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. Consistent with the administration’s goal of “no net loss of wetlands” 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. Additionally, mitigation measures may be required for project impacts outside the aquatic environment. For example, the Corps may include requirements to lessen the amount of noise generated during construction or require an applicant to avoid an archeological site (impact to a cultural resource).
The U.S. Army Corps of Engineers and U.S. Environmental Protection Agency released a new Compensatory Mitigation Rule on April 10, 2008, to clarify how to provide compensatory mitigation for unavoidable impacts to the nation's wetlands and streams. 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.
There are three mechanisms for providing compensatory mitigation: permittee-responsible compensatory mitigation, mitigation banks and 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.
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.
For more information on the compensatory mitigation rule visit the USACE Headquarters Mitigation Information web page or the EPA's Wetland Compensatory Mitigation web page.