Wetlands Mitigation Rules Finalized

Abstract

The 2004 National Defense Authorization Act (PL 108‐136) required development of regulations consistent with Clean Water Act (CWA) Section 404 that establish equivalent standards and criteria for permittee‐responsible mitigation, mitigation banks, and in‐lieu fee programs. On March 27, 2006, the U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (Corps) announced proposed revisions to compensatory mitigation regulations. The purpose of the proposed revisions was to improve the effectiveness of compensatory mitigation, expand public participation, and increase the efficiency and predictability of the regulatory process. The proposal also complemented efforts to implement the 2002 National Wetlands Mitigation Action Plan, as well as respond to the recommendations of the 2001 National Research Council (NRC) comprehensive report evaluating wetlands compensatory mitigation (2001). On Apr. 10, 2008, USEPA and the Corps published a final rule that improves and consolidates existing regulations and guidance and establishes equivalent standards for all types of mitigation under the CWA Section 404 regulatory program. The new rule, which goes into effect June 9, 2008, is intended to promote greater consistency, predictability, and ecological success of mitigation projects. The rule does not change when compensatory mitigation is required, but it does change where and how it is required. This article discusses required mitigation plans and selecting the best mitigation option.