&EPA
United States
Environmental
Protection Agency
Wetlands Compensatory Mitigation
The objective of the Clean Water Act (CWA) is "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." Toward
achievement of this goal, the CWA prohibits the discharge of dredged or fill
material into waters of the United States unless a permit issued by the Army
Corps of Engineers or approved State under CWA Section 404 authorizes such
a discharge.
When there is a proposed discharge, the impact of the discharge must be
avoided and minimized to the extent practicable. For unavoidable impacts,
compensatory mitigation is required to replace the loss of wetland functions in
the watershed. Compensatory mitigation is defined as, "the restoration, creation,
enhancement, or in exceptional cases preservation of wetlands and/or other aquatic resources for the purpose
of compensating for unavoidable impacts."
Source: Federal Guidance for the Establishment, Use and Operation of Mitigation Banks. 60 Fed. Reg. 228, 58605 58614. 1995
Mitigation Sequencing Guidelines
In 1990, the Environmental Protection Agency (EPA)
and the Department of Army entered into a
Memorandum of Agreement (MOA) to clarify the type
and level of mitigation required under Section 404
regulations. The agencies established a three-part
process, known as mitigation sequencing to help guide
mitigation decisions:
1. Avoid - Adverse impacts are to be avoided and no
discharge shall be permitted if there is a practicable
alternative with less adverse impact.
2. Minimize - If impacts cannot be avoided, appropriate
and practicable steps to minimze adverse impacts must
betaken.
3. Compensate - Appropriate and practicable
compensatory mitigation is required for unavoidable
adverse impacts which remain.
The American Crocodiles, a Federal Endangered Species,
makes its home in the Everglades Mitigation Bank.
Methods of Compensatory Mitigation:
Proposed projects that will cause adverse impacts to wetlands and
other aquatic resources typically require some type of compensatory
mitigation. The Army Corps of Engineers (or approved state authority)
is responsible for determining the appropriate form and amount of
compensatory mitigation required. Some types of mitigation are wetland
establishment, restoration, enhancement and protection/maintenance.
• Establishment (Creation): The development of a wetland or other
aquatic resource through manipulation of the physical, chemical or
biological characteristics where a wetland did not previously exist.
Successful creation results in a net gain in wetland acres.
• Restoration: Re-establishment or rehabililitation of a wetland or other
aquatic resouce with the goal of returning natural or historic functions
and characteristics to a former or degraded wetland. Restoration may
result in a gain in wetland function and/or wetland acres.
• Enhancement: Activities conducted within existing wetlands that
heighten, intensify, or improve one or more wetland functions.
Enhancement is often undertaken for a specific purpose such as to
improve water quality, flood water rention or wildlife habitat.
Enhancement results in a change in wetland function(s), but does not
result in a gain in wetland acres.
• Protection/Maintenance (Preservation): The protection of ecologically
important wetlands or other aquatic resources into perpetuity through
the implementation of appropriate legal and physical mechanisms (i.e.
conservation easements, title transfers). Preservation may include
protection of upland areas adjacent to wetlands as necessary to ensure
protection and/or enhancement of the aquatic ecosystem. Preservation
does not result in a net gain of wetland acres and should only be used in
exceptional circumstances.
Source: US Army Corps of Engineers Regulatory Guidance Letter No. 02 2, December 24,
2002
-------
Mechanisms for Compensatory Mitigation:
Compensatory mitigation for unavoidable wetland impacts
can be located on or adjacent to the development site (on-
site mitigation) or when environmentally preferable can
be performed at another location (off-site mitigation).
Mitigation Banking and In-Lieu Fee Programs are
typically off-site mitigation, while project-specific
mitigation can be located on- or off-site.
• Project Specific Mitigation: Restoration, creation,
enhancement and, in exceptional circumstances,
preservation of wetlands undertaken by a permittee
in order to compensate for wetland impacts
resulting from a specific project. The permittee
performs the mitigation after the permit is issued
and is ultimately responsible for implementation
and success of the mitigation.
Mitigation Banking: A wetlands mitigation bank is a wetland
area that has been restored, created, enhanced or (in
exceptional circumstances) preserved, which is then set aside
to compensate for future conversions of wetlands for
development activities. The value of a bank is determined by
quantifying the wetland functions restored or created in terms
of "credits." Permittees, upon approval of regulatory
agencies, can acquire these credits to meet their requirements
for compensatory mitigation. The bank sponsor is ultimately
responsible for success of the project.
In-Lieu Fee Mitigation: Mitigation that occurs where a
permittee provides funds to an in-lieu-fee sponsor, generally a
public agency or non-profit organization, instead of
completing project-specific mitigation or purchasing credits
from a mitigation bank. The Fee Adminstrator is responsible
for the the success of the mitigation.
Federal Wetlands Mitigation Policy Guidance
Available at: www.epa.gov/owow/wetlands/guidance
Memorandum Of Agreement Between The Department of the Army and The Environmental Protection
Agency. 1990. 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)(l) guidelines.
Federal Guidance for the Establishment, Use and Operation of Mitigation Banks. Interagency guidance
issued in 1995 to clarify the use of mitigation banks to compensate for authorized impacts to aquatic
resources.
Federal Guidance on the Use ofln-Lieu-Fee Arrangements for Compensatory Mitigation under Section 404 of
the Clean Water Act and Section 10 of the Rivers and Harbors Act. Interagency guidance issued in 2000 to
clarify the agencies policy on the manner in which in-lieu-fee mitigation may be used to satisfy
compensatory mitigation requirements.
National Wetlands Mitigation Action Plan. Interagency guidance issued in 2002 to further achievement of
the national goal of achieving no net loss of wetlands. Includes a series of actions to improve the
ecological performance and results of wetlands compensatory mitigation under the Clean Water Act and
related programs.
Wetlands Mitigation Regulatory Guidance Letter (RGL). Guidance to Corps field staff on Compensatory
Mitigation Projects (issued in 2002). This RGL supports the national policy for "no overall net loss" of
wetlands, clarifies mitigation requirements for authorized impacts to aquatic resources and reinforces the
Corps commitment to protect waters of the United States.
Recent Evaluations ofWetiands Compensatory Mitigation
BANKS AND FEES: The Status of Off-Site Wetland Mitigation in the United States. 2002. Environmental
Law Institute, Washington, B.C. Available at www.eli.org
Stakeholder Forum on Federal Wetlands Mitigation. 2001-2003. Environmental Law Institute, Washington,
B.C. Available at www.eli.org
National Academy of Sciences. Compensating for Wetland Losses Under the Clean Water Act 2001. National
Academy Press, Washington, B.C. Available at www.nap.edu
Wetlands Protection: Assessments Needed to Determine Effectiveness ofln-Lieu-Fee Mitigation. 2001.
General Accouting Office Report GAO-01-325. Available at www.gao.gov
------- |