More Wetlands, More Seafood: Corps and EPA clarify jurisdiction to protect additional waters

The welcome new guidance is Scribd below. Below that is a nice take on the subject from the always reliable and relevant Ecosystem Marketplace:

Draft 2011 Corps EPA Wetland Jurisdiction Guidance

From Hannah Kett and Ecosystems Marketplace:

US Aims to Expand Wetland Protection
Author: Hannah Kett

9 May 2011 | The Obama administration last week proposed a national clean water framework that could expand the protection of wetlands and waterways across the United States by providing new guidance for the Clean Water Act (CWA) that clarifies which waters and wetlands the CWA protects and which it does not. Comments can be offered here.

The new framework encompasses all current actions aimed at ensuring clean water across the country, as well as future plans for continued collaboration with communities and NGOs. It has won support from conservationists, outdoor enthusiasts and regulators alike for aiming to expand protection of waterways without requiring new legislation or violating Supreme Court decisions that threw the definition of covered wetlands into question.

”The steps we’re outlining today will be instrumental to protecting the waters of the United States, and ensuring that the vital natural resources our communities depend on for their health and their economy are safeguarded for generations to come,” said EPA Administrator Lisa P. Jackson at the time of the release.

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Commentary: Washed Away

The Swamp Merchant was on vacation deep in the fecund marshes of South Florida during the “Washed Way” series on mitigation this week. I was hardly surprised though, since the worst kept secret in Raleigh among environmental professionals was that reporter Dan Kane and the News and Observer have been working for years to document the failures of the state In-Lieu-Fee mitigation program.

While not surprised on Sunday, I was a bit spooked. What if the series never made the distinction between the people who do what I do, restore wetlands and streams and work like hell to see them succeed or I go broke, and the bureaucracy at NCEEP which has made a hash of their “in-house” projects for years?

What if private commercial mitigation “banks,” with all their scrutiny and regulatory oversight, are not distinguished from state projects regulated by the same state agency that takes payments for them?

Oh, the worry.

Turns out the worry was justified. I don’t think any reader without significant prior knowledge of the intricacies of compensatory mitigation would be able to distinguish the good guys from the bad guys in this sorry state of affairs.

As good guys, all of us at Restoration Systems were being brushed by the ink of the state’s paper of record. Stream mitigation and restoration was being made to seem a terrible failure across the board.

Would anyone ever know of Three Mile, Travis Hamrick’s knock-out stream and wetland site in Avery County? Or the Causey Farm stream and wetland site Worth Creech restored for the FedEx hub in Guilford County? (Causey could make John Muir weep.) Nope. Just careful documentation of the myriad failings of the state program’s “in-house” projects, with nary a mention of the other methods.

But sunshine is still healthy and we got a fabulous week of weather from the News and Observer. As long-time promoters of an entirely different way of performing mitigation in North Carolina — at-risk commercial mitigation banks — our company, Restoration Systems, is willing to see eggs broken while we wait for the omelet.

I am willing to endure day-after-day of bad press for mitigation in general, as long as the policy makers, future articles and the public eventually catch-on to the good news.

The good news is that it doesn’t have to be this way. Other states and Corps Districts do not have state-wide programs to sell developers mitigation and then do the projects later. Outside of North Carolina mitigation is increasingly accomplished by green entrepreneurs banking mitigation ahead of time and receiving salable credit for it — after the ecosystem is cared for.

This system is recommended because it distributes the responsibility for mitigation to regulated private firms who have their own capital at risk. We contend that restoration performed at-risk, with the financial reward of the sponsor rising or falling depending on the ecological results, will someday be recognized in North Carolina as the superior public policy tool to the “fee” program.

The (no) command and (out-of) control state mitigation leviathan documented by the Old Reliable will be retired (again) at some point. The North Carolina Ecosystem Enhancement Program is a failed experiment of government that has worked at cross purposes to its mandate.

I’d like to go on but at the close of this post I am now in New Orleans preparing for bed. I have a meeting in the morning with potential customers to discuss providing bonded wetland mitigation. Later this week I’ll be in Baltimore at the National Mitigation Banking Conference and hope to post once more. God bless this fine spring day in the meantime.

Links: News and Observer "Washed Away" series on mitigation


Washed Away: First of three parts:  State programs intended to offset environmental damage from development have spent roughly $140 million on work that is failing, needs significant repair or is too far away from distressed sources of drinking water.
Washed Away: Second of three parts:  Money that the state spends on projects to reduce pollution from nitrogen has gone toward improvements far downstream and outside the watersheds of the Triangle’s two biggest sources of drinking water: Falls and Jordan lakes.

Washed Away: Third of three parts:  Studies of what seemed a logical solution to the destruction of streams by road builders and developers have found that 20 years of applying common restoration methods – often at public expense – is doing little good.


A plan developed by the state in 2001 for environmental restoration was a boon to conservation groups that had thousands of acres to sell for mitigation.


StarNews Good News: Study says mitigation areas working as planned

Mitigation banking as a profession can often be a tough and thankless slog through a morass of regulatory politics.  What’s more, there is a feeling among some in certain quarters that what we do — restore ecosystems — is frequently not successful and RS is “building” “fake” wetlands that meet regulatory criteria but do not truly add anything much back to the environment.  It is gratifying when our successes are revealed as in the article below.

The article and the study it highlights demonstrates that wetland and stream restoration can be done well according to at least someone’s criteria. I would contend (and often do contend) that mitigation is most successful, however, when it is performed by someone who actually owns the project.

Banked, Full-Delivery, Turn-Key contracted, it doesn’t much matter — but the person doing the work and responsible for the work should have their own personal fortunes rise or fall with the success or failure of the given restoration.  This distinction is somewhat borne out by the data in the recent study, and can be deduced from the graphs I put up here.

But lets not get bogged down in who’s swamps are most thriving on this fine spring day — but rather sit back and enjoy the good news about good mitigation when and where we can find it.

Wetland study shows improvement

By Amy Hotz

Published: Sunday, April 10, 2011 at 10:41 p.m.

Just behind the movie theater at Mayfaire is a little piece of wilderness separated from the business by a retaining wall. Its hardwoods, water-loving plants and the occasional critter give a glimpse into what that property looked like before the mixed-use development paved streets, laid foundations and brought in strings of cars.

When these regulations were made, the idea was to create a kind of environmental balance, allowing development while at the same time making sure natural habitats endure.

A new study funded by a Wetland Program Development Grant from the U.S. Environmental Protection Agency has taken a look at 82 wetland sites and 79 stream sites affected by these regulations to determine if they’ve worked. The study, “Compensatory Stream and Wetland Mitigation in North Carolina – An Evaluation of Regulatory Success,” was released this month.

Several of these test sites were in Southeastern North Carolina, including Mayfaire, Taylor Farm (Landfall), Beach Walk at Kure Beach and Brunswick County Airport.

“Things have improved since the late 1990s. . . . The science has come a long way since then,” said Tammy Hill, environmental senior specialist with the N.C. Division of Water Quality. “That said, we still saw room for improvement. . . . This project helped to highlight some of the problem areas and also some things that we can continue to look into in the future.”

The results of the study indicate 75 percent of the wetland and stream mitigation projects were successful in meeting their regulatory requirements. And, according to the Division of Water Quality, this is a great improvement over two studies done in 1995. One showed a 20 percent success rate for wetlands and another showed a 42 percent success rate. The new study is the first time stream restoration success had been evaluated.

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RS gets a visit from Marc Sudol

On April 10th, 2008, RS had an important visit from Dr. Mark Sudol, the Chief of the Regulatory Branch at the Headquarters of the US Army Corps of Engineers. Dr. Sudol oversees the Corps wetland permitting program and works on policy and guidance at the national level. This was a unique and welcomed opportunity for RS to showcase our projects to someone with real influence to direct policy.  Dr. Sudol visited Causey Farm, Carbonton Dam, Bear Creek and Holly Grove.


Causey Farm


Causey Farm


Carbonton Dam


Bear Creek


Holly Grove


Bear Creek