&EFA
United States
Environmental
Protection Agency
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.
For every authorized discharge, the adverse impacts to wetlands, streams and
other aquatic resources must be avoided and minimized to the extent practicable.
For unavoidable impacts, compensatory mitigation is required to replace the loss
of wetland and aquatic resource functions in the watershed. Compensatory mitigation
refers to the restoration, establishment, enhancement, or in certain circumstances preservation of wetlands,
streams or other aquatic resources for the purpose of offsetting unavoidable adverse impacts.
The Mitigation Sequence
Compensatory mitigation is actually the third step in
a sequence of actions that must be followed to offset
impacts to aquatic resources. The 1990 Memorandum
of Agreement (MOA) between the Environmental
Protection Agency (EPA) and the Department of Army
establishes a three-part process, known as the
mitigation sequence to help guide mitigation
decisions and determine the type and level of
mitigation required under Clean Water Act Section
404 regulations.
Step 1. Avoid - Adverse impacts to aquatic resources
are to be avoided and no discharge shall be
permitted if there is a practicable alternative with
less adverse impact.
Step 2. Minimize - If impacts cannot be avoided,
appropriate and practicable steps to minimize
adverse impacts must be taken.
Step 3. Compensate - Appropriate and practicable
compensatory mitigation is required for
unavoidable adverse impacts which remain. The
amount and quality of compensatory mitigation may
not substitute for avoiding and minimizing impacts.
The American Crocodile, a Federal Endangered Species,
makes its home in the Everglades Mitigation Bank.
Methods of Compensatory Mitigation:
Even after avoiding and minimizing impacts, projects that will cause
adverse impacts to wetlands, streams 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. Methods of compensatory mitigation include restoration,
establishment, enhancement and preservation.
• Restoration: Re-establishment or rehabililitation of a wetland or other
aquatic resource 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 or wetland acres, or both.
• Establishment (Creation): The development of a wetland or other aquatic
resource where a wetland did not previously exist through manipulation of the
physical, chemical and/or biological characteristics of the site. Successful
establishment results in a net gain in wetland acres and function.
• 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 retention or wildlife habitat. Enhancement results in a gain in wetland
function, but does not result in a net gain in wetland acres.
• Preservation: The permanent protection of ecologically important wetlands
or other aquatic resources 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 or enhancement of the aquatic ecosystem.
Preservation does not result in a net gain of wetland acres and may only be
used in certain circumstances, including when the resources to be preserved
contribute significantly to the ecological sustainability of the watershed.
Source: Compensatory Mitigation for Losses of Aquatic Resources, 40 CFR Part 230
Subpart J and 33 CFR Part 332.
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Mechanisms for Compensatory Mitigation:
Compensatory mitigation for unavoidable wetland impacts may be accomplished through three distinctmechanisms. With permittee-responsible mitigation, the
permittee maintains liability for the construction and long-term success of the site. Mitigation banking and in-lieu fee mitigation are forms of "third party"
compensation, where the liability for proj e ct success is transferred to the mitigation bank or in-lieu fee sponsor.
• Permittee-Responsible Mitigation: Restoration, establishment, enhancement or 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. Permittee-responsible mitigation may occur at the site of the
permitted impacts or at an off-site location within the same watershed.
• Mitigation Banking: A wetlands mitigation bank is a wetland area that has been restored, established, enhanced or preserved, which is
then set aside to compensate for future conversions of wetlands for development activities. Permittees, upon approval of regulatory
agencies, can purchase credits from a mitigation bank to meet their requirements for compensatory mitigation. The value of these "credits"
is determined by quantifying the wetland functions or acres restored or created. The bank sponsor is ultimately responsible for the success
of the project. Mitigation banking is performed "off-site," meaning it is at a location not on or immediately adjacent to the site of impacts,
but within the same watershed. Federal regulations establish a flexible preference for using credits from a mitigation bank over the other
compensation mechanisms.
• In-Lieu Fee Mitigation: Mitigation that occurs when a permittee provides funds to an in-lieu-fee sponsor (a public agency or non-profit
organization). Usually, the sponsor collects funds from multiple permittees in order to pool the financial resources necessary to build and
maintain the mitigation site. The in-lieu fee sponsor is responsible for the success of the mitigation. Like banking, in-lieu fee mitigation is
also "off-site," but unlike mitigation banking, it typically occurs after the permitted impacts.
Federal Wetlands Mitigation Regulations and Guidance
Available at: www.epa.gov/wetlandsmitigation/
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 Section 404(b)(l) Guidelines to include comprehensive standards for all
three mechanisms for providing compensatory mitigation.
1990 Memorandum Of Agreement (MOA) ~E>etn>een The Department of the Army and The Environmental Protection Agency. This
MOA 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. (Portions of this MOA that concern the type and
location of compensatory mitigation are superseded by the above 2008 rule.)
Recent Evaluations of Wetlands Compensatory Mitigation
The Status and Character of In-Ueu Fee Mitigation in the Unites States. 2006. Environmental Law Institute, Washington, D.C.
Available at www.eli.org
2005 Status Report on Compensatory Mitigation in the United States. 2006. Environmental Law Institute, Washington, D.C.
Available at www.eli.org
Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure That Compensatory Mitigation Is Occurring. 2005.
U.S. Government Accountability Office Report GAO-05-898, Washington, D.C. Available at www.gao.gov
BANKS AND FEES: The Status of Off-Site Wetland Mitigation in the United States. 2002. Environmental Law Institute,
Washington, D.C. Available at www.eli.org
Stakeholder Forum on Federal Wetlands Mitigation. 2001-2006. Environmental Law Institute, Washington, D.C. Available at
www.eli.org
National Academy of Sciences. Compensatingfor Wetland"Losses Under the Clean Water Act. 2001. National Academy Press,
Washington, D.C. Available at www.nap.edu
Wetlands Protection: Assessments Needed to Determine Effectiveness of In-Eieu-Fee Mitigation. 2001. U.S. General Accounting
Office Report GAO-01-325. Washington, D.C. Available at www.gao.gov
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