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Compensatory Mitigation Rules Adopted for Corps of Engineers Permits


By Larry Kane, Attorney, Bingham Greenebaum Doll LLP

Comprehensive guidelines for planning and implementation of compensatory mitigation for loss of aquatic resources, when required by permits issued by the Department of the Army’s Corps of Engineers, were adopted in rules jointly adopted by the U.S. EPA and the U.S. Army Corps of Engineers. The rules, published in the Federal Register on April 10, 2008 [73 FR 19594] took effect on June 9, 2008.

A watershed approach is emphasized by the new rule for the selection of compensatory mitigation project locations. Equivalent standards are applied to the maximum extent feasible by the rule to each of three methods of satisfying compensatory mitigation obligations: mitigation performed by the permittee, use of mitigation banks, and in-lieu fee mitigation. A preference is established by the rule for the use of mitigation bank credits since this approach reduces risks and uncertainties of achieving successful mitigation. Enforceable ecological performance standards and regular monitoring will be required for all compensatory mitigation projects. 

The rules are codified in 33 CFR Part 332 and 40 CFR Part 230, respectively. Proponents of future projects requiring dredge-and-fill permits from the Corps of Engineers will be well-advised to become familiar with these rules.


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