U.S. Army Corps of Engineers: Scientific Panel's Assessment of	 
Fish and Wildlife Mitigation Guidance (15-MAY-02, GAO-02-574).	 
                                                                 
Because projects such as deepening harbors and constructing dams 
could disturb fish and wildlife, the U.S. Army Corps of Engineers
is required to mitigate potential damage. For example, acquiring 
lands to replace lost habitat, creating wetlands to replace lost 
wetlands, and planting seedlings and other vegetation to	 
stabilize soils and prevent erosion. The Corps' Civil Works	 
Program deals with commercial navigation and flood damage, while 
its Regulatory Program oversees primarily privately financed	 
projects that affect water and related land resources. According 
to Corps engineers, 28 of the 47 water resources projects	 
authorized since enactment of the Water Resources Development Act
of 1986 required a fish and wildlife mitigation plan. Of those	 
that received construction appropriations, less than 50 percent  
of the mitigation was completed before project construction	 
started. Of the remaining 19, seven completed at least 50 percent
of mitigation before initiating construction; two had not started
construction but had done some mitigation; and ten had not	 
started construction or mitigation. As of September 30, 2001, of 
the 34 projects where construction had begun, 16 had completed	 
100 percent of the mitigation. A panel of scientific experts	 
rated as similar the overall quality of the national fish and	 
wildlife mitigation of the Corps of Engineers' programs and those
of the Federal Highway Administration's Federal-aid Highway	 
Program. Some panelists indicated that guidance for the programs 
was strong because of its clarity, currency, or the inclusion of 
ample technical guidance. Some panelists were critical, however, 
of the three programs' guidance. They noted that the guidance	 
emphasizes the determination and design stages to the detriment  
of the monitoring and evaluation stages, emphasizes wetlands to  
the detriment of other lands, or fails to require corrective	 
actions where projects do not succeed. Based on the guidance	 
alone, panelists expressed concerns about estimating the success 
that mitigation projects would have in restoring the natural	 
hydrology and native vegetation and in supporting native fish and
wildlife species. Further, factors other than guidance affect	 
mitigation projects, such as major storms that are difficult to  
control, or invasive weeds or wildlife species that unexpectedly 
dominate the site.						 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-02-574 					        
    ACCNO:   A03330						        
  TITLE:     U.S. Army Corps of Engineers: Scientific Panel's	      
Assessment of Fish and Wildlife Mitigation Guidance		 
     DATE:   05/15/2002 
  SUBJECT:   Environmental engineering				 
	     Environmental monitoring				 
	     Land management					 
	     Water resources development			 
	     Wildlife management				 
	     Army Corps of Engineers Civil Works		 
	     Program						 
                                                                 
	     Army Corps of Engineers Regulatory 		 
	     Program						 
                                                                 
	     FHwA Federal-Aid Highway Program			 


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GAO-02-574
     
A

Report to Congressional Committees

May 2002 U. S. ARMY CORPS OF ENGINEERS Scientific Panel?s Assessment of Fish
and Wildlife Mitigation Guidance

GAO- 02- 574

a

GAO United States General Accounting Office

Page i GAO- 02- 574 Fish and Wildlife Mitigation Guidance Letter 1

Results in Brief 2 Background 3 Water Resources Projects Authorized Since
the 1986 Act That

Required a Fish and Wildlife Mitigation Plan 4 Scientific Panel?s Assessment
of the Quality of National Fish and

Wildlife Guidance, Suggested Improvements, and Estimated Success of
Mitigation 5 Views of the Agencies 13

Appendix I Objectives, Scope, and Methodology 15

Appendix II Corps? 47 Projects Since the Act of 1986 with a Fish & Wildlife
Mitigation Plan & Receiving Construction Appropriations 19

Appendix III Guidance Documents Reviewed by Panel 22 Governmentwide Policy
Guidance 22 General Technical Guidance 22 Corps of Engineers? Civil Works
Program Guidance 23 Corps of Engineers? Regulatory Program Guidance 24
Federal Highway Administration Guidance 24

Appendix IV Assessment Instrument Used by Panel 26

Appendix V Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation 41

Determination Stage 42 Design Stage 44 Construction Stage 46 Monitoring
Stage 48 Evaluation Stage 49 Complete 51 Current 52 Contents

Page ii GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Clear 53 Broad 53 Viable 54

Appendix VI Comments from the Department of Defense 56

Appendix VII Panel of Scientific Experts, Technical Adviser, and Expert
Reviewers 63

Appendix VIII GAO Contact and Staff Acknowledgments 64 GAO Contact 64
Acknowledgments 64

Tables

Table 1: Panelists? Overall Quality Rating of the Mitigation Guidance for
the Three Programs 6 Table II. 1: Percent of Mitigation Completed for 47
Water Resources

Projects Authorized Since the Water Resources Development Act of 1986 That
Required a Fish and Wildlife Mitigation Plan and Received Construction
Appropriations, as of September 30, 2001 20 Table V. 1 Summary of Expert
Panel?s Final Assessment of the

Corps of Engineers? and Federal Highway Administration?s Fish and Wildlife
Mitigation Guidance 41

Page 1 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

May 15, 2002 The Honorable James M. Jeffords Chairman The Honorable Bob
Smith Ranking Minority Member Committee on Environment and Public Works
United States Senate

The Honorable Don Young Chairman The Honorable James L. Oberstar Ranking
Democratic Member Committee on Transportation and Infrastructure House of
Representatives

Concerns have been raised by a variety of interests about the possible
negative impacts that the U. S. Army Corps of Engineers? construction of
water resources projects may have on fish and wildlife and their habitat.
Because projects such as deepening harbors and constructing dams could
disturb fish and wildlife, the Corps is required to mitigate potential
damage. Mitigation may include, for example, acquiring lands to replace lost
habitat, creating wetlands to replace lost wetlands, and planting seedlings
and other vegetation to stabilize soils and prevent erosion.

The Corps? Civil Works Program manages projects dealing with commercial
navigation and flood damage, while its Regulatory Program oversees primarily
privately financed projects that affect water and related land resources,
such as residential development near a seashore. The Federal Highway
Administration?s Federal- aid Highway Program within the Department of
Transportation oversees road construction and, like the Corps, must ensure
compliance with environmental laws designed to mitigate the impact of
construction on fish and wildlife. For the purposes of this report, 1 the
five stages of a mitigation project are (1) determination- deciding whether
and how much mitigation is needed; (2) design- deciding on the necessary
features and performance

1 The Water Resources Development Act of 2000 (P. L. 106- 541) listed four
stages of mitigation: (1) design, (2) construction, (3) monitoring, and (4)
evaluation. For ease of discussion, we chose to divide the design stage into
determination and design stages.

United States General Accounting Office Washington, DC 20548

Page 2 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

characteristics of the project, including all preconstruction activities;
(3) construction- acquiring land, building structures, creating habitat, and
introducing animals and plants; (4) monitoring- periodically assessing the
mitigation site before, during, and after construction; and (5) evaluation-
determining the success of the project, actions needed if the project is not
successful and implications for improving future projects.

The Water Resources Development Act of 2000 required GAO to obtain
information on the U. S. Army Corps of Engineers? efforts to mitigate for
adverse impacts to fish and wildlife resources and their habitat at water
resources projects since the Water Resources Development Act of 1986. In
discussions with the Senate Committee on Environment and Public Works and
the House Committee on Transportation and Infrastructure, we agreed to (1)
determine the number of U. S. Army Corps of Engineers? civil works projects
for which the Corps completed less than 50 percent of mitigation (the
measure cited in the 2000 act) before starting construction and (2)
establish a panel of scientific experts to compare the Corps? Civil Works
Program?s national guidance on fish and wildlife mitigation with mitigation
guidance for the Regulatory Program and the mitigation guidance for the
Federal- aid Highway Program. We selected our seven- member scientific panel
on the basis of their expertise in mitigation and familiarity with the
operations of these three programs. We mailed the panel members an
assessment instrument and 2,500 pages of guidance documents from the three
programs for their review. We asked the panel to assess the quality of each
program?s guidance (1) for the five stages of mitigation; (2) for five
attributes- currency, clarity, completeness, breadth, and viability of the
natural and man- made systems into the future; and (3) overall, taking into
consideration the stages and attributes. (App. I describes our scope and
methodology; app. III lists the documents reviewed; app. IV contains the
assessment instrument; app. V describes the panel?s assessment of the
guidance; and app. VII lists the panel members and their affiliations.)

According to the U. S. Army Corps of Engineers, 28 of the 47 water resources
projects authorized since enactment of the Water Resources Development Act
of 1986, that required a fish and wildlife mitigation plan, and that
received construction appropriations, completed less than 50 percent of the
mitigation before project construction started. Of the remaining 19
projects, 7 completed at least 50 percent of mitigation before initiating
construction; 2 projects had not started construction but had done some
mitigation; and 10 had not started construction or mitigation. As of
September 30, 2001, of the 34 projects where construction had begun, 16 had
completed 100 percent of the mitigation. Neither the 1986 Results in Brief

Page 3 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

act nor subsequent Water Resources Development Acts require the Corps to
complete a specific amount of mitigation before beginning to construct a
project. In fact, according to the Corps, completing a specific amount of
mitigation might not be feasible in some cases. For example, the Corps may
need to use the material it excavates during construction to create the
mitigation project, such as the material dredged from a navigation channel
that is used to create wetlands.

The panel of scientific experts rated as similar the overall quality for the
national fish and wildlife mitigation guidance of the Corps of Engineers?
Civil Works and Regulatory Programs as well as for the Federal Highway
Administration?s Federal- aid Highway Program. Most panelists rated the
overall quality as ?moderate? or ?good.? The Federal- aid Highway Program,
however, received more ?good? ratings than the Corps? two programs. When
assessing the overall quality of all three programs? guidance, some
panelists indicated that the guidance was strong because of its clarity,
currency, or the inclusion of ample technical guidance. Some panelists were
critical, however, of the three programs? guidance. They pointed out that
the programs? guidance emphasizes the determination and design stages to the
detriment of the monitoring and evaluation stages; emphasizes wetlands to
the detriment of other lands, such as those that have a higher elevation and
tend to be drier (uplands); or fails to require corrective actions in those
instances where projects do not succeed. The panelists also suggested areas
for improvement: a unified body of guidance, more information on the
monitoring and evaluation stages, or more discussion of uplands species and
habitat. Based on the guidance alone, panelists expressed concerns about
their ability to reliably estimate the percent of success that mitigation
projects would have in restoring the natural hydrology and native vegetation
and in supporting native fish and wildlife species. Panelists said factors
other than guidance, such as major storms that are difficult to control or
manage or invasive weeds or wildlife species that dominate the site
unexpectedly, affect the success of mitigation projects.

The Department of Transportation reviewed the draft report and chose not to
provide comments. The Department of Defense made generalized observations
about the issues addressed in the report and offered specific comments on
the panel?s assessment of the Civil Works and Regulatory Programs?
mitigation guidance. A copy of the Department of Defense?s comments is
included as appendix VI.

Generally, the Congress authorizes the Corps? water resources projects every
2 years through a Water Resources Development Act. After project Background

Page 4 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

authorization, the Corps may request construction appropriations in order to
initiate a project; the Congress might not appropriate construction funding
for all authorized projects. The Corps uses its construction funds to
support both mitigation and construction activities.

According to staff in the Corps? Civil Works Program, between the 1986 act
and September 30, 2001,

 217 water resources projects were authorized,  150 of these received
construction appropriations,  103 of these 150 projects did not require a
fish and wildlife mitigation

plan, and  47 of the 150 projects required a plan. Under the Federal- aid
Highway Program, the Federal Highway Administration must ensure compliance
with federal, state, and local environmental laws and regulations. The
administration apportions funds to state transportation departments for
planning and constructing the national highway infrastructure. State
governments determine the priorities and distribute the funds.

Of the 47 Civil Works projects authorized since the 1986 act that required a
fish and wildlife mitigation plan and that received construction
appropriations, 28 projects completed less than 50 percent of the mitigation
before project construction began, according to the Corps. 2 Of the
remaining 19 projects, 7 completed at least 50 percent of mitigation before
initiating construction; 2 had not started construction but had done some
mitigation; and 10 had not started construction or mitigation. 3 As of
September 30, 2001, 16 of the 34 projects where construction had begun had
completed 100 percent of the mitigation.

2 According to the Corps, the point at which 50 percent of mitigation is
completed occurs in the fiscal year in which the Corps district office?s
cumulative expenditures toward the mitigation plan total at least 50 percent
of the estimated cost of these activities. 3 Appendix II includes more
details on the 47 projects authorized since the 1986 act that

received construction appropriations and required a fish and wildlife
mitigation plan. Water Resources

Projects Authorized Since the 1986 Act That Required a Fish and Wildlife
Mitigation Plan

Page 5 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

The 1986 act requires the Corps to initiate mitigation before or concurrent
with construction, but it does not specify the amount of mitigation
required- nor does any subsequent Water Resources Development Act. According
to the Corps, it may not complete 50 percent of the mitigation prior to
initiating project construction for the following reasons:

 The proposed mitigation will occur in the construction area or when
material excavated during construction is used to create the mitigation. For
example, the Corps creates wetlands with material dredged from a navigation
channel.

 Mitigation activities may be scheduled concurrently with construction as a
logical construction sequence.

 The Corps considers ?construction? to begin when it receives construction
appropriations, not when it actually starts construction, even though months
or years may pass between the two dates. Therefore, since construction
appropriations fund both mitigation and construction activities, mitigation
cannot technically begin before construction begins.

The panel of scientific experts rated as similar the overall quality of the
national fish and wildlife mitigation guidance for the Corps of Engineers?
Civil Works and Regulatory Programs as well as the Federal Highway
Administration?s Federal- aid Highway Program. Most panelists rated the
overall quality as ?moderate? or ?good.? The Highway Program, however,
received more ?good? ratings than the Corps? two programs. In commenting on
possible improvements to the guidance, the panelists suggested a unified
body of guidance for the three programs, more information on the monitoring
and evaluation stages, or more discussion of uplands species and habitat.
Based on the guidance alone, panelists expressed concerns about their
ability to reliably estimate the percent of success mitigation projects
would have in restoring the natural hydrology and native vegetation and in
supporting native fish and wildlife species. Panelists said factors other
than guidance, such as major storms that are difficult to control or manage
or invasive weeds or wildlife species that dominate the site unexpectedly,
affect the success of mitigation projects.

When asked to rate the overall quality of the collective guidance for each
of the three programs, panelists generally rated it ?moderate? or ?good,? as
Scientific Panel?s

Assessment of the Quality of National Fish and Wildlife Guidance, Suggested
Improvements, and Estimated Success of Mitigation

Panel?s Assessment of Guidance

Page 6 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

shown in table 1. The distribution of moderate and good ratings varied
slightly across programs.

Table 1: Panelists? Overall Quality Rating of the Mitigation Guidance for
the Three Programs Overall quality rating Program Panelist 1 Panelist 2
Panelist 3 Panelist 4 Panelist 5 Panelist 6 Panelist 7 Average

rating

Civil Works Moderate Good Moderate Moderate Moderate Moderate Moderate 3.1
Regulatory Good Good Moderate Good Moderate Fair Moderate 3.3 Highway
Moderate Good Good Moderate Good Good Good 3.7

Note: The response scale ranged from 0 to 5 (0= No Guidance, 1= Poor, 2=
Fair, 3= Moderate, 4= Good, and 5= Excellent). None of the respondents rated
the overall quality for any program as poor or excellent.

When assessing the quality of the three programs? guidance collectively,
some panelists indicated that the guidance was strong because of its clarity
or currency, or the inclusion of ample technical guidance. Some panelists,
however, were critical of the three programs? guidance overall, noting that
the guidance emphasizes the early determination and design stages to the
detriment of the monitoring and evaluation stages, emphasizes wetlands to
the detriment of uplands or adjacent lands, or fails to require corrective
actions in those instances where projects do not succeed.

In commenting on the strengths of the Civil Work?s guidance, some panelists
indicated that the guidance emphasizes an ecosystem approach and considers
adjacent lands and uplands; includes a good integration of other agencies?
roles and responsibilities and the various laws and policies; or provides
good technical guidance for the design, construction, and monitoring stages.
The majority of panelists, however, criticized the Corps? reliance on
economic tradeoffs to determine the acceptable mitigation alternatives as
presented in the Economic and Environmental Principles and Guidelines for
Water and Related Land Resources Implementation Studies. 4 Several panelists
indicated that the Corps? reliance on this guidance interferes with the
current thinking, which

4 The U. S. Water Resources Council originally developed these
administrative guidelines in 1983 to implement the requirement of the Water
Resources Planning Act that the Water Resources Council establish
principles, standards, and procedures for planning water and land resources
projects. According to the Corps, it developed its guidance to reflect the
direction of the Water Resources Council?s guidance. Funding for the Water
Resources Council ceased in fiscal year 1983 and the guidance has not been
updated.

Page 7 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

emphasizes selecting the least damaging alternative and considering adjacent
lands when determining which alternative to select. In addition, some
panelists criticized the Civil Works guidance as possibly being too broad,
too detailed, incomplete as it relates to determining how much and what kind
of mitigation should be undertaken, lacking examples of mitigation, or not
current because it does not consider mitigation activities in a landscape
context. 5

In assessing the strengths and weaknesses of the Corps? Regulatory Program?s
guidance, the panelists primarily commented on the recently issued October
2001 Regulatory Guidance Letter. 6 The panelists generally viewed the new
guidance as an improvement over existing guidance because it

 is clearer, simpler, and more in line with current technical findings;

 strengthens the importance of watershed context 7 and functionality 8 of
affected areas;

 enhances the existing guidance in the areas of determination and
evaluation and places new emphasis on ecosystems rather than citing a
preference for on- site in- kind mitigation; 9

5 Landscape context refers to the current view of how to assure the success
of mitigation projects. It includes consideration of the impact of the
project to surrounding land and water areas, and vice versa. 6 Regulatory
Guidance Letter 01- 1 on Guidance for the Establishment and Maintenance of

Compensatory Mitigation Projects Under the Corps Regulatory Program Pursuant
to Section 404( a) of the Clean Water Act and Section 10 of the Rivers and
Harbors Act of 1899 (2001). 7 Watershed context refers to activities and
effects from throughout the entire land area

drained by a stream or wetland, which could be quite extensive. In contrast,
landscape context refers to a more localized impact area, usually considered
what can be seen with the naked eye. 8 Functionality is a focus on the
natural activities and benefits provided by a resource such

as a wetland; therefore, depending on the richness and concentration of
those benefits, one acre of wetland could provide substantially more
functionality to an ecosystem than another acre of wetland. Also, one acre
of wetland could provide many more functions (wildlife, flood control, fish
habitat, etc.) than another, thereby having higher functionality. 9
Traditionally, mitigation projects were focused on replacing as much of the
lost habitat as

possible on the site and in the same form- known as on- site in- kind.

Page 8 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

 suggests the consideration of landscape setting and indicates a continuing
evolution to a function- based approach to mitigation; 10

 is a positive step toward helping assess and quantify the amount of
mitigation that is required;

 calls for monitoring to be included as a permit condition; or

 provides more definitive instructions on how to determine mitigation
ratios 11 and types of mitigation, and addresses the long- term viability of
mitigation through establishing success criteria.

While complimenting the new guidance, panelists also identified weaknesses.
Namely, it

 still lacks the details and performance measures to truly advance wetlands
protection;

 continues to need to strengthen monitoring and evaluation activities;

 still lacks sufficient specifics on how much and what type of mitigation
is needed and what functions should be replaced;

 does not provide specifics on how landscape settings should be considered;

 allows credit for efforts undertaken in uplands, which means that wetlands
functions and values will less likely be replaced in those situations; or

10 The function- based approach looks beyond the mere acreage of a resource,
and evaluates the full range and intensity of ecosystem benefits in
determining replacement requirements. Thus, one acre of high- function or
multi- function wetlands might require substantially more replacement
habitat than another acre of wetlands with less functionality. 11 Mitigation
ratios refer to the amount of replacement acreage per acre of lost resources
such as wetlands. While many mitigation programs traditionally assumed a 1
to 1 ratio, the current focus on assuring the replacement of all functions,
as well as widespread performance problems in constructed wetlands, has led
to consideration of higher replacement ratios such as 1. 5 or 2 acres of
mitigation for each lost acre.

Page 9 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

 continues to lack guidance on the minimum requirements of a conceptual
mitigation plan.

In assessing the Highway Program?s guidance, panelists were generally more
complimentary of its content and presentation than of the Corps? guidance.
Several panelists found the guidance to

 be clearer and more focused;

 be more effective in communicating current thinking;

 be more user- friendly, with a step- by- step format;

 provide the right amount of background information and technical
alternatives;

 include design options and examples;

 be stronger than the Corps? guidance in ensuring the long- run viability
of the project because it calls for a compensation ratio greater than 1 to
1; or

 be more professionally presented because it allows the exercise of
professional judgment.

Panelists cited few weaknesses with the Highway Program?s guidance, and they
did not point out the same weaknesses. For example, one panelist noted that
monitoring activities involved monitoring compliance with the mitigation
design rather than with measuring the functions and values 12 to determine
replacement success. This same panelist reported that more monitoring of
construction is needed because mitigation will fail because of construction
flaws and not because of design problems. Another panelist found that the
guidance overemphasizes the use of mitigation banks, 13 which may not always
be appropriate.

12 Values are quantifications of the functions of resource areas such as
wetlands. Functions and values are related, in that functions describe the
nature of the natural assets of resources, while values describe how much of
the function is present. 13 A mitigation bank is an area set aside to be
restored and used for mitigation for multiple

projects.

Page 10 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

One panelist appeared to sum up the panelists? comments, stating ?. . . [T]
he three programs reviewed are within reach of mitigating many, but not all
types of wetland habitats for fish and wildlife. . . . . With modest
improvements in guidance, the combined efforts of the three programs could
reach a higher level of successful wetlands mitigation.?

Panelists offered several suggestions for improving both the format and the
content of the three programs? fish and wildlife mitigation guidance. In
terms of format, almost all the panelists suggested the need for a single,
unified body of guidance that would include both the regulatory and
technical details necessary to effect successful mitigation. Doing so,
according to some panelists, would improve the usability and readability of
the guidance and better achieve consistency in operations and results. Among
the suggested improvements, panelists recommended that the unified guidance
include

 user- friendly, step- by- step instructions that tell applicants when they
have to mitigate and that provide a general idea of how much mitigation will
be required;

 current guidance regularly updated on a website;

 annotated outlines, more illustrations, case studies, and examples of
lessons learned from past failures or successes and the reasons for them;

 a requirement for an operations, maintenance, and rehabilitation funding
plan to provide greater assurance that all project services will be provided
over a broad range of contingencies;

 a technically appropriate and consistent set of sampling measures applied
throughout all stages of mitigation; or

 opportunities for flexibility and the exercise of professional judgment.
Regarding the content of the guidance, some panelists strongly urged that
more guidance be included on the monitoring and evaluation aspects of
mitigation projects. Two panelists recommended ongoing-? life cycle?-
monitoring to evaluate the effectiveness of mitigation in light of explicit
performance criteria and to provide a rationale for corrective action where
appropriate. Some panelists suggested that the expanded monitoring and
evaluation requirements should include systems to provide for feedback of
Suggestions for Improving

Fish and Wildlife Mitigation Guidance

Page 11 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

evaluation results or that a separate budget be designated for monitoring
and evaluation to ensure that adequate data be collected to determine
project success.

Panelists also suggested that the content of the current guidance be
expanded to more fully include discussions on uplands species and habitat
other than vegetated wetlands, such as open waters, streams, or stream
banks. In addition, most of the panelists suggested that the current
guidance more fully discuss the functions and values and how to determine
the best way to replace them. According to one panelist, once the key
functions are determined, general guidance should exist on how to translate
the replacement of these functions into compensation ratios and combinations
of in- kind and out- of- kind 14 mitigation to ensure that the key functions
are replaced. Another panelist suggested that permits should be denied if
the functions and values will not be compensated and indicated that this
requirement would decrease the likelihood of environmental degradation and
increase the likelihood of successfully replacing lost functions.

We asked the panelists to estimate the percentage of success that mitigation
projects could be expected to achieve in restoring the natural hydrologic
conditions and native vegetation, and otherwise supporting native fish and
wildlife species, under two circumstances: (1) if the present mitigation
guidance were followed and (2) if the guidance were followed after being
improved in the ways panelists proposed. Some panelists expressed concern in
providing estimates because of (1) a lack of an empirical basis for any
estimate, (2) insufficient first- hand knowledge about how closely the
guidance is being followed, (3) insufficient basis for connecting success or
failure with the degree to which the guidance was followed, or (4) a lack of
knowledge about the competencies of the persons implementing the guidance.
The panelists emphasized that any numbers provided would not be reliable,
and GAO agrees.

Panelists did, however, provide insights to the primary factors, other than
the guidance, that could prevent a project from restoring hydrologic

14 In- kind mitigation involves replacing the lost resource with the same
kind of resource, e. g., salt marsh wetland with new or restored salt marsh
wetland. Out- of- kind mitigation replaces the lost resource with a
different type of resource, e. g., a salt marsh with a forested wetland.
Panel?s Estimation of

Achieving Successful Mitigation

Page 12 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

conditions, restoring native vegetation, and otherwise supporting native
fish and wildlife species. The panel explained that project success could be
affected by

 lack of experience or competence of those doing the work, or lack of
proper project management;

 cost constraints or inadequate funding;

 poor site selection, poor construction, or improper implementation of
design;

 lack of control and/ or lack of attention to surrounding landscape
conditions, or external influences from adjacent areas such as urban
development, heavy infestations of exotic species, and human and animal
impacts;

 unexpected conditions, such as major storms, that are difficult to control
or manage or invasive weeds or wildlife species that dominate the site
unexpectedly;

 inadequate monitoring for fish and wildlife values and more focus on the
easier measurement of hydrology and vegetation success;

 monitoring to determine compliance with the design plan rather than
monitoring functions and values, thus failing to account for poor designs;

 lack of available biological materials, such as no seed bank;

 problems in creating some types of wetlands because they are inherently
difficult to replicate (peat bogs being the extreme example);

 wetlands that cover extremely small areas, or appropriate land is
unavailable;

 not ensuring that corrective measures will be taken for failures in the
restoration project after construction; or

 not fully restoring lost hydrology or vegetation if mitigation banks are
used to compensate for losses in different watersheds.

Page 13 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

One panelist noted that a certain percentage of all restorations will fail
in the attempt to restore native vegetation and wildlife. According to the
panelist, the failure rate for ?created? wetlands and other habitats is much
higher than for restored sites, so it is important to distinguish the type
of site being discussed. Another panelist stated that in some situations,
lost functions and values are impossible to replace because of their
location within the watershed, the lack of mitigation sites within the
watershed, or the type of wetlands that were damaged.

A third panelist noted that, in general, restoring ?natural hydrologic
conditions? is only possible in ?restoration? efforts (rather than
?creation?

or ?enhancement? efforts or both), and this is only a portion of the
compensation activities undertaken in these programs. According to the
panelist, restoration of natural conditions is most likely to succeed when
the impacts of projects occur only on the site under restoration. In all
other circumstances, the panelist said, the probability of success
diminishes regardless of the technical sophistication of the practitioner.
Furthermore, restoring native vegetation is theoretically possible only when
appropriate natural hydrologic conditions have been established. Therefore,
success in this effort cannot exceed the success in hydrologic engineering.
In addition, restoring native fish and wildlife species is more difficult,
generally because the surrounding area has been affected, and thus the
landscape setting is uncontrollably altered. In the panelist?s view,
restoration of a natural community of species on compensatory mitigation
sites is exceptionally difficult.

We provided the Departments of Transportation and Defense with copies of the
draft report for review and comment. The Department of Transportation
reviewed the draft report and chose not to provide comments. The Department
of Defense, in its comments, stated its view that GAO?s study has shown that
the Corps met the mitigation requirements of section 906 of the Water
Resources Development Act of 1986. However, we did not review or evaluate
the Corps' overall compliance with section 906 nor did we reach any
conclusion in this regard. Additionally, the department clarified that for
three projects identified in appendix II for which mitigation had not begun,
mitigation is scheduled for later in the construction sequence because site
conditions do not allow mitigation to occur earlier. We have added a
footnote to the table in appendix II to reflect the Corps? explanation.

In addition, the department raised concerns about the difficulties in
comparing the fish and wildlife mitigation guidance of the three programs.
Views of the Agencies

Page 14 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Specifically, the department pointed out that the Corps? two programs are
primarily water resource development- oriented, while the Highway Program is
oriented to building highways. Additionally, the department said that both
the Highway and Civil Works Programs operate on a much longer timeline than
the Corps? Regulatory Program and the Corps? Regulatory Program?s activities
are generally on a much smaller scale and rarely approach the scope of the
Civil Works Program. While we agree that the focus of the three programs
selected for comparison is different, we believe that the agencies? programs
include similarities in that they are nationwide in scope and provide for
mitigation against environmental impacts to fish and wildlife in the course
of their construction activities. Additionally, our panelists did not
express concern that the differences among the three programs affected their
ability to assess the content and format of the three agencies? fish and
wildlife mitigation guidance. A copy of the Department of Defense?s detailed
comments is included as appendix VI.

We conducted our work from February 2001 through April 2002 in accordance
with generally accepted government auditing standards. Details of our scope
and methodology are discussed in appendix I.

We are sending copies of this report to the secretaries of defense and
transportation, the principal deputy assistant secretary of the army (civil
works) and the administrator, Federal Highway Administration. We will also
provide copies to others on request.

If you or your staff have any questions about this report, please call me at
(202) 512- 3841. Key contributors to this report are listed in appendix
VIII.

Barry T. Hill Director, Natural Resources

and Environment

Appendix I: Objectives, Scope, and Methodology

Page 15 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

The Water Resources Development Act of 2000 (P. L. 106- 541, section 224
(b)) required GAO to obtain information on the U. S. Army Corps of
Engineers? efforts to mitigate for adverse impacts on fish and wildlife
resources and their habitat in the construction of its water resources
projects authorized since the Water Resources Development Act of 1986. In
discussions with the Senate Committee on Environment and Public Works and
the House Committee on Transportation and Infrastructure, we agreed to (1)
determine the number of U. S. Army Corps of Engineers? Civil Works projects
for which less than 50 percent of mitigation was completed before the start
of project construction and (2) establish a panel of scientific experts to
compare the Corps? Civil Works Program?s national guidance on fish and
wildlife mitigation activities with the mitigation guidance for the Corps?
Regulatory Program and with the guidance for the Federal Highway
Administration?s Federal- aid Highway Program.

To determine the number of the Corps? water resources projects subject to
the mitigation requirement of the 1986 act and the number of those projects
not completing 50 percent of the required fish and wildlife mitigation
before initiating construction, we formally requested that the Corps provide
us with the following information: (1) the universe of projects authorized
since the 1986 act; (2) of these authorized projects, the number for which
federal construction funds were appropriated; and (3) of the authorized
projects receiving federal construction funds, the number that did and did
not require a fish and wildlife mitigation plan in accordance with the 1986
act. For those projects requiring a mitigation plan, we asked for the number
of projects that had and had not begun construction, the number of projects
that had and had not begun mitigation activities, the percentage of
mitigation completed before construction began, and the percentage of
mitigation completed as of September 30, 2001. We also requested that the
Corps provide projectspecific information, including project name, location,
and purpose or type of project. The Corps solicited the information from its
district offices.

The 2000 act does not define what constitutes completion of 50 percent of
required mitigation. For the purposes of this report, the Senate Committee
on Environment and Public Works and the House Committee on Transportation
and Infrastructure asked us to request that the Corps develop its own
definition. In our request to the Corps, we asked the Corps to apply this
definition when obtaining the data from its district offices. The Corps
defined the completion of 50 percent of required mitigation as follows:
Appendix I: Objectives, Scope, and

Methodology Number of Corps? Projects

Appendix I: Objectives, Scope, and Methodology

Page 16 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

?Construction is initiated when the first non- mitigation related
construction contract is awarded. The compensatory mitigation 50- percent
completion point occurs in the fiscal year that the district makes
expenditures toward the mitigation plan that cumulatively total at least 50
percent of the estimated cost of these activities. The expenditures could
consist of hired labor, contracts, etc., as well as lands, easements,
rights- of- way, relocations, and disposal areas required for any
compensatory mitigation plan identified in the feasibility report.?

Because the congressional committees asked us not to collect original data,
we limited our analysis to clarifying any apparent inconsistencies in the
Corps? data with agency officials.

The 2000 act requested that we assess the Corps? Civil Works Program?s
mitigation methods compared to those used in other publicly and privately
financed mitigation projects and did not specifically identify the other
entities. In discussions with committee staffs, we agreed that the
scientific panel should review and compare the fish and wildlife mitigation
guidance of these entities rather than assessing the methods. Therefore, we
needed to (1) identify and select other entities undertaking mitigation
activities, (2) obtain the relevant fish and wildlife mitigation guidance
from the entities, and (3) establish a scientific panel of experts.

To identify which publicly and privately financed projects should be
compared with the Corps? Civil Works Program, we spoke with representatives
of the Corps, the Environmental Protection Agency, the Fish and Wildlife
Service, the National Marine Fisheries Service, the Bureau of Land
Management, the Forest Service, the Federal Highway Administration, the
Federal Aviation Administration, the Federal Transit Administration, and the
National Academy of Sciences to obtain suggestions for relevant entities to
select. On the basis of these discussions, we selected the Corps? Regulatory
Program and the Federal Highway Administration?s Federal- aid Highway
Program for comparison to the Corps? Civil Works Program. Both programs are
national in scope and some individual construction projects undertaken could
be of the same magnitude as those of the Corps? Civil Works Program.

To obtain the fish and wildlife mitigation guidance, we spoke with
representatives of the Corps? Civil Works and Regulatory Programs, the
Federal Highway Administration?s Federal- aid Highway Program, as well as
the Corps? Office of Research and Development to identify the (1) role of
national and local/ regional mitigation guidance in implementing the
agencies? projects, (2) types of guidance provided to program participants,
Scientific Panel?s

Assessment of Fish and Wildlife Mitigation Guidance

Appendix I: Objectives, Scope, and Methodology

Page 17 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

and (3) guidance the agencies considered to be the key fish and wildlife
mitigation guidance. We requested that the agencies provide us with copies
of key national policy, procedural, and scientific/ technical guidance
(including applicable models) on mitigating adverse impacts on fish and
wildlife resources and their habitat. We limited our request to national
guidance because both the Corps and the Federal Highway Administration rely
on local districts, regions, or states to supplement the national guidance
to address local environmental considerations, and the potential existed for
obtaining voluminous guidance from 38 Corps districts and the 50 states.
Such voluminous guidance would be unreasonable for a scientific panel to
assess in a short time frame.

Initially, the agencies provided about 78 documents- or about 5, 400 pages-
that they considered to be key national policy, procedural, and scientific/
technical guidance. Because of the complexity of the issues involved in
assessing this mitigation guidance, we employed a consultant as a technical
adviser. The adviser reviewed this guidance and identified documents that
potentially could be excluded from the panelists? review. We met with agency
representatives to seek agreement on which documents would be essential to
review. From those discussions, we decided to provide the panelists a total
of about 2,500 pages of guidance in the categories of (1) policy guidance
applicable to all agencies, (2) technical guidance applicable to all
agencies, (3) Corps? Civil Works Program guidance, (4) Corps? Regulatory
Program guidance, and (5) Federal Highway Administration guidance. (See
appendix III for the guidance documents the panelists reviewed.)

To establish our scientific panel of experts, we needed to identify persons
who collectively would possess the necessary knowledge, skills, and
experiences related to fish and wildlife mitigation and have a general
knowledge of the Corps? Civil Works and Regulatory Programs and/ or the
Federal- aid Highway Program. The Environmental Protection Agency, the Fish
and Wildlife Service, the National Marine Fisheries Service, the National
Academy of Sciences, and some of our staff suggested names of potential
panelists. We contacted several of the identified persons, inquired whether
they had an interest in serving on the scientific panel, asked them for the
names of additional persons whom we might want to consider having on the
panel, and received their biographical data. Our technical adviser suggested
factors to consider in developing and assessing a pool of candidates,
reviewed the list of potential candidates and suggested additional names,
and provided recommendations about the size and makeup of the panel. (See
appendix VII for a listing of the panel members.)

Appendix I: Objectives, Scope, and Methodology

Page 18 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

To better ensure the panel?s consistent assessment of the three programs?
fish and wildlife mitigation guidance, we developed an assessment instrument
to rate the guidance and included a series of open- ended questions that
each panelist would complete. The assessment instrument asked the panelists
to rate each program?s guidance for five stages of a mitigation project-
determination, design, construction, monitoring, and evaluation. The rating
consisted of a numeric score (0 for no guidance to 5 for excellent guidance)
for each of five attributes of the guidance (complete, current, clear,
broad, and viable) as well as a rating for the overall quality of the
guidance for each mitigation stage. For each stage, panelists provided
narrative justifications for their ratings. Panelists then rated each
program?s collective guidance and provided a narrative summary of the
strengths and weaknesses of the guidance and the relative quality of the
three programs? guidance. We also asked the panelists to answer a number of
open- ended questions dealing with mitigation. Before sending the assessment
instrument to the panelists, we asked two mitigation experts, who were
familiar with the three programs and our target population of panelists, to
conduct an expert review of our assessment instrument. The experts reviewed
the questionnaire for clarity, logic, and to ensure the appropriateness of
the questions for the panelists.

On October 31, 2001, after we had sent the original material to the
panelists, the Corps? Regulatory Program issued some new mitigation
guidance. We subsequently asked the panelists to respond to questions
regarding the new guidance, improvements to the mitigation guidance, and
estimating the success of mitigation projects. The panelists provided their
preliminary assessments, we compiled the responses, and then distributed
this compilation to the panelists so they had an opportunity to review and
revise their numeric and narrative responses.

We conducted our work from February 2001 through April 2002 in accordance
with generally accepted government auditing standards.

Appendix II: Corps? 47 Projects Since the Act of 1986 with a Fish & Wildlife
Mitigation Plan & Receiving Construction Appropriations

Page 19 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

According to the Corps of Engineers, 47 of its 217 water resources projects
authorized since the Water Resources Development Act of 1986 required a fish
and wildlife mitigation plan and received construction appropriations. Of
these, 28 did not complete at least 50 percent of mitigation before the
start of project construction. Of the remaining 19 projects, 7 completed at
least 50 percent of mitigation; 2 projects had not started actual
construction but had done some mitigation; and 10 projects had not started
construction or mitigation as of September 30, 2001. Almost half (21) of the
47 projects are located in three states- California (10), Florida (6), and
West Virginia (5). Of the 34 projects starting construction, 16 completed
100 percent of the mitigation as of September 30, 2001, according to the
Corps.

Nearly half (13) of the 28 projects not completing at least 50 percent of
mitigation before the start of construction were flood control projects; 11
were navigation- type projects; 3 were bluff stability- type projects; and
the remaining project was an irrigation project. Some of the mitigation
activities planned for these 28 projects included acquiring lands and
obtaining easements; creating wetlands; planting seedlings, trees, shrubs,
and other vegetation; creating artificial reefs for shore protection; and
protecting slopes with stone. Appendix II: Corps? 47 Projects Since the Act

of 1986 with a Fish & Wildlife Mitigation Plan & Receiving Construction
Appropriations

Appendix II: Corps? 47 Projects Since the Act of 1986 with a Fish & Wildlife
Mitigation Plan & Receiving Construction Appropriations

Page 20 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Table II. 1: Percent of Mitigation Completed for 47 Water Resources Projects
Authorized Since the Water Resources Development Act of 1986 That Required a
Fish and Wildlife Mitigation Plan and Received Construction Appropriations,
as of September 30, 2001

Project State Purpose Construction initiated Mitigation

initiated Percent of

mitigation completed

before construction

initiated a Percent of

mitigation completed

as of 09/ 30/ 01 Projects not completing 50 percent of mitigation before
construction initiated

1 Petaluma River California Flood Control Yes Yes 25 55 2 Guadalupe River
California Flood Control Yes Yes 24 75 3 West Sacramento California Flood
Control Yes Yes 22 24 4 Norco Bluffs California Flood Control Yes Yes 5 60 5
Olmsted Locks and Dam Kentucky Navigation Yes Yes 1 90 6 Sitka Harbor Alaska
Navigation Yes Yes 0 100

7 Coyote and Berryessa Creeks California Flood Control Yes Yes 0 100

8 San Lorenzo River California Flood Control Yes Yes 0 100 9 Rio Grande
Colorado Flood Control Yes Yes 0 100 10 Martin County Florida Shore
Protection Yes Yes 0 100 11 Ft. Pierce Harbor Florida Navigation Yes Yes 0
100

12 Savanna Harbor Deepening Georgia Navigation Yes Yes 0 100

13 Hickman Bluff Kentucky Bluff Stability Yes Yes 0 100 14 Port Fourchon
Louisiana Navigation Yes No b 0 100 15 West Columbus Ohio Flood Control Yes
Yes 0 100 16 McGrath Creek Texas Flood Control Yes Yes 0 100 17 Wolf and
Jordan Rivers Mississippi Dredging Yes Yes 0 90 18 Aloha- Rigolette
Louisiana Flood Control Yes Yes 0 78 19 Wilmington Harbor North Carolina
Navigation Yes Yes 0 75 20 Houston- Galveston Ship Texas Navigation Yes Yes
0 67 21 La. State Penitentiary Louisiana Flood Control Yes Yes 0 66 22 Palm
Valley Bridge Florida Navigation Yes Yes 0 50 23 Kentucky Lock Addition
Kentucky Navigation Yes Yes 0 35

24 American River Watershed California Flood Control Yes Yes 0 10

25 Ft. Pierce Beach Florida Shore Protection Yes Yes 0 10 26 Grand Prairie
Arkansas Irrigation Yes No c 0 0 27 Oakland Harbor California Navigation Yes
No c 0 0 28 Duck Creek Ohio Flood Control Yes No c 0 0

Projects completing 50 percent or more of mitigation before construction
initiated

1 Tropicana & Flamingo Washes Nevada Flood Control Yes Yes 100 100

2 Big Sioux River and Skunk Creek South Dakota Flood Control Yes Yes 100 100

3 Moorefield West Virginia Flood Control Yes Yes 100 100

Appendix II: Corps? 47 Projects Since the Act of 1986 with a Fish & Wildlife
Mitigation Plan & Receiving Construction Appropriations

Page 21 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Project State Purpose Construction initiated Mitigation

initiated Percent of

mitigation completed

before construction

initiated a Percent of

mitigation completed

as of 09/ 30/ 01

4 Petersburg West Virginia Flood Control Yes Yes 100 100 5 Wood River
Nebraska Flood Control Yes Yes 63 86 6 Kaweah River California Flood Control
No Yes 50 78 7 Miami Harbor Florida Navigation Yes Yes 50 100

Projects where some mitigation occurred but construction has not been
initiated

1 Brunswick Harbor Georgia Navigation No Yes Not applicable 3

2 Marmet Lock West Virginia Navigation No Yes Not applicable 2

Projects where neither construction nor mitigation has been initiated

1 Nogales Wash and Tributaries Arizona Flood Control No No Not

applicable 0 2 Success Dam California Dam Safety No No Not

applicable 0 3 Wares Creek Florida Flood Control No No Not

applicable 0 4 Bear Grass Creek Kentucky Flood Control No No Not

applicable 0 5 Comite River Louisiana Flood Control No No Not

applicable 0 6 Arecibo Puerto Rico Flood Control No No Not

applicable 0 7 Rio de La Plata Puerto Rico Flood Control No No Not

applicable 0 8 Upper Jordan River Utah Flood Control No No Not

applicable 0 9 Greenbrier River West Virginia Flood Control No No Not

applicable 0 10 Lower Mud River West Virginia Flood Control No No Not

applicable 0 a Is not applicable because construction has not been
initiated.

b Project is self- mitigating through beneficial use of dredged material.

c Mitigation is scheduled for later in the construction sequence because
site conditions do not allow mitigation to occur earlier.

Appendix III: Guidance Documents Reviewed by Panel

Page 22 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Executive Order 11990, Protection of Wetlands, (1977) [entire document]. CEQ
Regulations on the National Environmental Policy Act, (1978) [entire
document].

FWS mitigation policy, (1981) [entire document]. Section 404( b)( 1)
Guidelines, (1980) [entire document]. EPA/ Corps memorandum of agreement
concerning section 404( b)( 1) guidelines, (1990) [entire document].

Joint FWS/ NMFS/ NOAA Regulations on the Endangered Species Act, [entire
document].

Memorandum: Federal Interagency Memorandum of Understanding for
Implementation of the Endangered Species Act, (1994) [entire document].

Multi- agency Guidance on Mitigation Banking, (1995) [entire document].

NMFS Regulations on Essential Fish Habitat, (1997) [entire document].

Wetlands Engineering Handbook, Corps of Engineers, (2000) [paper copy and
compact disc].

?EXHGM: Expert Hydrogeomorphic Approach,? Corps of Engineers? Fact Sheet,
(2000) [entire document].

?Habitat- Net: An Interactive Network for Habitat Evaluation Professionals,?
Corps of Engineers? Fact Sheet, (2000) [entire document].

?WIMS: Wildlife Information Management System,? Corps of Engineers? Fact
Sheet, (2000) [entire document].

?Erosion Control for Restoration and Environmental Benefits,? Corps of
Engineers? Fact Sheet, (2000) [entire document].

?Wildlife Habitat Restoration and Management,? Corps of Engineers? Fact
Sheet, (2000) [entire document]. Appendix III: Guidance Documents Reviewed

by Panel Governmentwide Policy Guidance

General Technical Guidance

Appendix III: Guidance Documents Reviewed by Panel

Page 23 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Examples of Performance Standards for Wetland Creation and Restoration in
Section 404 Permits and an Approach to Developing Performance Standards,
Corps of Engineers, (1999) [entire document].

Case Study: Application of the HGM Western Kentucky Low- Gradient Riverine
Guidebook to Monitoring of Wetland Development, Corps of Engineers, (1999)
[entire document].

Restoration of Mangrove Habitat, Corps of Engineers, (2000) [entire
document].

Design and Construction of Docks to Minimize Seagrass Impacts, Corps of
Engineers, (1999) [entire document].

Guidelines for Conducting and Reporting Hydrologic Assessments of Potential
Wetland Sites, Corps of Engineers, (2000) [entire document].

Installing Monitoring Wells/ Piezometers in Wetlands, Corps of Engineers,
(2000) [entire document].

Importing Plant Stock for Wetland Restoration and Creation: Maintaining
Genetic Diversity and Integrity, Corps of Engineers, (2000) [entire
document].

Evaluating Environmental Effects of Dredged Material Management
Alternatives- A Technical Framework, EPA and Corps of Engineers, (1992)
[entire document].

Consultation Handbook for Section 7 Consultation under the Endangered
Species Act, FWS and NMFS, (1998) [Web site location: Go to http://
endangered. fws. gov and click on ?consultations? and then click on

?Endangered Species Act Consultation Handbook?. The final website is http://
endangered. fws. gov/ consultations/ s7hndbk/ s7hndbk. htm.]

Digest of Water Resource Policies and Authorities, (1999) [chapters 3 and
19].

Planning Guidance Notebook, (2000) [chapters 1- 4, appendixes C and E].

Corps of Engineers NEPA Procedures, (1988) [entire document]. Corps of
Engineers?

Civil Works Program Guidance

Appendix III: Guidance Documents Reviewed by Panel

Page 24 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Economic and Environmental Principles and Guidelines for Water and Related
Land Resources Implementation Studies, (1983) [pages iii- ix, 107- 137].

Cost Effectiveness Analysis for Environmental Planning: Nine EASY Steps,
(1994) [pages iii- viii and 1- 10].

FWS/ Corps Agreement on funding FWCA activities, (1982) [entire document].

Administrative Regulations, 33 C. F. R. Parts 320, 322, 323, 325 and 330.
Regulatory Guidance Letter 93- 2, on Flexibility of the 404( b)( 1)
Guidelines and Mitigation Banking [entire document].

Regulatory Guidance Letter 01- 1 on Guidance for the Establishment and
Maintenance of Compensatory Mitigation Projects Under the Corps Regulatory
Program Pursuant to Section 404( a) of the Clean Water Act and Section 10 of
the Rivers and Harbors Act of 1899, (2001) [entire document].

Standard Operating Procedures [section 18, Compensatory Mitigation].
Mitigation of Impacts to Wetlands and Natural Habitat, 23 C. F. R. Part 777,
(2000) [entire document].

Memorandum: Participation in Funding for Ecological Mitigation,

(1995) [entire document].

Memorandum: Guidelines for the Consideration of Highway Project Impacts on
Fish and Wildlife Resources, (1989) [entire document].

Fiscal Year 2001 Performance Plan, (2000) [chapter 5].

Memorandum: Financial Assurances for Wetland Mitigation Banks,

(1997) [entire document].

Memorandum: Eligibility of ?Historic Wetlands? for ISTEA Funding,

(1997) [entire document]. Corps of Engineers?

Regulatory Program Guidance

Federal Highway Administration Guidance

Appendix III: Guidance Documents Reviewed by Panel

Page 25 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Memorandum: Use of Private Wetland Mitigation Banks as Compensatory
Mitigation for Highway Project Impacts, (1995) [entire document].

Memorandum: Funding for Establishment of Wetland Mitigation Banks,

(1994) [entire document].

Memorandum: Wetland Delineation and Mitigation, (1994) [entire document].

DOT Order 5660. 1A, Preservation of the Nation?s Wetlands, (1978) [entire
document].

NCHRP Report 379: Guidelines for the Development of Wetland Replacement
Areas, Transportation Research Board, National Research Council, (1996)
[entire document].

Applying the Section 404 Permit Process to Federal- Aid Highway Projects,
FHWA, COE, EPA, FWS, NOAA, (1988) [entire document].

Highways and Wetlands: Compensating Wetlands Losses, (1986) [entire
document].

Appendix IV: Assessment Instrument Used by Panel

Page 26 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Appendix IV: Assessment Instrument Used by Panel

Page 27 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 28 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 29 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 30 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 31 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 32 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 33 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 34 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 35 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 36 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 37 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 38 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 39 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix IV: Assessment Instrument Used by Panel

Page 40 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 41 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

The panel of scientific experts was tasked with comparing the Corps of
Engineers? Civil Works Program?s, the Corps? Regulatory Program?s, and the
Federal Highway Administration?s Federal- aid Highway Program?s national
fish and wildlife mitigation guidance. In assessing this guidance, the panel
was to focus on various attributes of the guidance and the five stages of a
mitigation project. 1 The panel provided numeric ratings ranging from ?0?
for no guidance, ?1? for poor guidance, ?2? for fair guidance, ?3?

for moderate guidance, ?4? for good guidance, to ?5? for excellent guidance
for the various mitigation stages. Summaries of the panelists? numeric and
narrative responses follow.

Table V. 1 Summary of Expert Panel?s Final Assessment of the Corps of
Engineers? and Federal Highway Administration?s Fish and Wildlife Mitigation
Guidance

Attributes Stages of Mitigation Projects Complete Current Clear Broad Viable
Overall

rating Determination

Civil Works Program 3.1 3. 4 3.3 3. 0 2.4 3. 3 Regulatory Program 3. 3 3.4
3. 4 2.7 2. 4 3.1 Highway Program 3. 1 3.3 3. 6 3.6 3. 0 3.6

Design

Civil Works Program 3.6 3. 7 3.4 2. 9 3.6 3. 4 Regulatory Program 3. 6 3.7
3. 9 3.0 3. 6 3.6 Highway Program 4. 1 3.7 4. 1 3.6 3. 6 3.7

Construction

Civil Works Program 3.3 3. 4 3.4 3. 1 3.6 3. 6 Regulatory Program 3. 4 3.3
3. 6 3.6 3. 7 3.7 Highway Program 4. 0 4.0 4. 1 4.0 3. 9 4.1

Monitoring

Civil Works Program 3.6 3. 4 3.0 3. 1 2.9 3. 1 Regulatory Program 3. 6 3.4
3. 3 3.1 3. 0 3.0 Highway Program 3. 7 3.7 3. 6 3.6 3. 3 3.6

Evaluation

Civil Works Program 2.0 2. 7 2.6 2. 1 1.9 1. 9 Regulatory Program 2. 4 2.7
2. 7 2.3 2. 4 2.3 Highway Program 2. 7 3.0 3. 1 2.9 2. 9 2.7

1 While the law only included project design, construction, monitoring, and
evaluation stages of a mitigation project, we subdivided the project design
stage to separate the guidance that focuses on how the decision is made that
fish and wildlife mitigation is required, and if so, how much, and how the
project is actually designed to address the need for fish and wildlife
mitigation. Appendix V: Panel of Scientific Experts?

Assessment of Fish & Wildlife Mitigation Guidance by Attribute & Stage of
Mitigation

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 42 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Attributes Stages of Mitigation Projects Complete Current Clear Broad Viable
Overall

rating Overall Rating

Civil Works Program 3.1 Regulatory Program 3. 3 Highway Program 3. 7

Note: Table cells include the average rating given by the seven panelists
for each program, for each attribute, in addition to an overall rating. The
individual panelists? ratings underlying these averages are not shown. In
some cases, panelists? ratings may vary widely.

The determination stage is when the agencies decide (a) whether compensatory
mitigation is required for project impacts, and, if so, (b) the amount of
mitigation that will be required.

 Civil Works Program- 3.3

 Regulatory Program- 3.1

 Highway Program- 3.6 Overall, the ratings for the determination stage were
the third highest among the five stages. This stage includes two separate
decisions- whether mitigation is required and, if so, how much. The
panelists felt that, in general, the guidance did a better job on the first
decision than on the second.

Most panelists cited the existence of governmentwide guidance and how it
contributes to determining whether mitigation is required. They indicated
that this determination is aided by a clear, long- standing sequential
definition of ?mitigation? that requires avoidance first, then minimization
of impact, and finally mitigation of unavoidable impacts. According to one
panelist, however, while the governmentwide guidance provides definitions
and indications of desired outcomes, the governmentwide guidance stops short
of specifying exactly when or how a program should make a case- specific
determination that compensatory mitigation is necessary and/ or how much
should be required. This panelist indicated that none of the three programs
have explicit guidance for determining whether compensatory mitigation is
required, and the outcome apparently is more a result of due diligence and
quality of staff than quality of regulatory guidance. Determination Stage

Numeric Ratings Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 43 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Various panelists indicated that strengths of the Civil Works Program?s
guidance include detailed planning formulation guidance and state- of-
theart planning tools, emphasis on the ecosystem approach and the inclusion
of adjacent lands, or the emphasis on resource evaluation to determine the
mitigation needed. Other panelists, however, cited weaknesses in the Civil
Works? guidance, including the confusion caused by considering economic
tradeoffs in determining which mitigation alternative to select, the lack of
currency or consistency in the information included, or the lack of
assurance that the resources and functions lost by development will be
replaced.

Regarding the Regulatory Program?s guidance, several panelists expressed
favorable comments regarding the program?s new October 2001 guidance as it
strengthens the importance of watershed context and functionality of
impacted areas in decision making, emphasizes an ecosystem approach,
integrates financial requirements into the permit, recognizes the need for
adaptive management, better explains the criteria for determining
compensation ratios, provides a more specific mechanism for determining
exactly how much mitigation will be required, or details success criteria.
Other panelists cited weaknesses, however, including that the detailed
guidance was not adequately summarized and presented for ease of use, the
guidance placed too much discretion at the Corps? district level for
decisions, it lacked currency or consistency in materials, or the new
guidance conflicts with other Regulatory guidance on the issue of
preservation.

Panelists identified some strengths and weaknesses of the Highway Program?s
guidance. Among the strengths cited, panelists indicated that the guidance
appropriately emphasized aquatic resources and other habitats with unique or
important values under federal law, incorporated ratio goals for wetlands
replacement that were considered noteworthy, was more current than the other
two programs because of the emphasis on using consolidated mitigation sites
in the form of mitigation banks when appropriate, emphasized resource
evaluation to determine mitigation need, more effectively conveyed the
information necessary to fully understand the process for determining
whether compensatory mitigation is required, more effectively called for a
compensatory mitigation ratio of 1. 5 to 1, or included the preference to
fund and then monitor mitigation banks as a means of ensuring the long- term
success of the mitigation to increase ecosystem viability. One panelist
emphasized the strengths of the Highway Program?s guidance by indicating
that it, in sharp contrast to the Corps? guidance, is clear, concise,
summarized in an understandable way, and makes it clear who has what
responsibilities.

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 44 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Further, the panelist said that the guidance applies to a range of systems
and addresses wetlands and other habitats in an appropriate manner and makes
it clear that mitigation is required and that it will be done as compared to
the Corps where it leaves it open. Two panelists, however, indicated that
the Highway Program?s guidance in this stage was weak because it did not
really focus on determining the need for or amount of mitigation required.

The design stage includes all preconstruction activities once the decision
on the need and extent of compensatory mitigation has been made. It includes
the necessary features and performance characteristics of the mitigation
project.

 Civil Works Program- 3.4

 Regulatory Program- 3.6

 Highway Program- 3.7 Overall, the ratings for the design stage were the
second highest among the five stages, but panelists provided relatively
little narrative comments about this stage. As one panelist pointed out, the
design stage is considered more a technical element of mitigation and not as
subject to policy guidance as are other stages such as the determination and
evaluation stages. Panelists? generalized comments related to the Wetlands
Engineering Handbook and included both strengths and weaknesses.
Specifically, some panelists believed that the handbook includes detailed
background on wetlands and statistical evaluation techniques; is relatively
complete, reasonably current, and very clear; or as one panelist put it, the
handbook provides very good technical information on the design,
construction, and monitoring of wetland ecosystems. According to the
panelist, the information is timeless and remains a standard in the field of
mitigation. Yet, other panelists cited weaknesses with the same handbook.
Namely, one panelist said that it does not provide a comprehensive
explanation of how to design a replacement wetland and puts emphasis only on
one technique to evaluate functions, even though the technique has been
criticized by wetlands professionals. The panelist further stated that the
handbook is very complicated to follow with its overemphasis on statistical
techniques over basic design procedures. Another panelist criticized the
handbook as addressing the structural aspects of viability Design Stage

Numeric Ratings Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 45 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

but paying little attention to long- term habitat function. Panelists
pointed out that the guidance at this stage was weak in the areas of non-
wetland fish and wildlife and upland mitigation, such as open waters,
streams, stream banks and uplands, and in fact, the guidance was heavily
focused on wetland mitigation.

Regarding the Civil Works Program?s guidance, two panelists commented on the
strength of the guidance. One panelist indicated that the guidance generally
includes a relatively complete description of the parameters needed to
design a successful and effective wetlands mitigation project and has
sufficient criteria on uplands, land use, and other offsite factors. Another
panelist said the guidance has enough information related to policy that is
pertinent in the selection of the conceptual design; and case studies that
are informative and provide constructive insight in applying the principles
and techniques to other types of mitigation work. Three panelists, however,
cited weaknesses in the Corps? guidance for this stage. Among the weaknesses
cited were that practitioners will need more specific technical guidance
because the guidance addresses various administrative attributes of the
process rather than the mitigation aspects of projects; the guidance
includes a few examples of projects but should include more and the examples
should be discussed in greater detail; the guidance sets out how the design
criteria should be applied, but is sometimes confusing and overly complex in
its presentation; or the guidance lacks specific technical information other
than to address simple hydrology and soil factors.

Two panelists commented about the Regulatory Program?s new guidance when
reflecting on this stage. One panelist indicated that the new guidance
strengthened existing guidance by emphasizing the need to integrate buffer
zone design into the plans. Another panelist indicated that the new approach
cited in the guidance potentially provides a better mechanism for designing
a successful replacement project; that the new guidance begins to set out
the user- friendly, step- by- step set of instructions that previously had
been missing; and that the new guidance makes the design stage guidance
clearer and broader in at least some respects and clarifies some of the
previous vagueness. While basically complimenting the new guidance, however,
this panelist indicated that in other respects, the new guidance is not an
improvement because it provides more flexibility than it should- for
example, awarding credits for preservation- that does not serve to fulfill
the goal of replacing lost functions and values.

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 46 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Panelists cited some strengths in the Highway Program?s guidance for this
stage. One panelist for example, indicated that the guidance was the most
complete, current and clear guidance on the design of mitigation projects,
although it tended to include too much emphasis on wetland banking. Further,
this panelist indicated that the guidance provides excellent detail and good
examples of the design stage, offers several alternative methods to assess
wetland functions, and provides an excellent tool for learning how to design
and construct wetland replacement projects. Another panelist indicated that
while the guidance primarily relates to wetlands, it is very user- friendly
both in information and format; the overall process is clear, logical, and
comprehensive; from a viability perspective, the guidance is more effective
because it links the need to replace lost functions at each step in the
process; and the discussion on applying a cost analysis is more instructive
and easier to apply than the Corps? guidance. Yet, this panelist also
indicated that the guidance suffers from the absence of information gained
and lessons learned over the last 5 years and that some of the guidance
conflicts with other documents. Finally, a third panelist indicated that the
guidance provided good information to help in developing mitigation designs,
promoted site analysis, and included sound and consistent logic for
investigating site characteristics needed for sustaining wetlands. However,
this panelist also indicated that information on evaluating mitigation
designs, technical guidance, and standards for measuring success is missing.

The construction stage includes land acquisition as well as all activity on
the site until the mitigation project is turned over to the nonfederal
sponsor. Construction activities include building structures, creating
habitat, and introducing animal and plant material.

 Civil Works Program- 3.6

 Regulatory Program- 3.7

 Highway Program- 4.1 Overall, the ratings for the construction stage were
the highest among the five stages. In general, the two key technical
guidance documents- the Corps of Engineers? Wetlands Engineering Handbook
and the Transportation Resources Board?s Guidelines for the Development of
Wetland Replacement Areas- received compliments from the panel. In
particular, one panelist indicated that although these guides address
primarily wetlands, the two documents together provide a significant body
Construction Stage

Numeric Ratings Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 47 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

of technical information. Another panelist indicated that the guidance is
relatively current and on target with the best professional knowledge in the
area of wetland replacement construction. Further, this panelist indicated
that the guidance provides good, specific information on a broad range of
features including construction of water control structures, soils, how to
ensure proper hydrology, and the sequence of construction. However, this
panelist pointed out that the guidance does not discuss what happens after
construction or how to do site acquisition.

Where panelists commented extensively about the Wetlands Engineering
Handbook, very few additional comments about the strengths and weaknesses of
the Civil Works Program?s guidance were given. One panelist did indicate,
however, that the overall materials are not always current with appropriate
techniques, while another panelist pointed out that the guidance lacks
information about buildability and constructive construction and that the
Planning Guidance Notebook lacks helpful information other than rough
guidelines on timing.

Panelists generally limited their comments about the Regulatory Program?s
guidance. Two panelists commented on the program?s new guidance.
Specifically, one panelist indicated that the new guidance added information
related to the timing in the construction stage. Another panelist indicated
that the new guidance potentially provides an effective mechanism for
guiding the design and construction of a mitigation project with the
analysis set forth in an organized set of procedures for guiding
construction steps. In addition, this panelist indicated that the new
guidance goes a long way toward establishing performance standards. In
considering the Regulatory Program?s guidance, this panelist indicated that
the amount of information was overwhelming and unnecessary unless it is
meant to serve as a general primer to anyone with marginal expertise on how
to create or restore a wetland. Further, this panelist indicated that

?its use as a resource tool is limited because too much information must be
digested in order to get an answer or specific guidance.?

Regarding the Highway Program?s guidance, one panelist indicated that the
program has superior guidance because of the Guidelines for the Development
of Wetland Replacement Areas. According to the panelist, this document
provides additional specifications and step- by- step guidance on wetland
construction, over and above the relatively comprehensive construction
details provided in the Wetlands Engineering Handbook. Another panelist
indicated that the guidance is clear and well organized and specifically
lists project construction techniques that work and those that have not. The
panelist further indicated that the guidance

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 48 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

provides an excellent list of plants that have been incorporated in
successful compensatory mitigation sites. Finally, a third panelist
indicated that the Highway Program?s guidance, as it does in all stages,
makes it clear that competent professional decisions by experienced
personnel will be used to answer questions and that this is not open to
negotiations. Additionally, this panelist indicated that the Highway
Program?s guidance is strong in all categories and easily understood.

The monitoring stage includes periodic assessments of the mitigation site
before, during, and after construction. A monitoring plan establishes the
requirements for the periodic assessments, the extent of federal agency
responsibility, and the applicability to others involved in the mitigation
project.

 Civil Works Program- 3.1

 Regulatory Program- 3.0

 Highway Program- 3.6 Overall, the ratings for the monitoring stage were
the second lowest among the five stages. This rating reflects the panel?s
general opinion that the guidance emphasizes the determination stage and to
a lesser extent the other earlier stages of mitigation at the expense of the
monitoring and evaluation stages. Yet, panelists indicated that overall, the
guidance material addressing monitoring was reasonably well developed, and
that since the programs use the same basic reference material, they do a
fairly good job at addressing the issue. Three panelists specifically
mentioned the Wetlands Engineering Handbook as providing a good reference
for setting performance criteria and providing methods for sampling
everything from soils, hydrology, and vegetation to birds, fish, and
invertebrates. Several panelists, however, pointed out that the coverage of
monitoring activities fails to provide sufficient rationale or detail to
encourage this critical stage of the mitigation process; that the material
does not require upward reporting of the results so that top agency
management can monitor both project or program performance with regard to
the degree of success of mitigation; or that no real specific guidance on
site- specific design of a monitoring program exists in the guidance.
Monitoring Stage

Numeric Ratings Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 49 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Most panelists did not comment on the strengths of the Civil Works?
guidance, but several panelists noted shortcomings in the guidance. For
example, one panelist mentioned that the guidance is technically sound but
addresses only wetlands for the most part and is not programmatically
helpful because it lacks the details on who should do what with the reports.
Two other panelists indicated that the monitoring discussions focused too
much on the cost considerations of monitoring, while another panelist
indicated that the guidance downplays the need for monitoring and that the
guidance tends to be dated.

Regarding the Regulatory Program?s guidance, panelists provided limited
comments. In commenting on the October 2001 guidance, three panelists
indicated that it provides a stronger emphasis on the importance of
monitoring, but ?permanent? monitoring is not required; this guidance is
more explicit that monitoring should be included as a permit condition; or
it authorized the extension of the monitoring period where appropriate. Two
panelists commented that the Regulatory Program?s guidance on monitoring
needed to be strengthened if continued effectiveness of even state- of- the-
art mitigation plans were to be ensured or that the guidance has some useful
components but fails to provide any type of standardized approach.

Panelists indicated that the Highway Program?s technical publications give
extensive treatment of monitoring as an essential element of successful
mitigation; the materials were considered excellent as they were complete,
relatively current, clear, and understandable; some of the information
provides a very good overview of monitoring and outlines strategies for
defining success; or the information is clearly presented and provides
enough technical information to be informative without being too overly
technical. One panelist, however, indicated that some of the guidance could
be adapted to address fish and wildlife and upland habitats but does not do
so, while another panelist indicated that the guidance provides an overview
of what to monitor, but does not provide any additional specifics.

The evaluation stage includes three elements: (1) determining the overall
effectiveness and success of the mitigation project; (2) determining what to
do if a project is shown by the monitoring program, or otherwise, not to be
a complete success; and (3) determining the implications for improving
future mitigation projects. Evaluation Stage

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 50 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

 Civil Works Program- 1.9

 Regulatory Program- 2.3

 Highway Program- 2.7 Overall, the ratings for the evaluation stage were
the lowest among the five stages. Panelists considered three separate
aspects of project evaluation- success of the project, capacity to take
corrective action on an unsuccessful project, and ability to make changes in
future projects. From a positive perspective, various panelists thought the
guidance emphasized why performance criteria are needed and who is
responsible for the assessment, or these panelists said the guidance
contained helpful examples of performance standards. However, several
panelists generally felt the guidance was weak among all three agencies. Two
panelists thought the Highway Program?s guidance was good, but the guidance
for the Corps? two programs was not useful in any way. Panel members
disagreed over whether the Corps? new Regulatory Program?s guidance made
significant improvements in the evaluation stage.

Regarding the Civil Works Program?s guidance, various panelists identified
the following as strengths of the guidance: it is current and reflects the
latest technical knowledge; it talks about how to develop performance
standards for a particular site; and it includes very pertinent information
regarding wetland monitoring and evaluating success criteria. Various
panelists cited weaknesses of the guidance in that evaluation is given short
shrift, is not addressed in a useful way, or lacked much discussion on
specifics. Among specific weaknesses cited by the panelists were: the
guidance provides little or no encouragement or support for continuing
evaluation and correction of individual Civil Works project performance
deficiencies or in developing additional guidance based on lessons learned
from completed projects; the guidance does not encourage Corps? offices to
undertake routine or systematic evaluations of existing project performance
with the intent of either identifying on- going performance deficiencies or
providing ?lessons learned? to assist in the planning of mitigation or other
project features; the guidance includes a laundry list of factors to measure
but does not require corrective actions nor does it establish a feedback
mechanism; the guidance does not include impacts on natural systems in
surrounding land and water areas as part of the evaluation; and the guidance
does not contain much discussion on the role and responsibilities of various
parties. Numeric Ratings

Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 51 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Regarding the strengths of the Regulatory Program?s guidance, one panelist
said it gives extensive technical guidance for developing evaluation
criteria. Two panelists said the recent Regulatory Program?s guidance
enhances the evaluation stage guidance. One of those panelists said that the
guidance attempts to provide more definition to the components of evaluating
the effectiveness and success of mitigation, and the other panelist said
that the guidance potentially provides an effective means of tracking
project success. Regarding weaknesses in the Regulatory Program?s guidance,
various panelists said the guidance basically does not address evaluation in
any useful way or continues to need strengthening with regard to the
evaluation stage. According to one of these panelists, while the Corps talks
about evaluation, it has ?not

provided any method to use such evaluation in corrective actions either on
the current or future mitigation projects.?

Regarding the Highway Program?s guidance, various panelists identified the
following strengths: it includes a recommended assessment method; it
addresses fixing problems in mitigation efforts; it allows for extending the
monitoring period if the project?s goals have not been achieved at the
completion of the established period; it provides funding for additional
restoration activities if needed; it recommends maintenance for 3 to 5 years
or longer to ensure the project?s success; it recommends a liberal budget
for expected and unexpected maintenance costs at 2 to 3 percent of budget in
reserve; or it makes the effort to see that learning is incorporated into
future efforts and to ?fix? projects that were not successful. Two
panelists, however, said that the guidance is silent in project evaluation
or that evaluation is not covered in any significant degree.

In this assessment, panelists were to consider whether the three programs?
guidance included, for example, designation of tasks and responsibilities;
ranges of mitigation alternatives; examples and cross- references;
discussions of quality control, feedback, and reporting; or measures of
success.

For four of the five mitigation stages, panelists? average ratings for
completeness were higher for the Highway Program?s guidance than either of
the Corps? two programs? guidance. Several panelists commented that the
collective guidance emphasized wetlands replacement too heavily at the
expense of considering other habitats that support fish and wildlife. One
panelist reflected that while none of the programs did a good job of
Complete

Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 52 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

defining the amount of mitigation required, the Highway Program?s guidance
was the most detailed, written in a user- friendly, step- by- step fashion,
and the Civil Works? guidance did not provide many technical details and
emphasized cost over the evaluation of success. Another panelist indicated
that the Highway Program?s guidance was more complete because it set forth
the range of circumstances when fish and wildlife impacts should be
mitigated and its evaluation guidance specifically allows for the extension
of the monitoring period if the project?s goals have not been achieved. In
contrast, this panelist indicated that the Civil Works? guidance falls short
of identifying who should do the monitoring, who should receive the
monitoring reports, and who should bear the cost of additional or off- site
monitoring; and finally, that the guidance does not include impacts on
natural systems in surrounding land and water areas. In discussing the
Corps? Regulatory Program?s recently issued guidance, one panelist indicated
that the new guidance enhances the existing guidance particularly in the
areas of determination and evaluation as there is a new emphasis on the
ecosystem approach to mitigation. The panelist further stated that the new
guidance gives more criteria for determining compensation ratios and details
the components of a compensatory mitigation plan and success criteria to
evaluate its success.

In this assessment, panelists were to consider whether the three programs?
guidance reflected current laws and regulations and up- to- date technical
knowledge.

In general, the panelists did not provide many comments related to the
currency of the three programs? guidance and with the exception of the
construction stage, panelists rated the currency of the guidance similarly
among the three programs. One panelist specifically noted this similarity
among the currency of the three programs? guidance while another panelist
did not feel as if any of the programs presented a complete, current picture
of the entire process of determining what type of mitigation is needed,
designing and constructing the site, and then monitoring and evaluating the
project?s success. The panelist further indicated that all three programs
rely on a basic set of policy guidance that may not be up- to- date with
current thinking about wetland replacement, and the programs rely on
technical guidance that is not always in tune with current thinking.
Finally, another panelist indicated that none of the programs? guidance is
as up- to- date as they might be on the effectiveness of mitigation efforts
and that much of the material is dated, and while still conceptually good,
it does not address current techniques related to Current

Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 53 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

mitigation in many instances. Three panelists commented that the Regulatory
Program?s new guidance overall contributes to currency in that it is more in
line with current technical findings by, among other things, including an
ecologically based success criteria.

In this assessment, panelists were to consider whether the three programs?
guidance was clear on duties, responsibilities, distinction between what is
required and what are discretionary actions, and whether it was logically
organized.

Panelists provided a lower average rating for the Civil Works Program?s
guidance than the Corps? Regulatory Program?s guidance and the Highway
Program?s guidance for all five mitigation stages as it relates to clarity.
One panelist indicated that the Corps? Civil Works? guidance was the
clearest as it related to the detail for determining the need for
mitigation, while the Highway Program?s guidance was the most clear as it
relates to the design of mitigation projects, and the guidance is relatively
current and understandable related to the monitoring stage. Another
panelist, however, indicated that the Civil Works? guidance is compromised
by the less- than- clear inclusion of cost considerations, while the Highway
Program?s guidance includes explicit guidance on evaluation, including a
recommended assessment method. Another panelist criticized the Civil Works?
guidance as providing a general listing of what will be required and the
procedures for making the determination, but falling short of providing a
clear explanation of the process. Also, related to monitoring, this panelist
said that the Civil Works? guidance does not make clear who should do the
monitoring, who should receive the reports, or who bears the cost of any
additional or modified monitoring. Conversely, this panelist indicated that
the Highway Program?s guidance more effectively conveys the information
necessary to fully understand the process for determining whether
compensatory mitigation is required and if so, how much. While most of the
panelists indicated that the Regulatory Program?s new guidance contributed
to the overall clarity, one panelist indicated that the new guidance was
clearer than other Regulatory guidance, but did not improve the body of
material significantly and raised additional confusion. The panelist
indicated that the confusion arose because certain sections of the new
guidance were poorly written and difficult to interpret.

In this assessment, panelists were to consider whether the guidance for the
three programs was broad in its subject matter coverage. Panelists Clear

Panelists? Assessment Broad

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 54 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

considered the breadth of the three programs? guidance as it related to the
scope of the mitigation impacts and whether hydrology, vegetation, fish and
wildlife species, adjacent lands, and wetlands were addressed.

For this attribute, the panelists? average ratings were higher for the
Highway Program?s guidance than the Civil Works? guidance. One panelist,
however, criticized all three programs? guidance as not being particularly
broad because they cover only wetland habitat and not adjacent uplands and
the guidance focuses more on restoration of hydrology and vegetation than
direct design elements to deal with the loss of fish and wildlife species.
This same panelist indicated that two of the guidance documents provide good
specific information on a broad range of features, including construction of
water control structures, soils, how to ensure proper hydrology, and the
sequencing of construction. One panelist indicated that the Corps?
Regulatory Program?s new guidance better explains when off- site mitigation
is appropriate and that it ensures that the compensatory mitigation project
will include design elements that deal with the entire ecosystem.

In this assessment, panelists were to consider whether the guidance for the
three programs presents sufficient information to best ensure the success of
the project. Panelists considered whether the guidance addressed the long-
term viability of the ecosystem, for example the survivability of natural
and man- made systems into the future.

Assessing the viability attribute resulted in the widest variance in the
ratings among the panelists. For two stages- determination and evaluation-
most of the panelists rated the Civil Works Program?s guidance lower than
the Highway Program?s guidance. For two other stages- design and monitoring-
most panelists rated the two programs? guidance the same. For the remaining
stage- construction- an equal number of panelists rated the Civil Works
Program?s guidance the same as or lower than the Highway Program?s guidance.
One panelist indicated that the guidance for the evaluation stage for all
three programs does not provide confidence that completed projects will
successfully meet their performance objectives. Panelists? narrative
comments generally did not include comments for weaknesses in the Civil
Works? guidance and strengths in the Highway Program?s guidance. One
panelist, however, criticized the Civil Works? guidance because it contained
no requirement to reconsider the proposed project if the compensatory
mitigation project is not likely to succeed, that the information in the
guidance is unlikely to Panelists? Assessment

Viable Panelists? Assessment

Appendix V: Panel of Scientific Experts? Assessment of Fish & Wildlife
Mitigation Guidance by Attribute & Stage of Mitigation

Page 55 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

lead to the replacement of habitat losses in at least some instances, and
that the guidance does not consider the impact of the mitigation project on
adjacent lands. Conversely, this panelist indicated that the Highway
Program?s guidance was more effective because it calls for a compensatory
mitigation ratio of 1. 5 to 1, it clearly states that no net loss goal
applies only to wetlands, and the guidance allows funding for the
establishment period to increase the likelihood of project success. One
panelist indicated that the new Regulatory Program?s guidance provided more
definitive instructions on how to determine mitigation ratios and types of
mitigation and addressed the long- term viability of mitigation through
establishing success criteria while another panelist pointed out that
strengthening the financial assurances requirements also will improve a
project?s chance for long- term success.

Appendix VI: Comments from the Department of Defense Page 56 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the Department of Defense

Appendix VI: Comments from the Department of Defense Page 57 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the Department of Defense Page 58 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the Department of Defense Page 59 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the Department of Defense Page 60 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the Department of Defense Page 61 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VI: Comments from the Department of Defense Page 62 GAO- 02- 574
Fish and Wildlife Mitigation Guidance

Appendix VII: Panel of Scientific Experts, Technical Adviser, and Expert
Reviewers

Page 63 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Robert P. Brooks, Ph. D. Director, Penn State Cooperative Wetlands Center
and Professor of Wildlife and Wetlands, Penn State University

G. Edward Dickey, Ph. D. Senior Adviser, Dawson and Associates and Cassidy
and Associates

Ellen Gilinsky, Ph. D. Manager, Virginia Water Protection Permit Program,
Virginia Department of Environmental Quality

Carl Hershner, Ph. D. Director, Center for Coastal Resources Management, and
Associate Professor, School of Marine Science, Virginia Institute of Marine
Science

Robert G. Hoyt, Esq. Principal and Founding Partner, EcoLogix Group, Inc.

Alan Wentz, Ph. D. Group Manager for Conservation Programs, Ducks Unlimited,
Inc.

David Yam, Branch Chief Erosion and Sediment Control Branch, California
Department of Transportation, Office of Landscape Architecture District 4

William Matuszeski, Esq. Former Director, Chesapeake Bay Program,
Environmental Protection Agency

Russell J. Bellmer, Ph. D. Marine Ecologist, National Oceanographic and
Atmospheric Administration Restoration Center

Thomas Kelsch, Director Mid- Atlantic Region, National Fish and Wildlife
Foundation Appendix VII: Panel of Scientific Experts,

Technical Adviser, and Expert Reviewers

Panel of Scientific Experts

Technical Adviser Expert Reviewers

Appendix VIII: GAO Contact and Staff Acknowledgments

Page 64 GAO- 02- 574 Fish and Wildlife Mitigation Guidance

Linda L. Harmon (202) 512- 8046 In addition to the above, Nancy S. Bowser,
James M. Fields, H. Brandon Haller, and Rosellen McCarthy made key
contributions to this report. Appendix VIII: GAO Contact and Staff

Acknowledgments GAO Contact Acknowledgments

(360038)

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