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The U.S. Army Corps of Engineers and U.S. Environmental Protection Agency released a new rule on March 31 to clarify how to provide compensatory mitigation for unavoidable impacts to the nation’s wetlands and streams. 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.

According to the agencies, the rule will provide the following benefits:

  • foster greater predictability, increased transparency, and improved performance of compensatory mitigation projects;
  • establish equivalent standards for all forms of mitigation;
  • respond to recommendations of the National Research Council to improve the success of wetland restoration and replacement projects;
  • set clear, science-based and results-oriented standards nationwide while allowing for regional variations;
  • increase and expand public participation;
  • encourage watershed-based decisions; and
  • emphasize the "mitigation sequence," requiring that proposed projects avoid and minimize potential impacts to wetlands and streams before proceeding to compensatory mitigation.

More information on the compensatory mitigation rule is available online at www.usace.army.mil/cw/cecwo/reg/citizen.htm or www.epa.gov/wetlandsmitigation.