1. Compensatory Mitigation in Coastal Louisiana Keith Lovell, Administrator Office of Coastal Management Department of Natural Resources 10/03/121

2. Mitigation: All actions taken to avoid, minimize, restore, and compensate for loss of wetland ecological values due to an activity. Compensatory Mitigation Compensatory Mitigation: Compensatory mitigation is the replacement, substitution, enhancement or protection of ecological values to offset anticipated losses of wetland ecological values caused by a permitted activity. In other words, “No net loss of wetlands”. 2

3. State and Federal Mitigation Programs State and Federal Mitigation Programs are different. Our separate rules, regulations and in some cases policies mandate our mitigation process. The Office of Coastal Management (OCM) and the U.S. Army Corps of Engineers (Corps) continue to work together to coordinate mitigation for wetland impacts in an effort to minimize impacts of program differences on applicants and achieve our primary goal of no net loss. 10/03/123

4. Coastal Zone Management Act vs. Section 404 of the Clean Water Act: What Defines Wetlands? The Corps regulatory jurisdiction of wetlands uses a three-parameter approach involving vegetation, soils, and hydrology. OCM defines wetlands as “open water areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soils”. OCM, under authority of the CZMA and Louisiana’s State and Local Coastal Resources Management Act regulates activities that occur in wetlands as well as in other habitats when those activities would have a significant impact on the “coastal resources” and “coastal waters” of the state. 10/03/124

5. The State’s Current Mitigation Program: CHAPTER 7, TITLE 43 – Coastal Management Regulations Rules for Selecting Compensatory Mitigation, §724.J: (From 1996) The Three Mitigation Options in Current Priority Order: 1.Individual Mitigation Measure - Project on Landowner(s) Property 2.Mitigation Banks - Acquire Credits 3.In-Lieu-Fee Payment – State Mitigation Trust Fund 10/03/125

6. The Current Federal Mitigation Program: Wetland Regulations - Clean Water Act section 404 And Rivers and Harbors Act section 10 New 2008 Compensatory Mitigation for Losses to Aquatic Resources, 33 CFR Parts 325 and 332 General compensatory mitigation requirements: The Compensatory Mitigation Options in Priority Order: 1.Mitigation Banks Credits 2.In-Lieu-Fee Programs 3.Permitee Responsible Mitigation under a Watershed Approach 10/03/126

7. Statistics on the State’s Mitigation Program January 2008 to August 2012 7,180 permits were processed by OCM7,180 permits were processed by OCM 276 of those permits required mitigation276 of those permits required mitigation 1,294 acres were impacted which required mitigation (Approximately 50% of these impacts are tied to important public works projects.)1,294 acres were impacted which required mitigation (Approximately 50% of these impacts are tied to important public works projects.) 10/03/127

8. OCM Mitigation Program at a Glance: 2010 White Paper entitled “Evaluation of Louisiana’s Mitigation Program for Impacts to Coastal Habitats” was used to evaluate the State’s current mitigation process.2010 White Paper entitled “Evaluation of Louisiana’s Mitigation Program for Impacts to Coastal Habitats” was used to evaluate the State’s current mitigation process. December 2010, presentation to CPRA to ensure that mitigation is more sustainable and strategically located to work in concert with the State’s Comprehensive Master Plan for a Sustainable Coast. Subsequent Presentation was made to CPRA Policy Subcommittee in 2011.December 2010, presentation to CPRA to ensure that mitigation is more sustainable and strategically located to work in concert with the State’s Comprehensive Master Plan for a Sustainable Coast. Subsequent Presentation was made to CPRA Policy Subcommittee in 2011. Currently revising State Mitigation Rules and Regulations in order to ensure mitigation is consistent with the State’s Master Plan.Currently revising State Mitigation Rules and Regulations in order to ensure mitigation is consistent with the State’s Master Plan. 10/03/128

9. 9 MODIFIED CHARLESTON METHOD (MCM) vs. WETLAND VALUE ASSESSMENT (WVA) 10/03/12

10. 10 Wetland Value Assessment (WVA), OCM’s Method 10/03/12 The WVA is required by State Rules and Regulations and is OCM’s habitat evaluation tool which quantifies impacts and benefits to wetlands. The WVA is required by State Rules and Regulations and is OCM’s habitat evaluation tool which quantifies impacts and benefits to wetlands. The WVA incorporates information from a field investigation, mapping/GIS analysis and historical records and quantifies impacts and assess the amount of mitigation required. Real data parameters are used as model inputs in the WVA. The WVA incorporates information from a field investigation, mapping/GIS analysis and historical records and quantifies impacts and assess the amount of mitigation required. Real data parameters are used as model inputs in the WVA. The WVA method was originally developed for wetland restoration and planning projects in coastal Louisiana, and is a tool used to evaluate potential changes in ecosystem benefits. The WVA method was originally developed for wetland restoration and planning projects in coastal Louisiana, and is a tool used to evaluate potential changes in ecosystem benefits. Because the WVA is fairly complicated, it does not always provide a timely, predictable, and transparent tool for all parties to evaluate the options available in order to make economic decisions regarding proposed projects. Because the WVA is fairly complicated, it does not always provide a timely, predictable, and transparent tool for all parties to evaluate the options available in order to make economic decisions regarding proposed projects.

11. 11 The MCM is the functional assessment model developed by the Corps to resolve Interagency Review Team (IRT) concerns that: The MCM is the functional assessment model developed by the Corps to resolve Interagency Review Team (IRT) concerns that: 1.Applicants not adequately mitigating to offset wetland impacts. 2.Results from the WVA and best professional judgment were not consistent among users. Historically, the USACE has used “Best Professional Judgment” to assess mitigation quantities and began using the MCM as an assessment tool on May 1 st, 2011. Historically, the USACE has used “Best Professional Judgment” to assess mitigation quantities and began using the MCM as an assessment tool on May 1 st, 2011. The MCM is easy to use, predictable, transparent and repeatable. The MCM may prove to be more reliable for both the applicant and the regulator. The MCM is easy to use, predictable, transparent and repeatable. The MCM may prove to be more reliable for both the applicant and the regulator. While OCM supports the stated intentions for the use of the MCM as a habitat assessment tool, we continue to be concerned about the results that are generated in it’s current form. It is not as flexible as needed. While OCM supports the stated intentions for the use of the MCM as a habitat assessment tool, we continue to be concerned about the results that are generated in it’s current form. It is not as flexible as needed. The Modified Charleston Method (MCM) 10/03/12

12. 12 OCM’s Concerns with the MCM 10/03/12 Public comments were not adequately considered or addressed and a formal rulemaking process was not performed. No data and information has been provided to support the contention that current mitigation requirements do not adequately compensate for wetland losses – comparison to other Corps Districts is insufficient – no cost/benefit analysis performed. No data and information has been provided to support the contention that current mitigation requirements do not adequately compensate for wetland losses – comparison to other Corps Districts is insufficient – no cost/benefit analysis performed. In some instances, t In some instances, the MCM nearly triples (3:1) the amount of mitigation required for marsh and other wetland habitat impacts. This will likely have a negative impact on large public works projects. The MCM does not provide enough credit for marsh restoration projects The cumulative impact factor applies an “exponential” penalty and needs to be re-evaluated. The cumulative impact factor applies an “exponential” penalty and needs to be re-evaluated.

13. 10/03/12 and o must be better aligned. State and Federal Mitigation Programs are different and our separate rules, regulations, and in some cases policies mandate our mitigation process and must be better aligned. Work harder to ensure that mitigation is more sustainable and strategically located to work in concert with the State’s Comprehensive Master Plan for a Sustainable Coast. This includes revising current State Mitigation Rules and Regulations. While DNR supports the stated intentions for the use of the MCM as a habitat assessment tool, we continue to be concerned about the results that are generated as it is presently proposed. While DNR supports the stated intentions for the use of the MCM as a habitat assessment tool, we continue to be concerned about the results that are generated as it is presently proposed. Continue to achieve No Net Loss of Coastal Wetlands due to permitted activities. Continue to achieve No Net Loss of Coastal Wetlands due to permitted activities. Summary 13