Ten Years of the Compensatory Mitigation Rule: Reflections on Progress and Opportunities

Date01 January 2019
AuthorPalmer Hough and Rachel Harrington
Ten Years of the Compensatory
Mitigation Rule: Ref‌lections on
Progress and Opportunities
by Palmer Hough and Rachel Harrington
Palmer Hough is an Environmental Scientist with more than 20 years of experience working on compensatory mitigation issues
in the Clean Water Act (CWA) §404 regulator y program. Hough was the U.S. Environmental Protection Agency’s (EPA’s) lead
author on the 2008 Compensatory Mitigation Rule, which was developed jointly with the U.S. Army Corps of Engineers. He
serves as EPA’s national lead on wetland, stream, and other aquatic resource mitigation.
Rachel Harrington is an Aquatic Ecologist with more than eight years of experience conducting eld-based monitoring and
assessment research. Harrington recently spent two years in the CWA §404 regulatory program studying implementation of
compensatory mitigation policy. She currently works on CWA jurisdiction in EPA’s Oce of Wetlands, Oceans, and Watersheds.
In 2008, the U.S. Army Corps of Engineers (the Corps)
and the U.S. Environmental Protection Agency (EPA)
overhauled federal policy governing how impacts to
wetlands, streams, and other aquatic resources authorized
under §404 of the Clean Water Act (CWA)1 are oset—
an action known as compensatory mitigation. e col-
lective eorts of mitigation practitioners, private-sector
entrepreneurs, conservation organizations, scientists, a nd
regulators have led to a great deal of progress in improving
1. 33 U.S.C. §§1251-1387, §1344, ELR S. FWPCA §§101-607.
the nation’s approach to osetting authorized impacts to
wetlands and streams. On the 10-year anniversary of the
Corps/EPA Compensatory Mitigation Rule,2 it is impor-
tant to highlight this progress as well as some potential
important work that remains to be done.
e primary objective of the CWA is to restore and
mainta in the chemical, physical, and biologic al integ-
rity of the nation’s waters. To help achieve this objective,
§404 of the CWA regulates discharges of dredged or ll
material into waters of the United States, including wet-
lands and streams. Wetlands, streams, and other aquatic
resources perform critical ecologica l functions in the land-
scape, including protecting water quality, regulating water
quantity and ood ows, and providing important habi-
tat for sh and wildlife. Section 404 helps to ensure that
discharges to these waters proceed without compromising
these important aquatic resource functions.
e Corps and EPA share responsibility for the §404
program. e Corps serves as t he permitting authority
for regulated activities,3 and EPA was tasked with, among
other duties, developing the substantive environmental
criteria that the Corps uses to make its permit decisions.
ese are known as the Section 404(b)(1) Guidelines and
are codied in regu lation at 40 C.F.R. Part 230. e miti-
gation requirements to avoid, minimize, and compensate
for permitted impacts originated in these reg ulations and
have been further claried through subsequent regulations
and guid ance. e 2008 Compensatory Mitigation Rule
2. 40 C.F.R. §§230.91-.98 (2018); 33 C.F.R. §332 (2018).
3. Under §404(g) of the CWA, states may receive approval from EPA to ad-
minister permit programs for sites in certain waters of the United States in
lieu of the program administered by the Corps. To date, two states have
been approved by EPA to administer §404 permit programs: Michigan and
New Jersey.
Authors’ Note: e mitigation improvements summarized in this
Comment would not have been possible without the hard work and
dedication of mitigation practitioners, particularly mitigation bank
and in-lieu fee (ILF) program sponsors who implement wetland and
stream restoration and enhancement projects across the country, and
the federal and state agency sta who serve on interagency review
teams (IRTs) and work closely with practitioners to ensure that
their compensation projects provide meaningful osets and comply
with the regulations. Special recognition goes to U.S. Army Corps
of Engineers (the Corps) sta, who provide critical leadership on
IRTs and in overseeing mitigation bank and ILF program approval
and management, and Corps headquarters and the Corps’ Institute
for Water Resources for supporting essential training eorts and the
Regulatory In-lieu Fee and Bank Information Tracking System
database, which tracks important data regarding mitigation banks
and ILF programs, and makes that data available to the public.
is work was supported in part by an appointment to the Research
Participation Program at the U.S. Environmental Protection
Agency’s (EPA’s) Oce of Water, and administered by the Oak
Ridge Institute for Science and Education through an interagency
agreement between the U.S. Department of Energy and EPA. e
views expressed here are the authors’ own and do not necessarily
reect the views or policies of EPA.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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