Breaking News: U.S. Mitigation Banking Regulations Released

Jan 1, 2001
Amanda Hawn

Mitigation bankers and conservation organizations throughout the United States have been speculating about the release of new federal regulation governing the protection of wetlands since 2003. The wait is over: the new Compensatory Mitigation for Loss of Aquatic Resources regulation is here. George Dunlop, deputy assistant secretary of the U.S. Army, and Benjamin Grumble, assistant administrator for water at the U.S. Environmental Protection Agency, announced the release of new federal regulation for wetland mitigation on March 27, 2006. Dunlop referred to the new regulation – Compensatory Mitigation for Loss of Aquatic Resources – as the most important piece of regulation for the protection of U.S. aquatic resources since the passage of the Clean Water Act in the 1970s. Under the Clean Water Act Section 404 program, anyone who destroys wetlands in the United States must compensate for the destruction by: restoring other wetlands on the same site, paying in-lieu fees to a conservation organization that will restore wetlands in the future, or buying credits from someone who has already restored wetlands elsewhere in the same watershed. In the past, the Army Corps of Engineers, which oversees compliance under section 404, held each of these different options to different standards. In general, individuals who banked credits to sell to developers needing them, had to meet more stringent environmental accountability standards than individuals undertaking on-site mitigation projects. If approved, the new regulation will change this practice, requiring those pursuing each option to publish management plans and provide for long-term monitoring of restoration sites. Grumble at the U.S. EPA also stressed that the new regulation will place greater emphasis on the ecological health of watersheds in their entirety rather than on the importance of on-site mitigation. The aim, according to Dunlop, is to increase the "ecological uplift" associated with compensatory mitigation projects throughout the country. Mitigation bankers, who restore wetlands and bank credits to sell to others, have welcomed the new regulations because they remove the historic bias toward on-site mitigation and tighten accountability standards for organizations accepting in-lieu fees to put toward future restoration efforts. The result, then, is that mitigation banking is expected to become an increasingly attractive option for developers needing to compensate for the destruction of wetlands. "We look forward to working with the federal agencies and other stakeholders on these regulations to continue to improve wetland mitigation," said Craig Denisoff, president of the National Mitigation Banking Association (NMBA). "These regulations can improve the Section 404 program for all participants – the permit applicants, the mitigation providers, the federal agencies, and most importantly, the physical environment." According to the NMBA, there are currently 500 mitigation banks in 35 states across the U.S. Dunlop said the Army Corps of Engineers expected this number might double as a result of the new regulations. Environmentalists are split over whether or not such a development would be desirable, with some holding that the changes will make developing on wetlands too easy for developers and others contending that mitigation banks generate better restoration projects and should be supported. All agree, however, that the proposed regulations represent a move toward private-sector conservation that will be closely watched by fans and critics alike. Amanda Hawn is the Editor of the Ecosystem Marketplace. She may be reached at Click here for the National Mitigation Banking Association's press release Click here for the Ecosystem Marketplace's press release