Eyes of Paint Branch

Avoid, Minimize, Mitigate: Agency Comments on the Mitigation Myth

By John Parrish

Much has been said about mitigating the impacts of the ICC Master Plan Alternative. Proponents of the ICC often state that the environmental impacts of building the ICC can e mitigated successfully. This is simply not true. ICC proponents tout end-on-construction as the answer to solve environmental obstacles. Here is what the environmental review agencies and lawyers have to say about mitigation.

Army Corps of Engineers, August 1, 1997: "Section 404 (b) (1) Guidelines, as clarified by the 'Memorandum of Agreement Concerning the Determination of Mitigation under the Section 404 (b) (1) Guidelines' [Mitigation MOA] signed February 6, 1990, by the Environmental Protection Agency and the Department of the Army, establish a mitigation sequences that is used in the evaluation of individual permit applications. Under this sequence, all appropriate and practicable steps must be undertaken by the applicant to first avoid and then minimize adverse impacts to the aquatic ecosystem. Remaining unavoidable impacts must then be offset through compensatory mitigation to the extent appropriate and practicable." (p.4) (italics added)

Army Corps of Engineers, December 11, 1998 "Mitigation Sequencing. A national MOA between EPA and the Corps in Feb., 1990 established a new policy for the evaluation of Corps permit applications:
- In the determination of the least environmentally damaging practicable alternative, compensatory mitigation may not be used to reduce the environmental impacts.
- The MOA also established a mitigation sequence: (1) Avoidance, (2) Minimization, (3) Compensatory Mitigation." (from briefing of Governor's Transportation Solutions Group, p,8, 9)

Section 4(f) Issues: Presentation to Transportation Solutions Group, December 11, 1998 "The Mitigated MPA: Even with substantial mitigation, the MPA's direct and indirect impacts…on the Paint Branch and Northwest Branch parks still would be substantial. In contrast, the other alignments would avoid these parks entirely. If extraordinary means (e.g., end-on-end construction) are used to mitigate the 4(f) impacts of the MPA, comparable means must be used to mitigate the 4(f) impacts of the other alternatives - i.e., FHWA cannot skew the comparison by heavily mitigating only one." (p.9)

US Environmental Protection Agency, September 8, 1997 "In summary, end-on construction would not effectively mitigate the impacts of the Master Plan Alignment. Alternatives are available that would effectively avoid or minimize these impacts. EPA's position on the Master Pan Alternative remains unchanged."

"EPA does not feel that this technique would serve as a mitigative measure for the wide variety of long term environmental impacts identified in our comment letter on the draft Environmental Impact Statement (DEIS). For example, once constructed, the highway corridor would fragment large contiguous forested areas, adversely impact the stream valley parks, generate potentially polluting storm water runoff in the Paint Branch Watershed, and would be an intrusion in to the peace and quiet of the many neighborhoods bisected by the alignment. These impacts would be realized regardless of the construction technique employed."

Federal Highway Administration, November 7, 1997 "…based on our understanding of the social, economic and natural environmental consequences of the Master Plan Alternative (MPA) through the Northwest Branch and Paint Branch Stream Valley Parks, we wish to convey our support of your decision to discontinue studies on this alignment…we fully support your decision to eliminate the portion of the MPA through Northwest Branch and Paint Branch Parks from further study at this time. In making this decision on whether or not portions of the MPA could be eliminated from further study, FHWA considered the quantity and quality of social, economic and environmental impacts associated with the MPA through the Northwest Branch and Paint Branch Stream Valley Parks; whether mitigation options have been sufficiently explored; the ability of other agencies to permit the MPA under their regulations; and the existence of one or more alternatives that meets the purpose and need for the project with less impacts than the MPA." (p.2)

MNCPPC Staff Review of ICC, July 1997 "Review of DEIS Concepts for Mitigation of Natural Environment Impacts. Based on the DEIS…staff cannot conclude that the mitigation concepts for aquatic systems impacts can ensure adequate mitigation and protection of these natural resource systems... Based on the DEIS…staff cannot conclude that the mitigation concepts for aquatic systems impacts can ensure adequate mitigation and protection of these natural resource systems…It should be noted that the state law which governs forest impacts in state road projects do not require forest mitigation sites to replicate high quality conditions if high quality forest stands are lost. Therefore, in staff's opinion, high quality forest stands that are lost may not be adequately mitigated…Mitigation of forest-interior bird (FIB) habitat would be difficult, costly and very unlikely. (From Natural Environmental Review Appendix, p. 7,8)