Ch. 6— Impacts and Mitigation • 129 



technical expertise. Parish and Morgan (40) discuss 

 this problem: 



Lack of certainty is inherent in the language of 

 the permit conditions. A discharge will be per- 

 mitted if it consists of "suitable" materials free 

 from toxic materials, and the fill will be "proper- 



ly" maintained. Certain classes of activities will be 

 permitted if management practices are followed to 

 the extent "practical" and adverse effects are min- 

 imized. If the discharger incorrecdy interprets any 

 of these terms and an individual section 404 per- 

 mit is required, its issuance will involve the need 

 for federal environmental assessment. 



MITIGATING IMPACTS 



In line with the definitions used by CEQ, miti- 

 gation includes: 



• avoiding adverse impacts to wetlands alto- 

 gether by denying a project permit; 



• minimizing impacts by limiting the degree or 

 magnitude of a project; 



• rectifying the impact by repairing, rehabili- 

 tating, or restoring the affected environment; 



• reducing or eliminating the impact on wet- 

 lands by preservation and maintenance opera- 

 tions during the life of the project; and 



• compensating for the wedand losses by replac- 

 ing or providing substitute resources or envi- 

 ronments."'" 



For the purposes of the following discussion, a 

 basic distinction can be drawn between those ac- 

 tions taken to minimize the impacts of a project on 

 wedands and those actions taken to compensate for 

 a project's impact. Though the two may be used 

 in combination, the strategy to compensate is most 

 suited to situations where little can be done to 

 minimize project impacts. Typically, in such a case, 

 the project totally eliminates the wetland and com- 

 pensation entails either restoration of wetlands or 

 creation of new ones at another site. Filling and 

 bulkheading of wedands for real estate development 

 or draining and clearing of wetlands for farming 

 are good examples. 



Under the 404 program, adverse impacts are re- 

 duced by conditioning individual permits or by 

 using "blanket conditioning" for general permits. 

 Conditioning usually entails either onsite design re- 

 quirements and construction and management 

 practices to minimize impacts or requirements for 



offsite compensation of unavoidable impacts. Like 

 the difficulties associated with assessing impacts, 

 the effectiveness of mitigation measures in ameli- 

 orating the impacts of a project sometimes can be 

 very uncertain or even speculative. Although the 

 Corps strives to tailor mitigation measures to in- 

 dividual permits, controversies may arise from re- 

 quirements for expensive mitigation measures if the 

 benefits of these measures are questionable. In some 

 cases, the expense of mitigation can reduce the prof- 

 itability of projects to a point where they are no 

 longer worthwhile to pursue, and developers com- 

 plain that the agencies sometimes use permit con- 

 ditions as leverage to discourage projects. 



Current Corps policy does not give much guid- 

 ance on the level of mitigation appropriate in cases 

 of great uncertainties, calling only for modifications 

 that are "commensurate in scope and degree with 

 the impacts of concern." However, the Corps cur- 

 rently is establishing a more specific policy: in the 

 interim final regulations issued July 22, 1982, the 

 Corps indicates that it is beginning to address the 

 problem of uncertainty. Whether permits may re- 

 quire mitigation of secondary impacts, for instance, 

 ' 'will depend on whether the impact is at least prob- 

 able, rather than speculative."" In its May 12, 

 1983, revisions of the 404 regulations, the Corps 

 proposed expanding authority of the district en- 

 gineer to provide for either onsite or offsite miti- 

 gation. 



In the following sections, the feasibility of these 

 strategies is evaluated, and opportunities for and 

 limitations of using them are explored. 



'"CFR, pt. 1508.20(a-e). 



"Federal Register, vol. 45, No. 184, pp. 62, 657. 



