Compensatory Mitigation Under Clean Water Act Section 404
Deborah Rosenthal, AICP, Esq. and Keith Garner, AICP, Esq
February 3, 2011
In 2004, Congress asked the US Army Corps of Engineers ("Army Corps") and the US Environmental Protection Agency ("EPA") to develop comprehensive regulations that establish equivalent standards and criteria for mitigation banks, in-lieu fee projects and permittee responsible mitigation required pursuant to section 404 of the Clean Water Act (33 USC § 1251 et seq., the "CWA") and sections 9 and 10 of the Rivers and Harbors Act (33 USC § 401). Congress sought the new rules because the Army Corps and EPA had taken a piecemeal
approach to compensatory mitigation with a variety of guidance documents published over the 30-year course of their implementation of the CWA regulatory programs.
In response, the Army Corps and EPA published a proposed rule on Compensatory Mitigation for Losses of Aquatic Resources on March 28, 2006 (71 Fed. Reg. 15,520). After considering approximately 12,000 comments (identified as 850 distinct comments and 11,150 additional
substantially identical comments) received during the 90-day public comment period for the proposed rule, the agencies published their Final Rule on April 10, 2008. 73 Fed. Reg. 19,594 (the "Final Rule").
