The U.S. Army Corps of Engineers and EPA have released a new rule to clarify how to provide compensatory mitigation for unavoidable impacts to the nation's wetlands and streams. According to EPA, the rule will enable the agencies to promote greater consistency, predictability, and ecological success of mitigation projects under the Clean Water Act.
Benefits of the compensatory mitigation rule include:
- Fostering greater predictability, increased transparency, and improved performance of compensatory mitigation projects
- Establishing equivalent standards for all forms of mitigation
- Responding to recommendations of the National Research Council to improve the success of wetland restoration and replacement projects
- Setting clear science-based and results-oriented standards nationwide while allowing for regional variations
- Increasing and expanding public participation
- Encouraging watershed-based decisions
- Emphasizing the "mitigation sequence" requiring that proposed projects avoid and minimize potential impacts to wetlands and streams before proceeding to compensatory mitigation
Each year thousands of property owners undertake projects that affect the nation's aquatic resources. Proposed projects that are determined to impact jurisdictional waters are first subject to review under the Clean Water Act. The Corps of Engineers reviews these projects to ensure environmental impacts to aquatic resources are avoided or minimized as much as possible. A Corps permit may require a property owner to restore, establish, enhance, or preserve other aquatic resources in order to replace those impacted by the proposed project. This compensatory mitigation process seeks to replace the loss of existing aquatic resource functions and area.
Property owners required to complete mitigation are encouraged to use a watershed approach and watershed planning information. The new rule establishes performance standards, sets timeframes for decision making, and to the extent possible, establishes equivalent requirements and standards for the three sources of compensatory mitigation: permittee-responsible mitigation, mitigation banks, and in-lieu-fee programs.
The new rule changes where and how mitigation is to be completed, but maintains existing requirements on when mitigation is required. The rule also preserves the requirement for applicants to avoid or minimize impacts to aquatic resources before proposing compensatory mitigation projects to offset permitted impacts.
Wetlands and streams provide important environmental functions including protecting and improving water quality and providing habitat to fish and wildlife. Successful compensatory mitigation projects will replace environmental functions that are lost as a result of permitted activities.
