Compliance Inspection and Enforcement

The desire to enforce permit conditions is reflected in the Corps SOPs:

Districts will inspect a relatively high percentage of compensatory mitigation, to ensure compliance with permit conditions. This includes SPs [standard permits] and GPs [general permits]. This is important because many of the Corps permit decisions require (and presume the success of) compensatory mitigation to offset project impacts. To minimize field visits and the associated expenditure of resources, SPs and GPs with compensatory mitigation requirements should require applicants to provide periodic monitoring reports and certify that the mitigation is in accordance with permit conditions. Districts should review all monitoring reports.

Adequate staff and budget must be dedicated to inspection and enforcement of the permitting and compensatory mitigation elements of the program, but resources are limited. The pending changes to the general permit program may spread resources more thinly, with adverse consequences for mitigation compliance and enforcement, unless there is as much as a 15% increase in staff budget (Institute for Water Resources 2000). Although recent court rulings (discussed elsewhere in this report) may restrict the regulatory scope of the federal permitting program and reduce federal staff workloads, the regulatory burden then may fall on limited state resources to fill in gaps created by the court rulings. At present, it appears that the Corps's field staff focuses principally on reviewing permits and dedicates limited time and attention to inspection and enforcement. This is evidenced by the SOPs issued as guidance for regulatory staff (USACE 1999a). Inspection and enforcement of compensatory mitigation requirements are not given priority. Although it is reported that about 20 to 25% of the annual budget is spent on enforcement of all types (presentation given by John Studt, U.S. Army Corps of Engineers, at first meeting of the committee), studies have shown that the Corps does not make sufficient visits to mitigation sites to determine if mitigation projects were constructed as proposed or to evaluate compliance of mitigation efforts (Sudol 1996).

The budget blueprint from President George W.Bush calls for more funds for the Section 404 program. Dedicating these funds to more staff resources for inspection of mitigation sites would improve compliance (Allen and Feddema 1996). However, even if such resources are not forthcoming, agencies could make better use of available resources. First, staff specialization might be considered. Some districts now have specialized permitting and mitigation staff; such specialization should be considered for all field units to make better use of limited staff. Second, monitoring and enforcement resources will go farther if structural changes are made

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