Final Regulations Issued for Compensatory Wetlands Mitigation Projects

May 16, 2008
Client Alert Newsletter May 2008

In response to a 2004 Congressional directive requiring development of standards and criteria for the use of on-site, off-site, and in-lieu fee mitigation and mitigation banking as compensation for lost wetland functions resulting from activities authorized by Army Corps of Engineers ("Corps") permits issued under Section 404 of the Clean Water Act ("CWA"), a joint effort was initiated by the Corps and U.S. Environmental Protection Agency ("EPA") to pursue rulemaking. This effort resulted in final regulations issued on April 10 establishing performance standards and criteria for the use of permittee-responsible compensatory mitigation, mitigation banks, and in-lieu fee mitigation programs. The standards and criteria are intended to improve the quality and success of compensatory mitigation projects undertaken to compensate for impacts resulting from activities authorized by any permit issued by the Corps that could potentially require compensatory mitigation, including permits issued under Sections 9 and 10 of the Rivers and Harbors Act, not just CWA Section 404 permits as required by the Congressional directive.

The rule, which becomes effective on June 9, 2008, seeks to: (1) improve the planning, implementation and management of compensatory mitigation projects; (2) encourage a watershed approach for selecting the location of a proposed compensatory mitigation project; (3) provide measurable and enforceable ecological performance standards and monitoring; and (4) require identification of all components of the proposed compensatory mitigation plan, including financial assurances, responsible parties, and methods of ensuring the ongoing and future protection of compensation sites. Because past performance of compensatory mitigation projects relied on the interpretation of numerous guidance documents issued by the Corps and EPA, the rule should provide a more consistent and predictable approach to implementing these projects.