Many of us in the Highway Engineering business need to delineate wetland boundaries or provide for mitigation of wetland loss created by expansion or modification of a transportation facility. We realize we have an obligation to preserve these ecological powerhouses that filter drinking water, retain floodwaters, and provide habitat for a diverse array of wildlife. What we may not know is we have already lost a large portion of these assets. Since the 1700’s over half of the nation’s wetlands have been covered, filled or drained and nearly half of the states have lost more than 50% of their historic wetlands.

Typically, state regulatory agencies or the U.S. Army Corps of Engineers have jurisdiction over wetlands, whether they are on public or on private property. Environmental groups and special interest groups have had some success in expanding, modifying or eliminating regulatory control of wetlands, but success has frequently brought an increased regulatory burden. For example, a U.S. Supreme Court ruling (January 2001) in the case of the Solid Waste Agency of Cook County vs. the U.S. Army Corps of Engineers essentially eliminated federal jurisdiction of isolated wetlands that do not have surface connections or close proximity to tributary waters. This decision essentially added a new requirement for the Corps and project sponsor to first determine if the wetland is subject to federal jurisdiction. For the foreseeable future, wetland preservation through regulatory control is well entrenched and is probably here to stay.

The primary authority for wetland regulation in the United States is the U.S. Army Corps of Engineers’ Regulatory Program. Basically, any non-isolated wetland is regulated by the Corps under Section 404 of the Clean Water Act or by Section 10 of the Rivers and Harbors Act. In the past, the Corps attempted to preserve wetland areas by limiting wetland impacts and frequently requiring construction of “compensatory” wetlands when existing wetlands were unavoidably lost or degraded by farming, placement of fills, excavation of cuts or changes in drainage patterns. Most compensatory wetlands were successfully constructed, but did not always function as planned. In some cases, failures were accepted because the mitigation site was ill suited or there was no mechanism to ensure performance. In other cases, it was recognized that mitigation technology was in its infancy and unable to completely deal with complex soils, hydraulics, drainage and bio-systems.

As environmental stewardship gained public favor and wetland technology became better developed, more and more attention focused on wetland preservation. Independent evaluations published in 2001 by the National Academy of Sciences and the General Accounting Office disclosed that despite progress in the previous 20 years, the goal of stopping wetland loss was not being met by the compensatory wetland mitigation programs of various Federal agencies. In addition, a Regulatory Guidance Letter (RGL 01-01) issued by the Corps of Engineers on October 31, 2001 with guidance on Compensatory Mitigation came under fire for lacking clarity and not specifically stating who was responsible for compensatory mitigation success.

In response, the Corps of Engineers and the U.S. Environmental Protection Agency (EPA) partnered with the Departments of Agriculture, Commerce, Interior and Transportation to develop a new strategy to stem wetland loss and ensure successful restoration of wetlands being impacted by development activities. In December 2002, the Corps of Engineers and the EPA announced the release of a multi-agency Action Plan and a new Regulatory Guidance Letter (RGL 02-02), which provided new technical guidance and “clarified policies.” The Questions and Answers portion of the press release for these documents implied that the Action Plan would not establish any new regulations; however, the new RGL appears to tiptoe into new regulation territory. These documents can be viewed on the Corps web pages at www.usace.army.mil/inet/functions/cw/cecwo/reg/ under Latest News and under News and Information.

In a nutshell, the Action Plan lists 17 items that various agencies will implement to better control wetland restoration, enhancement and replacement and to better evaluate mitigation success. The new RGL 02-02, which is at the top of the Action Plan, is advertised to accomplish four objectives: It recommends a watershed-wide approach to mitigation; encourages increased use of functional assessment tools; advocates improved performance standards; and emphasizes monitoring, long-term management and financial assurance. Basically, it looks like there are new options available for wetland mitigation and new approaches to design, but there are also new accountability requirements. There will probably no longer be much tolerance for further wetland loss or for compensatory mitigation failure.

What are the worries about the new policy? One, which did not disappear from the previous policy, is the lack of uniformity in interpretation inherent in the Corp’s regulatory “guidance” approach to wetland mitigation. Not only are there significant differences in interpretation between Corps Districts, but there are even differences within Districts. A bigger worry, especially for construction sponsors, is the new financial responsibility requirement imposed to ensure wetland success. The mitigation sponsor is now on the hook for an indefinite amount of time that could easily exceed the 5 to10-year monitoring period recommended in the new RGL. There is no statute of limitations for performance liability.

What is the recommendation? Be aware that there are new policies in wetland mitigation and sponsors are going to be saddled with new responsibilities to ensure mitigation success. It is imperative - now more than ever - to get competent, experienced people involved in the planning, design, permitting, construction and monitoring of wetland mitigation projects. Otherwise, the job could turn into a very long-term liability.