The recently implemented Colorado Mitigation Procedures, Colorado Stream Quantification Tool and mitigation banking have greatly improved how the U.S. Army Corps of Engineers Omaha District’s Denver Regulatory Office analyzes permit applications under Section 404 of the Clean Water Act.
The COMP, developed by Colorado regulatory offices, provides regulatory specialists with a framework to objectively evaluate a wetland or a stream’s functional condition by providing a measurable and repeatable method of calculating debits and credits for wetland and waterway impacts caused by permitted activities.
These procedures utilize the CSQT, also developed by the Colorado regulatory offices in partnership with the U.S. Environmental Protection Agency, to evaluate a stream’s hydrology, hydraulics, geomorphology, chemistry and biology. The tool uses a combination of metrics based on watershed data as well as common survey and field measurements, such as width-depth ratios and bank erosion.
In turn, these metrics provide a more standardized permitting process to evaluate how a developer will replace, or “compensate,” for the unavoidable losses of aquatic resources in the state of Colorado.
“The tool actually provides hardened numbers that are measurable and repeatable where multiple users can go in and say, ‘This stream is functioning at a six,’” said Kiel Downing, USACE Omaha District, Denver Regulatory Office chief. “If a permittee needs to impact a stream and we issue a permit, we can actually quantify the functional loss of the stream and then require them to offset that functional loss somewhere else.”
Offsetting those losses is called compensatory mitigation. When a developer adversely impacts wetland areas or a stream’s function, they must enhance or increase the function of an existing aquatic resource or reestablish an area where there was once a wetland as required by Section 404 of the Clean Water Act.
The Denver regulatory office is responsible for determining what projects require mitigation.
“We have to make decisions about whether or not a proposed project actually causes a loss of function or an accrual of function,” said Aaron Eilers, a USACE Omaha District, Denver Regulatory Office senior project manager. “The COMP gives us a way of making mitigation decisions that we can measure and repeat and allows us to be consistent with other regulatory offices statewide. It also allows us to share a common language and currency for wetland and stream impacts and mitigation among other agencies, mitigation bankers and the regulated public.”
Consistency in regulatory permitting has also been improved by the used of mitigation banks. A mitigation bank is an agreement between a regulatory agency and a sponsor, which can be a public agency, non-profit organization, or private entity, for the mitigation of large aquatic areas significantly affected by multiple construction activities.
In the past, permittees would be responsible for the mitigation. Now, a permittee can simply purchase the required credits from a mitigation banker who manages the mitigation for them through larger-scale projects.
“They can find much larger areas than most permittees, like 100-300 acres, and really benefit from the increased scale,” Eilers said. “They can grade down to an elevation where wetland plants can access some ground water or benefit from overbank flooding.”
Mitigation banking is often expensive and time consuming. Ensuring that debits and credits are consistently measured and commensurate with impacts is an important responsibility of the Denver Regulatory Office who oversees permits for Clean Water Act permittees in their jurisdiction.
They also lead the Interagency Review Team composed of other federal and state agencies in the review of mitigation bank proposals. Once they agree to release credits to the mitigation bank sponsor, the sponsor is allowed to sell those credits to permittees in order to offset impacts.
Downing says the COMP and CSQT, combined with mitigation banking, have led to more consistency and higher quality in the mitigation of aquatic wetlands and waterways.
“The development of the COMP and the CSQT have been instrumental in advancing the mission of the regulatory program to protect the nation’s aquatic resources and navigable capacity,” Downing said. “It allows reasonable development through fair, flexible, and balanced permit decisions.”