Abstract
The requirement to mitigate impacts to wetlands and streams is a frequently-misunderstood policy with a long and complicated history. We narrate the history of mitigation since the inception of the Clean Water Act Section 404 permit program in 1972, through struggles between the United States Environmental Protection Agency and the United States Army Corps of Engineers (ACOE), through the emerging importance of wetland conservation on the American political landscape, and through the rise of market-based approaches to environmental policy. Mitigation, as it is understood today, was not initially foreseen as a component of the Section 404 permitting program, but was adapted from 1978 regulations issued by the Council on Environmental Quality as a way of replacing the functions of filled wetlands where permit denials were unlikely. The Environmental Protection Agency (USEPA) and the ACOE agreed in 1990 to define mitigation as the three steps of avoidance, minimization, and compensation, principles which must be applied to permit decisions in the form of the environmental criteria in USEPA’s 404(b)(1) Guidelines. Through the 1980s and 1990s, the compensation component of mitigation has become nearly the sole focus of mitigation policy development, and has been the subject of numerous guidances and memoranda since 1990. Avoidance and minimization have received far less policy attention, and this lack of policy development may represent a missed opportunity to implement effective wetland conservation.
Parts of this chapter appeared in Wetlands Ecology and Management 17:15–33, 2009.
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Notes
- 1.
As defined in 40 CFR 230.3(s) The term waters of the United States means:
-
a)
All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
-
b)
All interstate waters including interstate wetlands;
-
c)
All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
-
(i)
Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
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(ii)
From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
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(iii)
Which are used or could be used for industrial purposes by industries in interstate commerce;
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(i)
-
d)
All impoundments of waters otherwise defined as waters of the United States under this definition;
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e)
Tributaries of waters identified in paragraphs (s)(a) through (d) of this section;
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f)
The territorial sea;
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g)
Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(a) through (f) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
-
a)
- 2.
“This article helped memorialize the description as a 3-step process. For a time, everyone who wrote on the subject after this article used the Race and Christie description or a slight variation of it.” EPA Region 1 staff member, personal communication 6/8/07.
- 3.
Personal communication between William James and Brian Frazer 6-12-2009.
- 4.
- 5.
In applying for a permit to construct a shopping mall in a wetland known as Sweeden’s Swamp, the Final Determination stated that the applicant must consider alternatives to the wetland fill that were available at the time the permit applicant entered the market for the site, rather than at the time the applicant applied for a permit. And since a less environmentally damaging nearby site had in fact been available at that time, the permit for the Sweeden’s Swamp site must be denied.
- 6.
40 C.F.R. § 230.10(d) (2006).
- 7.
40 C.F.R. § 230.70-77 (2006).
- 8.
Personal communication between Russell Kaiser and Palmer Hough 4-19-07.
- 9.
No net loss
- 10.
See Final Compensatory Mitigation Rule at: http://www.epa.gov/wetlandsmitigation/.
- 11.
See the National Compensatory Mitigation Guidance List: http://www.mitigationactionplan.gov/links.html.
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Acknowledgments
The authors gratefully recognize the invaluable guidance and contributions of Bill Kruczynski of the United States Environmental Protection Agency, Region 4, Matt Schweisberg of the United States Environmental Protection Agency, Region 1, David Olson of Army Corps of Engineers, Regulatory Headquarters, former United States Environmental Protection Agency HQ Wetlands Division Directors Dave Davis and John Meaghar, and former United States Environmental Protection Agency HQ Wetlands Regulatory Branch Chief John Goodin. This research was conducted in part with assistance from a fellowship from the Oak Ridge Institute for Science and Education.
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Robertson, M., Hough, P. (2011). Wetlands Regulation: The Case of Mitigation Under Section 404 of the Clean Water Act. In: LePage, B. (eds) Wetlands. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0551-7_10
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