WETLAND MITIGATION ISSUES AND REGULATIONS New Hampshire Coastal Program Office of State Planning 2 1/2 Beacon Street Concord, NH 03301 August 1993 This Report was financed by funds provided by the New Hampshire Office of State Planning Coastal Program, through the Coastal Zone Management Act of 1972, as amended, administered by the Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration. TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 DEFINING MITIGATION TERMS. . . . . . . . . . . . . . . . . . . . . . . . 2 POLICY ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Assessing "Unavoidability": . . . . . . . . . . . . . . . . . . . . 3 Selecting The "Best" Mitigation Option. . . . . . . . . . . . . . . 4 Determining When Mitigation Should Take Place . . . . . . . . . . . 6 Assessing Lost Wetland Functions. . . . . . . . . . . . . . . . . . 7 Determining Replacement Ratios. . . . . . . . . . . . . . . . . . . 8 Mitigation Banking. . . . . . . . . . . . . . . . . . . . . . . . . 10 TECHNICAL QUESTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Assessing Wetland Functions . . . . . . . . . . . . . . . . . . . . 11 Designing Creation/Restoration Projects . . . . . . . . . . . . . . 13 Assessment Criteria. . . . . . . . . . . . . . . . . . . . . . 14 Goals and Objectives . . . . . . . . . . . . . . . . . . . . . 15 Restoration Plans and the Permitting Process . . . . . . . . . 16 Mitigation Project Monitoring. . . . . . . . . . . . . . . . . 18 Mitigation Project Enforcement. . . . . . . . . . . . . . . . . . . 21 Determining Wetland Mitigation Success. . . . . . . . . . . . . . . 22 INSTITUTIONAL ISSUES/RESPONSIBILITIES. . . . . . . . . . . . . . . . . . 23 CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 WETLAND MITIGATION ISSUES AND REGULATIONS ANALYSIS Christine Rowinski, OSP Coastal Program INTRODUCTION The NH Wetlands Board's involvement in mitigating for wetland losses began in the mid-to-late 1980's when the Board began accepting mitigation for large projects. Today, it is standard practice for the Wetlands Board to review mitigation proposals and, at the Board's discretion, to accept appropriate plans from some wetland permit applicants. Government agencies that allow wetlands mitigation under certain circumstances inevitably are faced with having to address three important issues: 1) policies relating to whether, when, and what mitigation should be required; 2) technical questions involving how to mitigate; 3) institutional discussions about who should be responsible for implementing and managing mitigation projects, as well as how best, institutionally, to effect mitigation requirements. This is the situation in which the NH Wetlands Board finds itself. Under the present NH wetlands permitting process, every effort is made to avoid, minimize, or reduce negative impacts while a project is in the planning stages. Therefore, it can be said that some types of mitigation are already employed effectively. However, actions that purport to rectify or compensate for adverse impacts remain controversial. (Examples of rectifying and/or compensatory activities may include restoring degraded wetlands, enhancing existing wetlands, or the actual creation of new wetlands.) It is these types of mitigating actions that require special attention in order to insure that wetland areas are adequately protected, or that unavoidable losses of functional values are adequately compensated for. Currently, the NH Wetlands Board has no written policy on mitigation. Decisions on projects involving restoration, creation, and enhancement are made on a case-by-case basis and no standardized set of minimum criteria exist. Before new mitigation regulations can be developed and adopted, a thorough review of the issues involved with mitigation and a regulatory analysis of existing wetland protection rules/regulations are necessary. This report (undertaken by the Coastal Zone Enhancement Grants Program) examines the policy, technical, and institutional issues surrounding wetlands mitigation. Discussions under the "Policy Issues" and "Technical Questions" Sections are based on a review of relevant scientific literature; the observations/experiences of NH Wetlands Bureau coastal staff; and the analysis of existing NH wetlands legislation, rules, and procedures. Examples of regulatory approaches taken by other states with respect to certain mitigation issues are also provided. The "Institutional Issues/Responsibilities" Section highlights mitigation-related questions that governmental agencies which regulate wetlands need to ask themselves--and inevitably need to answer--if an effective mitigation policy is to be successfully developed. Key wetland mitigation issues and the status of New Hampshire's mitigation regulations are summarized under the "Conclusions" Section. This research and regulatory analysis is being used by NH Wetlands Bureau staff in their efforts to develop and adopt wetland mitigation regulations. DEFINING MITIGATION TERMS Much confusion exists about specific terms that relate to wetland creation and restoration because such terms have, to date, been used in different ways by different authors in different parts of the country. This confusion is becoming formalized as states, counties, and municipalities develop their own regulations related to wetland creation and restoration. "Mitigation" is one of these wetland-related terms that is used in different ways. Mitigation can be defined in broad terms as in the case of the National Environmental Policy Act regulations (40 CFR 1508.20). Under these regulations, mitigation means: avoiding, minimizing, rectifying, reducing or eliminating impacts, or compensating for impacts by replacing or providing substitute resources or environments. Wetland scientists prefer a more specific definition in which mitigation refers only to the actual restoration, creation, or enhancement of a wetland to compensate for permitted wetland losses. They view the development of more specific definitions for terms used in wetland creation, restoration, or enhancement as a means of bringing more order to and lessening the confusion in wetland terminology. This position has merit since an analysis of mitigation projects over the years has shown that incorporating clearly defined wetland creation/restoration/enhancement terms into mitigation regulations and permit conditions--terms such as restoration goals, objectives, standards, criteria, and restoration plan guidelines--provides a much stronger basis for judging the success of a wetlands mitigation project. The term "mitigation" as used in this report refers only to wetland restoration, creation, enhancement, or preservation. Wetland restoration refers to the reestablishment of a wetland in an area where it historically existed but which now performs no or few wetland functions. Wetland creation refers to the construction of a wetland in an area which was not a wetland in the recent past. Enhancement refers to increasing one or more of the functions of an existing wetland. Wetland preservation refers to the preservation of existing wetlands through acquisition, donation, conservation easements etc. A mitigation project can include elements of all four of the above components. The term "mitigation bank" refers to a wetland creation, restoration, or enhancement project undertaken by a developer (the term "developer" includes the public as well as private sector) to not only compensate for wetland impacts from a particular project, but also to act as a bank with credits to compensate for future wetland impacts. In New Hampshire, the term "mitigation" is not defined under state statute (RSA 482-A Fill and Dredge in Wetlands) or under the New Hampshire Wetlands Board Administrative Rules (Chapter Wt 100 - 800). The term "mitigation" is used under Administrative Rules Wt 703.01 Criteria for Approval and Wt 703.02 Criteria for Mitigation and Compensation. These two sections deal with wetland permit projects in or contiguous to a prime wetland. In addition, the "restoration of altered or degraded wetlands.." is discussed somewhat under the Administrative Rules Wt 303.04(s). However, this section deals with classifying wetland restoration projects undertaken by public agencies for the public good. POLICY ISSUES Assessing "Unavoidability": A government agency that is willing to consider allowing wetland mitigation in certain circumstances must make certain important policy determinations. Firstly, it must answer the question "Under what conditions will destruction or damage and subsequent creation or restoration of a wetland be permitted"? Many scientists take the position that mitigation should only be permitted for "unavoidable" losses. The next question then becomes "When should damage to a wetland be considered 'unavoidable' for regulatory purposes"? Standard criteria for assessing "avoidability" should be developed by regulatory agencies to help them determine when public benefits of wetland alteration outweigh the benefits of wetland preservation. One common regulatory test asks whether the proposed use is water dependent. Another looks at the availability of alternative sites. New Hampshire's wetland regulations permit alteration of tidal wetlands only if there is proven to be an overwhelming public good associated with the project. Therefore, the entity is usually a state agency or a local government. Typical projects involve the placing of water or sewer lines in road shoulders adjacent to tidal wetlands. Private developers are effectively prohibited from dredging/filling tidal wetlands due to the fact that these projects are not associated with public good, but with private gain. RSA 482-A:1 states that "...it is found to be for the public good and welfare of this state to protect and preserve its submerged lands under tidal and fresh waters and its wetlands, (both salt water and fresh-water)..." Therefore, the protection of existing wetlands should be the main objective of any mitigation policy. Three sections under Wetlands Board Administrative Rules contain standard criteria for assessing "avoidability." Chapter Wt 302.03 Avoidance & Minimization requires permit applicants to submit a statement describing the impact of the proposed project design and provide evidence which demonstrates that their proposal is the alternative with the least adverse impact to areas and environments under the Board's jurisdiction. Chapter Wt 302.04 Requirements for Application Evaluation requires that for major and minor projects a permit applicant must demonstrate by plan and example that certain factors (e.g. need for the proposed impact; the alternative proposed is the one with least impact; type/classification of wetland involved; relationship of wetland to be impacted relative to nearby wetlands/surface waters; rarity of area to be impacted; impact on plants, fish, and wildlife etc.) have been considered in their design. Chapter Wt 703.01 Criteria for Approval requires that a permit applicant whose project is in or contiguous to a prime wetland must show that there will be no significant net loss of wetland values set forth in RSA 482-A:1. The applicant must also, at a minimum, meet the following criteria: 1) the project is consistent with the purpose specified in RSA 482-A:1; 2) the project could not be relocated to avoid impacts on prime wetlands without reducing public value of the project or negatively affecting the public health or safety; 3) the project's impacts on prime wetlands are the minimum practical without either reducing the public value of the project or negatively affecting public health or safety; and 4) the project incorporates appropriate and practicable compensatory mitigation for each of the wetland functions and values of RSA 482-A:1, and each of the functions and values ranked by the municipality, that are impacted by the project. As an example of approaches taken by other states, the NJ Department of Environmental Protection's Division of Coastal Resources will not consider mitigation in tidal wetlands until it has first determined that the proposed activity: - is water dependent; - has no prudent or feasible alternative on a non-wetland site; - will result in minimum feasible alteration or impairment of natural tidal circulation; and - will result in minimum feasible alteration or impairment of natural contour or the natural vegetation of the wetlands. Selecting The "Best" Mitigation Option: Once wetland losses have been shown to be unavoidable, the form and extent of mitigation needed to restore lost wetland functions and values must be determined. Criteria for selecting the best mitigation option need to be developed, and should address the relative magnitude of the specific values and functions of the altered wetland, and the potential impacts of the alteration. Two key questions that also need to be asked are: 1) should wetland replacement be "in-kind" (i.e. same wetland type and size) or "out-of-kind" (different wetland type and size), and 2) should mitigation take place "onsite" or "offsite." While the purpose of wetland mitigation should be to restore the specific functions and values being lost, mitigation proposals commonly seek to substitute alternative functions and values (Golet, 1986). Studies that have evaluated mitigation projects have shown that the type of habitat to be created or restored is often determined not on the basis of the ecological need of the habitat lost, but on the basis of cost, ease of construction, aesthetics, and provision of non-habitat functions. Most research demonstrates a trend towards an exchange of one wetland type for another, usually a more "desirable" or easily created wetland type, representing a loss of wetland diversity. For example, Kunz et. al. (1988) found that during a six-year period of mitigation projects in the state of Washington, 2.1 habitat types were lost per project, while only 1.4 habitat types were restored through mitigation. They reported a tendency to try to create those wetlands that are more aesthetically pleasing (e. g. open water wetlands) or more acceptable to other special interests such as commercial and recreational fisheries, rather than replacing habitat for non-commercial wildlife. They also found that forested wetlands were not replicated at all. To fully restore lost habitat values, wetland replacement should be in-kind. Similarly, replacement wetlands should be created as near the original wetland site as possible to insure that the benefits of the original wetland continue to be enjoyed locally. Much debate has centered on whether preserving existing wetlands is a legitimate mitigation option. The preservation of existing wetlands through acquisition should not normally be considered as compensatory mitigation for unavoidable wetland losses since there is a net loss of wetland functions and acreage, and wetlands proposed for preservation are usually already regulated through the Section 404 program and provide ecological functions to the public (Kruczynski 1989). There could be circumstances, however, that would justify wetland preservation as a mitigation option. If the environmental effects of the proposed filling are very minimal and the benefits of placement of a large area of wetlands (and/or uplands) into public ownership are great, then preservation may be consistent with the goals of wetland protection although some loss may result. This may be particularly true if an area proposed for preservation is a unique habitat, subject to general or nationwide permitting, or otherwise vulnerable to development. Any agreement for the preservation of existing wetlands should explicitly indicate that the preservation shall be required in perpetuity and shall provide assurance for this requirement through an appropriate method such as fee title conveyance to a well established, responsible conservation organization (Kruczynski, 1989). In New Hampshire, written criteria for mitigation and compensation do exist but only for projects in or contiguous to a prime wetland. Under Wetlands Board Administrative Rules Chapter Wt 703.02, compensatory mitigation of lost or reduced wetland functions must be within the physical boundaries of the project where possible and appropriate. Off-site compensation of wetland functions (except mitigation for lost flood storage capacity) is considered if the applicant shows and the Board finds that: 1) the wetland function cannot be compensated on-site; or attempting to compensate on-site would have adverse affect on the value of other wetland functions, the ecological value of adjacent environments, or the public health or safety; and 2) the off-site compensation provides equal or greater value for that function than the value lost as a result of the proposed project. For projects not in or contiguous to a prime wetland, mitigation is--where possible--on-site and in-kind for functions that are lost. The majority of wetlands in New Hampshire are forested wetlands; therefore, mitigation for these types of wetlands is not generally in-kind. In practice, the current process in New Hampshire for selecting the best mitigation option is based on a combination of what a permit applicant offers and what the Wetlands Bureau staff and Wetlands Board will accept. Determining When Mitigation Should Take Place: Once mitigation becomes a permit requirement, it becomes necessary to decide at what point during project development mitigation will take place. Mitigation can be performed before the permit is issued, concurrent with project initiation and completion, or after a filling activity is completed. Up front mitigation is the most prudent of mitigation options and should be required for all projects which have considerable ecological risks by virtue of their size, complexity, or uncertainty of community establishment at the mitigation site. A performance bond should be required from the developer for any mitigation project which has an uncertain chance of success (Kruczynski 1989). If mitigation cannot be completed in advance, it should proceed concurrent with project construction since mitigation becomes an integral part of the proposed project. One problem inherent in concurrent mitigation, however, is the association between the timing of the receipt of a permit and initiation of a project with the timing of maximum success rate in relation to biological and/or hydrological seasonal factors. The processing of a permit application cannot be denied just because the application is received at a time of year when transplanting is not optimal. However, a permit may be conditioned to include a date for initiation of construction and mitigation which is consistent with maximum survival rates of transplanted material. Regardless of the time of year when mitigation is initiated or completed, it is always advantageous to require a guaranteed survival rate of transplanted plant material with every mitigation site (Kruczynski, 1989). Mitigation performed after a project is completed should be discouraged since it fragments the project into a construction phase and a mitigation phase. If post project mitigation is the only practical option, the mitigation plan should always contain an initiation date and a completion date. Post-project mitigation should be restricted to small projects which have a very high probability of success or for situations where project construction must be initiated before the time period when maximum survival of transplants is assured (Kruczynski, 1989). New Hampshire currently does not have a written policy or requirements dealing specifically with the timing of mitigation projects under wetland statute or Wetlands Board Administrative rules. However, the Board has clear authority to impose--and routinely does impose--conditions specified in a permit to assure that project impacts are minimized (Chapter Wt 304.01), and to place time limits on a project activity as a condition when the environmental impact of a project is reduced by doing so (Chapter Wt 304.03). Other states have approached the mitigation timing issue by including their policy on the timing of mitigation projects in their wetlands rules. The NJ Division of Coastal Resources's requires that "mitigation be performed prior to or concurrent with the wetland disturbance." This stipulation takes advantage of the fact that the DCR will be able to enforce mitigation requirements more effectively during those time periods. Similarly, NJ's freshwater wetland rules require that "mitigation must be performed prior to or concurrently with activities that will permanently disturb wetlands, and immediately after activities that will temporarily disturb wetlands." Assessing Lost Wetland Functions: Wetlands are recognized as having the potential to perform one or more important functions. Whether a wetland performs a certain function(s) is determined by the interaction of biological and physical characteristics at the site. Federal and state statutes (NH's included) regulate wetlands as ecosystems that provide specific functions that are important to public health, welfare, and safety, and to the public trust. New Hampshire's Fill & Dredge in Wetlands (RSA 482-A) recognizes the following wetland functions as important: - nutrient support for finfish, crustacea, shellfish and wildlife of significant value; - habitats and reproduction areas for plants, fish and wildlife of importance; - commerce, recreation and aesthetic enjoyment of the public; - groundwater recharge; - sediment trapping; - flood storage Wetlands Board Administrative rules also recognize wetlands as ecosystems which perform important functions. Wetland values that must be considered in project designs (under Chapter Wt 302.04 Requirements for Application Evaluation) include impacts on: plants, fish, and wildlife; nearby wetlands and surface waters; quality of surface and ground water; values and functions of the total wetland or wetland complex; and on public commerce, navigation, and recreation. Those proposing to alter wetlands greater than 3,000 square feet are required to demonstrate how those wetland functions recognized under RSA 482-A and under Chapter Wt 302.04 as being important are going to be protected. Once it is determined that wetland alteration/loss is unavoidable, mitigation should compensate for unavoidable wetland impacts or losses. But how does one measure the loss or damage to the original system? Analysis of damage to wetland functions should not be based on estimates of destroyed acreage alone. Such an analysis also requires determining the functions and values of the existing wetland, and estimating the resultant losses. The difficulty of measuring all of the ecological functions that a wetland provides and then demonstrating how that complex interaction of functions can be reproduced somewhere else is discussed in more detail under the Technical Questions section of this report. Determining Replacement Ratios: When allowing development in wetlands on the basis that the altered or destroyed wetland will be replicated elsewhere, consideration needs to be given to the amount of replacement wetland that will be required. An important issue in setting standards for mitigation is the amount of created, restored, or enhanced wetland that a permittee should be required to provide in order to ensure that wetland losses are adequately compensated. The required amount of mitigation is frequently established as a ratio of wetland area replaced to wetland area lost, and is termed "replacement ratio." At first glance, the development of replacement ratios appears to be a relatively simple task: determine the number of acres of wetland being lost, and replace an equivalent number of acres using a 1:1 ratio. However, wetland losses are not measured merely in terms of acreage, but in terms of function, type, location, and time (Kusler 1989). One approach to determining replacement ratios (Kruczynski 1989) suggests using general ratios between mitigation options as flexible guidelines to be considered in each permit decision requiring compensatory mitigation. This approach (which assumes that a project has received a Section 404 permit) suggests replacement ratios specific to the mitigation option being considered (i.e. restoration, creation or wetland enhancement ) for on-site, in-kind replacement mitigation. For wetland restoration, a 1.5:1 ratio is recommended if it has been convincingly demonstrated that a particular wetland type can be restored; this ratio can be reduced to 1:1 if wetland restoration is performed "up front," that is before a filling activity is initiated. If it has not been demonstrated conclusively that restoration of a particular wetland community is possible, then proposed replacement mitigation should be rejected. There is a growing body of literature and scientific consensus recommending ratios greater than 1:1 in order to ensure full replacement of wetlands. These recommendations stem from research that demonstrates a significant rate of failure in current wetland replacement projects as well as a loss of wetland function over the time it takes for a created wetland to represent a fully functioning ecosystem. In addition, by requiring that more wetlands are replaced than destroyed, at least theoretically, there should be a net gain in wetlands (if survival rate is high). It is also important to note that some investigators doubt that created systems can ever reach the functional equivalent of a natural system. Any regulations which govern the use of mitigation techniques must clearly address the issue of replacement ratios. Of the 16 states reviewed in a survey of regulatory requirements for compensatory mitigation (Castelle et. al. 1992), ten had compensatory mitigation ratio requirements either adopted or under review. According to the survey, compensatory mitigation ratios ranged from 1:1 to 6:1, depending upon wetland values, location of the mitigation site, and type of wetland habitat. Most jurisdictions lacked information on the administrative effectiveness of their respective regulatory programs. Even jurisdictions that had reviewed their wetland regulatory programs had no solid information on the effectiveness of their compensatory mitigation ratios in replacing lost wetland functions and values. Only the state of Oregon believed that the 1:1 habitat replacement ratio generally required for impacts to estuarine systems had been effective. Currently, New Hampshire has no written policy concerning mitigation ratio requirements. The amount of required replacement wetland is determined by the Wetlands Board on a case-by-case basis. A minimum 1:1 replacement ratio is generally required. Most mitigation projects are a combination of creation, restoration, and enhancement activities. The Wetlands Board also accepts, as mitigation, conservation easements as part of the permit condition. The Board generally does not accept easements alone, but in conjunction with other mitigation work. Reviewing mitigation ratios of other New England states surveyed by Castelle et. al. (1992) reveals the following: Connecticut: There is no formal mitigation policy for Connecticut. A careful examination of long-term and short-term impacts to watershed functions is required, and compensation is loosely based on these findings. While there is no formal state mitigation policy, the regulations promote no-net-loss of wetland functions and values. Maine: Compensatory mitigation is allowed and can include restoration, enhancement, creation, or preservation. Maine's Department of Environmental Protection rules (Ch.310) establish three classes of wetlands, with Class I being highest in value (due to their biological functions, provision of habitat for threatened or endangered plants, unique natural communities, or significant wildlife habitat). Mitigation ratios are 2:1 for Class I wetlands, and 1:1 for Class II and III wetlands. Preservation of land at an off-site location requires a compensatory mitigation ratio of 8:1. Land purchased under a preservation agreement is kept in perpetuity as a natural area, and must retain all of its significant functions. Rhode Island: No formal compensation ratios presently exist. In 1991 Rhode Island was considering including compensatory mitigation as part of upcoming amendments to the Freshwater Wetlands Act. Vermont: Vermont Wetland Rules establish three classes of wetlands, with each class based on wetland functional significance and given different levels of protection. Compensation may only be considered as a mitigation measure if the applicant has demonstrated first that avoidance, minimization, and restoration are not practical alternatives, and second, that there will be no net loss of wetland functions or acreage. Compensation is not allowed as a means of mitigating impacts in Class I wetlands, except in rare cases of compelling public need. Compensatory mitigation is allowed only for identified "compensable functions" considered to be replaceable. The rules presume that all wetland functions other than stormwater retention, sediment retention, waterfowl habitat, and open space and aesthetics are nonreplaceable. Compensation ratios of 1:1 are required for replacement of impacted acreage and compensable functions. Mitigation Banking: As stated earlier, mitigation banking refers to wetland restoration, creation, or enhancement undertaken by a developer (i.e. public or private entity) to not only compensate for wetland impacts from a particular project, but also to act as a bank with credits to compensate for future wetland impacts. Mitigation banking is an attractive idea to many wetland permit applicants; however, mitigation banking has not been widely utilized to date--even in states where banking has been specifically authorized (Kusler 1992). Some of the potential advantages of mitigation banking include the following: banking encourages the creation, restoration, and enhancement of large wetland areas which generally have a higher success rate and lower cost per acre than smaller ones; it allows for the optimization of particular wetland functions and values through project design and location; and it also provides greater flexibility to developers. Furthermore, because banks can maintain a store of wetland mitigation credits, developers can obtain wetland permits with greater certainty and in a shorter time (Kusler 1992). There are also a variety of limitations and problems associated with mitigation banks (Kusler 1992). Banking replaces lost wetlands in one specific location with wetlands located some distance away--often in different watersheds. Many wetland functions are site-specific and are lost when the wetland is destroyed. Mitigation projects at a new site cannot replace these functions. In fact, banking encourages applicants to propose off-site mitigation. If it is less expensive for applicants to buy into a bank than to carry out on-site and in-kind mitigation, then they will almost always propose off-site mitigation through a bank. Another problem with mitigation banks is that they often create marshes or shrub wetlands to replace other wetland types because it is easier and less expensive to do so. What results is a loss of one habitat type in exchange for another. In addition, federal, state, and local agencies generally lack the basic statutory powers and expertise to supervise or create mitigation banks. Due to the very existence of mitigation credits, developers are able to exert considerable pressure on regulatory agencies to avoid "alternative analyses" and impact reductions. Developers can argue that because mitigation is already taken care of through the bank, they should receive a permit for their project (Kusler 1992). Paying for mitigation credits is also a potential problem. If a government agency is operating a mitigation bank, monies paid into the bank may not always be used for wetland creation, restoration, or enhancement projects. Governments lacking clear distinction between agencies and programs may spend mitigation monies for other non-wetland purposes. In 1992, guidance on the development and operation of wetland mitigation banks associated with highway construction in the Northeastern United States was developed jointly by the Army Corps of Engineers, the Environmental Protection Agency, the Fish and Wildlife Service, and the National Marine Fisheries Service. This guidance applies to banking proposals in areas of the Northeast for which the regional offices of the four federal agencies listed above have overlapping jurisdiction. The guidance document includes definitions, policy considerations, implementation procedures, and other procedures (Society of Soil Scientists of Southern New England, 1992). A copy of the guidance document is provided under Appendix A. Currently, there is no formal state policy on mitigation banking in New England. In their report Improving Wetland Protection in New England; A Guideline for State and Federal Action, the New England Wetlands Workgroup (formed in 1985 and composed of 6 New England states and key federal wetland protection agencies) considers the concept of banking experimental in nature. The Workgroup's concerns regarding mitigation banking include: potential misuse (e.g. attempts to reduce or "buy down" the environmental impacts of one alternative when another less damaging alternative exists); the technical uncertainties associated with creating and restoring wetlands; the adequacy of credit evaluation techniques; the need for long-term monitoring; and the administrative and legal complexities that may arise. To date, the issue of mitigation banking has been rarely discussed at the NH Wetlands Board--partly due to the many concerns that need to be resolved prior to such a system being established. The NH Department of Transportation's policy on wetlands includes aggressively pursuing a program of restoration, enhancement, creation, and preservation of wetlands to promote the mitigation of unavoidable wetland impacts. Under its draft Wetland Banking Action Plan, NHDOT believes that wetland banking "will be a viable and prudent strategy." The NHDOT objectives for establishing a wetland banking program include: (1) establishing a statewide inventory of potential wetland banking sites, categorized by watershed or some other environmentally appropriate distinguishing characteristic; (2) developing a pilot demonstration project for wetland banking, incorporating any or all of the wetland mitigation approaches endorsed by resource agencies associated with a proposed transportation project; (3) monitoring and analyzing over the long-term the results (effectiveness) of the demonstration wetland bank; and (4) developing and implementing a long-range, on-going wetland banking program. TECHNICAL QUESTIONS Assessing Wetland Functions: When wetland construction and restoration projects are initiated to offset or mitigate impacts of wetland destruction, questions concerning how to measure the loss of or damage to the original wetland arise. When uplands are excavated to construct habitats as replacements for lost wetlands, are the lost wetland values replaced? When existing wetlands are modified to restore or enhance wetland values, are existing values maintained and are additional values provided? A variety of systematic and quantified approaches for evaluating either individual or the full range of wetland functions have been developed by agencies and researchers (Erwin 1989). A selected bibliography on wetland evaluation methods taken from EPA's Wetland Creation and Restoration: The Status of the Science, Vol. II can be found in Appendix B. The information provided by these different functional assessment methodologies range from a qualitative to a quantitative evaluation of a particular wetland's ability to provide a particular function. Some methods produce a single numerical rating for wetlands, while others provide a rating for each function. In recent years, there has been considerable debate over which functional evaluation method is the "best." The structure of an evaluation method, however, may be less important than the uses to which the system is put and the manner in which the results are interpreted. Assessment method results represent only estimates of a wetland's relative value for a given function; therefore, the significance of evaluation results--particularly numerical scores--should not be overemphasized (Golet 1986). According to Golet, use of wetland evaluation methods should be limited to: * identifying wetlands of outstanding value for public acquisition; * predicting the relative impact of various development proposals on wetland characteristics and values; * determining the scope of permit conditions or restrictions (e.g. width of required upland buffer zones); and * assisting decision makers to gauge the required amount of mitigation, assuming wetland losses are unavoidable. Golet also argues that most wetland assessment methods should not be used in simple before-after value comparisons for mitigation projects because they fail to consider: * direct or indirect impacts of wetland alteration in the original and replacement wetlands; * probable differences in functions between existing and replacement wetlands; * habitat losses for all wildlife species affected by the original wetland alteration and by wetland "enhancement"; * the highly subjective human value judgement that out-of-kind replacement of wildlife habitat is acceptable; * net losses of wetland area, especially if they are small; and * wetland dynamics (i.e. the probability that replacement or "enhancement" wetlands will not be managed indefinitely, but will change in type and value over time. New Hampshire has developed a functional assessment methodology for use by towns for planning, not mitigation purposes. NH Wetlands Board Administrative Rules (Chapter Wt 700 Prime Wetlands) provide criteria to municipalities for designating wetlands of significant value (i.e. prime wetlands). Under this chapter, identification of wetlands for consideration as Prime must be done using the Method for Comparative Evaluation of Nontidal Wetlands in New Hampshire (1991), or a similar method that is generally accepted and valid. If an alternative method is to be used, the town must identify the method and explain its reason for using it. With respect to assessing wetland functional values in New Hampshire for mitigation purposes, choosing which assessment methodology to use is in the hands of the consultant hired by the wetland permit applicant to develop the mitigation proposal. What potentially results is inconsistency between the assessment of one wetland site and the next. Moreover, since assessment methodologies are usually applied within the context of state regulatory programs, wetland systems that transcend state lines (e.g. Hampton-Seabrook Estuary) may be evaluated on different bases in accordance with political rather than ecological boundaries. Differing approaches to functional assessment have the potential for introducing inconsistency into the process of implementing wetland protection efforts, as well as needlessly hindering broader watershed planning efforts (New England Wetlands Workgroup 1991). The need to improve coordination and consistency between and among federal and state programs regarding wetland assessment is cited in the June 1991 report of the New England Wetlands Working Group. The report recommends that given the need for a consistent wetland functional assessment methodology in New England for both broad-based planning and site-specific decisions, a two- tiered approach to assessing the functions of wetlands should be developed. Such a methodology should be based on a review of current assessment techniques and science, keeping in mind the individual needs of wetland regulatory programs in New England. It is also crucial that a functional assessment of a wetland be performed by qualified personnel, since the use of a functional assessment method by inexperienced personnel can add more confusion to an already difficult task. Qualified wetland scientists with knowledge of wetland ecology, hydrology, wildlife, and an appreciation of practical considerations in wetland restoration or creation must be involved in the design and execution of evaluation efforts (Erwin 1989). The state of New Hampshire has no formal method for determining the qualifications of persons conducting wetland assessments. It is assumed by the Board that consulting firms have the expertise. The New England Wetlands Working Group recommends that state and federal agencies in New England examine the feasibility, cost, and benefits of a certification program for wetland consultants and regulators. Such a certification program has been proposed by the NH Association of Wetland Scientists, and legislation has been under consideration over the last few years. Designing Creation/Restoration Projects: If an agency charged with regulating wetlands (e.g. NH Wetlands Board) permits the destruction of a given wetland provided there is adequate compensation, then it is the responsibility of that agency to: (a) engage in all aspects of review and evaluation of the wetland construction details, as well as other matters of planning, and (b) help ensure that such compensation is constructed successfully. Simply requiring "successful compensation" as a permit condition does not, in itself, ensure success. A regulatory agency should have complete confidence in the compensation site and in the mitigation plans and specifications before making success a permit condition. Regulatory agencies need to fully and critically evaluate wetland creation/restoration mitigation projects (Garbisch 1989) in terms of: * acceptability, feasibility, and soundness of the proposed plan; * construction performance as related to the project being constructed in accordance with plans and specifications; and * post construction performance as related to maintenance of hydrological requirements and vegetation establishment. The information needed to conduct such an evaluation can be collected through the permit application process and during the life of the permit. The challenge lies in defining what specific information permit applicants should be required to include in their wetland creation/restoration plans. Assessment Criteria: The first step in any effort to comprehensively evaluate restored/created wetlands is the establishment of strict criteria for assessing a project's "success." Baseline data which evaluates an original wetland's physical characteristics and functions need to be collected to help establish selected success criteria and the design of the wetland creation project. The need for strict assessment criteria is based on the fact that there is so little information on how constructed wetlands carry out the functions in comparison with their natural models. Restoration work associated with mitigation of impacts has been going on in coastal wetlands of the northeast for over twenty years (Garbisch 1977, Charette et al. 1985). There has not been an extensive evaluation of these projects to determine their success and how they function (Shisler and Charette 1984, Reimold and Cobler 1986). However, mitigation projects continue to be undertaken without an understanding of their effectiveness. A detailed evaluation of northeastern mitigated wetland projects could provide the needed data base to design an effective management strategy. Baseline data needed to evaluate the original wetland's physical characteristics include: acreage; topography (i.e. elevation and slope); hydrology (i.e. salinity of water and soil, depth and duration of tidal inundation); substrate type (i.e. soil texture, salinity, nitrogen dynamics, organic matter concentration, and redox potential); water quality (i.e. water temperature and salinity, dissolved oxygen, light attenuation, nutrients, algae and zooplankton); vegetation (i.e. species composition, cover, and canopy heights); wildlife habitat (i.e. aquatic invertebrates, birds, reptiles and amphibians, fish and mammals); and recreational/educational use. Baseline data needed to evaluate wetland functions include: flood storage, flood conveyance, ground water recharge/discharge, shoreline anchoring, sediment trapping, food chain support, and pollution control (Erwin 1989, Shisler 1989, Pacific Estuarine Research Laboratory 1990). A detailed discussion of wetland evaluation needs, factors, and considerations is beyond the scope of this report, due to the scientific and technical expertise required. For a more thorough review of wetland evaluation needs, see the reports "Creation and Restoration of Coastal Wetlands of the Northeastern United States" and "Wetland Evaluation for Restoration and Creation" (taken from EPA's Wetland Creation and Restoration: The Status of the Science, Vols. I & II) under Appendix C. An additional source concerning the science of wetland evaluation is The Pacific Estuarine Research Laboratory's Manual for Assessing Restored and Natural Coastal Wetlands. Current Wetlands Board regulations do not require that specific baseline data from the wetland to be impacted be collected. Chapter Wt 300 Criteria and Conditions contains basic evaluation criteria that fill and dredge permit applicants (including those proposing mitigation) need to meet. No additional criteria for specifically evaluating mitigation proposals exist. Under Chapter Wt 300, applicants for major and minor projects must demonstrate "by plan and example" that they have considered the twenty factors specified under Wt 302.04 Requirements for Application Evaluation in their project design. Applicants must present specific restoration plans, the construction sequence etc., but are not required to provide field data which evaluates the original wetland's physical characteristics and functions. Depending on the project, however, the Wetlands Board may request that such data be collected using Habitat Evaluation Procedures (HEP) or other methods. Criteria generally used by the Wetlands Board to assess the success of mitigation projects are based on how successfully vegetation has been established on the site. The current standard requires that vegetation on the site must be 75% successful after two growing seasons in order for a mitigation project to be deemed successful. If vegetation is not successfully established, the permit applicant is required to replant until the replanting is deemed successful by the Board. There is evidence that a two-year time frame for determining mitigation success may not be long enough. Vegetation on a created or restored saltmarsh is often subject to invasion by non-native species after the second growing season. The need to extend the time frame for monitoring mitigation sites in order to ensure long-term success of saltmarsh mitigation projects is advocated by the Manual for Monitoring Mitigation and Restoration Projects on New Hampshire's Salt Marshes (Normandeau Associates Inc. June 1992). A more detailed discussion of the monitoring approaches recommended by this report is included under the Mitigation Project Monitoring section of this report. Goals and Objectives: Information gathered through a wetland evaluation should also be used to develop clearly stated mitigation project goals and objectives (Garbisch 1989). The importance of clearly stated goals and objectives is underscored by a study conducted by Quammen (1986). Upon analyzing other research studies dealing with evaluating mitigation project success, Quammen determined that the common reason for the difficulty in defining successful habitat and functional replacement was the lack of clearly stated restoration objectives in permit conditions or restoration plans. Permit conditions evaluated by Quammen often stated only that the habitat lost be restored or created elsewhere, but failed to clearly define what was lost, acknowledge the variability among natural marshes, or identify the functions or habitats most in need of replacement or restoration. The failure of permit conditions to state restoration objectives or provide sufficient technical detail about restoration design makes it difficult to develop success evaluation criteria. It is likely that mitigation project goals will differ between wetland creation and restoration projects (Normandeau Associates, Inc. June 1992). For creation projects where the intention is compensation for wetland impacts elsewhere, targeting functional goals will be most effective. Restoration projects frequently are not intended as compensation for functional impacts, but as improvements in areas degraded by past land use. On these sites, management goals that address the causes of degradation (e.g. reducing tidal restriction or altering plant communities) may replace functional goals. Lastly, mitigation project goals should be based upon a wetland system's requirements within a watershed or region, and the mitigation process should be directed towards a management approach that is concerned with the total system instead of just the "vegetated" wetland (Shisler 1989). New Hampshire's existing wetland regulations do not require that clearly stated mitigation goals and objectives (i.e. containing sufficient technical detail about the restoration design) be part of wetland restoration plans. Most approved plans, however, do contain sufficient detail. Clearly stated goals and objectives are important to developing effective criteria for evaluating the success of mitigation projects. Restoration Plans and the Permitting Process: There are numerous mitigation- related factors which should be considered at various stages of the permitting process and in mitigation plans. Assuming that a wetland mitigation project is justified, permit conditions should contain details of construction and landscape plans, specifications to facilitate verification by regulatory agencies that the mitigation project has been constructed according to the plans, and the criteria by which to determine if the project has been maintained and monitored during the life of the permit (Garbisch 1989). With respect to restoration plans themselves, such plans need to clearly state the type(s) of habitat and functions to be restored or replaced as well as the technical specifications about where, when, and how the habitat will be restored. More specifically, according to Quammen (1986) restoration plans should include: the specific site location; information on the suitability of the proposed wetland site to supply the environmental conditions necessary for development of a wetland; specifics about the elevations, grades, and soil requirements needed to provide optimal conditions for plant establishment and survival and for animal use; information about the species and sources (e.g. nursery, impacted site, natural site) of plant material to be established, as well as about when planting should occur; water quality requirements; and buffer designs for reducing impacts from adjacent areas. Schedules for each phase of the restoration and for subsequent monitoring need to be specified and enforced by the regulatory agency. In addition, an established mechanism for correcting problems reported during monitoring needs to be incorporated into permitting conditions. Such a mechanism should clearly assign responsibility for correcting problems. If the responsibility is to fall on the landowner, then terms of the permit conditions should be recorded as a deed restriction, thus automatically passing responsibility to the next owner of the property. A mechanism for reviewing the original plan should also be established since problems reported during monitoring may be due to factors inherent in the original plan . Garbisch (1989) suggests that regulatory agencies establish a three-step planning process for permitting wetland creation/restoration projects which requires permit applicants to submit preliminary, draft, and final mitigation plans. Under this approach, an applicant provides the regulatory agency with specific information under each step. Information requirements are designed to provide the regulatory agency with the information needed to fully and critically evaluate proposed wetland creation/restoration projects. For a more detailed discussion of the information that would be required under each of the three steps, see "Information Needs in the Planning Process for Wetland Creation and Restoration" (taken from EPA's Wetland Creation and Restoration: The Status of the Science, Vol. II) under Appendix D. A detailed discussion on preconstruction considerations and the critical aspects of wetland creation/restoration project plans is also provided in the report "Creation and Restoration of Coastal Wetlands of the Northeastern United States" (Shisler 1989) in Appendix C. The New Hampshire Wetlands Board uses a two-step wetland permitting process which involves the submission of preliminary and final plans. This approach is not a formalized one however. Current Wetlands Board regulations do not formally acknowledge this two-step process, nor do they specify what information permit applicants need to include in either preliminary or final plans. At present, eight full-time Wetlands Bureau inspectors (2 coastal and 6 inland) each write their own permit descriptions and conditions. Wetlands Bureau staff evaluate mitigation plans submitted by permit applicants. Mitigation plans are confirmed under permit approval, and permits are generally recorded at the Registry of Deeds. The Registry seal binds the applicant to the plan. When mitigation is to take place is determined by the type of project and is conditioned by the Wetlands Board. The likelihood of a mitigation project succeeding depends, to a degree, on the correctness of the plans and specifications and on the execution of construction according to these plans and specifications. Therefore, it is important that people with a background in both wetland creation/restoration design and the practicalities of construction be associated with such projects. A certification program or strengthened requirements for establishment of credentials could be adopted by regulatory agencies to insure that those planning and implementing mitigation projects have the necessary expertise. Garbisch (1989) recommends that mitigation plans be signed and stamped by an individual who has been certified as a qualified wetland creation/restoration scientist. He also suggests that such a certification program could be undertaken by an organization such as The Society of Wetland Scientists. Maine's wetland protection rules require that applicants proposing compensation demonstrate sufficient scientific expertise (and financial resources) to carry out the compensation plan (NE Wetlands Workgroup, 1991). Likewise, regulatory agencies need to have in-house qualified staff to conduct the necessary critical review and evaluation of detailed mitigation plans. Without the needed expertise, regulatory agencies end up relying upon the developer's experts to conduct an analysis of the wetland mitigation plan. If limitations on staffing, time, and funds are a problem, regulatory agencies could create expert wetland mitigation review boards with expertise and experience in mitigation (perhaps to serve on a part-time basis) to review mitigation proposals, particularly those involving experimental or high risk elements (Kusler 1986). The NH Wetlands Board and staff are qualified to assess mitigation plans. The inconsistencies and uncertainties associated with wetland mitigation projects have affected New England states. The New England Wetlands Workgroup has acknowledged the need for technical guidance for both state and federal agencies for use in reviewing permit applications and in devising enforcement remedies. In its 1991 Report, the Workgroup recommended that a task force of state and federal agencies be established to develop recommendations and guidelines on the scientific, technical, and engineering aspects of compensatory mitigation projects. More specifically, the task force would recommend approaches for baseline sampling, project design and construction, and follow-up monitoring. The Workgroup also recommended that each New England state develop a joint mitigation statement with the Corps and EPA that would describe the common elements of a state and federal mitigation plan and identify any special requirements particular to either program. The purpose of the statement would be to assist applicants in understanding the circumstances under which compensatory mitigation is required, the appropriate time to develop a plan, the basic elements needed for both state and federal agencies, as well as any aspects applicable to only one of the programs. The Workgroup also acknowledged that some states may need to establish their own respective standards (e.g. adoption of an explicit definition of mitigation, a no-net- loss policy, or a mitigation policy) before development of joint statements with EPA and the Corps is feasible. Mitigation Project Monitoring: Even though project monitoring is essential both during and after wetland construction--in order to determine compliance with project goals and to permit mid-course corrections--very few restoration or mitigation projects have included adequate monitoring programs, either in the extent of information gathered or the length of time sampling has continued (Pacific Estuarine Research Laboratory 1990). In order to assess the effectiveness of artificial wetlands in replacing lost wetland habitat, a mitigation plan needs to contain a monitoring plan. Clearly stated mitigation project goals/objectives and success evaluation criteria are crucial to a successful monitoring program, since they provide direction to the program by describing in detail what must be observed and measured. According to Quammen (1986), two types of monitoring are necessary to evaluate whether created wetlands compensate for the losses in natural wetlands. First, compliance monitoring is needed to insure that resource agencies' recommendations regarding compensation are adequately incorporated into the permit conditions and that such conditions are accepted and fully implemented by the applicant. Second, long-term, scientific evaluation is needed to determine whether the recommendations and permit conditions actually result in habitats that replace the functions and species impacted by the loss of wetlands. The minimum data collected for compliance monitoring (Quammen 1986) should include an assessment of whether the permit conditions reflect resource agencies' recommendations and completely replace the habitat lost. These conditions should describe: * locations of both the impacted and restored areas; * types and amount of habitat impacted and to be restored; * when the impact occurred and the restoration should occur; and * physical and biological design criteria necessary to accomplish the restoration. Field measurements should check both the location and size of the restoration and whether the applicant completely implemented the timing, hydraulic, vegetative, and sediment specifications. While compliance monitoring should be required as part of the restoration project, it should be implemented by a technically qualified, independent group. Long-term, scientific evaluation requires long-term, well-designed studies which are initiated prior to the restoration effort and are compared with control areas (Quammen 1986). Predictions about the habitats, functions, and species that are expected and a timetable showing when each will be effective should be developed and tested using proper experimental design. This type of monitoring should be conducted at a few sites for each habitat type, with the results used to validate or improve the adequacy of the resource agency recommendations and/or permit conditions. A two-level approach is also recommended for monitoring mitigation projects taking place within New Hampshire's saltmarshes. The Manual for Monitoring Mitigation and Restoration Projects on New Hampshire's Salt Marshes (Normandeau Associates Inc. June 1992) advocates two levels of sampling intensity: routine monitoring and comprehensive monitoring. The general purpose of routine monitoring under this approach is to ensure that, at a minimum, adequate and appropriate vegetation is established on a project site. The six monitoring periods designated under routine monitoring include: as- built, one-month, and the peaks of the first, second, third, and fifth growing seasons. Comprehensive monitoring consists of a more rigorous effort (conducted in conjunction with routine monitoring) which provides additional information about marsh processes and functional values, through the monitoring of physical and biological factors. This two-level approach assumes that specific project goals and the project design have been carefully developed and scrutinized by qualified personnel. The manual also stresses the importance of standardizing monitoring requirements in order to obtain consistent data, since such data are extremely valuable for identifying and refining mitigation design and construction techniques that are most effective. Additional testing of the monitoring techniques recommended in the manual is needed, and such testing is being carried out under an agreement between the NH Coastal Program and the University of New Hampshire. Under the agreement, UNH is studying the changes in hydrology, soils, and vegetation at three tidal sites (Awcomin Marsh in Rye, Mill Brook at Stuart Farm in Stratham, and North Mill Pond in Portsmouth) before and after restoration efforts took place. The study includes the preparation of a final assessment with appropriate management recommendations and suggestions for improving techniques addressed in the Manual for Monitoring Mitigation and Restoration Projects on New Hampshire Salt Marshes. The long-term evaluation of restored/created wetlands can provide an important database upon which recommendations for acceptable mitigation methods for future projects can be developed. The use of photographs from fixed locations to document changes in wetland habitats is an inexpensive method that provides an important database for comparison (Shisler 1989). Tetreault (1988) recommends that a restoration area be photographed at predetermined, fixed monitoring locations before, during, and following restoration. At a minimum, the restored wetland area should be photographed on a weekly basis for one month, then monthly for a year followed by quarterly for the following one to two years. Information from restoration plans, results of compliance monitoring, and other data also need to be documented in a retrievable way for use in future recommendations (Quammen 1986). In New Hampshire, once an applicant is granted a permit, he/she has up to six years to do the permitted work (the initial permit is for two years, and two 2-year extensions can be granted). The Wetlands Board generally requires a two-year monitoring period for completed mitigation projects, with a three- year monitoring period being required in some cases. In one instance, a fifteen year monitoring period was required for a mitigation project for intertidal and subtidal impacts. For the most part, periodic evaluation of a mitigation site is the responsibility of the permit applicant. The applicant is responsible for providing periodic reports to Wetlands Bureau staff describing what work has taken place at the site or, in the case of completed mitigation projects, what the status of the site is. The report requirement is included as a permit condition, with permit conditions specifying the time table for submitting reports and the report format. Reporting time frames vary with the type of project and range from monthly, to quarterly, to yearly. Reports include photographs depicting site conditions and a written description of the site's status. Permit conditions may also specify that Wetlands Bureau staff be present on site during the initial phase of the mitigation project in cases where mitigation work is in proximity to sensitive areas. For the most part, NH Wetlands Bureau staff depend on evaluation reports submitted by permit applicants for carrying out Bureau monitoring responsibilities. Periodic, in-person site visits by coastal wetland inspectors during the two-year monitoring period are conducted. The Wetlands Board uses vegetative success as the criterion for assessing the success of a mitigation project. A two-year monitoring period (that only looks at the success of planted vegetation) may be, in certain cases, too short a time frame for determining whether a mitigated wetland has reached the composite of functions and values of the natural wetland it was designed to replace (Pacific Estuarine Research Laboratory 1990). While compliance monitoring is being conducted in New Hampshire, long-term scientific evaluation is also important for determining if mitigation projects actually result in habitats that replace the functions and species impacted by the loss of the original wetland. Information provided by long-term scientific evaluation is indispensable to the development of improved mitigation methods. Other states (such as NJ's Division of Coastal Resources) have approached the issue of mitigation project monitoring by developing a computer-based data management system for evaluating, tracking, and enforcing wetland mitigation projects. Standardizing required wetland mitigation plan information and frequently used permit conditions enables the DCR to access a wide range of project-specific information (Kantor and Charette 1986). Mitigation Project Enforcement: Whether accidental or purposeful, violations of mitigation agreements do occur. Such violations must be addressed in a competent and timely manner to reduce environmental damage. If the responsible party is unwilling to pay the cost of corrections promptly, mechanisms for relief are needed. Such mechanisms (Shonman 1987) can include performance bonds, penalties/fines and liens. Under performance bonds, a specified sum is held in an interest-bearing account until the finished project has been inspected and given final approval. If made a part of the mitigation agreement, these bonds can be applied to situations in which the responsible party fails to perform an agreed-upon task necessary to the long-term success of the restoration project. Penalties and fines are most effective when imposed in addition to the cost of correction; and liens can be imposed by government agencies against the responsible party's property to pay for the necessary corrective action. In New Hampshire, violations of mitigation agreements are addressed under the existing Wetlands Board enforcement process. Mitigation violations are addressed the same way as fill and dredge violations, and thus fall under the category of "non-compliance with permit conditions." Under RSA 482-A:13, the initial administrative fine for non-compliance can range up to $2,000. If the violator does not comply with the order to restore a wetland as per conditions in the permit, he/she is subject to an additional $2,000 fine. The case is then brought to the attention of the Attorney General's Office where the violator may be prosecuted for civil penalties of up to $10,000 dollars per day of continuous violation (RSA 482-A:14). Proceeds of any levied civil penalty are placed in a nonlapsing fund, and may be expended by the Board (subject to Governor and Council approval) for restoration, research, investigation, and enforcement relative to wetlands. For some large mitigation projects or projects where mitigation will be performed concurrent with a development project, the Wetlands Board has required that a specified sum of money be required up-front from the permit applicant and held in an interest-bearing account. The specified sum is usually equal to the estimated cost of carrying out the mitigation project. Permit conditions requiring that the mitigation work be done are issued in addition to the required sum of money. Up front money does not relieve the applicant from the responsibility of carrying out the mitigation aspect of the project. Determining Wetland Mitigation Success: There is concern among the scientific community that restoration and habitat construction attempts are not replacing lost wetland values. A variety of techniques have been used to measure the success or failure of mitigation projects. These range from confirming the projects were completed according to plans, to achieving stated goals and objectives, to comparing functional equivalency through quantitative evaluations with natural control or reference sites. For wetland scientists, successful restoration means replacement of lost functional values, not just contract compliance. Proper planning, implementation, and monitoring are critical factors to improving the likelihood of successfully reproducing wetlands. The following components of compensatory mitigation plans are considered critical in attempting to achieve functional equivalency: design, implementation, monitoring, and maintenance. Design considerations should include soils analyses, grading contours, water source and hydroperiod, and detailed landscaping plans including appropriate native species, planting densities, species groupings, and size of planting zones. Implementation of the plan as designed determines if the construction of compensation sites will allow successful establishment of functionally equivalent wetlands. Regular monitoring and maintenance of created and restored wetlands (i.e. irrigation, mowing, replanting, and control of invasives) maximizes the opportunity for the plan to succeed as designed and constructed. Florida is an example of a state that conducted an assessment to determine the effectiveness of permitted mitigation. Focusing mostly on the success of wetland creation projects, the Department of Environmental Regulation (DER) determined that many required wetland creation projects were not conducted, and less than half of the completed mitigation projects were ecologically successful. The low success rates in both tidal and freshwater wetlands prompted the DER to make several recommendations for improvements in its permitting process. DER refocused its permitting practices towards avoiding wetlands and minimizing the effects of permitted activities on wetlands. INSTITUTIONAL ISSUES/RESPONSIBILITIES There are many questions surrounding the issue of wetlands mitigation. Some of these questions were explored in previous sections of this report. The following outline highlights additional questions that governmental agencies which regulate wetlands need to ask themselves--and inevitably need to answer- -if an effective mitigation policy is to be successfully developed. * Once mitigation is approved, who should decide what type of wetland is preferred in the case of out-of-kind mitigation? * In the case of off-site mitigation, who should decide where mitigation will be undertaken? * How should cumulative effects from several small projects be effectively mitigated? Should they be mitigated with one larger, common project and, if so, who should manage the larger project? * Who should be responsible for ongoing monitoring and maintenance of mitigation projects, (i.e compliance monitoring and long-term scientific evaluation), and for how long? * Should a permitting agency approve mitigation plans if it does not have either the requisite staff, expertise, or the resources for implementation, long-term monitoring, and enforcement? * Who will ensure appropriate long-term protection or management of areas set aside for mitigation? How should mitigation areas be managed to insure protection "in perpetuity"? * How should cases of mitigated wetlands that fail several years after they were presumed "successful" be addressed? * How can it be guaranteed that wetlands produced for mitigation today will not themselves be threatened by development in the future-- particularly in the case of mitigation projects which fail after the required compliance monitoring period? * Should mitigated wetlands be accorded the same level of legal protection as natural wetlands? Should they be accorded more protection? CONCLUSIONS Based on the review of scientific literature, the following can be concluded: * Federal and state statutes (including New Hampshire's) regulate wetlands not as plant communities, but as ecosystems that provide specific functions that are related to public health, welfare, and safety, and to the public trust. Therefore, those proposing to alter wetlands need to demonstrate how those wetland functions recognized under state and federal laws are going to be protected. For the same reasons, analysis of damage to wetland functions of an original wetland should not be based on estimates of destroyed acreage alone, but on the functions and values of the original wetland. * The long term "success" of most wetland restoration/creation efforts or wetland enhancement efforts in meeting specific goals is simply not known. Very specific goals have rarely been articulated prior to restoration/creation efforts. * The characteristics of the original wetland have rarely been inventoried or studied in depth prior to their damage or destruction. Baseline data which evaluates an original wetland's physical characteristics and functions is needed to help establish selected success criteria and the design of the wetland creation or restoration project. * Based upon limited studies to date, there is general agreement by the scientific community that no wetland can be duplicated or replicated exactly. Natural systems--representing thousands of years of geologic and hydrologic processes--are too complex for duplication. * Although it is impossible to duplicate natural systems, restored or new wetlands with some characteristics approximating natural systems can be created in some circumstances to substitute for damaged or destroyed wetlands. * Wetland creation may be appropriate to compensate for previously destroyed wetlands, but should not be used as a trade-off for wetland destruction. Where wetland destruction is truly unavoidable, only then should wetland re-creation be allowed, with comprehensive monitoring of the functional values of wetlands lost and replaced. Avoidance of impacts and losses should continue as a preferred approach. * Studies that have evaluated mitigation projects have shown that the type of habitat to be created or restored is often determined not on the basis of the ecological need of the habitat lost, but on the basis of cost, ease of construction, aesthetics, and provision of non-habitat functions. To fully restore lost habitat values, wetland replacement should be in-kind. * The preservation of existing wetlands through acquisition should not normally be considered as compensatory mitigation since there is a net loss of wetland functions and acreage. There could be circumstances, however, that would justify wetland preservation as a mitigation option. * There is a growing body of literature and scientific consensus recommending replacement ratios greater than 1:1 in order to ensure full replacement of wetlands. * There are some potential advantages to mitigation banking. However, there are also a variety of limitations and problems associated with it. Guidance on the development and operation of wetland mitigation banks associated with highway construction in the Northeast was recently jointly developed by four federal agencies. As of 1991, no formal state policies on mitigation banking existed in New England. * A variety of approaches for evaluating wetland functions have been developed. There has been considerable debate over which functional assessment method is "best." The type of method chosen may be less important than how it is used and how the results are interpreted. * There is a need to improve coordination and consistency between and among federal and state programs regarding wetland functional assessment. * Clearly stated mitigation project goals and objectives are crucial for developing effective criteria for evaluating mitigation project success. * There has been very little post-project monitoring of vegetation, hydrology, fauna, or other characteristics for public or private projects. Most of the monitoring to date has been short term (six months, one year, two years, at most five years). Short-term evaluation provides only a modest indication of long-term success. * Information provided by long-term evaluation of restored/created wetlands is indispensable to the development of improved mitigation methods for future projects. * A recently published manual recommends a two-level approach for monitoring mitigation projects within NH saltmarshes. Additional testing of the monitoring techniques recommended in the manual is needed and such testing has begun at three tidal sites in NH. * The effectiveness of evaluating, monitoring, and enforcing mitigation project requirements (each with unique site and design attributes) is improved when certain standardized information concerning individual projects is collected and recorded in an automated format. * The general success of wetland restoration and creation projects could be improved through such measures as: baseline studies of natural systems prior to their alteration; systematic scientific monitoring of restoration and creation projects; demonstration projects to test particular restoration and creation approaches; additional research to develop and test increasingly precise and accurate wetland evaluation techniques; and a certification program or strengthened requirements for determining the qualifications of persons planning and implementing restoration and creation projects. * Existing scientific knowledge needs to be better translated into policy guidance (i.e. guidelines, regulations, and guidebooks) to assist both those designing mitigation projects and those evaluating such projects. Examples of subjects needing such translation include impact reduction techniques (during- and post-project), and restoration/creation techniques. Based on the review of existing New Hampshire wetlands legislation, rules, and procedures, the following can be concluded: * Under the present NH wetlands permitting process, every effort is made to avoid, minimize, or reduce negative impacts while a project is in the planning stages. It is standard practice for the Wetlands Board to review mitigation proposals and, at the Board's discretion, to accept appropriate plans from some wetland permit applicants. * Sections of New Hampshire's wetlands statute and the Wetlands Board's Administrative rules, and many procedures currently followed by Wetlands Bureau staff do address certain aspects of mitigation. However, the NH Wetlands Board currently has no written policy on mitigation. * The only place where the term "mitigation" is used is under Wetlands Board Administrative Rules, Wt 703.01 Criteria for Approval and Wt 703.02 Criteria for Mitigation and Compensation. For wetland permit projects in or contiguous to a prime wetland, the applicant must meet specific criteria. One of these criteria is that "the project incorporates appropriate and practicable compensatory mitigation for each of the wetland functions and values of RSA 482-A:1, and each of the functions and values ranked by the municipality, that are impacted by the project." The criteria also require that where possible, mitigation of lost or reduced wetland functions be within the physical boundaries of the project. Off-site mitigation may be considered if the applicant can show that the wetland function cannot be compensated on-site, or that off-site compensation provides equal or greater value for that function than the value lost due to the project. * The current process for selecting the best mitigation option is based on a combination of what a permit applicant offers and what the Wetlands Bureau staff and Wetlands Board will accept as adequate compensation. Projects are, where possible, on-site and in-kind. Mitigation for forested wetlands is generally not in-kind. * The amount of required replacement wetland is determined by the Wetlands Board on a case-by-case basis. A minimum 1:1 replacement is required. * There is a need for a consistent wetland functional assessment methodology for both broad-based planning and site-specific decisions. On the project level, consultants hired by the wetland permit applicant determine which wetland functional assessment methodology will be used. The potential result is inconsistency between the assessment of one wetland site and the next. Since assessment methodologies are usually applied within the context of state programs, wetland systems that transcend state lines (e.g. Hampton-Seabrook Estuary) may be evaluated on different bases in accordance with political rather than ecological boundaries. * Current regulations do not require permit applicants to provide field data which evaluates the original wetland's physical characteristics and functions. The Wetlands Board may request--and does request--such data be collected, depending on the project. * The current wetlands permitting process uses a two-step approach which involves the submission of preliminary and final plans. However, this approach is not formally acknowledged under Wetlands Board regulations, nor do the regulations specify what information permit applicants are required to provide under either step. * Clearly stated mitigation project goals and objectives are not required in mitigation plans under current regulations. Most approved plans do, however, contain sufficient detail. * For the most part, periodic evaluation of a mitigation site is the responsibility of the permit applicant who is responsible for providing periodic reports to Wetlands Bureau staff describing what work has taken place at the site, or in the case of a completed project, what the status of the site is. * For the most part Wetlands Bureau staff depend on evaluation reports submitted by permit applicants for carrying out Bureau monitoring responsibilities. Periodic, in-person site visits by coastal wetland inspectors during the two-year monitoring period are conducted. * The current standard for assessing mitigation success requires that vegetation on the site be 75% successful after two growing seasons. The Wetlands Board generally requires a two-year monitoring period for completed mitigation projects, with a three-year monitoring period being required in some cases. * While compliance monitoring is being conducted, long-term scientific evaluations of sites to determine if mitigation projects actually result in habitats that replace the characteristics and functions of the original wetland are not conducted. * Mitigation violations are addressed the same way as fill and dredge violations and, therefore, fall under the same enforcement process. * To date, the issue of mitigation banking has been rarely discussed at the Wetlands Board, partly due to the many concerns that need to be resolved prior to such a system being established. On the other hand, NHDOT (under its draft Wetlands Banking Action Plan) believes that wetland banking "will be a viable and prudent strategy." * No formal program for certifying wetland consultants and regulators exists in New Hampshire. During the past three legislative sessions, the Legislature has considered adopting a formal method for certifying wetland scientists. Legislation proposed during the 1993 legislative session concerning wetlands scientist certification (HB 624-FN) was re- referred for further study. RECOMMENDATIONS New Hampshire Wetlands Bureau staff are currently developing draft wetlands mitigation regulations. Should the State of New Hampshire and the NH Wetlands Board decide to adopt a formal wetlands mitigation policy, they may wish to consider the following: - Developing and adopting a written mitigation policy that formally recognizes existing Wetlands Board practices and procedures that deal with minimum replacement ratios, submission of preliminary and final mitigation plans, and standards for assessing mitigation success. - Reevaluating existing practices/standards concerning replacement ratios and mitigation success assessment. - Developing and adopting a written mitigation policy that addresses the following additional mitigation issues: defining "mitigation"; developing written criteria for selecting the best mitigation option; including clearly stated goals and objectives into restoration plans; developing written policies concerning mitigation project timing and mitigation banking; and establishing criteria for assessing impacts to functional values of original wetlands. - Adopting a two-level approach to mitigation monitoring that makes use of compliance monitoring as well as long-term scientific evaluation of mitigation sites. - Adopting a formal method for certifying wetland scientists. - Examining the feasibility, cost, and benefits of developing a formal method for determining the qualifications of persons conducting wetland assessments or carrying out restoration projects. - Developing a handbook on wetland creation/restoration, planning, and implementation to provide guidance to those designing projects and those evaluating such projects. Such a guidebook could address how to: select appropriate sites; define goals and objectives; choose a "reference site"; assess pre-restoration site conditions; create preliminary and final site designs; and site monitoring and management. - Initiating a review of past mitigation projects deemed successful under the current standard for assessing mitigation success to determine the current ecological status of these sites. Data collected through such a review would be extremely valuable for identifying and refining mitigation design and construction techniques most effective for New Hampshire. APPENDICES BIBLIOGRAPHY Bartlett, M. 1992. Northeast Regional Guidelines on the Establishment and Operation of Wetland Mitigation Banks. Proceedings: Wetlands Conference. Society of Soil Scientists of Southern New England. Storrs, CT. Castelle, A.J., C. Conolly, M. Emers, E.D. Metz, S. Meyer, M. Witter, S. Mauermann, M. Bentley, D. Sheldon and D. Dole. 1992. Wetland Mitigation Replacement Ratios: Defining Equivalency. Adolfson Associates, Inc., for Shorelands and Coastal Zone Management Program, Washington Department of Ecology, Olympia, Publ. No. 92-08. Charette, D.J., J.K. Shisler, and R. Kantor. 1985. Guidelines for the Mitigation of Tidal Salt Marshes in New Jersey. Coastal Zone 1985. American Society of Civil Engineers, New York, NY. Erwin, K.L. 1989. Wetland Evaluation for Restoration and Creation. Wetland Creation and Restoration: The Status of the Science, Vol. II. EPA Environmental Research Laboratory, Corvallis, OR. Garbisch, E.W. 1977. Recent and Planned Marsh Establishment Work Throughout the Contiguous United States: A Survey and Basic Guidelines. US Army Engineers Waterways Experiment Station, Report D-77-3. Garbisch, E.W. 1989. Information Needs in the Planning Process for Wetland Creation and Restoration. Wetland Creation and Restoration: The Status of the Science, Vol. II. EPA Environmental Research Laboratory, Corvallis, OR. Golet, F.C. 1986. Critical Issues in Wetland Mitigation: A Scientific Perspective. National Wetlands Newsletter, Vol. 8, No. 5. Environmental Law Institute, Washington, DC. Kantor, R. A. and D. J. Charette. 1986. Wetlands Mitigation in New Jersey's Coastal Management Program. National Wetlands Newsletter, Vol. 8, No. 5. Environmental Law Institute, Washington, DC. Kruczynski, W.L. 1989. Options to be Considered in Preparation and Evaluation of Mitigation Plans. Wetland Creation and Restoration: The Status of the Science, Vol. II. EPA Environmental Research Laboratory, Corvallis, OR. Kunz, K., M. Rylko, and E. Somers. 1988. An Assessment of Wetland Mitigation Practices in Washington State. National Wetlands Newsletter 10:2-4. Kusler, J. 1986. Wetland Restoration/Creation: A Summary of Science Views and Perspectives. Proceedings of the National Wetland Symposium: Mitigation of Impacts and Losses. Association of State Wetland Managers. Berne, NY. Kusler, J. 1992. The Mitigation Banking Debate. National Wetlands Newsletter. Vol. 14, No. 1. Environmental Law Institute, Washington, D.C. Kusler, J. and H. Groman. 1986. Mitigation: An Introduction. National Wetlands Newsletter, Vol. 8, No. 5. Environmental Law Institute, Washington, DC. Kusler, J. A. 1989. No Net Loss and the Role of Wetlands Restoration/Creation in a Regulatory Context. pp. 378-393. In: J.A. Kusler, S. Day, and G. Brooks (eds.), Urban Wetlands, Proceedings of the National Wetlands Symposium, June 1988, Oakland, CA. Association of State Wetland Managers, Inc., Berne, NY. LaRoe, E. T. 1986. Wetland Habitat Mitigation: An Historical Overview. National Wetlands Newsletter, Vol. 8, No. 5. Environmental Law Institute, Washington, DC. Larson, J. S. April 1988. Wetland Creation and Restoration: An Outline of the Scientific Perspective. Increasing Our Wetland Resources Conference Proceedings. National Wildlife Federation, Washington, DC. Lewis III, R. R. 1989. Wetlands Restoration/Creation/Enhancement Terminology: Suggestions for Standardization. Wetland Creation and Restoration: The Status of the Science, Vol. I. EPA Environmental Research Laboratory, Corvallis, OR. New England Wetlands Workgroup. June 1991. Improving Wetland Protection in New England: A Guideline for State and Federal Action. A Report of the New England Wetlands Workgroup. New Hampshire Department of Transportation. October 29, 1990. Draft Wetland Banking Action Plan. Concord, NH. New Hampshire Department of Transportation. October 29, 1990. Policy on Wetlands. Concord, NH. New Hampshire Office of State Planning. 1988. Technical Bulletin 2: Wetlands Mitigation/Restoration Issues. Concord, NH. New Hampshire Office of State Planning. 1989. New Hampshire Wetlands Priority Conservation Plan. Concord, NH. New Hampshire Revised Statues Annotated. 1992. Chapter 482-A Fill and Dredge in Wetlands. Butterworth Legal Publishers. Orford, NH. New Hampshire Wetlands Board. New Hampshire Code of Administrative Rules, Chapter Wt 100 through Wt 800. Concord, NH. New Jersey Administrative Code. May 1987. Division of Coastal Resources Coastal Permit Program Rules. Normandeau Associates, Inc. June 1992. A Manual for Monitoring Mitigation and Restoration Projects on New Hampshire's Salt Marshes. Prepared for New Hampshire Office of State Planning, Concord, NH. O'Donnell, A. October 1987. The Policy Implications of Wetlands Creation. Proceedings from a Conference on Increasing Our Wetland Resources. National Wildlife Federation, Washington, DC. Pacific Estuarine Research Laboratory. 1990. A Manual for Assessing Restored and Natural Coastal Wetlands with Examples from Southern California. California Sea Grant Report No. T-CSGCP-021. La Jolla, CA. Quammen, M.L. 1986. Measuring the Success of Wetlands Mitigation. National Wetlands Newsletter, Vol. 8, No. 5. Environmental Law Institute, Washington, DC. Redmond, A. 1992. How Successful is Mitigation? National Wetlands Newsletter. Vol. 14, No. 1. Environmental Law Institute, Washington, DC. Reimold, R.J. and S.A. Cobler. 1986. Wetlands Mitigation Effectiveness. US Environmental Protection Agency Contract No. 68-04-0015. Boston, MA. Shisler, J.K. 1989. Creation and Restoration of Coastal Wetlands of the Northeastern United States. Wetland Creation and Restoration: The Status of the Science, Vol. I. EPA Environmental Research Laboratory, Corvallis, OR. Shisler, J. K. and D. J. Charette. 1984. Evaluation of Artificial Salt Marshes in New Jersey. New Jersey Agricultural Experiment Station Publication Number P-40502-01-84. Shonman, D. 1987. Restoration Standards: How to Guarantee Environmental Protection. Marina Coastal Zone Planning Task Force, Marina CA. Tetreault, T.E. April 1988. Wetland Replacement: Design, Construction, and Monitoring Considerations. Increasing Our Wetland Resources Conference Proceedings. National Wildlife Federation, Washington DC.