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 US Army of Engineers (USACE) or an approved State. When there is a proposed discharge, all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources. For unavoidable impacts, compensatory mitigation is required to replace the loss of wetland, stream, and/or other aquatic resource functions. The USACE (or approved state authority) is responsible for determining the appropriate form and amount of compensatory mitigation required. Methods of providing compensatory mitigation include aquatic resource restoration, establishment, enhancement, and in certain circumstances, preservation.

No Net Loss of Wetlands Policy

The USACE and the US Environmental Protection Agency (EPA), in conjunction with the Departments of Agriculture, Commerce, Interior and Transportation have strengthened their commitment to achieve the goal of no net loss of our Nation's wetlands with the release of a comprehensive action plan and improved guidance to ensure effective, scientifically-based restoration of wetlands impacted by development activities. The USACE regulatory guidance and the multi-agency action plan will help advance technical capabilities for wetlands restoration and protection, as well as wetlands restoration completed as part of the Clean Water Act and related programs. Both actions are the result of extensive multi-agency collaboration.

The National Wetlands Mitigation Action Plan lists 17 action items that the agencies will undertake to improve the effectiveness of restoring wetlands that are impacted or lost to activities governed by clean water laws. Completing the actions in the plan will enable the agencies and the public to make better decisions regarding where and how to restore, enhance and protect wetlands; improve their ability to measure and evaluate the success of mitigation efforts; and expand the public's access to information on these wetland restoration activities.

The plan emphasizes monitoring, long-term management and financial assurances to help ensure that restored wetlands actually result in planned environmental gains. The plan also provides greater consistency across the USACE 38 district offices on issues such as the timing of mitigation activities and the party responsible for mitigation success. The main components of the plan are:

  • Taking a watershed-wide approach to prospective mitigation efforts for proposed projects impacting wetland and other waters
  • Increasing the use of functional assessment tools
  • Improving performance standards
  • The agencies are committed to achieving the goal of no net loss of wetlands under the regulatory program and are hopeful of attaining in the near future, an increase in the overall function and value of the Nation's wetlands.

The USACE and EPA a new mitigation rule clarifies how to provide compensatory mitigation for unavoidable impacts to the nation’s wetlands and streams. The rule enables the agencies to promote greater consistency, predictability and ecological success of mitigation projects under the Clean Water Act. "This rule greatly improves implementation, monitoring, and performance, and will help us ensure that unavoidable losses of aquatic resources and functions are replaced for the benefit of this Nation. This is a key step in our efforts to make the Army's Regulatory Program a winner, and the best it can be for the regulated community we serve and those interested in both economic development and environmental protection," said John Paul Woodley, Jr., Assistant Secretary of the Army for Civil Works. "This rule advances the President's goals of halting overall loss of wetlands and improving watershed health through sound science, market-based approaches, and cooperative conservation," said EPA Assistant Administrator for Water, Benjamin H. Grumbles. "The new standards will accelerate our wetlands conservation efforts under the Clean Water Act by establishing more effective, more consistent, and more innovative mitigation practices."

Benefits of the compensatory mitigation rule include:

  • Fostering greater predictability, increased transparency and improved performance of compensatory mitigation projects
  • Establishing equivalent standards for all forms of mitigation
  • Responding to recommendations of the National Research Council to improve the success of wetland restoration and replacement projects
  • Setting clear science-based and results-oriented standards nationwide while allowing for regional variations
  • Increasing and expanding public participation
  • Encouraging watershed-based decisions
  • Emphasizing the "mitigation sequence" requiring that proposed projects avoid and minimize potential impacts to wetlands and streams before proceeding to compensatory mitigation

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