Beveridge & Diamond
 

EPA and Army Corps Issue Final Rule on Wetlands/Stream Mitigation

Beveridge & Diamond, P.C., April 14, 2008

On April 10, 2008, EPA and the U.S. Army Corps of Engineers announced a final joint rule governing compensatory mitigation of impacts to wetlands, streams, and other aquatic resources authorized under the Clean Water Act permitting program.  Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19,593 (Apr. 10, 2008). These new regulations, originally proposed in substantially the same form in March 2006 (see http://www.bdlaw.com/news-48.html), establish equivalent standards and criteria for permittee-responsible mitigation, mitigation banks, and in-lieu fee mitigation -- the three primary mechanisms available for achieving compensatory mitigation for aquatic resource losses. 

In addition to bridging the gaps between different mitigation practices, the new regulations adopt a watershed-based approach to mitigation, emphasize the importance of applying the “best available science” to address the needs of specific aquatic ecosystems, and encourage the development of innovative, market-based conservation methods that augment current mitigation banking practices.  Finally, the proposed rule increases public participation in decisions concerning restoration of aquatic resources by requiring public notice of project impacts and the measures that will be taken to avoid, minimize, and compensate for these impacts and by subjecting all proposed mitigation banks to public notice and comment.  

Although the final rule is quite similar to the March 2006 proposal, the agencies made several slight revisions to address concerns raised in public comment.  These revisions attempt to clarify the stream mitigation provisions, reform the in-lieu fee mitigation rules by requiring additional advanced planning, and place greater emphasis on the agencies’ intent to retain traditional sequencing (avoid, minimize, compensate), which was the greatest concern of commenters in 2006.

The effective date for these new regulations is June 9, 2008.

For further information please contact Fred Wagner at fwagner@bdlaw.com, Karen Hansen at khansen@bdlaw.com,  or Parker Moore at pmoore@bdlaw.com.

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