The U.S. Army Corps of Engineers and U.S. Environmental Protection Agency (EPA) have released a new rule to clarify how to provide compensatory mitigation for unavoidable impacts to the nation's wetlands and streams. The rule will enable the agencies to promote greater consistency, predictability and ecological success of mitigation projects under the Clean Water Act.
"This rule greatly improves implementation, monitoring and performance, and will help us ensure that unavoidable losses of aquatic resources and functions are replaced for the benefit of this nation," said John Paul Woodley, Jr., assistant secretary of the Army for Civil Works. "This is a key step in our efforts to make the Army's regulatory program a winner and the best it can be for the regulated community we serve and those interested in both economic development and environmental protection."
"This rule advances the president's goals of halting overall loss of wetlands and improving watershed health through sound science, market-based approaches and cooperative conservation," said EPA Assistant Administrator for Water, Benjamin H. Grumbles. "The new standards will accelerate our wetlands conservation efforts under the Clean Water Act by establishing more effective, more consistent and more innovative mitigation practices."
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; and 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. 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. 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.
