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Army Corps Issues Guidance for Dam and Culvert Removal Credits

The Army Corps of Engineers recently issued a Regulatory Guidance Letter (RGL) that sets out factors that should be considered by district engineers when determining the amount of mitigation credits that may be allowed for removal of dams or other structures in rivers and streams. These mitigation credits may be used or sold as compensatory mitigation required by Army Corps permits issued for projects that result in impacts to waters of the United States.

There are approximately 14,000 dams in New England, many of which were built in the 19th century, and thousands of undersized or poorly designed culverts. These dams and culverts impair river and stream values. The Corps’ mitigation credit RGL is significant because, in the past, when a dam was removed or culvert replaced the positive environmental effects were not easily quantified. Further complicating the mitigation credit analysis is the fact that dam removal or culvert replacement sometimes results in short-term wetland loss.

The new RGL describes specific considerations for making credit determinations. Further, the RGL makes it clear that wetland loss resulting from dam removal will not require compensatory mitigation. Perhaps most importantly, the RGL gives district engineers latitude to determine the number of mitigation credits produced and to consider local conditions in their determinations, although they will still prefer on-site and in-kind mitigation (meaning, to mitigate impacts that occur nearby and are of the same type as the mitigation project, e.g., fish passage credits could be used for fish passage impacts). 

For owners that have been considering removing dams or other in-water structures, this guidance may offer opportunities, but we should caution that those opportunities are constrained by limited availability of mitigation banks and the effort needed to create one, by the need for close coordination and agreement with any available in lieu fee programs, and by limited availability of in-kind permittee-responsible mitigation needs. If those constraints can be overcome, the RGL will allow the long-term value of the removal to be considered and more consistently credited and monetized through mitigation banks or in-lieu fee programs or, if such programs are not available, for the dam owner’s own mitigation responsibilities. 

©2019 Pierce Atwood LLP. All rights reserved.

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Matthew D. Manahan, Pierce Atwood LLP, Environmental lawyer
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Since 1989 Matt Manahan has worked closely with businesses to find innovative solutions to the environmental law issues they face. He provides strategic counsel in regulatory, legislative, and judicial proceedings involving a broad range of environmental and land use issues, including those relating to energy project development, transfer and development of contaminated property, water use, energy, and Native American regulatory claims.

Matt is adept at stakeholder negotiations, including with state and federal regulators, that are a necessary part of large...

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Brian M. Rayback, Pierce Atwood, environmental regulatory lawyer
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Brian Rayback focuses his practice on environmental and land use law, with expertise in all aspects of water, air, natural resources, solid waste, and zoning regulation.

Brian provides cost-effective, strategic advice on project permitting, enforcement matters, appeals of agency decisions, regulatory compliance, and legislative issues for property developers and owners, trade associations, utilities, construction companies, and industrial and manufacturing facilities. He regularly appears before federal, state, and local boards and agencies to assist clients in navigating the complex and often overlapping array of environmental and land use regulations.

Brian is the Chair of Pierce Atwood's Environmental Practice Group and its interdisciplinary Land Use team.  Prior to joining Pierce Atwood in 1999, Brian was a law clerk for Justice Paul Rudman and Justice Susan Calkins of the Maine Supreme Judicial Court.

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William E Taylor, Pierce Atwood, environmental lawyer
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Since joining Pierce Atwood's Environmental Group in 1984, Bill Taylor has devoted his legal practice to matters related to water law, waste discharge, stormwater and natural resource licensing, compliance counseling, rulemaking, auditing, and enforcement. He regularly represents clients before local, state, and federal administrative agencies.

Bill is experienced in the negotiation and structuring of complex waste discharge and wetland alteration licenses, including site-specific water quality criteria development, use attainability analyses and 316(b)...

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