be developed with a focus towards ease in interpretation. The number of special conditions should also be held to the minimum necessary to protect the aquatic environment, and to ensure compliance with Federal law. Given the high workload requirements associated with mitigation requirements (e.g., multiple inspections, review of annual reports, agency coordination), enforcement of all conditions may not be possible. Therefore, the importance of writing clear, easily enforceable conditions cannot be overstated. While all Section 401 conditions must be attached to the Section 404 permit, the Corps should only seek to ensure compliance of those conditions that most closely relate to our jurisdiction. Use enforcement discretion for 401 and CZM conditions, dependent on resource limitations.
It some cases it may be appropriate to require the recording of deed restrictions, land covenants, or conservation easements as a condition of a DA permit. The deed restrictions may involve wetlands or uplands, when required to sufficiently protect/mitigate the aquatic resources associated with the permitted action. The need for covenants should also be justified in the administrative record. Special justification should be referenced where upland buffers are incorporated into the decision. The inclusion of buffer areas, although not usually associated with the requirements of the CWA, can add numerous benefits to the value of an aquatic environment. The record should identify specific functions that the upland buffer is performing, such as water quality benefits, aquatic species habitat support (e.g., shading), or watershed protection and should not be based solely upon habitat values to wildlife.
- Corps determines mitigation
- Replace lost functions
- Require permittee reporting
- Compliance inspections essential
- Provide clear, enforceable permit conditions
- Use best professional judgement
Mitigation is a critical part of the Corps Regulatory Program. The following is a focus on the mitigation policy and the source of that policy, under which the Corps should be operating the Regulatory Program, as well as some basic concepts that districts should consider in formulating compensatory mitigation.