A Brief History of Wetlands Mitigation

By Steve Collins, The Wetlands Group The first regulatory recognition of the need to protect wetlands is found in the 1972 Clean Water Act (CWA). Specifically, Section 404 of the CWA requires a permit to discharge dredged or fill materials into waters of the U. S. Two other key provisions of the CWA include the requirement to avoid and minimize impacts when possible, and the requirement to provide compensatory mitigation for unavoidable impacts. These clauses are still prevalent today and referred to as sequencing. In 1977 President Jimmy Carter signed Executive Order 11990 into law requiring Federal government agencies to take steps to avoid impacts to wetlands when possible. The national policy of “No Net Loss” of wetland values and functions was established by President George H.W. Bush in 1988. From this policy statement the concepts emerged of “like kind replacement” and “functional as opposed to spatial replacement.” In 1993, the Clinton Administration released a comprehensive package of improvements to federal wetlands programs that included support for the use of mitigation banks. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) subsequently released interim guidance (RGL 93-2) clarifying the role of mitigation banks in the CWA 404 permitting program. This guidance was subsequently expanded in November 1995 to include guidelines for the establishment and use of mitigation banks. In 1998, President Clinton signed into law Pub. L. No. 105–178: the Transportation Equity Act for the 21st Century (TEA-21). TEA-21 authorizes programs for highway, highway safety, transit, and other surface transportation. A significant provision in TEA-21 endorses using wetlands banks for mitigation of transportation projects, making TEA-21 the first substantial legislative act to specify a preference for mitigation banking where compensatory mitigation is required. In 2004, the National Defense Authorization Act (PL 108-136) called for the development of regulations, consistent with Section 404 of the Clean Water Act, that establish equivalent standards and criteria for mitigation banks, in-lieu fee programs and permittee-responsible mitigation After four years of deliberation with significant public input the federal rule became final in December, 2008. Implementation of this Rule continues to revolve around acceptance that engaging private capital to invest in the restoration of what we have impacted the last 10 decades is well worth the result.