Army Corps and EPA Improve
Wetland and
Stream Mitigation
The U.S. Army Corps of Engineers and U.S. Environmental Protection
Agency released a new rule on March 31, 2008 to clarify how to provide
compensatory mitigation for unavoidable impacts to the nation’s wetlands and streams. The rule will enable
the agencies to promote greater consistency, predictability and ecological success
of mitigation projects under the Clean Water Act. The rule goes into effect 60 days following publication in the
Federal Register.
The new rule improves and consolidates existing regulations
and guidance, to establish equivalent standards for all types of mitigation
under the Clean Water Act
Section 404 regulatory program. The new rule will also provide one set of
regulations for compensatory mitigation, instead of the numerous separate
guidance documents that have been in use up to now. The rule does not change when
compensatory mitigation is required, but it does change where and how it is
required.
The rule establishes equivalent sets of standards that are
based on better science, increased public participation, and innovative
market-based tools. These equivalent standards take into account the inherent
differences among mitigation banks, in-lieu fee programs, and
permittee-responsible mitigation, in an effort to maximize the number of
ecologically-successful compensatory mitigation projects that project proponents
can use to offset their permitted losses of aquatic resources.
The most significant change required by the new rule is that
compensation projects provided by all three compensation mechanisms (i.e.,
permittee-responsible compensatory mitigation, mitigation banks, and in-lieu
fee mitigation) must have mitigation plans which include the same 12
fundamental components: objectives; site selection criteria; site protection
instruments (e.g., conservation easements); baseline information (for impact
and compensation sites); credit determination methodology; a mitigation work
plan; a maintenance plan; ecological performance standards; monitoring
requirements; a long-term management plan; an adaptive management plan; and
financial assurances. This important change is expected to improve the
planning, implementation and management of all compensation projects and ensure
more effective wetland and stream replacement projects.
Mitigation banks are a “performance-based” form of wetland
and stream replacement because, unlike in-lieu fee mitigation and
permittee-responsible mitigation, the tradable aquatic resource restoration
credits generated by banks are tied to demonstrated achievement of project
goals. Thus, the rule establishes a preference for the use of credits from
mitigation banks when appropriate credits are available. The new rule
encourages the use of mitigation banks and in-lieu fee programs over use of
permittee-responsible mitigation because mitigation banks and in-lieu fee
programs usually provide consolidated compensatory mitigation projects that
have less risk and uncertainty.
More Information:
U.S. Corps of
Engineers:
News Release
U.S. EPA
Compensatory Mitigation.
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