Corps & EPA Release Rule For Wetland & Stream Mitigation

Mar 31: The U.S. Army Corps of Engineers and U.S. EPA announced that they were taking action "to ensure more effective wetland and stream restoration and preservation nationwide." Assistant Secretary of the Army for Civil Works John Paul Woodley, Jr., and EPA Assistant Administrator for Water Benjamin Grumbles held a joint teleconference where they discussed the release of a new rule for wetland and stream mitigation projects under the Clean Water Act (CWA).

They said the new rule would clarify how to provide compensatory mitigation for unavoidable impacts to the nation's wetlands and streams. They said it would enable the agencies to promote greater consistency, predictability and ecological success of mitigation projects under CWA. The rule will become effective 60-days following publication in the Federal Register which is tentatively scheduled for April 4, 2008.

Woodley said, "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. 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." Grumbles said, "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. 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."

They outlined benefits of the compensatory mitigation rule including: 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.

In a release they indicated that 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. Wetlands and streams provide important environmental functions including protecting and improving water quality and providing habitat to fish and wildlife. Successful compensatory mitigation projects will replace environmental functions that are lost as a result of permitted activities.

Access a release from EPA (click here). Access EPA's Wetlands Compensatory Mitigation website for links to a prepublication version of final 232-page rule, a fact sheet, a Q&A document, the Final 134-page Environmental Assessment, FONSI and Regulatory Analysis and background materials (click here). [*Water]