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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT
dition, there may need to be a cash payment adequate for monitoring the site or for periodic assessment, as appropriate to the site' s self-sustainability. The precise process for certifying such an organization would vary by area. In addition, the amount of payment for the endowment should be appropriately linked to a reasonable expectation of future costs. While there would be some administrative cost for simply making inspections of the site, the need for funds for active management and possible repairs after construction will vary by the condition of the site when it is assumed, the location in the watershed, and other factors. If the site has been constructed to meet the design requirements, the required cash payment might be limited to an annual administrative charge and be based on a sliding scale with the payment in inverse proportion to the self-maintenance capability of the site.
Different mechanisms are available to provide legal and real-estate protection. Donation to a land management agency or qualified land trust and placement of conservation easement or deed restrictions are among the more commonly used mechanisms. Generally, deed restrictions are less desirable because a judge may vacate them. Conservation easements are much stronger mechanisms for this purpose, although each state's laws should be reviewed for potential weaknesses. For example, Florida statutes (§704.06) allow a grantee to give an easement back to the grantor at the grantee's discretion. For this reason, Florida's mitigation banking rule requires that conservation easements be granted to two entities. Deeding of the property's fee to an appropriate conservation land manager, whether public or private, is often the most desirable method of legal protection. However, many of these organizations will only accept lands that are financially endowed and that make strategic additions to their portfolio of landholdings. If donation to such entities is contemplated, it would be wise to work with them during the mitigation planning phase to ensure that they will accept property.
The committee recommends that the Corps, in cooperation with states, encourage the establishment of watershed organizations responsible for tracking, monitoring, and managing all preserved and compensatory wetlands in public ownership or under easement. This recommendation applies for both permittee-responsible and third-party mitigation.
Agency Technical Capacity
Corps regulatory staff should receive continuing training on ecological and hydrological principles necessary to analyze a mitigation design so that there is a reasonable expectation that mitigation projects will meet target functions. In addition, Corps staff could become mitigation specialists who would review mitigation designs. Recommendations obtained