By: John S. Jacob, Director, Texas Coastal Watershed Program (TCWP), Rebecca DaVanon, Extension Associate, Texas Coastal Watershed Program, The Texas A&M University System
Lisa A. Gonzalez, Vice President, Houston Advanced Research Center (HARC) and Erin L. Kinney, Postdoctoral Research Scientist, HARC
The wetland permit process required by the Clean Water Act (CWA) does not appear to be adequately protecting the water quality and wetland resources affected by development in the Houston area, based on a thorough review of a rigorously selected sample of permits maintained by the U.S. Army Corps of Engineers Galveston District office.
Since 1990, development has filled in or destroyed thousands of wetland acres in the eight-county Houston-Galveston area. According to the wetland regulatory program under the Clean Water Act, the loss of jurisdictional wetland acreage must be offset by the gain of an adequate number of wetland “mitigation” acres to replace lost functions and values.
However, recently completed research (Gonzalez et al 2014) found that many actions permitted by the U.S. Army Corps of Engineers (USACE) contain little or no evidence that the mitigation had been completed as required by the Clean Water Act. Our study found that less than half of the sampled permit records that required compensatory mitigation contained documentation that mitigation had been completed. Worse, 66 percent of these incompletely documented permits had no record of any mitigation activity.
Sampled permits with incomplete documentation of mitigation account for a shortfall of 1,070 acres of required wetland compensatory mitigation in the greater Houston region.
The study gauged the effectiveness of the wetland permit process through documented permit compliance—whether or not the conditions of the permit were documented as having been met. The study included no on-the-ground assessment as to whether the mitigation had been completed, nor did it assess the relative success or failure of the mitigation projects.
Given the lack of documentation for completed mitigation requirements in the USACE administrative records, neither the public nor resource managers should be overly confident that wetland resources are being protected as envisioned in Section 404 of the Clean Water Act.
For all but very minor damage, the fill or destruction of wetlands is regulated under the Clean Water Act Section 404 wetland program and requires a permit from the U.S. Army Corps of Engineers. In many cases, the destruction of those wetlands must be offset through a process known as mitigation.
Mitigation requires first avoidance of existing wetlands and then minimization of damage if avoidance is not possible. When developers cannot avoid or sufficiently minimize damage, the act requires compensatory mitigation.
Compensatory mitigation replaces the ecological functions and values that are lost when wetlands are filled. The final USACE permit for wetland fill specifies the types and details of any compensatory mitigation required. Mitigation is what makes possible the national wetland policy of “no net loss.”
Compliance in the Houston metro area
To assess whether the USACE Galveston District is achieving “no net loss,” the study reviewed a random sample of 110 complete administrative permit records from the 7,052 permits issued from 1990 to 2012 in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties.
The review found that 51 of 110 permits (46 percent) were out of compliance, in terms of documentation, with regards to some form of mitigation, whether avoidance, minimization, and/or compensation. Of the 62 permits requiring compensatory mitigation, 38 (61 percent) were out of compliance with compensatory mitigation requirements. One permit was in compliance with compensatory requirements but out of compliance with avoidance requirements (Fig. 1).
Most of the compliance problems entailed missing monitoring reports or other required documentation. It is unclear whether the lack of documentation in the permit administrative records is synonymous with ineffective or non-existing mitigation, or merely reflective of deficient record keeping in documenting permit requirements.
Based on what the USACE Galveston District office released in response to Freedom of Information Act requests, the study found that 62 of the 110 permit samples required compensatory mitigation, representing work that filled 356.12 acres of wetlands. Those 62 permits required a total of 1,306.05 acres of mitigation, including permittee-responsible mitigation as well as mitigation bank credits.
Mitigation banks are larger areas that can be professionally managed and that are presumably easier for managers to document accountability. Permits not requiring compensatory mitigation contributed minimally to total wetland impacts.
Documented mitigation for the 62 permits requiring compensatory mitigation totaled 236.49 acres (including mitigation bank credits), or 18 percent of the requirement. What should have been a nearly 4:1 mitigation to impact ratio appears to have been a 0.7:1 ratio, far short of a “no net loss” (Fig. 2 and Table 1).
Of the 38 permits that were out of compliance with their compensatory mitigation requirements, three degrees of record completeness were delineated:
- No evidence: The permit record lacked any evidence that compensatory mitigation ever commenced (25 permits).
- Weak evidence: Records showed some evidence that the mitigation construction began, but little to no evidence that it was completed or monitored (seven permits).
- Likely complete evidence: The records indicated that mitigation was completed and monitoring had begun, but not all the required documents were on file in the administrative record (six permits).
Only the mitigation acres for Likely complete evidence were included in the documented mitigation totals. However, it should be noted that two permits had joint permittee responsible mitigation and utilization of a mitigation bank. For two of the weak-evidence permits, documented mitigation from the mitigation bank aspect of compensatory mitigation was included in documented mitigation totals.
Mitigation bank compliance
The USACE is trying to guide most new mitigation into mitigation banks. In the permit sample, 10 projects used mitigation banks for all of their compensatory mitigation. Permits using multiple types of compensatory mitigation that also included a mitigation bank as a component of mitigation were not included in the totals listed below.
Three of the 10 permits (30 percent) did not comply because they lacked evidence that the credits were ever purchased. These 10 permits accounted for 33.03 acres of wetland impacts and required the purchase of 47.63 credits from area mitigation banks, for a 1.44:1 mitigation-to-impact ratio (Figure 3).
This lower 1.44:1 required ratio versus the higher 4:1 required ratio for the total permit sample likely reflects the USACE’s much greater confidence in the success rate of mitigation banks. In addition, one mitigation bank credit theoretically encompasses some kind of functional equivalence beyond simple acreage. However, no long-term, independent studies in this area have verified that banks improve mitigation success (Kihslinger, 2008).
The documented mitigation acreage for the 10 permits exclusively using mitigation banks was 39.13 acres, or 82 percent of what was required—far above the 18 percent rate associated with the overall sample (Figs. 2 and 3). This is a 1.2 to 1 documented mitigation credit-to-wetland impact ratio. Note: This number reflects the completeness of the documented mitigation requirements for the reviewed permits, not the quality of mitigation at the mitigation site itself.
Size of project impacts
Almost half of all permits reviewed accounted for less than 1 acre of wetland impact per permit. Just over a fifth of all permits affected less than 1/10 of an acre of wetlands per permit.
The analysis of the total impact acreage (Table 2) revealed that a few large permits accounted for the vast majority of the impact acreage of our sample. The top five permits made up 71 percent of the total impacted acreage in our permit sample, and the mitigation requirement for these projects accounted for 83 percent of all required mitigation in the overall sample (Table 3).
Two of the five permits accounted for 88 percent, or 936 acres, of the 1,070 documented mitigation acreage shortfall. The permit with the largest impact accounted for 60 percent of the shortfall (Tables 2 and 3).
Internal USACE assessment performance measures
The USACE requires its districts to inspect 5 percent to 10 percent of all permits for compliance each year. Our sampling revealed that the USACE met or exceeded this inspection requirement. The USACE compliance inspections within our sample (12 of 110 permits) suggested a non-compliance rate of about 30 percent (3 of 10 USACE-inspected permits where work occurred), significantly less than what we documented in our full study sample (46 percent).
Based on a thorough review of documented wetland mitigation from a rigorously selected permit sample, it appears unlikely that wetland mitigation through the Clean Water Act process is achieving the intended outcome of “no net loss” of wetlands on the Upper Gulf Coast of Texas.
Although the study reviewed only the documentation of mitigation, it would not be unreasonable to assume that lack of documentation correlates to a lack of complete on-the-ground mitigation.
This study was based on information provided by the USACE Galveston District office through the Freedom of Information Act process.
The FOIA process with the USACE to obtain full permit records was time consuming and expensive. This process would be an obstacle for anyone attempting a larger scale review of USACE Galveston District’s regulatory success.
Over 60 percent of all permits in the sample that required compensatory mitigation were lacking in documentation supporting full compliance. Documentation was found for only 18 percent of the required mitigation acres and credits.
Somewhat more disturbing, of the out-of-compliance permits requiring mitigation, 61 percent had no documentation that any kind of mitigation was carried out.
Undermining the goal of “no net loss” on the Texas coast is the fact that the Galveston District USACE’s current interpretation of the Clean Water Act does not protect the vast majority of wetlands in the study area. In general, the District exerts jurisdiction over wetlands only if they are adjacent to traditional navigable waters (TNW), abut non-navigable tributaries of TNW that are relatively permanent, or are determined to have a “significant nexus” 5 to TNW (USACE, 2008). This analysis typically includes only wetlands in the 100-year floodplain or those with a distinct channel—that is, with an ordinary high water mark and clear bed and banks—connecting the wetlands to TNW. However, it should be noted that the Galveston District USACE’s official policy is that jurisdiction is determined on a case-by-case basis.
Nearly 90 percent of the wetlands lost to development in the past 25 years were outside the 100-year floodplain; thus, no permits were required for their loss after 2001. Recent research has documented significant hydrologic connections between non-floodplain wetlands and TNW in this area (Wilcox et al., 2011; Forbes et al., 2012), but the USACE has yet to acknowledge these studies.
In light of the inconsistent and often incomplete record of mitigation documentation, area resource managers should carefully monitor the quality of wetland mitigation that the public is getting under the CWA 404 wetland program.
Forbes, M. G, Back, J., and Doyle, R. D. (2012). “Nutrient Transformation and Retention by Coastal Prairie Wetlands, Upper Gulf Coast, Texas.” 32 Wetlands, 705–715.
Gonzales, L. A., Jacob, J. S., Kinney, E. L., Neish, B. S., and DaVanon, R. M. (2014). Galveston Bay Wetland Mitigation Assessment and Local Government Capacity Building. Houston Advanced Research Council, Texas Coastal Watershed Program (General Land Office Contract No. 13-079-000-7102; National Oceanic and Atmospheric Administration Award No. NA12NOS4190021; Texas Sea Grant TAMU-SG-14-201), Houston, TX. Unpublished manuscript.
Jacob, J. S., Pandian, K., Lopez, R., and Biggs, H. (2014). Houston Area Freshwater Wetland Loss, 1992–2010. Texas A&M AgriLife Extension Service ERPT-002; Texas Sea Grant TAMU-SG-14-303, Houston, TX.
Kihslinger, R. L. (2008). “Success of Wetland Mitigation Projects.” National Wetlands Newsletter, 30(2), 14–16.
Lester, L. J. and Gonzalez, L. A., Eds. (2011). The State of the Bay: A Characterization of the Galveston Bay Ecosystem, Third Edition. Texas Commission on Environmental Quality, Galveston Bay Estuary Program, Houston, TX.
U.S. Army Corps of Engineers. (2008). Questions and Answers Regarding the Revised Rapanos and Carabell Guidance December 2, 2008. Retrieved from http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/cwa_guide/rapanos_qa_02dec08.pdf.
Wilcox, B. P., Dean, D. D., Jacob J. S., and Sipocz, A. (2011). “Evidence of Surface Connectivity for Texas Gulf Coast Depressional Wetlands.” Wetlands, 31(3), 451–458.
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