River and Stream Scientists’ Comments on EPQ-HQ-OW-2006-0020
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Comments on Docket EPA-HQ-OW-2006-0020: Compensatory Mitigation for Losses of
Aquatic Resources 33 CFR Parts 325 and 332 and 40 CFR Part 230
We are submitting these comments as scientists who do research on the physical, chemical, and biological structure and function of river and stream ecosystems. Our comments focus on the implications of the proposed rule for rivers and streams because that is where our scientific expertise lies.
The proposed rule stipulates mitigation requirements for activities authorized by
Department of Army permits impacting streams and other open water. By including ecosystems other than wetlands, the proposed rule includes more types of mitigation activities than was required by the legislation that stimulated the rule. IT IS ESSENTIAL
THAT MITIGATION BE REQUIRED FOR PERMITTED IMPACTS TO RIVERS
AND STREAMS. THE PROPOSED RULE DOES NOT MEET THE CRITICAL
NEED FOR A NATIONALLY CONSISTENT, SCIENTIFICALLY BASED STREAM
MITIGATION PROGRAM.
The science of stream restoration and mitigation is rapidly growing but still not mature, and the proportion of projects that have been monitored for performance is low
(Bernhardt et al. 2005). Mitigation practices for wetlands have a much longer history with more scientific study of their effectiveness (e.g., NRC 2001). Given the complexity of the issues involved, the significant shortcomings of the proposed rule (see comments below), and the glaring need for credible scientific assessment of the effectiveness of different mitigation practices in flowing waters, WE CONCLUDE THAT IT IS
PREMATURE TO INCLUDE STREAMS AND RIVERS IN THIS PROPOSED RULE.
A careful, independent scientific assessment of stream mitigation practices as was done by the National Academy of Sciences for wetlands mitigation (NRC 2001) is a necessary first step to guide the development of rules for compensatory mitigation for losses of ecosystem services provided by rivers and streams as a result of Department of Army permits. Without such an analysis, any proposed rule (and this one in particular) will result in significant loss of ecosystem services provided by flowing waters.
The goals of the proposed rule are admirable: “to improve the quality and success of aquatic resource restoration” using “a watershed approach” that conforms “with current principles of ecological restoration and landscape ecology.” However, the proposed rule will NOT accomplish those goals for reasons detailed below.
1. The rule would allow establishment (creation) of stream channels as mitigation for lost aquatic resources. There is no scientific evidence that this can be done successfully.
For example, no evidence for successful creation of a stream channel was found in over
37,000 stream restoration project records (Bernhardt et al. 2005). These records had many examples of channel reconfiguration projects (e.g. returning meanders to a previously straightened stream), but that is very different from creating a channel where none existed before. Few of those channel reconfiguration projects have been assessed for their long-term effectiveness in restoring ecosystem function, and significant

River and Stream Scientists’ Comments on EPQ-HQ-OW-2006-0020
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Prestegaard 2005). It is scientifically untested and implausible that a stream can be created with comparable levels of ecological function as found in a naturally occurring ecosystem. A stream restoration guidance manual produced by a federal interagency group says nothing about creation of streams (Federal Interagency Stream Restoration
Working Group 2001). Diversion of water flow to ditches does not create a stream, and we see nothing in this rule that would prevent that from occurring. Complex sub-surface and surface flow paths to streams influence ecosystem functions including rates of whole stream metabolism, nutrient processing, organic matter decomposition, productivity and reproduction of invertebrates and fish (Jones and Mulholland 2000). THERE IS NO
SCIENTIFIC EVIDENCE THAT CREATION OF NEW STREAM CHANNELS
WHERE NONE HAVE EXISTED BEFORE WILL COMPENSATE FOR LOSS OF
FUNCTIONS CAUSED BY A PERMITTED ACTIVITY.
2. The proposed rule bases mitigation requirements on loss of aquatic resource functions without adequately defining functions or specifying how or when they are to be measured. Any rule should include a requirement for measuring the functions lost as a result of the permit, as well as the functions at the mitigation site both prior to and following mitigation. The kinds of functions providing ecosystem services that should be measured to assess loss and evaluate mitigation performance include primary and secondary production; ecosystem respiration; nutrient uptake and transformation; nutrient and organic matter input, storage, and export; and decomposition rates. Accepted methods for these analyses have been published in the peer-reviewed literature (e.g.,
Hauer and Lamberti 2006), although they have rarely been used in the regulatory arena.
Both visual assessment methods and biological assessments based on abundance are widely used as indicators of stream condition; but they do NOT measure ecosystem function and CANNOT BE USED in lieu of a functional assessment. Without SPECIFIC
DEFINITIONS OF FUNCTIONS TO BE ASSESSED AND SCIENTIFICALLY PEER-
REVIEWED PROTOCOLS FOR ASSESSMENT, the proposed rule will result in loss of aquatic resource functions.
3. The proposed rule states: “If a functional assessment is not used, a minimum one-toone acreage or linear foot replacement ratio should be used as a surrogate for functional replacement.” The minimum ratio is arbitrary and without basis in logic or science.
Given the fact that some permits result in permanent loss of streams, that the time required for a stream restoration project to reach maturity can be decades, and the low rate of success for some stream restoration practices (e.g., Frissell and Nawa 1992, Roni et al. 2002, Smith and Prestegaard 2005), there is more scientific justification for a hundred-to-one or higher minimum ratio than there is for a one-to-one ratio. There is in fact NO SCIENTIFIC BASIS FOR A ONE-TO-ONE RATIO. The fact that a stream can be lost for millenia as a result of permitting decisions is not adequately compensated in the proposed rule.
4. Furthermore, using linear feet to determine a replacement ratio is not an appropriate basis for assessing the services provided by intact stream ecosystems. Although rivers and streams appear as lines on a map, their functions are a consequence of their areal

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WITHOUT BASIS IN SCIENCE. An areal assessment for functional replacement should include not only channel width but also the parafluvial zone, floodplain, and the riparian ecosystem that is influenced by and has an influence on stream ecosystem function (e.g., Allan 1995, Naiman et al. 2005).
5. The proposed rule appears to require increases in compensatory mitigation to address temporal loss based solely on the timing of the first phase of mitigation implementation:
“Where it is not practicable to complete the initial physical and biological improvements required by the approved mitigation plan by the first full growing season following the impacts resulting from the permitted activity, the district engineer MAY require additional compensatory mitigation to offset temporal losses of aquatic functions.” This ignores the amount of time it will take to restore stream functions. Additional compensatory mitigation MUST be required to account for the length of time required to restore lost stream functions. That time can be considerable. For example, after 14 years of cattle exclusion from the riparian zone of an Oregon river, channel morphology had still not recovered to the non-degraded condition (Magilligan and McDowell 1997). The proposed rule does not require adequate compensation for permanent loss of a functioning ecosystem. PERMANENT LOSS IS INADEQUATELY ASSESSED AND
THEREFORE INADEQUATELY MITIGATED. Although the phrase “long-term” is used in several places in the proposed rule, it is never defined. Based on some of the language in the description of monitoring programs, it appears that 5 or 10 years is “longterm.” That is not correct.
6. The proposed rule attempts to use a “watershed approach” and notes the value of a
“watershed plan” in establishing compensatory mitigation requirements; yet watershed size is not stipulated. Because watersheds can range from a few acres to thousands of square miles (e.g., Mississippi River), CLARIFICATION OF WATERSHED SIZE TO
BE CONSIDERED IS REQUIRED. Furthermore, the mitigation bank approval process does not require a watershed assessment; yet such an assessment is essential for determining the ecological functions that the mitigation bank is likely to achieve.
7. Although the scientific literature evaluating the effectiveness of stream restoration practices is limited (but growing exponentially), existing studies have concluded that small-scale, piecemeal projects (e.g., localized additions of woody debris to create fish habitat) are not effective, and in some cases do more harm than good. For example, in a survey of 161 fish habitat structures placed in Pacific Northwest streams, 60% failed or were impaired after a fairly average flood event (Frissell and Nawa 1992). Another analysis of in-stream restoration projects documented an improvement in fish populations in less than half of the projects (Roni et al. 2002). The proposed rule does not provide a requirement to incorporate the likelihood of success into the calculation of mitigation requirements.
WE SEE LITTLE IN THE PROPOSED RULE THAT WOULD
PREVENT THE USE OF INEFFECTIVE, PIECEMEAL TECHNIQUES TO
MITIGATE FOR PERMANENT LOSS OF A FUNCTIONING STREAM
ECOSYSTEM.

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8. The proposed rule would not prevent attempting to mitigate for loss of a first order stream by adding fish habitat to a fourth order stream. There is some acknowledgement of the importance of landscape position in site selection, but no recognition of the
IMPORTANCE OF POSITION IN THE STREAM NETWORK FOR EVALUATING
FUNCTIONAL LOSS OR DETERMINING AN ACCEPTABLE MITIGATION SITE.
The scientific literature is rich with studies that demonstrate the significance of position in the stream network for determining ecosystem structure and function (e.g., Vannote et al. 1980, Minshall et al. 1983, 1985, Naiman et al. 1987, to name but a few). Ignoring this in the proposed rule is denying one of the underlying concepts in stream ecology, one that is so basic that it is found in all textbooks (e.g., Allan 1995). Streams that differ in their position in the network (i.e. streams of different order) play different roles in the functioning of the entire river network; for example headwater streams have a unique role in a riverine ecosystem (e.g., Meyer and Wallace 2001, Lowe and Likens 2005).
9. Performance standards are inadequately described in the proposed rule. What measurements are required to determine that performance standards have been met? If more detailed performance standards are not provided, a procedure for establishing them must be included in the rule. Furthermore, an on-going and independent scientific peer review of performance standards should be required because existing methods for measuring performance are continually being improved and new methods will be developed. A recent analysis of mechanisms for improving stream restoration practices identified the need to develop a manual that establishes acceptable practices and specifications for river restoration that includes establishing performance standards
(Palmer and Allan 2006). A set of performance standards for river restoration projects has been proposed by a group of ecological scientists and engineers (Palmer et al. 2005), further details would need to be specified for a mitigation program. INDEPENDENT
SCIENTIFIC REVIEW IS AN ESSENTIAL FEATURE OF DEVELOPMENT OF
ADEQUATE PERFORMANCE STANDARDS.
Our concern about the types of performance measures that would be considered acceptable under the proposed rule is heightened by the statement in section 332.8 (k)
(7): “Release of the remaining credits must be tied to performance based milestones (e.g., construction, planting, establishment of specified plant and animal communities).”
NONE of those examples are measures of aquatic resource FUNCTION, and it is the loss of function that the mitigation bank is supposed to be compensating for. If performance measures are not adequately defined, inappropriate measures (such as these) will be used.
10. The definition of reference aquatic resources used in the proposed rule is not correct:
“resources that represent the range of variability exhibited by a regional class of aquatic resources as a result of natural processes and anthropogenic disturbances.” Inclusion of the range of variability encompassed by anthropogenic disturbances in a definition of reference conditions is contradictory to the extensive scientific literature describing use of reference sites in ecological assessment (e.g., Karr and Chu 1999).
11. The proposed rule will require monitoring to determine if performance standards are being met. The district engineer has the responsibility to approve the parameters to be

River and Stream Scientists’ Comments on EPQ-HQ-OW-2006-0020
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REQUIREMENTS ARE VAGUE AND INADEQUATE as are the performance standards (discussed above). This is of particular concern because the district engineer is responsible for approval of the monitoring plan with no national guidance or independent scientific oversight. This will result in practices that are not nationally consistent. This is unacceptable and unnecessary. Monitoring has an extensive scientific literature with established protocols and practices (e.g., EPA and USGS monitoring protocols ,
Bryant1995, Kondolf 1995) that, with adequate independent scientific review, could provide a nationally consistent basis for approval of monitoring plans.
12. The National River Restoration Science Synthesis project evaluated current stream restoration practices (Bernhardt et al. 2005). Evaluating the success of restoration projects was an impossible task because if monitoring was done, the results of that monitoring were buried in file drawers of consulting firms and agencies. There are exceptions to this generalization in states (e.g., Oregon) with monitoring and reporting requirements, and where information is required to be on the web. THE PROPOSED
RULE WOULD PERPETUATE THE UNACCEPTABLE PRACTICE OF DOING
INADEQUATE MONITORING AND BURYING THE RESULTS OF THAT
MONITORING (e.g., Section 332.6 (c) (2)). The monitoring reports should be required to be posted on the web in a standard format that would be established by the agency in consultation with knowledgeable scientists and practitioners (as has been called for by
Palmer and Allan 2006). This would enable both scientific and public evaluation of the effectiveness of the mitigation practices being employed and enable improvement of restoration practices. Compensation for the destruction of the public’s aquatic resources that is being allowed under this rule must be available for public and scientific scrutiny.
Technology (e.g., the internet) makes this possible; the proposed rules do not take advantage of these technological advances.
13. Mitigation site selection requirements say nothing about species that should be present at or have access to the site. It seems to assume “build it and they will come,” i.e. if habitat is provided, desired aquatic species will colonize the site. That is not realistic.
Species may be prevented from colonizing a site because of barriers (e.g., dams) or because an introduced predator (or grazer) or competitor prevents successful establishment of a native species that is present at reference sites in the region.
14. The proposed rule gives the district engineer considerable independence and authority to make decisions; yet the proposed rule provides no requirements for national consistency of practice, no independent scientific review, and no stipulations of ecological expertise necessary to fulfill these obligations. We are deeply concerned that this will result in practices that are not nationally consistent, not founded on current ecological science, and that have not been subjected to the rigorous scientific review warranted by their significant impact on aquatic resources. REGULARLY
SCHEDULED INDEPENDENT SCIENTIFIC REVIEW SHOULD BE REQUIRED AS
PART OF ANY MITIGATION PROGRAM PROPOSED UNDER A RULE SUCH AS
THIS. Such a requirement will ensure that practices are appropriate for regions but nationally consistent and that practices incorporate scientific and engineering advances in

River and Stream Scientists’ Comments on EPQ-HQ-OW-2006-0020
Page 6 understanding and restoration of aquatic resources. We note that independent, scientific, biennial review is a requirement in certain restoration activities such as the Everglades
Restoration Program. It is not feasible to require independent review of every mitigation project, but it is feasible to call for a regularly scheduled independent review of the national mitigation program to determine whether it is nationally consistent and effective in mitigating for loses of aquatic resources.
In conclusion, mitigation for loss of ecological services provided by rivers and streams is a rapidly developing but still inexact science. THE PROPOSED RULE WILL ALLOW
INADEQUATELY TESTED PRACTICES TO BE USED WITH INSUFFICIENT
INDEPENDENT SCIENTIFIC OVERSIGHT AS COMPENSATION FOR LOSS OF
WELL-DOCUMENTED AND VALUABLE ECOSYSTEM SERVICES PROVIDED
BY RIVERS AND STREAMS. AS SCIENTISTS AND CITIZENS, WE FIND THAT
UNACCEPTABLE. The services provided by rivers and streams impacted by
Department of Army permits are critically important; IMPACTS TO STREAMS
REQUIRE EFFECTIVE MITIGATION. Designing an effective mitigation program should only be attempted after a thorough assessment of mitigation practices and their effectiveness by an independent panel of scientists. THE PROPOSED RULE FOR
COMPENSATORY MITIGATION IN RIVERS AND STREAMS IS NOT BASED ON
THE BEST AVAILABLE SCIENCE.
Sincerely,
Judy L. Meyer, Ph.D.
Institute of Ecology
University of Georgia
Athens GA
J. Bruce Wallace, Ph.D.
Department of Entomology and Institute of Ecology
University of Georgia
Athens GA
Margaret A. Palmer, Ph.D.
Chesapeake Biological Laboratory
University of Maryland Center for Environmental Sciences
Solomons MD
J. David Allan, Ph.D.
School of Natural Resources and Environment
University of Michigan
Ann Arbor MI
Additional names
References Cited

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Bernhardt, E. S., M. A. Palmer, J. D. Allan, and the National River Restoration Science
Synthesis Working Group (2005) Restoration of U.S. rivers: A national synthesis,
Science 308: 636– 637.
Federal Interagency Stream Restoration Working Group. (2001) Stream Corridor
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Frissel, C. A. and R. K. Nawa. (1992) Incidence and causes of physical failure of artificial habitat structures in streams of western Oregon and Washington. North
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