Section 404 of the Clean Water Act (CWA) mandates that state agencies and other entities perform compensatory mitigation when their activities impair jurisdictional waters. In the Commonwealth of Kentucky, the Kentucky Transportation Cabinet (KYTC) is required to pay in-lieu fees or purchase stream mitigation credits when a roadside ditch is impaired or relocated as part of a road construction project. In-lieu fees and stream mitigation credits are costly, and ditches that have suffered degraded habitat and loss of hydrogeomorphic functionality are treated as total losses when they are impacted by construction and maintenance activities. This raises the question of whether the United States Corps of Engineers (USACE) would be receptive to alternative mitigation and monitoring practices that impose a less stringent financial burden on the Kentucky Transportation Cabinet, but which still comply with CWA regulations. This report discusses methodologies used to evaluate the quality of instream and riparian habitat, Section 404 of the CWA and its implications for mitigation of lost or damaged jurisdictional ditches, and the strategies that have been used by other states to fulfill their Section 404 mitigation requirements. We highlight mitigation practices that depart from the norm and which place a less onerous financial burden on state transportation agencies. KYTC officials presented this report’s key findings to the USACE Louisville District Office in January 2015 in an effort to receive approval to experiment with novel restoration techniques. The USACE granted KYTC license to implement these techniques on a project-by- project basis. Before implementation on each project, the Cabinet must receive formal approval from USACE officials. Although this was not the blanket mandate that KYTC hoped for, it indicated the Louisville District is willing to study the effectiveness of alternative mitigation strategies. Despite the Cabinet’s request, USACE officials did not approve a plan to reduce post-restoration monitoring requirements. KTC researchers suggested that KYTC perform exhaustive monitoring of the performance of completed project that used alternative mitigation techniques. Having information on the short-, medium-, and long-term performance of these sites could–if the results are promising-pave the way to the wider adoption of alternative mitigation practices and could eventually reduce the level of post-restoration monitoring required by the USACE.

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© 2015 University of Kentucky, Kentucky Transportation Center

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The contents of this report reflect the views of the authors, who are responsible for the facts and accuracy of the data presented herein. The contents do not necessarily reflect the official views or policies of the University of Kentucky, the Kentucky Transportation Center, the Kentucky Transportation Cabinet, the United States Department of Transportation, or the Federal Highway Administration. This report does not constitute a standard, specification, or regulation. The inclusion of manufacturer names or trade names is for identification purposes and should not be considered an endorsement.