The Swamp School

The US Coast Guard has a solicitation on the street for research on what can be done to clean up the spill. This is a perfect venue to introduce some innovative wetland restoration solutions. To that end the Swamp School is looking to collaborate with interested firms to identify appropriate wetland restoration responses. We have set up a special website: http://gulfwetlandsrestoration.com/ to interact and collaborate on this proposal. This is an excerpt from the RFP.

Research Opportunity Number
Broad Agency Announcement (BAA) HSCG32-10-R-R00019
Amendment 0002

Agency
United States Coast Guard (USCG)
Research and Development Center (RDC)
1 Chelsea Street
New London, CT 06320

Research Opportunity Title
Deepwater Horizon Response

Program Name
Interagency Alternative Technology Assessment Program (IATAP)

Background

The Oil Pollution Act of 1990 (OPA 90) and applicable Federal legislation and regulations provide the USCG with broad responsibilities and authorities regarding oil spill response oversight on the navigable waters of the United States. Included are responsibilities and authorities to conduct, in coordination with other Federal agencies, research on innovative oil spill technology. In accordance with these responsibilities and authorities and in light of the numerous offers of innovative technology assistance to the response effort associated with the recent Deepwater Horizon spill in the Gulf of Mexico, the United States Coast Guard Research and Development Center (USCG RDC), at the request of the Federal On-Scene Coordinator (FOSC) and the National Incident Commander (NIC), has issued this Broad Agency Announcement (BAA) for the purpose of organizing the collection and enhancing the Deepwater Horizon Response Team assessment of the technology assistance offers.

This announcement constitutes a Broad Agency Announcement (BAA) issued under the provisions of the Federal Acquisition Regulation (FAR), Subparts 6.102(d)(2) and 35.016, to provide for the submission of White Papers (written description of the idea) in support of the Deepwater Horizon Response under the following five technology gap areas:

1. Oil Sensing Improvements to Response and Detection
(For example, tactical oil sensing, surface oil tracking and reporting, submerged oil detection, submerged oil tracking and reporting, etc.)
2. Oil Wellhead Control and Submerged Oil Response
(For example, wellhead spill control, wellhead shutoff measures, submerged oil collection, submerged oil treatment, etc.)
3. Traditional Oil Spill Response Technologies
(For example, booms, skimmers, surface collections techniques, absorbents, near- and on-shore response, innovative applications not commonly used for oil spill response, disposal, etc.)
4. Alternative Oil Spill Response Technologies
(For example, In-situ burn, alternative chemical treatments, innovative applications not commonly used for oil response, etc.)
5. Oil Spill Damage Assessment and Restoration
(For example, damage assessment techniques, tracking surface restoration technologies and submerged restoration technologies, etc.)

The Gulf of Mexico oil leak began on April 20 when an explosion on the oil rig Deepwater Horizon tragically claimed the lives of 11 BP America employees. The U.S. Geological Survey (USGS) determined that within a month, the volume of the leak surpassed 1989’s Exxon Valdez disaster of 11 million gallons spilled off the coast of Alaska. USGS estimated the leak rate to be as much as five times BP’s claim of 5,000 barrels per day.

Each of the three major companies involved in Deepwater Horizon blames the others for the accident. Transocean Ltd. built the rig, BP was its leaseholder and operator, and Halliburton supplied the cement used to encase and seal the well. Company representatives testified in May before the U.S. Senate Committee on Energy and Natural Resources and blamed each other for the explosion, citing failure to follow appropriate procedures and safety precautions.

Who’s to Blame?
Their testimony was part of a string of federal inquiries into what caused the explosion. On June 1, Attorney General Eric Holder announced ongoing civil and criminal investigations by the U.S. Department of Justice. The same day President Obama named former Senator Bob Graham of Florida and former EPA Administrator Bill Reilly as co-chairs of a new national commission to investigate causes of the accident and “determine what reforms are needed” to avoid similar catastrophes in the future.

Referring to a March 2010 Inspector General report, Obama faulted previous administrations for relaxed safety standards and “corruption” in the Interior Department’s Minerals and Management Services (MMS), which exercises oversight of offshore drilling. The report found MMS employees had for years been accepting bribes from oil companies and allowing industry officials to fill in their own inspection reports. Government documents also reveal MMS failed to complete 16 required monthly inspections on Deepwater Horizon since January 2005. Obama said Interior Secretary Ken Salazar has taken steps to clean up the corruption, but “this oil spill has made clear that more reforms are needed.” Since accepting bribes and falsifying or skipping inspection reports were never acceptable behaviors, it is logical to assume what the President means by “more reforms” is actually an expansion of the bureaucracy at fault.

Aside from this promise of increased federal regulatory power, Obama also vowed, “We will absolutely continue to hold BP and any other responsible parties accountable for financial losses borne by the people in the region.” The President’s remark ignores the fact that federal investigations into the cause of the accident are far from complete. It also ignores current U.S. law, which holds companies completely responsible for clean-up costs but caps liability for economic damages at $75 million. Obama showed further contempt for that law in June when he forced BP to set up a $20 billion escrow account specifically to cover economic damages.

As quick as he is to lay blame at BP’s door, Obama is apparently less eager to own up to the role that blatantly unconstitutional federal regulations have played in making a bad situation exponentially worse. In a televised address from the Oval Office in June, the President blamed Americans’ dependence on oil for the severity of the situation in the Gulf. That’s right — he blamed you. He made the deceitful claim that oil companies are forced to drill a mile below the ocean’s surface because of the nation’s supposedly depleted reserves. “We’re running out of places to drill on land and in shallow water,” he grumbled. On the contrary, federal regulations established in knee-jerk reaction to the Valdez spill force oil companies 40 miles off the coast into dangerously deep water, making it far more difficult to cap leaks and clean up spills, and barring safer areas with ample oil reserves.

According to a June 2008 article in Kiplinger Magazine, U.S. oil reserves are “sufficient to meet 300 years of demand — at today’s levels — for auto, aircraft, heating and industrial fuel, without importing a single barrel of oil.” Even the federal government admits reserves are plentiful. An April 2008 USGS report revealed at least three to four billion barrels of previously undiscovered, recoverable oil in North Dakota and Montana alone. The study also found extensive reserves in Texas and Louisiana. This does not include other areas mentioned in the Kiplinger report in Utah, Colorado, Wyoming, California, Alabama, Kentucky, and Alaska. In other words, the only thing standing between ending our dependence on foreign oil, thereby putting a dent in nations that finance global terrorism, are federal regulations preventing companies like BP from drilling on land and in shallow water.

Yet Obama’s answer is more government intrusion, not less. Containment and clean-up efforts, dubbed “Deepwater Horizon Response,” are entirely under federal control. “From the moment this disaster began, the federal government has been in charge,” declared the President in a May 27 press release. “We will hold them fully accountable…. But make no mistake: BP is operating at our direction.” He described the project as the largest of its kind in U.S. history, involving 20,000 workers and 1,700 vessels. He authorized more than 17,000 National Guard members to assist in the Gulf States and promised to “triple the manpower” in areas where oil hit shore. Additionally, the Senate passed a supplemental appropriations bill in late May that includes $94 million toward operations related to the leak.

Despite the leak’s apparent priority status for Obama, the President has refused the help of high-tech oil skimming vessels from several foreign countries, manned with crews experienced in oil clean-up. His reason is an old law called the Jones Act, passed in 1920 under the guise of helping the U.S. shipping business recover after World War I. The law prevents vessels not built in the United States and staffed by U.S. crews from working in U.S. waters. Obama has refused to waive the law as others have done in the past, such as President Bush did during Hurricane Katrina recovery efforts. Columnist Rick Weaver with the Detroit Business Development Examiner explained that critics see Obama’s refusal as cowardly pandering to labor unions, while others say “the Obama administration is using the Gulf situation as a way to pass drilling and financial legislation that could not pass absent the crisis.”

Government’s Critics
Some experts are critical of government involvement in recovery efforts. “Offshore drilling technology is highly complex, and government has no expertise to offer. No one has more incentive to bring the blowout under control than does the industry,” said Dr. Walter Starck, of Townsville, Australia. Starck holds a Ph.D. in biological oceanography and is a marine biologist who specializes in coral reefs and fisheries. He told The New American, “The best thing government can do is to stay out of the way, let the companies take the lead and render assistance if requested. Having a bunch of bureaucrats meddling in this is a recipe for another Katrina.”

He isn’t the only one to feel that way. By the end of May, Louisiana Governor Bobby Jindal was so frustrated with government interference in recovery efforts he asked the response team to get out of the way and let his state take care of itself. According to a 1994 federal response plan agreement, the government was supposed to keep clean-up equipment on hand in the region in case of a major Gulf oil spill. In a May 23 press release, more than a month after the accident, Jindal complained that the government still did not have those required materials in place. Ron Gourget, a former federal oil spill response coordinator who helped draft the 1994 plan, told the Times of London that had the government held up its end of the bargain, roughly 95 percent of the leak would have been contained immediately. Owing to delays, the slick spread too far for the original plan to be effective. Meanwhile, Jindal and other state officials were still awaiting federal approval of their plans to dredge sand bars to protect the coastline. It finally came, but too late to prevent the crude from hitting shore. To add insult to injury, the Coast Guard shut down barges the Louisiana Governor had ordered to begin vacuuming oil out of the water, which were working with great success. The Coast Guard’s reason? They could not confirm the barges were equipped with appropriate fire extinguishers and life vests.

Jindal is one of many Gulf State officials disgusted with federal incompetence and ready to take matters into their own hands. Reporting for The New American online, Michael Tennant told the story of a local volunteer fire chief in Magnolia Springs, Alabama, Jamie Hinton, who faced a jail term when he flouted the federal chain of command and deployed several barges with oil containment boom to protect his county’s waterfront. Tennant also reported that the county commissioners in Okaloosa, Florida, unanimously voted in mid-June to give emergency crews authority to overrule federal teams, despite warnings from the Coast Guard that their decision could land them in jail, too. In both cases, county officials prevailed.

Dr. James J. O’Brien, professor emeritus of meteorology and oceanography at Florida State University, is also critical of federal involvement, comparing it to a giant public relations campaign. “The absorbent booms they’re using are not effective with winds that cause three- to five-foot waves,” he said in an interview with The New American, adding, the crews “aren’t burning enough [oil] to make a dent.”

He and his colleagues in the scientific community are frustrated at the lack of real-time data the Deepwater Horizon Response team is making available. “I can understand why agencies like NOAA would ‘play it safe’ with the general public, but scientists in pertinent areas should be more involved.” He said the leak poses unique challenges in 5,000 feet of water and needs the input of specialists. “It’s like trying to unclog a toilet while you’re standing on a ten-foot ladder with a long stick attached to the plunger.”

Starck contends that clean-up efforts from past oil spills have “only increased environmental damage and delayed natural recovery.” The dispersants injected into leaking oil to prevent it from surfacing are “far more damaging to marine life” than crude alone, mixing with it to form a toxic sludge. “Their only real purpose is cosmetic and PR at the expense of the environment.” He also maintains the media overplays oil spills’ effects on wildlife. He points out that crude oil is an organic substance, and natural leaks are normal. Though spills caused by humans are much more concentrated and cause a temporary mess, they are also more short-lived and do not wreak the amount of environmental damage mainstream media reports claim. “The volatile components largely evaporate within a few days, and much of the heavier residue is broken down by microbial action over a few months. The heaviest residue accumulates sediment particles and sinks to the bottom where it mixes with further sediment and ends up no more harmful than pieces of the bitumen used for roads.”

O’Brien criticizes media sensationalism, too. “When the media talks about a lot of dead fish, you have to ask what size fish. Little ones the size of your finger don’t have the mobility, and they’ll die. Bigger fish will recognize the problem and get out of there.” He said the real problem is oil in the wetlands where “a lot of animals and birds will die.”

But while O’Brien calls that catastrophic, Starck remains reserved. “The popular image of dead and dying birds and mammals covered in sticky oil is a relatively brief event, and as sad as it may be at the time, their populations soon recover.”

Past Oil Spills
There are precedents to support Starck’s claim. Robert Nelson with the Miami Herald reported that the Coal Oil Point seep field near Santa Barbara, California, leaks 150 to 200 barrels of oil every day with no adverse consequences. He also cited a World War II German U-boat attack on eight tankers in the Gulf of Mexico that spilled more than 18 million gallons. The environment recovered soon afterward, largely on its own. In fact, the greatest environmental damage recorded in Alaska’s Exxon Valdez accident was inflicted by recovery efforts, not by crude oil. Clean-up crews stripped the Prince William Sound coastline clean, ruining the natural habitat and wiping out flora and fauna in the area.

A huge accident occurred in the Gulf of Mexico in 1979 when a blowout on the Mexican rig Ixtoc resulted in a leak that lasted nearly 10 months and dumped roughly 3.3 million barrels of crude into the Gulf. And by far the largest leak in U.S. history is California’s Lakeview gusher, which spewed 378 million gallons of oil on dry land over the course of 18 months from 1910 to 1911. (Apparently, Obama is still unaware of Lakeview, since he claims the BP leak “is the worst environmental disaster America has ever faced.”) However, in both the Ixtoc and Lakeview cases, the environment had largely or completely recovered within a five-year period.

Starck predicts that even in a worst-case scenario, the Gulf States will experience a 95-percent recovery within four years. “Right now it’s a big thing. In a year or two it will become a past irritant no longer of concern.” He uses a vivid analogy to support this claim, describing an intentional spill of between six and eight million tons of crude in 1991 during the first Persian Gulf War. Nothing was ever done to clean up the shallow reef area, yet “follow-up studies found that within four months, most of the oil had been degraded naturally, and within four years even the most heavily affected areas had largely or completely recovered.”

To put the current leak even more into perspective, Ed Hiserodt, engineer and regular contributor to The New American, calculated that the Gulf of Mexico, which contains 660 quadrillion gallons of water, is one trillion times larger than an Olympic swimming pool, which holds 660,000 gallons. At the worst-case estimate of 1,680,000 gallons per day, the BP well would dump 610 million gallons into the Gulf in one year. One trillionth of that amount is 0.00061 gallons, which equates to 0.00244 quarts or 0.078 ounces or 1.56 drops. “Therefore the oil spill — if as bad as the worst report and lasting for a full year — would be the equivalent of one-and-one-half drops of oil in an Olympic pool,” said Hiserodt.

These statistics aren’t meant to downplay the obvious immediate effects on Gulf States’ residents and their property. But they do call into question Obama’s motives and indicate he is exploiting the leak to usher in massive new federal controls. Indeed, the more menacing danger posed by the oil leak, according to Starck, is the likelihood of “a significant reduction in offshore production, steep increases in oil prices and a return to recession.”

Federal Backlash
Indeed, media hype is making waves in Washington, where officials are busy fulfilling Starck’s prediction. Despite claims he wants to help victims, Obama has pulled the plug on offshore drilling in the Gulf, imposing a six-month moratorium on an industry that accounts for 16 percent of Louisiana’s economy. “The President’s total ban on drilling in the Gulf has created further hardship for communities already reeling from the impact of the BP spill,” said Myron Ebell of Freedom Action.

Obama has also ordered a six-month moratorium on new oil and gas wells in the Outer Continental Shelf and new operating standards for current projects. He has canceled or suspended drilling leases and permits in the Gulf and off the coasts of Virginia and Alaska. Jack Gerard, CEO of the American Petroleum Institute, criticized these measures as a “moratorium on economic growth and job creation.” He said they “have the potential to significantly erode our energy and economic security.”

“Dependence on foreign sources for energy is suicidal,” added John McManus, president of The John Birch Society. He pointed out that no one suggested abolishing mining after April’s coal mine disaster in West Virginia. “The oil spill off Louisiana must not be allowed to impede domestic energy production.”

Lisa Murkowski of Alaska, ranking Republican on the Senate Energy and Natural Resources Committee, also voiced concerns. She said the delay in offshore exploration that Obama imposed could prove fatal to Shell Oil Company’s operations in her state. “[If] it means that existing permits are allowed to lapse — effectively killing Shell’s participation in Alaska — that’s not acceptable,” she said. “We need to be able to tell Shell that this one-year delay isn’t in reality a life sentence.”

U.S. Senator Mary Landrieu (D-La.) agrees. In an April floor speech, she compared halting offshore drilling to “the aftermath of the Three Mile Island nuclear power plant disaster … that brought all new nuclear power plant applications to a screeching halt. In hindsight that was not the right decision. Today, we are 30 years behind the French in nuclear technology. France gets 80 percent of its electricity from nuclear power” and exports “18 percent of its total production.”

Landrieu and Murkowski have reason to be alarmed, as Senator Robert Menendez (D-N.J.) told Congressional Quarterly Obama’s moratorium “should be the first in a series of steps that take us to a new policy on drilling.”

However, a number of drilling companies sued federal regulators to lift the ban, and on June 22, U.S. District Judge Martin Feldman granted the request, prohibiting the government from enforcing the moratorium. “The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium,” wrote Feldman in his June 22 decision. “[The] blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.” The judge accused Obama’s Interior Department of basing its decision on “asserted fear” and “political or social agendas.” Interior Secretary Salazar responded immediately with a statement declaring his intention to issue a new order reestablishing the moratorium.

Opportunity Knocks…
Equally undaunted by the courts, Obama continues on his quest to expand federal powers by exploiting the disaster. When he announced his “Gulf Coast Restoration Plan” in June, he explained it as more than a clean-up and recovery effort, encompassing restoration from hurricane damage and years of poor economic planning. “We must make a commitment to the Gulf Coast that goes beyond responding to the crisis of the moment,” he said in a televised address from the Oval Office. He said BP will pay for the impact of the leak but was less explicit about who would foot the bill for his long-term plans, which economists quoted in the Washington Post estimated would run around $30 billion over the next decade.

Predictably, the President is also attempting to parlay the Gulf leak into an urgent call for carbon rationing and “renewable energy” subsidies contained in a cap-and-trade bill proposed by Senators John Kerry (D-Mass.) and Joe Lieberman (I-Conn.). “This disaster should serve as a wake-up call that it’s time to move forward on this legislation,” said Obama, blaming “America’s century-long addiction to fossil fuels.” The U.S. Treasury Department released a 2009 analysis of the bill’s forerunner that passed the House last summer. It indicated the cost to American taxpayers would be approximately $393 billion per year. A Harvard University study estimated the climate bill would raise gasoline prices to $7 per gallon.

Political pundits claim the Gulf leak is throwing a wrench in the President’s plans for comprehensive climate-change legislation since current proposals include expansion of offshore oil and gas drilling in exchange for strict caps on carbon emissions. Yet the President is unlikely to let such an opportunity as this oil leak affords slip through his fingers. As his Chief of Staff Rahm Emanuel said in a 2008 interview with the Wall Street Journal, “You never want a serious crisis to go to waste.”

By Melanie Driscoll
07/16/2010

Black Skimmers interact in mid-air. Melanie Driscoll/Audubon

What does an Audubon bird conservation director do during an oil spill? No two days are the same; here’s a glimpse of the last three:

Tuesday, July 13, 10:00 a.m. I just reminded Paul Kemp (vice president of the Louisiana Coastal Initiative) that we need to identify some island-building science resources for Plaquemines Parish President Billy Nungesser. When I ran into him a few days ago at Myrtle Grove, he said that he wants to take some of the money that has come in and build an island, and he wants to do it right, so that it creates good bird habitat. He asked if Audubon could help. I assured him that we could.

Paul and I called Woody Gagliano, a coastal scientist with years of experience working on coastal restoration. When we explained our mission, Woody said he is working on a similar project in adjacent St. Bernard Parish, and he would be happy to help in Plaquemines Parish. We discussed project design and next steps, and Woody promised to send a brief outline within a couple of days. I then spoke with P.J. Hahn, the director of coastal zone management for Plaquemines Parish. He expressed excitement about working with Audubon to create good bird habitat in an ecologically sound way. He asked me why some new islands are not used by birds, and I related it to people moving back to New Orleans after Hurricane Katrina. Until you know you will have neighbors, a neighborhood does not seem safe. I assured him that we could help make the habitat enticing to birds.

Tuesday, 4:00 p.m. I talked with Natalie Snider, one of our partners at Coalition to Restore Coastal Louisiana. We discussed creating oyster reef islands.  The Black Skimmers would love them – a place to loaf, court, and raise their young. We also talked about project costs – it could take anywhere from $100,000 to $4 million to create an island. Paul and I have some funding ideas. Scientists are on board and excited. Paul wrote a brief project proposal. I need to set up a meeting to move this idea forward early next week.

Wednesday, July 14, 4:15 a.m. Leaving home to meet a captain to conduct oiled bird surveys in Barataria Bay.

Wednesday, 6:45 a.m. After a brief delay, left Myrtle Grove Marina to survey islands and birds in Barataria Bay. I noted several things at the first couple of islands. Marsh grass that has been oiled for a while is yellowing. We hope that as this stressed marsh grass dies back, the roots are still unaffected and will produce new grass shoots, but as with many oil spill issues, it is too early to tell what the ultimate outcome will be. Once marsh grass is oiled, there’s no way to clean it. Oiled sorbent boom was piled up in the habitat on the first small grassy island I observed. Took location notes and photos, and must report the boom management issue to Joint Incident Command.

Wednesday, 8:40 a.m. In the Cat Island chain, found the mangrove island looking better than on my last visit. Several Great Egrets were very oiled, but still flight-capable, and therefore not likely to be caught. While several Brown Pelicans were also oiled, there were over 2,000 adults and fledglings, and over 99% of them looked clean and healthy. The fledglings are getting very big and are increasingly active.

Wednesday, 9:10 a.m. On a small grassy island, few birds were visible. On closer inspection, though, the marsh grass was dotted liberally with heron heads – heads of Tricolored Herons, to be precise. Throughout my surveys of these islands, I’ve found most of these ‘Louisiana’ Herons to be largely free of oil. I wonder what their secret it. I wish I could convey it to all of the herons and egrets.

Near one large patch of heavily oiled marsh grass rests a lump that’s difficult to identify. It moves slightly, and from a position away from the boom surrounding the island, appears to be a heavily oiled bird preening. More observation tells me that it must be a night-heron, though it is difficult to be certain. I call the Oiled Wildlife Hotline, which I am aware is now operating out of JIC in Houma, La. Voicemail. I leave a brief message with my name, the bird species, location, and my phone number. I am surprised about three minutes later when a professional-sounding female returns my call, greets me by name, and asks me if I can give her the GPS coordinates of the night-heron. I comply, and she calmly repeats them back to me. She confirms the species identification and tells me that a wildlife biologist will call me back in a few minutes. That call comes, we confirm the information, and he says he will call me if he has more questions. He calls again, pinpoints the location, and tells me he is dispatching a rescue team. He has located the island on a map, describes it to me, and it is the correct location. The rescue team calls me a few minutes later, asks for more location details, then tell me they have located the bird and are about to rescue it.

It worked! The process worked, smoothly, professionally, as it should. There was no need to spell a bird name or repeat myself to be understood, as has happened in the past. From the first call to the last, it was clear that the responders were familiar with the landscapes and birds of Louisiana. It was clear that they were in the same location, and that they were communicating with each other. It was clear that suggestions I have made to improve the Oiled Wildlife Hotline have been implemented. This system has worked in the past, sometimes, but has certainly not inspired confidence. But those in charge have listened, and today the Oiled Wildlife Hotline worked well. It feels good to know that suggestions have been accepted, communication has improved. It is a small piece of the big picture, but I will have to thank several people to whom I have recommended improvements in this process. I bask briefly in the hopefulness that other, more substantive changes may also follow recommendations Audubon has compiled.

Wednesday, 3:17 p.m. While driving back to Baton Rouge for an evening meeting, I return a call to Chris, an eBird programmer at the Cornell Lab of Ornithology. He has good news – they have a grant to modify the eBird data form to allow us to enter oiled bird data more accurately. I, along with researchers from LSU, have been pushing for this new data form for weeks. Now that the funding is in place, we can design the form, and it will be ready soon. The data form will allow all of Audubon’s Coastal Bird Survey teams to enter their oiled bird monitoring data online, where it will be publicly accessible. The data set collected by our citizen scientists will allow Audubon to independently assess the damage and risk to birds of the oil spill. It will allow us to track their recovery, as habitat restoration and population protection at our Important Bird Areas progresses. The data form is only one step, but it allows for public involvement and transparency in the bird damage assessment.

Thursday, July 15, 8:15 a.m. Met a scientist from the Ocean Conservancy to discuss the oil spill, and how we can partner in the future to protect the Gulf of Mexico habitats, their incredible biodiversity, including the birds and fishes they rely on.

Thursday, 10:30 a.m. Began the two-hour drive to Intracoastal City to meet Timmy, our Rainey Sanctuary manager, and two representatives from the National Fish and Wildlife Foundation who wanted to see the beginnings of a habitat-creation project they just funded.

Thursday, 3:00 p.m. After a couple of hours of showing the NFWF staff our sanctuary, and explaining the threats that have put our saltmarshes at risk for many years, we finally reach the project site. There a levee that should hold out salt water and help us maintain water levels is in disrepair. Timmy describes how the levee, when repaired, will allow us to create about 700 acres of mudflats and shallow water – enticing habitat for the migrant shorebirds that are even now coming to Louisiana’s coast to stopover, rest and fatten up for the long migration across the Gulf of Mexico. The NFWF staff are excited about this opportunity to help us protect our marsh and create new habitat. Some shorebirds may stop at inland habitats, bypassing the coastal zone entirely. But some species, such as Short-billed Dowitchers, rely more on coastal, salt-marsh habitats, and will be more at risk from the oil. We have extensive habitats for these species, and have yet to receive extensive oiling. For now, this truly is a sanctuary – a safe stopover during a hazardous migration to a threatened coast. Protecting and creating safe habitat is a powerful way Audubon is working to prevent some birds from getting oiled, and is a continuation of our 80-plus years of bird and habitat stewardship as a landowner in Louisiana.

Thursday, 4:00 p.m. One of the NFWF officials asks me if we can use our volunteers to monitor bird use of the habitats they are paying to have landowners create this fall. For this is a huge experiment – if we build it, will they come? For all of the resources going into creating shallow-water impoundments, we need to know if they are actually being used by shorebirds and ducks coming south now. I promise that I will speak to our national field director first thing in the morning to begin to set this up. Interested volunteers can be trained at our Volunteer Response Center in Moss Point, Miss. They can be mobilized across the Gulf Coast to document use of new habitats by birds. Rather than only counting oiled birds, perhaps we can begin to count those that do not need to become oiled.

Thursday, 5:17 p.m. Returned a call to a staff member from the bird rehabilitation effort. He has a request. Could Audubon’s volunteers be asked, all of them, to look for the banded rehabilitated Brown Pelicans? There is an opportunity to learn more about the survival rates, movements, and ability to breed again of these magnificent birds. Birds are often tagged after they have been cleaned of oil, but it takes a tremendous amount of effort to track them, to learn more about how they fare after their ordeal. With over 30,000 people in our database, more than half of them in Gulf Coast states, we can provide the effort to resight and report those birds. He was excited when he left his message. I am excited about our ability to add value to these efforts. Another game of phone tag, but with another good result. I promise in my return message to propose this, work on the plan, and to move forward on this idea too.

via Audubon Oil Spill Response Team Update: What does a bird conservation director do?.

The approval this afternoon of President Obama’s budget request to begin funding coastal Louisiana restoration construction projects by the Senate Appropriations Subcommittee on Energy and Water Development is “a down payment in what must be a long-term commitment to restoring and protecting coastal Louisiana,” according to five local and national conservation groups.

The Subcommittee’s approval of funding in the Fiscal Year 2011 spending bill is the first time Congress has taken a step towards paying for a major comprehensive program to restore coastal Louisiana wetlands. In February, President Obama became the first President to request funding for a new start construction program to restore coastal Louisiana wetlands.

“Initiating funding for these vitally important projects will help restore the massive, decades-long loss of Louisiana’s wetlands, making the wetlands stronger to rebound from the BP oil disaster,” said a joint statement by the Coalition to Restore Coastal Louisiana, Environmental Defense Fund, Lake Pontchartrain Basin Foundation, National Audubon Society, and National Wildlife Federation. “Appropriations Committee Chairman Daniel Inouye (D-HI), Energy and Water Development Subcommittee Chairman Byron Dorgan (D-ND), and Subcommittee member Mary Landrieu (D-LA) — a long-time advocate of coastal restoration — deserve praise for backing President Obama’s pledge to leave coastal Louisiana in better shape than it was before the BP blowout. Congress must keep this provision in the final bill and then build on this initial step by committing a significant, long-term funding stream to a coastal Louisiana restoration program.”

The Senate subcommittee bill includes a total of $35.6 million for U.S. Army Corps of Engineers investment in Louisiana coastal restoration — $19 million to start construction of wetlands restoration projects, and $16.6 million to conduct wetlands pre-construction studies — as President Obama’s budget for FY 2011 requested. The President’s budget also included a $5 million request for U.S. Fish and Wildlife Service wetlands restoration work on the Gulf Coast; these funds will be considered separately in other legislation.

Since the 1930s, coastal Louisiana has lost over 2,300 square miles of wetlands, an area larger than the state of Delaware. There are two man-made reasons: the Mississippi River sediment that replenishes wetlands has been diverted out of the system to facilitate shipping and flood control, and dredging of canals for oil pipelines and equipment canals has weakened the wetlands.

The decline of the Mississippi River Delta wetlands — which has dramatically impaired protection from hurricanes and wiped out much of the buffer against oil spills and other disasters — threatens:

* One of our nation’s most important fisheries

* One of our nation’s most significant port complexes and navigation systems

* Wildlife, including tens of millions of migratory birds and waterfowl

* Domestic energy production and processing

* Communities all along the central Gulf Coast

“This funding is a first step in the long-term, multi-billion effort to protect and restore Coastal Louisiana,” the groups concluded. “We look forward to working with the Obama administration, Congress and Louisiana officials to save this American treasure.”

The U.S. Fish and Wildlife Service is coordinating efforts along the Gulf Coast to safeguard wildlife such as shorebirds, waterfowl, marsh birds, sea birds and sea turtles from the effects of oil. Working closely with state, federal and non-government partners, the Service is identifying the most pressing habitat needs of these at-risk species, recommending strategic habitat conservation activities to address those needs, and helping to implement projects along the coast from Florida to Texas.
Based on the current distribution and impacts of oil along the Gulf’s marshes and coastline and the millions of waterfowl and shorebirds that will soon migrate through or will spend the winter in this area, Service biologists are working to restore and bolster wetland habitats and food sources in nearby, uncontaminated areas in Louisiana, the Chenier Plain of east Texas, and the lower portion of the Mississippi Alluvial Valley.

These efforts are designed to restore and protect habitat for resident species along the Gulf Coast, as well as to address concerns about the coming fall migration of some 5 million waterfowl and other migratory birds that will arrive in or pass through the Gulf Coast region throughout the fall and winter months. By quickly initiating these habitat conservation projects, the Service and its partners hope to minimize the chance that migrating or wintering birds will come into contact with contaminated coastal habitats. Also, because food resources for migrating birds have been reduced, degraded or lost due to the oil spill, the Service and its partners’ efforts will help ensure the availability of adequate food to compensate for these losses.

Leading the development and implementation of migratory bird habitat restoration projects along the Gulf Coast are the Service’s Joint Ventures — collaborative, regionally based, public-private partnerships that work to conserve bird habitat within specific geographic regions. Joint Venture scientists are providing the strategic and scientific underpinnings for habitat restoration efforts, bringing together conservation partners and marshalling resources to address spill impacts to wildlife in the short and long term.

“We know that clean-up and recovery from the Deepwater Horizon oil spill will be a long-term process, but we cannot wait to begin assessing and dealing with the impacts to our natural resources,” said Dan Ashe, Acting Director of the Fish and Wildlife Service. “For migratory bird conservation, the Joint Ventures are the forum of multiple partners, including scientists and wildlife managers, leading our inclusive, strategic, and adaptive response to the ever-changing situation in the Gulf.”

Migratory bird habitat restoration will help support many other species, including mammals, fish, and reptiles. The Service is working with a wide network of partners to specifically address the needs of these other species. The agency is working with partners to establish Landscape Conservation Cooperatives that will eventually provide this same level of science and planning for all wildlife species.

The Service’s habitat restoration efforts will also support the Migratory Bird Habitat Initiative, an effort launched by the U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS) to work with farmers, ranchers and other landowners to manage portions of their land to enhance habitat for migrating birds in portions of eight states.

Through two components – one available on private agricultural lands and the second on Wetlands Reserve Program (WRP) easement lands — NRCS will work in cooperation with private landowners and other partners to establish habitat and food sources as well as improve the overall habitat management on participating lands.

More information about the NRCS Migratory Bird Habitat Initiative is at http://www.nrcs.usda.gov/news/nrcs_migratory_birds.html

American Rivers Applauds Senators Udall and Whitehouse for Their Leadership on Clean Water Issues

WASHINGTON – July 9 – American Rivers, the nation’s leading river conservation organization, is pleased to announce that Senator Udall (D. NM) and Senator Whitehouse (D. RI) have introduced the ‘Green Infrastructure for Clean Water Act of 2010’ (S. 3561) to the Senate.

Green infrastructure offers a 21st century approach to managing our nation’s stormwater. By replicating, restoring, and protecting the natural hydrology of the landscape, water is infiltrated where it falls, filtering out contaminants and reducing the volume of stormwater that overwhelms our water infrastructure systems. From the neighborhood scale rain barrel to a watershed scale system of green roofs, permeable pavements, and wetland restoration, green infrastructure has the flexibility and economic viability to protect and restore clean water supplies for communities.

Says Katherine Baer, Senior Director, Clean Water Program at American Rivers, “This legislation emphasizes the importance of green infrastructure as a cost-effective alternative to traditional hard infrastructure fixes. By establishing a precedent of green infrastructure solutions, this approach can become a new norm rather than just a demonstration.”

“It’s time for Congress to move green infrastructure to center stage in our national water strategy,” said Jacky Grimshaw, Vice President for Policy at the Center for Neighborhood Technology in Chicago. “Green infrastructure creates healthier, more vital communities, protects clean water, saves energy, and helps to build green jobs. The Green Infrastructure for Clean Water Act will extend EPA’s partnership toward sustainable communities by expanding cost- and ecologically effective green infrastructure.”

This bill will increase research and development of innovative green infrastructure techniques, promote the use of green infrastructure in permitting and regulations within EPA, and provide incentive funding to communities to plan, develop, and install green infrastructure technologies.

Bill Would Establish Regional ‘Centers of Excellence’ for Green Infrastructure
July 8, 2010

WASHINGTON – U.S. Sens. Tom Udall (D-NM) and Sheldon Whitehouse (D-RI) have introduced legislation to help address the nation’s water quality challenges by encouraging the research, development and promotion of new technologies and designs that use natural processes to combat polluted stormwater runoff.

The Green Infrastructure for Clean Water Act would establish up to five regional centers of excellence that would spearhead the research and development of new stormwater management techniques, which use soil and plant life to filter storm water polluted by sediments and chemicals on the surface before it reaches nearby bodies of water. The legislation would also establish a green infrastructure program within the EPA’s Office of Water to coordinate and promote the use of new stormwater techniques. EPA’s regional offices would complete similar efforts.

The legislation introduced by the senators, who are both members of the Senate Environment and Public Works Committee, further authorizes technical assistance and project grants to local wastewater utilities for green infrastructure projects that take advantage of these alternative techniques to stormwater management. The legislation does not alter the Clean Water Act’s regulatory requirements, but rather seeks to expand the options for communities to achieve clean water standards.

“Water quality is an issue facing states across the country, but in particular those of the arid southwest like my home state of New Mexico, where water is always in limited supply,” Udall said. “By promoting greener design of stormwater infrastructure, we can create jobs, save on construction costs, and help recharge our aquifers, all while reducing pollution and flooding of our scenic rivers.”

“In the wake of the March floods, it’s become clear that we need improved techniques to handle storm water runoff,” Whitehouse said. “This legislation will help improve green infrastructure, create good jobs and help control future floods.”

The legislation defines ‘‘green infrastructure” to mean stormwater management techniques that preserve, restore, enhance, or mimic natural hydrology, such as green roofs, porous pavements and ground cover, or vegetated channels and detention areas that reduce the burden of storm water on wastewater infrastructure and the environment.

An October 2008 study by the National Research Council found that some of the benefits of green infrastructure include increased water supplies, the creation of green jobs, cost savings, and a reduction of stormwater runoff, surface water discharge, stormwater pollution, and stormwater flows.

Udall and Whitehouse’s legislation is supported by a wide variety of organizations, including the National Association of Clean Water Agencies; Natural Resources Defense Council; American Rivers; American Public Works Association; Water Environment Federation; Center for Neighborhood Technology; Clean Water Action; and the Association of State and Interstate Water Pollution Control Administrators.

“Green infrastructure incorporates natural systems that can help supply clean water, reduce polluted runoff and sewer overflows, minimize flooding and enhance community health and safety. Proven solutions like planting trees and installing green roofs, rather than enlarging sewers, will also save communities money. This bill helps move our water management into the 21st century and gives communities the reliability and predictability they need in an uncertain future,” said Rebecca Wodder, President of American Rivers.

In New Mexico, supporting organizations include Amigos Bravos, the New Mexico Chapter of the American Society of Landscape Architects, Albuquerque-Bernalillo Water Utility Authority, and Upper Gila Watershed Alliance.

“As impacts from storm events increase with climate change, good stormwater management becomes the single most important factor in maintaining the health of New Mexico’s rivers, and the communities that depend on them,” said Brian Shields, Executive Director of Amigos Bravos. “Amigos Bravos applauds Senators Udall and Whitehouse for their leadership and vision in promoting the use of natural low-impact solutions to control the widespread damage caused by severe storm events, including polluted run-off. ”

In Rhode Island, the legislation is supported by the Narragansett Bay Commission.

“We applaud Senator Whitehouse and Senator Udall for their leadership on this important issue,” said NBC Executive Director Ray Marshall. “We look forward to working with them in increasing the federal resources available for implementation of green infrastructure projects and in raising the profile of the many benefits these investments provide.”

Companion legislation has been introduced in the House by Reps. Donna Edwards (D-Md.), Russ Carnahan (D-Mo.), and Steve Driehaus (D-Ohio).

By David A. Fahrenthold
Washington Post Staff Writer
Monday, July 19, 2010; A10

ON SAND BERM E-4 IN THE GULF OF MEXICO — In theory, Louisiana’s plan to hold back the BP oil spill sounds awe-inspiring, like an ancient myth made possible with oil-company money: To keep out an offshore invader, the state wants to make new land rise from the sea.

In reality, it looks slightly less impressive.

Here, more than 15 miles offshore, a dredging company is building an island about as wide as an interstate highway. This sandy strip is slowly getting bigger, as dredged-up mud gurgles and creaks down its spine in a rusty pipe and shoots out to form new land at its end.

But this island is still less than a mile long: a spot, not a wall, in a vast sea tainted by oil.

Officially called Sand Berm E-4, it is part of this state’s most ambitious plan to combat the oil and at the same time help stave off long-term coastal erosion. It is at the heart of a politically touchy spat between Louisiana and the federal government, and between Louisiana and some of its scientists, over how to fight the oil that has leaked from the Macondo well.

Louisiana officials say the most reliable way to stop the oil from reaching sensitive marshes is to put solid land — built from sandbags, sand piles or plain old rocks — in its way. But many scientists and environmentalists say they are not convinced that these efforts will do much good.

“They are going to cost a lot of money, and their ultimate value is very much in question,” said Aaron Viles, of the nonprofit Gulf Restoration Network. In some places, he said, the state’s land-building “may be doing more harm than good.”

Louisiana is the closest land to the blown-out BP well, and its salt marshes are far harder to clean than the sandy beaches that dominate the coast in Mississippi, Alabama and Florida. Louisiana, led by Gov. Bobby Jindal (R), has reacted with furious work to keep oil out of those marshes — and with criticism of the Obama administration for holding its efforts up.

State officials say they chose to build land barriers because they extend to the ocean floor, unlike the floating “containment boom.” They can also stay put in a storm, unlike the barges used to block marsh inlets. The state says the land-building plan will still be necessary, even if the BP well remains capped.

There is already far too much oil in the water, Louisiana officials say, for skimming and controlled burns to eradicate it.

“There’s not enough assets in this world right now to skim this thing offshore,” said Deano Bonano, an official in Jefferson Parish who is overseeing efforts to protect the parish’s marshes. “You’re talking about an ocean of oil.”

The state has already filled in 14 inlets that connected the marshes with the Gulf of Mexico, using mounds of dirt and giant sandbags in metal frames. But this man-made island is part of a far more ambitious effort: The state has proposed building 128 miles of islands in arcs off the coast, based on existing plans to rebuild lost barrier islands to fight erosion.

In May, the federal government issued permits for the construction of 45 miles of islands. BP agreed to foot the bill of $360 million.

This island, situated at the north end of a fading barrier island chain east of the Mississippi River mouth, is one result. One day last week, Jindal flew out in a National Guard Black Hawk helicopter, roaring out of urban New Orleans, over green mazes of coastal marsh and then open water. Finally, the island appeared. With its bulldozers and workers in safety vests, it looked like a road-construction project, dropped in the middle of the gulf.

Jindal climbed to the island’s highest point, a mound of soft dirt perhaps eight feet high, and surveyed the scene.

“That’s what I like to see,” he told reporters as bulldozers behind him moved the dirt spewing out the pipe. “A couple of weeks ago, this was all open water.”

Asked about the size of the island, Jindal said work had slowed because the federal government had taken a month to approve the initial permit and then delayed dredging for a week last month. Federal officials did not renew a temporary permit to dredge in an ecologically sensitive spot, saying Louisiana had agreed not to dredge there.

Jindal said the island was already stopping oil. Its back side was spattered with tar balls the size of sidewalk gum wads. “This shows that the sand berms are doing their jobs,” he said. A 2.5-mile island is being built on the other side of the Mississippi River mouth.

But state officials say that even this first 45 miles won’t be done until around Halloween, which would give oil months to float past. Some scientists in Louisiana are also questioning whether berms such as this one will survive the gulf’s pounding waves.

A natural barrier island is “a beach, and a dune, and a marsh at the back. And this was really just a pile of sand,” said Denise Reed, a scientist at the University of New Orleans.

That makes the sand-berm islands more susceptible to erosion. One scientist here posted pictures online that seemed to show one nearly submerged in a storm. State officials said it reemerged after the high seas.

Now the state is pushing a plan that, although smaller in scope, is even more controversial. Jefferson Parish, with the state’s support, wants to pile lines of rock partway across a pair of passes that connect marshes to the gulf. If oily water hits the rocks, officials think, it will be pushed away from the opening and toward a confined area where skimmers can suck it up.

A number of Louisiana scientists, including a panel appointed by the state, have expressed reservations about the rock dams. Some have said it is dangerous to change this kind of natural plumbing: The same amount of tide will now be forced through a smaller opening. The result could be powerful currents that speed up the marsh’s erosion or that drive floating oil deeper inland.

“It’s the simple physics of a garden hose. You put your finger over the nozzle of the hose, you make the water spray out with more velocity,” said Leonard Bahr, a coastal scientist who served as an adviser to Louisiana governors for 18 years, until he said he was “asked to retire” when Jindal took over in 2008. “You’re going to increase the erosive power of the tidal flow.”

On July 3, the U.S. Army Corps of Engineers rejected the plan to build the dams, citing these and other concerns.

State and parish officials have said they will not give up on the plan, although they will work to improve it.

The complaints about the rocks “are ‘what-if,’ or ‘what-may-happen,’ ” said Bonano, of Jefferson Parish. “That’s our frustration: that the opposition to the plan is based on what may happen. . . . As opposed to the oil that is happening.”

By Joel Achenbach
Washington Post Staff Writer
Friday, July 16, 2010; A01

The gusher is gone. The plume is off the well. BP’s Macondo well isn’t dead yet, and it may be back in a flash, but at 3:25 p.m. Eastern time Thursday it ceased to spew oil into the Gulf of Mexico.

As part of what BP calls an “integrity test,” a robotic submersible slowly closed a valve on the well’s new sealing cap. That choked the flow until the plume, a fixture of cable TV and many a nightmare, disappeared. The technological breakthrough came 87 days into the crisis, which began with the April 20 blowout that killed 11 workers and sent the burning rig Deepwater Horizon to the bottom of the gulf.

BP could nix the test at any moment and reopen the well. Whether the well remains “shut in,” to use the industry term, depends on the analysis of pressures in the well. Engineers and scientists hope to see high pressure hold steady during the 48-hour period allotted for the test. That would suggest that the well bore is physically intact. Lower pressure would hint of breaches in the casing and leakage into the surrounding rock.

The initial pressure readings are in an ambiguous range, and officials will have to make a difficult judgment call on whether to keep the well shut in or reopen it, according to Tom Hunter, retired director of the Sandia National Laboratories and a member of the federal government’s scientific team overseeing the test.

“If it were a lot higher, it would be an easier decision to make,” Hunter said.

Retired Coast Guard Adm. Thad Allen, the national incident commander, has said that a pressure reading of 8,000 or 9,000 pounds per square inch would be ideal, while below 6,000 psi might indicate leakage. Hunter, who witnessed the test from BP’s war room in Houston, told The Washington Post that the pressure rose to about 6,700 psi and appeared likely to level out “closer to 7,000.” He said one possibility is that the reservoir has lost pressure as it has depleted itself the past three months.

“It’s just premature to tell. We just don’t know whether something is leaking or not,” Hunter said.

Seismic and sonar surveys will scout for evidence of oil and gas moving through the geological formations. Robotic submersibles are scrutinizing the muddy gulf floor and the base of the well’s blowout preventer, looking for signs of rising hydrocarbons.

Allen issued a statement late in the day saying that, although he is encouraged by the latest developments, a return to the containment strategy “remains likely.”

Reopening the well would not be a sign of failure, Hunter said, because, with the new cap — the “3 ram capping stack” — on top of the well since Monday night, BP has more options for capturing the hydrocarbons. As many as four ships could soon give BP the capacity to collect between 60,000 and 80,000 barrels a day, which exceeds even the highest government estimate for what’s coming out of the well.

“No matter what comes out of this entire operation, we’re going to be in a much better position than we were before,” Allen said.

The successful start to the pressure test incited clapping, handshakes and back slaps in the war room, Hunter reported. But given past mishaps, BP engineers and government officials muted their celebration.

“We’re far from the finish line here,” BP chief operation officer Doug Suttles told CNN.

“It felt very good not to see any oil going into the Gulf of Mexico. What I’m trying to do is maintain my emotions. Remember, this is the start of our test,” Kent Wells, BP’s senior vice president of exploration and production, said in a conference call with reporters.

Regardless of whether BP and the government decide to keep the well closed at the top, the ultimate solution to the blowout is a mud and cement bottom-kill from a relief well that is four feet from Macondo laterally and has only about 150 feet vertically to drill. During the integrity test, drilling of the relief well has been suspended as a precaution against oil and gas surging into the new hole from Macondo.

Louisiana Gov. Bobby Jindal (R), leading reporters on a tour of an island the state is building to stop incoming oil, welcomed the closing of the well but said he was worried that public attention and federal help might slacken if the well remains sealed.

“This fight’s not over for Louisiana,” Jindal said. “It would be premature to declare ‘Mission Accomplished.’ ” In Gulf Shores, Ala. — a beach town that has been repeatedly hit by tar balls and gooey oil — Mayor Robert Kraft wasn’t ready to pop champagne.

“Forgive us for being a little bit skeptical, but give me 48 hours,” Kraft said. If nothing goes wrong, he said, “I’ll breathe.”

The test had been delayed two days, first by government fears that it could backfire and then by a leak in a key component of the well’s new cap. The choke line, the crucial three-inch pipe, curved like an elephant’s trunk, sprang its own leak Wednesday night. Engineers swapped in a spare choke line from a surface ship. For hours Wednesday night and Thursday morning, video streams from the seafloor showed a chaotic plume of oil and gas surging from another outlet, the kill line. That was just the latest configuration of the plume, which has taken on different forms as engineers have hacked and prodded the deep-sea hardware.

A key turning point — one that set the strategy that led to the integrity test — came when government scientists in early June came up with a new, staggering estimate for the flow rate of 35,000 to 60,000 barrels a day. That spurred the government to demand that BP come up with a more robust set of containment measures. Allen said Thursday that, while developing this plan, it occurred to engineers that they might be able to use the new set-up to shut in the well.

Staff writer David Fahrenthold in Louisiana contributed to this report.

Compensatory Mitigation Rule:

Questions and Answers

Q1: What is compensatory mitigation?

A1: The objective of the Clean Water Act (CWA) is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Toward achievement of this goal, the CWA prohibits the discharge of dredged or fill material into wetlands, streams, and other waters of the United States unless a permit issued by the U.S. Army Corps of Engineers (Corps) or approved State under CWA Section 404 authorizes such a discharge. When there is a proposed discharge, all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources. For unavoidable impacts, compensatory mitigation is required to replace the loss of wetland, stream, and/or other aquatic resource functions. The Corps (or approved state authority) is responsible for determining the appropriate form and amount of compensatory mitigation required. Methods of providing compensatory mitigation include aquatic resource restoration, establishment, enhancement, and in certain circumstances, preservation.

Q2: How is compensatory mitigation accomplished?

A2: Compensatory mitigation is typically accomplished through the following three ways:

1. Mitigation Banks: A permit applicant may obtain credits from a mitigation bank. A mitigation bank is a wetland, stream or other aquatic resource area that has been restored, established, enhanced, or preserved. This resource area is then set aside to compensate for future impacts to aquatic resources resulting from permitted activities. The value of a bank is determined by quantifying the aquatic resource functions restored, established, enhanced, and/or preserved in terms of “credits.” Permittees, upon approval of regulatory agencies, can acquire these credits to meet their requirements for compensatory mitigation.

2. In-Lieu Fee Mitigation: A permit applicant may make a payment to an in-lieu fee program that will conduct wetland, stream or other aquatic resource restoration, creation, enhancement, or preservation activities. In-lieu fee programs are generally administered by government agencies or non-profit organizations that have established an agreement with the regulatory agencies to use in-lieu fee payments collected from permit applicants.

3. Permittee-Responsible Mitigation: A permittee may be required to provide compensatory mitigation through an aquatic resource restoration, establishment, enhancement and/or preservation activity. This compensatory mitigation may be provided at or adjacent the impact site (i.e., on-site mitigation) or at another location, usually within the same watershed as the permitted impact (i.e., off-site mitigation). The permittee retains responsibility for the implementation and success of the mitigation project.

Mitigation banks and in-lieu fee mitigation are forms of “third-party” compensation because a third party, the bank or in-lieu fee sponsor, assumes responsibility from the permittee for the implementation and success of the compensatory mitigation.

Q3: What does this final rule do?

A3: The new rule improves and consolidates existing regulations and guidance, to establish equivalent standards for all types of mitigation under the Clean Water Act Section 404 regulatory program. The new rule will also provide one set of regulations for compensatory mitigation, instead of the numerous separate guidance documents that have been in use up to now. This rule uses improved science and results-oriented standards to increase the quality and effectiveness of wetland and stream restoration and conservation practices. The rule does not change when compensatory mitigation is required, but it does change where and how it is required.

The rule establishes equivalent sets of standards that are based on better science, increased public participation, and innovative market-based tools. These equivalent standards take into account the inherent differences among mitigation banks, in-lieu fee programs, and permittee-responsible mitigation, in an effort to maximize the number of ecologically-successful compensatory mitigation projects that project proponents can use to offset their permitted losses of aquatic resources. We believe that this rule will substantially improve compensatory mitigation project performance and accountability.

Q4: What are the most significant changes required by this rule compared to previous mitigation practices.

A4: The most significant change required by the new rule is that compensation projects provided by all three compensation mechanisms (i.e., permittee-responsible compensatory mitigation, mitigation banks, and in-lieu fee mitigation) must have mitigation plans which include the same 12 fundamental components: objectives; site selection criteria; site protection instruments (e.g., conservation easements); baseline information (for impact and compensation sites); credit determination methodology; a mitigation work plan; a maintenance plan; ecological performance standards; monitoring requirements; a long-term management plan; an adaptive management plan; and financial assurances. This important change will dramatically improve the planning, implementation and management of all compensation projects and ensure more effective wetland and stream replacement projects.

Q5: Does the rule provide any criteria for deciding which compensatory mitigation options should be used?

A5: In order to reduce risk and uncertainty and help ensure that the required compensation is provided, the rule establishes a preference hierarchy for mitigation options. The most preferred option is mitigation bank credits, which are usually in place before the activity is permitted. In-lieu fee program credits are second in the preference hierarchy, because they may involve larger, more ecologically valuable compensatory mitigation projects as compared to permittee-responsible mitigation. Permittee-responsible mitigation is the third option, with three possible circumstances: (1) conducted under a watershed approach, (2) on-site and in kind, and (3) off-site/out-of-kind. While on-site/in-kind mitigation approaches will continue to be evaluated, the rule acknowledges that there are circumstances where off-site or out-of-kind compensatory mitigation may be more beneficial for a watershed.

Q6: What are the goals of the final rule?

A6: The primary goals of this rule are to:

• Implement environmentally effective standards for compensatory mitigation that are based on best available science and incorporate key National Research Council (NRC) recommendations for improving the success of compensatory mitigation;

• Create a “level playing field” among the three compensatory mitigation mechanisms through equivalent standards and greater accountability, so that providers of timely, high-quality mitigation are preferred, because there is greater assurance that the compensatory mitigation will be successful;

• Increase the efficiency and predictability of the process of proposing compensatory mitigation and approving new mitigation banks and in-lieu fee programs; and

• Enhance public participation in compensatory mitigation decision-making.

Q7: Why is this rule being issued?

A7: The 2004 National Defense Authorization Act (PL 108-136) calls for the development of regulations, consistent with Section 404 of the Clean Water Act, that establish equivalent standards and criteria for mitigation banks, in-lieu fee programs and permittee-responsible mitigation.

Q8: Why does this rule encourage mitigation banking and in-lieu fee programs?

A8: Mitigation banks are a “performance-based” form of wetland and stream replacement because, unlike in-lieu fee mitigation and permittee-responsible mitigation, the tradable aquatic resource restoration credits generated by banks are tied to demonstrated achievement of project goals. Thus, the rule establishes a preference for the use of credits from mitigation banks when appropriate credits are available. The new rule encourages the use of mitigation banks and in-lieu fee programs over use of permittee-responsible mitigation because mitigation banks and in-lieu fee programs usually provide consolidated compensatory mitigation projects that have less risk and uncertainty. In its 2001 critique of wetland replacement practices, the NRC highlighted advantages of third-party compensation such as mitigation banks and in-lieu fee programs noting that:

• Mitigation banks and in-lieu fee programs use a multi-resource agency process that brings more expertise and collaboration into the planning, approval, and oversight of wetland restoration and protection projects; and

• Mitigation banks and in-lieu fee programs have less risk than permittee-responsible mitigation projects to achieve desired long-term outcomes and to provide wetlands, streams, and other aquatic habitats that are protected in perpetuity by organizations dedicated to resource conservation.

Q9: How does this rule treat in-lieu fee mitigation?

A9: The rule revises and improves the requirements for in-lieu fee programs in order to address concerns regarding their past performance and equivalency with the standards imposed on mitigation banks and permittee-responsible mitigation. These reforms are based to a large extent on existing practices of the most successful in-lieu fee programs currently operating. The reforms to improve accountability and performance include:
1) An advance planning requirement;
2) A cap on the number of advance credits that can be released for sale before an in-lieu fee project site is secured and a mitigation plan is approved;
3) Improved financial accounting requirements;
4) The same interagency/public review and ecological/administrative requirements as mitigation banks; and
5) Limiting in-lieu fee sponsors to government agencies and non-profit organizations.

Q10: How does this rule relate to the national goal of “No Net Loss” of wetlands in the Section 404 permit program?

A10: The rule is specifically designed to improve our ability to ensure no net loss of wetlands by addressing key recommendations associated with compensatory planning, monitoring, and long-term maintenance raised by the NRC in its 2001 report evaluating compensatory mitigation. The NRC report summarized many studies which suggested that compensatory mitigation practices were falling short of providing for “no net loss” of wetland quality and quantity.

Q11: Does the mitigation sequence (i.e., avoid, minimize, and compensate) still apply?

A11: Yes. The mitigation sequence established by the Clean Water Act Section 404(b)(1) Guidelines has been retained in this rule. Proposed impacts must be avoided to the maximum extent practicable; remaining unavoidable impacts must then be minimized, and finally compensated for to the extent appropriate and practicable. The final rule affirms the mitigation sequence and clarifies the criteria for appropriate measures to compensate for unavoidable losses.

Q12: Will applicants have more flexibility in selecting compensatory mitigation options as a result of the new rule?

A12: Yes. The rule clarifies the consideration of watershed-scale factors in the selection of appropriate mitigation sites. This clarification may increase the practical viability of mitigation proposals involving off-site or out-of-kind replacement that still provide appropriate aquatic resource replacement in ways that are beneficial to the watershed. Compensatory mitigation options available to permittees include on-site mitigation, off-site mitigation, or a combination of on-site and off-site mitigation within the watershed. Off-site mitigation may be provided by mitigation banks or in-lieu fee programs, or through permittee-responsible mitigation. The Corps is the final decision-maker regarding whether a proposed compensatory mitigation option provides appropriate compensation for a Department of the Army permit.

Q13: Is mitigation still required to be “on-site” (i.e., located close to the impact) and “in-kind” (i.e., the replacement is of the same ecological type as the impacted resource)?

A13: Since 1990, there has been a general and flexible preference that mitigation should occur on-site and in-kind. This rule retains a flexible preference for in-kind mitigation however it replaces the on-site preference with a hierarchy that considers compensation options in the following order 1) use of credits from a mitigation bank, 2) use of credits from an in-lieu fee program, 3) permittee-responsible compensatory mitigation developed using a watershed approach, 4) on-site/in-kind permittee-responsible mitigation, and 5) off-site/out-of-kind permittee-responsible mitigation.

Q14: Does this rule encourage a watershed approach to compensatory mitigation decision-making as recommended by the National Research Council and the National Mitigation Action Plan?

A14: Yes, this rule states that, where appropriate and practicable, compensatory mitigation decisions should be made from a watershed perspective in which the type and location of compensatory mitigation follows from an analytically-based watershed assessment to assure that the proposed compensation furthers watershed goals. This assessment may take the form of a watershed plan, which typically involves an intensive regional planning effort involving many stakeholders. It may also be a less formal “watershed approach,” involving the analysis of data concerning regional environmental issues, efforts to inventory historic trends in aquatic resource condition, and the prioritization of aquatic resource restoration opportunities. Such an approach involves consultation with stakeholders, resource agencies and environmental experts as appropriate.

Q15: When does the new rule go into effect?

A15: The final rule goes into effect 60 days following publication in the Federal Register.

Q16: If I have already submitted a permit application, do I need to change my application or project to comply with the new rule?

A16: There will be a transition period from the current mitigation practices and procedures to those of the new rule. Permit applications received prior to the effective date will be processed in accordance with existing regulations and guidance. Permit applications received after the effective date of this rule will be subject to the new rule, unless the district engineer has made a written determination that applying these new rules to a particular project would result in a substantial hardship to a permit applicant. In such cases, the district engineer will consider whether the applicant can fully demonstrate that substantial resources have been expended or committed in reliance on previous guidance governing compensatory mitigation for DA permits.

Q17: Do existing mitigation banks and in-lieu fee programs need to be changed to satisfy the requirements of the new rule?

A17: Existing mitigation banks that were approved 90 days before publication of the rule in the Federal Register may continue to operate under the terms of their existing instruments. However, if an existing mitigation banking instrument is modified, or if a new mitigation bank is proposed, it must be consistent with the new rule.

Existing in-lieu fee programs that were approved 90 days before publication of the rule in the Federal Register may continue to operate under the terms of their existing instruments for a two-year period, but the Corps may grant an extension for up to three additional years. Any revisions made to the in-lieu-fee program instrument must be consistent with the new rule. An in-lieu fee project constructed under the terms of a previous instrument may continue to operate under the terms of that instrument indefinitely, as long as the Corps determines that the project is providing appropriate compensatory mitigation consistent with the terms of the rule.

Q18: How quickly would proposed mitigation banks and in-lieu fee programs be approved as a result of the new rule?

A18: A significant change is the establishment of specific evaluation and decision-making time frames for proposed new mitigation banks and in-lieu fee programs. The Corps is the final decision-maker for approving proposed mitigation banking or in-lieu fee program instruments, although it will receive input from Interagency Review Teams comprised of other federal, state, tribal, and local agencies. We expect that decisions on most mitigation banks and in-lieu fee programs would be made within 225 days or so of required federal agency review time, unless substantial concerns are raised or there is a need to address other issues, such as endangered species, historic properties, or tribal concerns. In cases where dispute resolution amongst the Corps and the team members is necessary, the review time is expected to take 330 days or so of required federal agency review time. The Corps can suspend or terminate instruments in cases of poor mitigation bank or in-lieu fee program performance.

Q19: Where can I get a copy of the new rule?

A19: You can find the new Compensatory Mitigation Rule in the Federal Register or on-line at: http://www.usace.army.mil/cw/cecwo/reg/citizen.htm or http://www.epa.gov/wetlandsmitigation . You can also send a request to David Olson at david.b.olson@usace.army.mil or to U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314; or Palmer Hough at hough.palmer@epa.gov or to U.S. Environmental Protection Agency, Wetlands Division (4502T), 1200 Pennsylvania Avenue, NW, Washington, DC 20460.