Compensatory Mitigation 

This page provides updates and background information regarding Clean Water Act Section 404 Compensatory Mitigation Requirements.

Contents

• Final Compensatory Mitigation Regulations
• National Wetlands Mitigation Action Plan
• Compensatory Mitigation Factsheets & Training
• Key Compensatory Mitigation Guidance
• Recent Compensatory Mitigation Evaluations

Final Compensatory Mitigation Rule

On March 31, 2008 , EPA and the U.S. Army Corps of Engineers (the Corps) issued revised regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under Section 404 of the Clean Water Act. These regulations are designed to improve the effectiveness of compensatory mitigation to replace lost aquatic resource functions and area, expand public participation in compensatory mitigation decision making, and increase the efficiency and predictability of the mitigation project review process. Links to the final rule and supporting materials can be found below.

• Federal Register Notice of Final Rule (PDF, 963KB, 232 pages)
• NOTE: This is a prepublication version of this Notice of Final Rule that is made available for informational purposes only and should not be cited in lieu of the final published version. The final version of this Notice of Final Rule is scheduled to be published in the Federal Register on or about April 4th, 2008 , and may vary from this prepublication version.
• Compensatory Mitigation Rule Factsheet (PDF, 632KB, 2 pages)
• Questions and Answers (PDF, 87KB, 6 pages)
• Army Corps and EPA Improve Wetland and Stream Mitigation – EPA Press Release
• Final Environmental Assessment (PDF, 462KB, 134 pages)
• Background materials on proposed rule

National Wetlands Mitigation Action Plan

On December 26, 2002 , EPA and the Corps of Engineers announced the release of a comprehensive, interagency National Wetlands Mitigation Action Plan to further achievement of the goal of no net loss of wetlands.

• Mitigation Action Plan Interagency Web Site
• National Mitigation Action Plan – (PDF, 178KB, 12 pages)

Compensatory Mitigation Factsheets & Training

• Compensatory Mitigation Factsheet – (PDF, 432KB, 2 pages)
• Mitigation Banking Factsheet
• May 23, 2007 Webcast Seminar on "Long-Term Stewardship of Wetlands Mitigation Sites "

Key Compensatory Mitigation Guidance

• 2002 Mitigation Regulatory Guidance Letter (RGL) 02-2 - (PDF, 227KB, 16 pages) - "Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899".
• December 24, 2002, Army/EPA Transmittal Memo for 2002 Mitigation Regulatory Guidance Letter 02-2 - (PDF, 49KB, 1 page)
• 2000 In-Lieu-Fee Mitigation Guidance - (PDF, 276KB, 9 pages) - Interagency guidance issued in 2000 to clarify the agencies’ policy on the manner in which in-lieu-fee mitigation may be used to satisfy compensatory mitigation requirements.
• 1995 Mitigation Banking Guidance - Interagency guidance issued in 1995 to encourage the expanded use of mitigation banking. The document clarifies the agencies' policy on the establishment, use, and operation of mitigation banks.
• December 1995, National Wetland Mitigation Banking Study: Technical and Procedural Support to Mitigation Banking Guidance - (PDF, 167KB, 41 pages)
• 1990 Memorandum of Agreement - Contains the policy and procedures to be used in determining the type and level of mitigation necessary to demonstrate compliance with the Section 404(b)(1) guidelines.
• Comprehensive Mitigation Guidance Directory

Recent Compensatory Mitigation Evaluations

• 2006 Status Report on In-Lieu Fee Mitigation - (PDF, 682KB, 152 pages) - On June 27, 2006, the Environmental Law Institute (ELI) released the first-ever, comprehensive study of in-lieu fee mitigation. ELI's study examines whether in-lieu fee programs have adequately addressed recommendations by the federal wetland regulatory agencies, as well as the findings of significant studies by the Government Accountability Office and National Research Council.
• 2005 Status Report on Compensatory Mitigation - (PDF, 486KB, 110 pages) - On April 20, 2006 , The Environmental Law Institute released the results of its 2005 Status Report on Compensatory Mitigation. The report summarizes the findings of a 2005 survey designed to characterize compensatory mitigation conducted in response to permitted impacts to aquatic resources under Section 404 of the Clean Water Act. The data included in the report were provided by all 38 districts of the U.S. Army Corps of Engineers. This is the third study that ELI has conducted on the status of mitigation banks or compensatory mitigation.
• Government Accountability Office Compensatory Mitigation Oversight Report (GAO 05898) - (PDF, 670KB, 47 pages) - On October 7, 2005, the Government Accountability Office released the results of its investigation of Corps oversight of compensatory mitigation projects required to offset permitted impacts to wetlands and other aquatic resources and provided recommendations for improving compensatory mitigation oversight.
• Banks and Fees: the Status of Off-site Wetlands Mitigation in the United States - In September 2002, the Environmental Law Institute released its "Banks and Fees" report providing an in-depth analysis on the status of wetland mitigation banking and in-lieu-fee mitigation in the United States . The report is designed to provide citizen groups, local, state, and federal agencies, the public, and the regulated community with the information they need to evaluate the ability of wetland mitigation banking and in-lieu-fee mitigation to achieve their regional wetland conservation and land use planning objectives.
• National Academy of Sciences Wetlands Mitigation Study - On June 26, 2001 , the National Academy of Sciences' National Research Council released a comprehensive analysis of the effectiveness of compensatory mitigation under Section 404 of the Clean Water Act. The report also includes specific recommendations for federal agencies and states on how to proceed with effective ecological replacement of wetland functions lost to authorized development activities.
• General Accounting Office In-Lieu-Fee Report (GAO 01325) - (PDF, 2.6MB, 75 pages) - On May 31, 2001, the General Accounting Office (GAO) released the results of its investigation on the use of in-lieu-fee arrangements to mitigate wetlands losses and provided a number of recommendations to improve the accountability of in-lieu-fee mitigation.
• Additional Recent Evaluations of Compensatory Mitigation

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Source:  http://www.epa.gov/wetlandsmitigation/#regs