridge replacement and minor roadway widening projects. Our larger projects on new alignment will involve a combination of new wetland mitigation sites and use of the AWC sites as a comprehensive mitigation package.

KY: 100% through single-use banks and none through purchases at third-party banks.

MN: 90% single-use and 10% third-party approximately. Requirements are tied to funding that restricts BWSR's use.

24. Does your program now, or has it ever, involve(d) the use of in-lieu fee mitigation as an alternative form of banking? If so, who is/was the manager/executor of this mitigation fund?

TX: This program has not been evaluated since it 2003 inception.

NC: N/A

AL: Once ALDOT paid money into programs administered by the Alabama Wildlife and Freshwater Fisheries Division for wetland credits. This was only a one time effort, but we would be receptive to another opportunity.

NE: No in-lieu fee use.

OH: No. Ohio DOT has not used in-lieu fee mitigation as an alternative form of wetland banking. We are currently working on an in-lieu stream mitigation fund with the COE and ODNR.

PA: Yes, our PA Department of Environmental Resources (State wetland permitting agency) has an in-lieu fee mitigation program that we utilize for minor impacts (only applicable to minor impacts). Ken Reisinger/Kelly Heffner are the program managers for the DEP.

KY: In-lieu fee mitigation has been an option for stream losses in Kentucky since 1998. Jim Townsend of the Louisville Corp District is the head of the Mitigation Review Team.

MN: N/A

25. In your estimation, has the in-lieu fee arrangement produced satisfactory and measurable results in on-the-ground mitigation successes?

TX: This program has not been evaluated since it 2003 inception.

NC: N/A

AL: It worked very well. They were able to develop more wetlands for waterfowl habitat.

NE: N/A

OH: N/A

PA: Yes, DEP reporting documents a fairly successful program.

KY: The expenditure of ILF monies was much more difficult than expected. The question of what form headwater stream mitigation should take and the problem of permanently protecting stream mitigation sites on private property has limited the number of available mitigation sites.

MN: N/A

26. How have other regulatory agencies and the public received the in-lieu-fee mitigation arrangement?

TX: N/A

NC: N/A

AL: For the most part they have been receptive, especially where they are shown up front where the money is going to be spent and what we can expect the results to be.

NE: N/A

OH: N/A

PA: Received favorably.

KY: ILF mitigation is nobody's first choice. It is however a necessary tool for both KYTC and the regulatory agencies so that 404 permits can be processed in a timely manner. Kentucky could do a better job of communicating the successes that the ILF program has already had.

MN: N/A. Private bankers deplore it. Other agencies are skeptical but are not ruling it out for future use.

27. What criteria, if any, have been established to monitor/measure the effectiveness of your program?

TX: N/A

NC: At present, effectiveness is measured on compliance and delays in projects under the State Transportation Improvement Plan (no such delays have occurred since the program became operational in July 2003 because of a lack of mitigation), EEP is moving forward on development of environmental monitoring and success criteria.

AL: The Mobile District MBRT has developed a quite regimented monitoring program which is outlined in their management plan template. It ranges from monitoring success of planting to monitoring success of prescribed burns.

NE: We are currently tracking two performance measures. 1) Measurement of wetland acres filled versus wetland acres replaced, restored, created or preserved; and 2) Measurement of the acres of wetlands habitat developed above and beyond our past and present project replacement needs (a measure of temporal gain).

OH: ODOT has developed a standardized monitoring protocol that includes two site visits per year for 5 years. Recently (within the last two years) Ohio EPA has developed a new labor intensive vegetative index of biotic integrity monitoring protocol for wetland mitigation sites. Ohio EPA has been making its use mandatory through the permitting process (condition of the 401 certification).

PA: COE Mitigation and Monitoring Guidelines, permit conditions and/or the Statewide Wetland Banking Instruments control these criteria principal. There are some variations in level of effort. In some assistances the resource and permitting agencies accept limit reporting, photography, as built plans and field views to document monitoring/success. PennDOT had issued a handbook re: wetland monitoring criteria in the mid-late 1990s but in coordination with the agencies levels of effort have been reduced. In some instances the length of required monitoring has been reduced through documentation of success and amendments to permits. We conduct routine monthly monitoring at each of our sites and prepare an annual wetland monitoring report. In addition, we hold interagency field views about every other year to further show the success and development of our projects to the natural resource agencies. Specific monitoring measures have not been developed and instead, the reports and field views allow for ample discussions and information sharing about the sites so that everyone involved can see first hand that the sites are functioning well and providing valuable wildlife habitat and water quality benefits.

KY: N/A

MN: Wetland acres restored versus wetlands impacted by type and acres. Five-year monitoring and vegetation management program. Must be a wetland after five years. MnRAM - assessment tool could be used (functions and values evaluation).

28. What success factors make your program unique from other mitigation programs?

TX: N/A

NC: EEP's accomplishments since its founding are significant. Not a single transportation-improvement project has suffered delay from the lack of offsetting mitigation since the program came on line. More than 26,000 acres of high-quality natural areas already have been protected for future generations because of the preservation alliances that EEP has helped to identify and fund. And, EEP's collaborations with private-sector partners for wetland- and stream-restoration projects have sparked economic activity in the State while protecting water quality and wildlife habitats. The single-most important achievement, however, is the program's continued existence in the face of both internal and external obstacles. Through the efforts of EEP and its partners in the public and private sectors, North Carolina is changing the way that the State confronts a problem with serious implications for economic growth and the State's overall quality of life, while providing a model for other States to emulate.

AL: The initial cooperation we had with the resource agencies getting our bank off the ground was very important. We do not accept failure at one of our sites as an option; we stay with the site and correct any deficiencies that need correcting.

NE: Not knowing fully other programs in the country, we believe that our program of banks covering most of the State is fairly unique. The success of the program can be attributed to a group of agencies and individuals early in the banking and mitigation process who were earnestly trying to do what was best for the resource. NDOR was closely involved in the development of the process and it was set up as something that was do-able and reasonable expenditure of mitigation dollars. Flexibility was key to overcoming obstacles. In today's restrictive regulatory policy/guidance it is doubtful that this level of success could be achieved.

OH: One of the factors that makes ODOT's program unique from other mitigation programs is that OES has centralized oversight authority over wetland mitigation including design, construction, and post construction monitoring. Ohio DOT Office of Environmental Services employs a landscape architect and biologists with wetland experience to oversee Ohio DOT's wetland mitigation. Multiple visits are made to the mitigation site by OES biologist during construction to be sure the site is developed as planned. If necessary the biologist can ask for changes to fix problems that were unforeseen when drafting the plans.

PA: Several of our wetland banking sites have been constructed utilizing in-house maintenance forces. These efforts have reduced costs, educated maintenance employees and have fostered ownership in wetland avoidance, minimization and compensatory mitigation for those employees involved. In some cases schools, watershed associations, etc. have been partnered with for volunteer man-power to plant sites. These efforts tend to be limited to wetland banks. District (9-0) Our AWC program was the first in Pennsylvania, and because of its success, has been mirrored by other PENNDOT Districts throughout the State. Our program was also used to develop a statewide wetland banking initiative within PENNDOT.

KY: More timely permits, cost effectiveness, better habitat restoration, and better relationships with resource agencies.

MN: TEP evaluation or holds back credits is unique. Can force mediation. Benchmarks for success are unique.

29. What are the top three lessons learned from your program that should be shared with other States?

TX: N/A

NC: 1) Secure funding commitments for organizational development and implementation. When EEP unveiled its two-year budget request to the N.C. Board of Transportation, the policy-setting and project-approval body for the NCDOT, a palpable "sticker shock" was evident among the board members. Mitigation costs always had been considered part of the costs of doing business in the transportation department, buried in the details of project costs. 2) Avoid political minefields. The success of an EEP-type program will require political support from the top down. The concept by definition is controversial, bringing together bureaucracies that traditionally have highly divergent priorities. 3) Build trust. The hallmark of the Ecosystem Enhancement Program is trust. Without critical partner relationships between the governor's office and the secretaries of Transportation and Environment and Natural Resources, North Carolina's program never would have left the ground. Trust is also critical between the State and pertinent Federal regulatory agencies, as performing to regulatory mandates is expected from EEP.

AL: Prior to acquiring any property, get approval in writing from the MBRT that they will accept the site as a mitigation site. If you use contractors, you will probably have to closely monitor all of their activities to make sure they complete the project correctly. When planting trees, use tubes or shelters to protect the young trees. While it costs a little more, you get better survival and less replanting. The trees grow faster for at least the first growing season giving them a head start on the competition of such plants as ragweed and others which will shade out your young plants.

NE: 1) Face to face meetings with the MBRT is essential for proper consideration and reasonable resolution of bank site proposals and questions. 2) The MBRT needs to meet routinely, with agency commitment independent of individual interest. 3) Get wording in agreements and the banking instrument to be clear and direct. We have suffered many changes in policy throughout time as the COE has vacillated regarding mitigation ratios, substitutions allowable, inserting HGM functions and values judgement into what was set up as simple acres for acres based upon the Cowardin classification system.

OH: 1) ODOT's top management buy in. Ohio DOT's upper management is committed to providing the funding and expertise to develop effective quality wetland mitigation projects. 2) In house experience. The Ohio DOT OES employs both a landscape architect and biologists trained in wetland construction. They review all OHIO DOT's wetland mitigation designs and monitor projects during and after construction. 3) Effective education, communication, and coordination are required during the entire development of the wetland mitigation process. OES staff works throughout wetland mitigation projects to educate engineers and construction personnel on the nuances of quality wetland development. This goes as far as affording OES staff the ability to make changes during construction to improve wetland performance.

PA: The importance of identifying a dedicated funding source. The benefits of identifying manpower and partnerships internal and external to the DOT to complete projects. The benefits of partnering with other State land management agencies to identify sites on their lands to reduce ROW costs and maintenance efforts. District (9-0) Site selection is the key to success - don't try to force a site into an unsuitable location. Allow the existing landscape to dictate your design. Local knowledge is critical - establish and maintain good working relationships with the people who are out in the field and dealing with the local land owners (NRCS, PGC Land Managers, County Conservation Districts, USFWS Partners for Wildlife staff, Ducks Unlimited biologists, PADEP, COE, etc.) Surface water is the primary source of hydrology for most of the wetlands in Pennsylvania. As long as you have the proper drainage area (5-10 acres per 1 acre of wetlands), suitable soils, and a relatively flat topography, success is easily achieved with minimal excavation. We have built all of our sites using on-site materials and have not had to haul or waste any soil. Have a qualified person who is familiar with wetland construction on site at all times.

KY: N/A

MN: 1) If State develops own program make sure the COE is involved through the whole process rather than having to have two different processes - WCA vs. Federal. 2) BWSR streamlining - two agencies doing the same thing in parallel processes create problems (competitive bidding). 3) Ongoing changes to vegetation and wetland restoration as technology and knowledge progresses. It is a continuous process. Also, keeping up-to-date on new issues, such as invasive species, can be challenging.

30. Please note any additional comments about your program that you would like to share.

TX: N/A

NC: In mid-March, an announcement will be made by a prestigious government-innovation awards competition concerning the Ecosystem Enhancement Program (we are not at liberty to reveal further details until March 16). This recognition complements earlier designations by the National Association of Development Organizations and the FHWA, both of which have recognized the creativity and innovation represented by the organization and development of EEP.

AL: While our first objective is to provide wetland mitigation credit for ALDOT, we are always looking for ways to use our land for the good of the public. We are developing a public environmental park in Montgomery County, a handicapped hunting area in Dozier, and a waterfowl management area in Jackson County. Our Sypsey Swamp Site is part of a system that has been designated as a Natural Wonder of Alabama. We have given permission to a number of persons and groups who want to visit the area to enjoy its wonder. We allow hiking and fishing on most of our sites. Due to safety issues, we only allow hunting where we have agreements with the Alabama Wildlife and Freshwater Fisheries Division.

NE: We are deeply concerned about the future of banking in Nebraska with the continual changes to mitigation guidance and policy with little input from the user/regulated community. If we are held to HUC-8 watershed boundaries for bank development, we do not feel they are feasible for linear transportation needs and will likely discontinue bank site development. We are very proud of the banks developed to date and feel that they have contributed beautiful and functional wetland mosaics, providing a higher level of value than the many single mitigation sites. Under the initial mitigation policy/guidance of the early banking days, we could purchase a site, develop it and hope to have it certified within three years of monitoring. Today, the guidance lengthens that period to five years or more, when our experience has been that three years has been adequate to achieve the desired results. The extra two added years results in higher ratios through pre-crediting and less benefit for every tax dollar expended in site development. We are concerned about the undocumented policy changes that deeply affect our bank value. For example, during the first several years of banking PEMA and PEMC credits were interchangeable. Because it was agreed early on that such substitution was acceptable, we developed our bank sites with more PEMC credits than PEMA because of the greater chance for long term success. Approximately 2 years ago, the Nebraska office of the COE decided that PEMC credits could no longer be used to substitute for PEMA impacts and we paid higher mitigation ratios for substitution. This policy change was also never put in writing other than as higher ratios on permits. This change in policy effectively reduced the value of our banks by half. Recently, we received some permits where the ratios were reduced to allow for substitution without higher ratios. When we called the COE to inquire as to the difference, we were told that they had decided to again allow substitution of PEMC for PEMA. Again, we were not notified in writing and are concerned that this could change again after we would proceed to develop more banks under this policy.

OH: N/A

PA: Assistance in identifying a method of dedicating funding would be helpful - shared information - what have others done. District (9-0) The AWC initiative has proven to be a time saving and cost effective means to streamline PENNDOT projects having unavoidable wetland impacts while at the same time, enhancing the natural environment and providing public outreach and education opportunities. An assessment of the acres of wetlands created, number of projects incorporated, and the size of the impacts to date, it is evident that the sites will offer sufficient opportunities for continuation of the AWC program in the future. By finding suitable sites, using these techniques, and constructing the sites with our own county maintenance forces, we have been able to build our sites at a reasonable cost of $3,000-$5,000 per acre. We also estimate that the program has saved approximately over $1,500,000 when compared to traditional on-site wetland mitigation practices. The sites have additionally provided the public with outdoor recreational activities and have been used to educate hundreds of high school children about the importance of wetlands.

KY: N/A

MN: WCA vs. Federal rules. WCA was legislated and implemented by a "grassroots" effort.

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Questions and feedback should be directed to Deirdre Remley (deirdre.remley@dot.gov, 202-366-0524).

Updated: 11/08/2011

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