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This page provides updates and background information regarding Clean Water Act Section 404 Compensatory Mitigation Requirements.
Compensatory mitigation refers to the restoration, establishment, enhancement, and/or preservation of wetlands, streams, or other aquatic resources conducted specifically for the purpose of offsetting authorized impacts to these resources. In 2008, EPA and the U.S. Army Corps of Engineers jointly promulgated regulations revising and clarifying requirements regarding compensatory mitigation. According to these regulations, the fundamental objective of compensatory mitigation is to offset environmental losses resulting from unavoidable impacts to waters of the United States authorized by Clean Water Act Section 404 permits issued by the U.S. Army Corps of Engineers. Compensatory mitigation enters the analysis only after a proposed project has incorporated all appropriate and practicable means to first avoid and minimize adverse impacts to aquatic resources.
There are three mechanisms for achieving the four methods of compensatory mitigation (listed in order of preference as established by the regulations): mitigation banks, in-lieu fee programs, and permittee-responsible mitigation.
- Compensatory Mitigation Regulations
- Compensatory Mitigation Guidance
- RIBITS (Regulatory In-lieu fee and Bank Information Tracking System)
- Compensatory Mitigation Factsheets
- Compensatory Mitigation Training Resources
- Technical Resources for Stream Mitigation
- Recent Compensatory Mitigation Evaluations and Reports
- National Wetlands Mitigation Action Plan
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. This version of the 404(b)(1) Guidelines, published in 2010, includes the expanded compensatory mitigation requirements that were added in 2008.
- 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.
Background on 2008 rulemaking
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.
- Federal Register Notice of Final Rule (PDF) (113 pp, 567K)
- Compensatory Mitigation Rule Factsheet (PDF) (2 pp, 632K)
- Questions and Answers (PDF) (6 pp, 87K)
- Army Corps and EPA Improve Wetland and Stream Mitigation – EPA Press Release
- Final Environmental Assessment (PDF) (134 pp, 462K)
- Background materials on proposed rule
- Compensatory Mitigation Rule Training Materials
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
- 2003 Transportation Equity Act for the 21st Century (TEA-21) Guidance (Federal Highway Administration) (PDF) (8 pp, 1.45MB)
- 2003 Federal Aviation Administration Memorandum of Agreement to Address Aircraft-Wildlife Strikes (PDF) (28 pp, 323K)
- 2003 Model Mitigation Plan Checklist (PDF) (8 pp, 2MB)
- 2003 Memorandum to the Field on Adaptation of National Research Council Compensatory Mitigation Guidelines (PDF) (10 pp, 227K)
RIBITS (Regulatory In-lieu fee and Bank Information Tracking System)
RIBITS was developed by the U.S. Army Corps of Engineers with support from EPA and the U.S. Fish and Wildlife Service to provide better information on mitigation and conservation banking and in-lieu fee programs across the country. RIBITS allows users to access information on the types and numbers of mitigation and conservation bank and in-lieu fee program sites, associated documents, mitigation credit availability, service areas, as well information on national and local policies and procedures that affect mitigation and conservation bank and in-lieu fee program development and operation.
Compensatory Mitigation Factsheets
Compensatory Mitigation Training Resources
- Training Course for mitigation banking and In-lieu fee program Interagency Review Teams (IRTs)
- Association of State Wetland Managers - Stream Identiification/Delineation/Mitigation Project
- 2013 Training Course on In-Lieu Fee Programs
- Compensatory Mitigation Rule Training Materials
Technical Resources for Stream Mitigation
- 2014 Association of State Wetland Managers (ASWM). From 2012 through 2014 ASWM conducted a series of webinars and interviews with States to document and discuss the various ways States address stream jurisdiction, identification, protection and compensation.
- 2012 A Function-Based Framework for Stream Assessment & Restoration Projects, EPA 843-K-12-006 (PDF) (344 pp, 8MB) – This report lays out a framework for approaching stream assessment and restoration projects that focuses on understanding the suite of stream functions at a site in the context of what is happening in the watershed. It has been developed to:
- Help the restoration community understand that stream functions are interrelated and generally build on each other in a specific order, a functional hierarchy, and understand that parameters can be used to assess those functions even if some parameters are functions and others are structural measures.
- Place reach scale restoration projects into watershed context and recognize that site selection is as important as the reach scale activities themselves.
- Provide informal guidance and ideas on how regional stream assessment procedures might incorporate stream functions into debit/credit determination methods, function-based assessments and performance standards.
- 2012 UPDATED Natural Channel Design Review Checklist, EPA 843-B-12-005 (PDF) (96 pp, 32MB) – This checklist and supporting document has been updated with supplementary materials and has been reformatted. It provides guidance on important items to consider when reviewing natural channel designs. It is intended to provide the reviewer with a rapid method for determining whether a project design contains an appropriate level of information for review and evaluation. Updated Excel spreadsheet version of Checklist
- 2011 Appalachian Stream Mitigation Workshop – The workshop included presentations designed to inform state and federal regulatory and resource agencies, who review, comment on and/or approve compensatory mitigation plans for surface coal mining projects in Appalachia. Additional information on the workshop, the presentation materials, and additional resources are provided.
- 2010 Stream Mitigation Protocol Compendium, EPA 843-S-12-003 (PDF) (155 pp, 1MB) - This report provides a review of 32 stream assessment protocols and mitigation guidance documents in use by various federal and state government agencies nationwide. It identifies stream functions or conditions assessed, parameters or attributes measured, assessment results obtained, intensity of effort and training needed, use and source of reference condition information, and other factors potentially instructive to parties seeking to review, initiate, or modify stream assessment programs.
- 2004 Stream Mitigation Protocol Compendium, EPA 843-S-12-002 (PDF) (212 pp, 1.2MB) - This document is intended as a reference that can be consulted by regulatory agencies, resource managers, and restoration ecologists in order to select, adapt, or devise stream assessment methods appropriate for impact assessment and mitigation of fluvial resources in the CWA Section 404 Program. Memorandum to the Field (PDF) (2 pp, 714K)
Since this document provides a new framework it will benefit from additional review, comments, and example experiences and applications. Please share these with the authors so the concepts, examples and templates can be revised and expanded. Contact any one of the following: Will Harman, lead author (firstname.lastname@example.org, 919-747-9448), Brian Topping, EPA project sponsor (email@example.com, 202-566-5680) or Rich Starr, FWS project sponsor (firstname.lastname@example.org, 410-573-4583).
Recent Compensatory Mitigation Evaluations and Reports
- • 2014, Watershed Approach Handbook: Improving Outcomes and Increasing Benefits Associated with Wetland and Stream Restoration Projects. In September 2014, the Environmental Law Institute and the Nature Conservancy released a new handbook to advance the use of a watershed approach in the selection, design, and siting of wetland and stream restoration and protection projects, including projects required as compensatory mitigation for permitted activities.
- 2013, A Handbook for Prioritizing Wetland and Stream Restoration and Protection Using Landscape Analysis Tools. In September 2013, the Environmental Law Institute released a new handbook that describes the range of tools used by wetland programs across the country to prioritize wetlands and streams for restoration and protection.
- Wetland and Stream Mitigation: A Handbook for Land Trusts (PDF) (155 pp, 1.9 MB) – In September 2012, the Environmental Law Institute and the Land Trust Alliance released a handbook designed to provide land trusts with the tools they need to navigate the federal wetland and stream compensatory mitigation program and evaluate their engagement in the program.
- Mitigation of Impacts to Fish and Wildlife Habitat: Estimating Costs and Identifying Opportunities (PDF) (125 pp, 633K) - 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) (152 pp, 682K) - 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) (110 pp, 486K) - 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) (47 pp, 670K) - 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.
- Measuring Mitigation: A Review of the Science of Compensatory Mitigation Performance Standards (281 pp, 1.45MB) - In April 2004, the Environmental Law Institute published its review of the status of peer-reviewed literature on selected biological indicators, abiotic factors, functional assessments, and developmental trajectories to help evaluate the success of compensatory mitigation for authorized impacts to wetlands and other aquatic resources under Clean Water Act Section 404.
- 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) (75 pp, 2.6MB) - 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
National Wetlands Mitigation Action Plan
On 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. The goals and objectives of the National Mitigation Action Plan were incorporated into the 2008 Final Compensatory Mitigation Rule.
- National Mitigation Action Plan (PDF) (12 pp, 178K)
- National Mitigation Action Plan Factsheet (PDF) (2 pp, 1.2 MB)
- Stakeholder Coordination - In 1999, the Federal agencies began hosting a series of stakeholder forums to gather information and opinions on the concerns and challenges of compensatory mitigation. These forums have brought together a diverse group of individuals representing the regulated community, environmental organizations, academia, non-governmental organizations, and mitigation providers. The first forum was held in Washington, DC, in 1999, to discuss draft guidance on in-lieu-fee mitigation. The second forum was held in Baltimore, Maryland, in October 2001. This meeting helped lead to the formulation of the National Wetlands Mitigation Action Plan. The third and fourth forums were held in Portland, Oregon (July 2003) and Tampa, Florida (September 2004) to discuss progress on Action Plan tasks and solicit input on future Action Plan tasks. The fifth forum was held in Washington, DC (May, 2006) to discuss the proposed compensatory mitigation regulations.