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Compensatory Mitigation
This page provides updates and background information regarding Clean Water Act Section 404 Compensatory Mitigation Requirements.
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Contents
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.
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National Wetlands Mitigation Action PlanOn 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.
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Compensatory Mitigation Factsheets & Training
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Compensatory Mitigation Regulations
- Section 404(b)(1) Guidelines In 1980, EPA finalized regulations that constitute the substantive environmental criteria used in evaluating activities regulated under Section 404 of the Clean Water Act
- Compensatory Mitigation for Losses of Aquatic Resources; Final Rule In 2008, EPA and the U.S. Army Corps of Engineers, through a joint rulemaking, expanded the 404(b)(1) Guidelines to include comprehensive standards for all three mechanisms for providing compensatory mitigation.
Compensatory Mitigation Guidance
- 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. (Portions of this MOA that concern the type and location of compensatory mitigation are superseded by the above rule.)
- Historic (no longer applicable) Guidance Documents
- Comprehensive Mitigation Guidance Directory
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Recent Compensatory Mitigation Evaluations
- Mitigation of Impacts to Fish and Wildlife Habitat: Estimating Costs and Identifying Opportunities - (PDF, 633KB, 125 pages) - On November 14, 2007, The Environmental Law Institute released a report that estimates the annual public and private expenditures for compensation under key federal programs.
- The Status and Character of In-Lieu Fee Mitigation in the Unites States - (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 in the United States - (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.
- Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure that Compensatory Mitigation Is Occurring (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.
- Stakeholder Forum on Federal Wetlands Mitigation 2006, 2004, 2003, 2001 - Since 2001, ELI has administered four Stakeholder Forums on Federal Wetlands Mitigation. Each event has brought together wetland professionals representing varying viewpoints to hear from a federal interagency policy group on current developments in wetlands policy.
- National Symposium on Compensatory Mitigation and the Watershed Approach - In May 2004, the Environmental Law Institute held a symposium to identify criteria that could be included in a framework for making compensatory mitigation decisions under Section 404 of the Clean Water Act on a watershed basis.
- 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.
- Assessments Needed to Determine Effectiveness of In-Lieu Fee Mitigation, (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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