Beveridge & Diamond
 

EPA and Army Corps Propose New Standards For Wetland Mitigation

Beveridge & Diamond, P.C., April 7, 2006

On March 28, 2006, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) proposed new standards regulating compensatory mitigation of impacts to wetlands and other aquatic resources authorized under the Corps’ Clean Water Act permitting program.  Proposed Rule, 71 Fed. Reg. 15519 (Mar. 28, 2006) available at http://www.epa.gov/wetlandsmitigation.  The proposed rule signals a shift in federal aquatic resources conservation by attempting to 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 wetland losses.  By integrating consistent performance standards into these mechanisms, EPA and the Corps hope to improve the quality and success of compensatory mitigation projects.  In addition to bridging the gaps between different mitigation practices, the proposed regulations adopt a watershed-based approach to wetland 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 notification 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.  

EPA and the Corps are currently seeking comments on the technical merit of these proposed regulations.  Any comments must be submitted by May 30, 2006.

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