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Results of the FHWA Domestic Scan of Successful Wetland Mitigation Programs

Introduction

Avoiding impacts to aquatic resources, including wetlands, and other ecologically sensitive areas, is a priority of the Federal Highway Administration (FHWA). Unfortunately, the linear nature of highway projects makes some impacts to wetlands and other natural areas unavoidable. Throughout the nation an estimated 1,100 to 2,400 acres of wetlands are impacted annually as a result of federally-funded highway projects (1). Section 404 of the Clean Water Act, administered by the U.S. Army Corps of Engineers (COE), requires mitigation for unavoidable impacts to aquatic resources (2). Additionally, Executive Order No. 11990, Protection of Wetlands, requires Federal agencies to avoid undertaking new construction in wetlands while pursuing their charges unless no practicable alternative is available (3). FHWA is committed to meeting its responsibilities to avoid impacts to aquatic resources to the extent practicable while meeting the nation's transportation goals.

Compensation for wetland impacts has traditionally been in the form of wetland creation, restoration, or enhancement of other wetlands at or near the road development site where the impact occurs. The COE and U.S. Environmental Protection Agency (EPA) policy has expressed a preference for wetland mitigation on-site and of the same type (i.e., in-kind) of wetland impacted (4). However, the preference should not preclude the use of a mitigation bank when there is no practicable opportunity for on-site compensation, or when use of a bank is environmentally preferable to on-site compensation. Furthermore, the COE requires each mitigation site to have its own performance standards, and monitoring and reporting criteria. These project-by-project mitigations, however, have had limited success. The numerous mitigation sites have resulted in limited ecological benefits while taxing the resource demands of transportation agencies and resource agencies (5).

Wetland mitigation banking, defined as "the restoration, creation, enhancement and, in exceptional circumstances, preservation of wetlands and/or other aquatic resources expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources" (6), appears to resolve some of the problems associated with project-by-project mitigation. Wetland banks are usually established in advance of project impacts and approved by inter-agency mitigation banking review teams (MBRTs). They are generally larger than project-by-project sites. The larger land area is more manageable, often provides more ecological function per unit area, and the reporting and monitoring activities are reduced because many projects can utilize the wetland bank. The permitting processing time is often reduced as well because individual project mitigation plans need not be developed, circulated, and reviewed by resource agencies, or monitored.

Accordingly, the Transportation Equity Act for the 21st Century (TEA-21), authorized in 1998, mandates mitigation banking as the preferred mitigation approach for unavoidable impacts to wetlands caused by Federal-aid highway projects (7). This banking preference remains unaltered in the recently passed reauthorization, the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). State DOTs using Federal-aid highway dollars must first look at wetland banking for mitigation before implementing project-by-project mitigation.

State DOTs throughout the nation are utilizing mitigation banks to expedite the permit review process and reduce the demands on personnel. Because the number of mitigation sites is reduced, banking can be more cost effective, and provide greater ecological and public benefits. There are both private, entrepreneurial wetland banks, as well as State DOT-owned-and-operated banks created specifically to mitigate DOT projects. State DOTs are incorporating both types of banks in their mitigation programs.

The purpose of this report is to describe and analyze how various State DOTs have implemented wetland mitigation banking. FHWA organized an eight-State'scan, conducted between March and June of 2005, with participation from the EPA, COE, and U.S. Fish and Wildlife Service (USFWS), as well as from FHWA environmental staff. The scan team members came to the scan with distinct, yet complementary, interests given their respective agency perspectives. USFWS, for example, because of its interest in the full range of ecosystem values to which wetlands contribute, wanted to learn how State transportation mitigation programs could contribute to the restoration, enhancement, creation, and preservation of healthy, functional wetlands; the role of endangered species in those programs; and to what extent mitigation programs have derived from a State's unique geography. EPA was interested in observing how the 1995 Federal Guidance for the Establishment, Use and Operation of Mitigation Banks has been utilized by the States and to what extent water quality functions have been factored into mitigation plans. COE was also interested in the States' use of the 1995 Federal Guidance, but most particularly in State discussions regarding the establishment of geographic service area boundaries and the extent to which States are addressing mitigation more holistically at the watershed level. These issues, and more, were discussed in depth during the site visits, where the State departments of transportation (DOTs) hosting the site visits ensured that the scan team members' resource agency counterparts were available on site to participate in discussions regarding their contributions to the evolution of the State DOTs' mitigation banking initiatives.

The scan tour included the following States (in chronological order): Texas, North Carolina, Alabama, Nebraska, Ohio, Pennsylvania, Kentucky, and Minnesota. The scan focused primarily on the State DOTs' successes with using mitigation banking. In addition, the scan looked at the mitigation banking review team (MBRT) process, the monitoring and measurement of mitigation results and effectiveness, and other related topics that have led to successful wetland banking programs. Problems and pitfalls in the mitigation process were also noted.

This report is organized to offer a brief summary of each State'site visit, along with a set of notable best practices, innovative measures, and continuing challenges associated with the wetland mitigation programs in the selected States. In addition, the report includes references to the following interest areas, indexed below for quick reference:

  • Statewide approaches.............................................................. North Carolina, Minnesota
  • Innovative partnerships................................. Texas, North Carolina, Kentucky, Minnesota
  • Public use and recreation.................................................. Texas, Alabama, North Carolina
  • Community outreach............................................................................ Ohio, Pennsylvania
  • Endangered species issues.............................................................. Texas, Alabama, Ohio
  • Invasive plants, vegetation management.............................. Texas, Nebraska, Minnesota
  • Financing challenges...................................................................... Pennsylvania, Kentucky

STATE SUMMARIES

Individual summaries of each State site visit are provided below and organized in three sections: (1) program history and philosophy, (2) bank site descriptions and operations, and (3) best practices, innovations, and continuing challenges.

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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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