EP 1165-2-1
30 Jul 99
States. (See also Chapter 3, paragraph 3-5 and ER 1105-2-100, Chapter
7; and, 40 CFR 230)
19-20. Legal Basis for Mitigation of Damages to Fish and Wildlife
Resources. There are three different and substantive legal
requirements as to when the Corps must provide mitigation for adverse
impacts on the environment, including fish and wildlife resources as
discussed in paragraph 19-16. For Corps projects involving the
discharge of dredged or fill materials into the waters of the United
States, the 404 (b)(1) guidelines (40 CFR 230) establish the
mitigation standard for adverse impacts on the aquatic environment.
The guidelines (40 CFR 230.10(d)) prohibit the discharge of dredged or
fill material "... unless appropriate and practicable steps have been
taken which will minimize potential adverse impacts of the discharge
on the aquatic ecosystem." In addition, the FWCA, Section 662(b)
requires that reports submitted to Congress for authorization of Civil
Works projects include " ... such justifiable means and measures" of
mitigation " ... to obtain maximum overall project benefits". Finally,
supplementing the responsibilities and authorities of the Secretary of
the Army under the Fish and Wildlife Coordination Act, Section 906,
entitled "Fish and Wildlife Mitigation" was enacted in 1986 as part of
the comprehensive Water Resources Development Act. Section 906(d)
requires reports submitted to Congress for authorization shall contain
" ... a recommendation with a specific plan to mitigate fish and
wildlife losses created by such project or a determination by the
Secretary that such project will have negligible adverse impacts on
fish and wildlife." (See also paragraph 19-8.a(4) above). Finally,
while not technically defined as mitigation, "reasonable and prudent
measures" are to be provided by either the USFWS or the NMFS when a
project will jeopardize the continued existence of an endangered or
threatened species and/or their critical habitat under the ESA. These
reasonable and prudent measures must be complied with in order to
construct and/or operate a project and, because they represent a means
to lessen or eliminate an impact, could be classified as a mitigation
requirement.
19-21. Mitigation Principals. Damages to fish and wildlife resources
will be prevented to the extent practicable through good planning and
design incorporating the mitigation principles defined within Council
on Environmental Quality's (CEQ) NEPA guidelines, i.e., first avoid
the impact; next, minimize the impact; and, finally compensate for
unavoidable damages to significant fish and wildlife resources.
Measures to offset unavoidable damages to significant fish and
wildlife resources will be included in projects when the cost of these
measures are justified by the combined monetary and nonmonetary
benefits attributable to the proposed measures. These mitigation
plans are to contain the most efficient and least costly measures
appropriate to reduce fish and wildlife resource losses. Mitigation
of losses will be provided to the maximum extent practicable through
the development and implementation of mitigation measures on project
lands. If project lands cannot fulfill our mitigation requirements,
then separable public lands adjacent to project lands, to the extent
possible, should be considered next. Any consideration of separable
private lands not adjacent to project lands should be the last option
considered. Acquisition of an interest in any lands or waters for
mitigation of damages to fish and wildlife resources that do not
comply with the limited authority provided by Subsection 906(b) of
WRDA 1986 requires specific congressional authorization (See paragraph
19-8.a(2)). Measures to mitigate project caused damages to
significant fish and wildlife resources are project costs and will be
allocated to the responsible (causative) purposes of the project in
the same way as other project costs. Mitigation costs will also be
19-14
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