Section 404 of the Clean Water Act establishes a program to regulate activities in waters of the U.S. The objective of the Clean Water Act (CWA) is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Toward achievement of this goal, the CWA prohibits the discharge of dredged or fill material into wetlands, streams, and other waters of the United States unless a permit is issued by the U.S. Army Corps of Engineers (Corps).
When a discharge of dredged or fill material into wetlands is propoosed, all appropriate and practicable steps must be taken to first AVOID and then MINIMIZE wetland impacts as much as possible. For any remaining unavoidable wetland impacts resulting from the project, COMPENSATION is required to replace the loss of wetland, stream, and/or other aquatic resource functions.
In 2008, the Environmental Protection Agency (EPA) and Corps issued revised regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under CWA Section 404. These regulations, 33 CFR 332, also known as the “Mitigation Rule”, are designed to improve the effectiveness of compensatory mitigation to replace lost aquatic resource functions and area, expand public participation in compensatory mitigation decision-making, and increase the efficiency and predictability of the mitigation project review process.
This EPA/ Corps Mitigation Rule identified the following preference hierarchy concerning the forms and location of compensatory mitigation:
1. Mitigation Bank credits from an approved mitigation bank,
2. In-Lieu Fee (ILF) program credits from an approved ILF program,
3. Permittee-Responsible Mitigation under a watershed approach,
4. Permittee Responsible Mitigation through on-site and in-kind mitigation, or,
5. Permittee-Responsible Mitigation through off-site and/or out-of-kind mitigation.