Clean Water Act - Recap 2008 Rules Change for Compensatory Mitigation

In 2008, the U.S. Army Corps of Engineers adopted new rules that dramatically changed its approach to mitigation under Section 404 of the Clean Water Act, which regulates fill in wetlands and other waters of the United States.
 
The new rules adopt a mitigation hierarchy that moves away from the prior preference for on-site, in-kind mitigation in favor of mitigation banks and watershed-based mitigation programs. The rules also clarify the financial measures the corps will require to ensure that the mitigation is actually carried out. Finally, the rules change a wide range of requirements in the Section 404 program, including new requirements for the information in a permit application and in public notices.

For impacts authorized under section 404, compensatory mitigation is not considered until after all appropriate and practicable steps have been taken to first avoid and then minimize adverse impacts to the aquatic ecosystem pursuant to 40 CFR part 230 (i.e., the CWA Section 404(b)(1) Guidelines). Compensatory mitigation can be carried out through four methods: the restoration of a previously-existing
wetland or other aquatic site, the enhancement of an existing aquatic site’s functions, the establishment (i.e., creation) of a new aquatic site, or the preservation of an existing aquatic site. There are three mechanisms for providing compensatory mitigation:

1. Permittee-responsible compensatory mitigation, 
2. Mitigation banks, and,
3. "In-lieu" fee mitigation. 

Permittee-responsible mitigation is the most traditional form of compensation and continues to represent the majority of compensation acreage provided each year. As its name implies, the permittee retains responsibility for ensuring that required
compensation activities are completed and successful. Permittee-responsible
mitigation can be located at or adjacent to the impact site (i.e., on-site
compensatory mitigation) or at another location generally within the same
watershed as the impact site (i.e., offsite compensatory mitigation).

Mitigation banks and in-lieu fee mitigation both involve off-site compensation activities generally conducted by a third party, a mitigation bank sponsor or in-lieu fee program sponsor. When a permittee’s compensatory mitigation requirements
are satisfied by a mitigation bank or inlieu fee program, responsibility for ensuring that required compensation is completed and successful shifts from the permittee to the bank or in-lieu fee sponsor.

http://www.epa.gov/owow_keep/wetlands/wetlandsmitigation/index.html

http://water.epa.gov/type/wetlands/index.cfm

http://water.epa.gov/lawsregs/guidance/wetlands/workshops.cfm