AVID Group<sup>®</sup> Environmental Sciences Permitting Alert

On March 31, 2008, EPA and the U.S. Army Corps of Engineers (the Corps) issued revised 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.

AVID Environmental Services believes the final rule contains several points of interest that our clients should be aware of, including:

  • Wetland impact mitigation approach has changed from onsite focus to watershed focus,
  • Development of 12 technical mitigation fundamentals that should be satisfied for permitting,
  • A renewed focus on avoidance and minimization.

It should be noted the objective of the new regulations, as stated by the Corps are 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." See http://www.epa.gov/wetlandsmitigation/#guidance.

However unlike the old ‘on-site’ preference, the new approach to compensatory mitigation is ranked with a basin or watershed philosophy. The new approach will afford our clients greater flexibility with respect to potential mitigation opportunities. We anticipate mitigation bank credits to experience a slight increase in price initially, then adjusting to a market-demand pricing structure based on availability. Under the final rule, compensatory mitigation priorities will be structured with the following priority ranking:

  1. Regional or Basin specific Mitigation Bank – most desired
  2. In-Lieu Fee Mitigation (Local watershed directive) – most desired
  3. Permittee Responsible Mitigation (On-Site) – marginally desired
  4. Permittee Responsible Mitigation (Off-Site) – least desired

The new 12 technical factors an applicant needs to address during wetland impact permitting and compensatory mitigation are:

  • Mitigation objectives (global to general)
  • site selection criteria
  • site protection instruments (e.g., conservation easements)
  • baseline information (for impact and compensation sites)
  • credit determination methodology
  • mitigation work plan
  • maintenance plan
  • ecological performance standards
  • monitoring requirements
  • long-term management plan
  • an adaptive management plan
  • financial assurances

Though the above list may sound complicated, it may possibly provide for more options for use when justifying a mitigation approach for wetland impacts. Significantly, the historical procedure to assessing mitigation sequence still applies to all projects (i.e., avoid, minimize, and compensate).

Where can I get a copy of the new rule?

AVID Environmental Services encourages our clients and potential clients to call staff to discuss project impacts. Consultation charettes are also available at any one of our Florida offices to discuss how these changes to wetland permitting may affect your projects schedules and pro forma.

Contact either Mr. Adam Zions, Environmental Manager, at 727-789-9500, or Mr. Kevin Songer, JD, LEED® AP, ISA at 904-737-4100 for further details.

The new Compensatory Mitigation Rule is on-line at: http://www.usace.army.mil/cw/cecwo/reg/citizen.htm or http://www.epa.gov/wetlandsmitigation