In This Issue

Wetlands: Proposed Compensatory Mitigation Regulations

On March 27, 2006, EPA and the U.S. Army Corps of Engineers (the Corps) announced proposed revisions to regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under Section 404 of the Clean Water Act.

The proposed regulations are intended to establish performance standards and criteria for the use of permittee-responsible compensatory mitigation and mitigation banks, and to improve the quality and success of compensatory mitigation projects for activities authorized by Department of the Army permits. The proposed regulations are also intended to account for regional variations in aquatic resource types, functions, and values, and apply equivalent standards to each type of compensatory mitigation to the maximum extent practicable.

The proposed rule includes a watershed approach to improve the quality and success of compensatory mitigation projects in replacing losses of aquatic resource functions, services, and values resulting from activities authorized by Department of the Army permits. They are also proposing to require in-lieu fee programs, after a five-year transition period, to meet the same standards as mitigation banks. These revisions are also designed to complement EPA’s and the Corps’ ongoing efforts to implement the 2002 National Wetlands Mitigation Action Plan. New requirements for compensation sites include:

1) more research required for compensation sites in assessing watershed needs and how specific wetland restoration and protection projects can best address those needs
2) measurable and enforceable ecological performance standards for all types of compensation so that project success can be evaluated
3) regular monitoring to document that compensation sites achieve ecological performance standards
3) specific components of a complete compensation plan based on the principles of aquatic ecosystem science
4) the use of science-based assessment procedures to evaluate the extent of potential water resource impacts and the success of compensation measures

The net result will be more research, more monitoring, and more expense for potential impacts from pipeline construction and repair projects within wetland areas, streams, and other waters of the U.S. However, the clarification of the provisions concerning mitigation banking should make banking a more viable option in many regions where this is available.

RCP can assist you with interpreting the proposed Rule and with your specific application. For assistance with your SPCC plan revisions, contact Jessica