By Janell M. Bogue

On March 31, 2008, the EPA and the Corps issued a new final rule on compensatory mitigation for impacts to waters of the United States under Section 404 of the Clean Water Act. This final rule was published in the Federal Register on April 10, 2008 at 73 Fed.Reg. 19,593

Under the Clean Water Act, a 404 permit applicant must first take all “appropriate and practicable steps” to minimize impacts to aquatic resources. (40 C.F.R., § 230.10(d).) If there are unavoidable impacts, however, the Clean Water Act requires compensatory mitigation to replace any lost aquatic resources. 

Compensatory mitigation typically is accomplished by three methods:

  1. Obtaining credits from a mitigation bank;
  2. Payments to an in-lieu fee program, usually administered by a government agency or non-profit organization; and
  3. The permittee restores, establishes, or preserves an aquatic resource either on-site or at another location.

The new rule consolidates the previous guidance documents, making it easier for permittees to understand and follow. The new rule also requires mitigation plans to be prepared by permittees. The mitigation plans must all include the same twelve components. These components include information such as the project objectives, site selection criteria, and a description of the long-term maintenance plan. The rule also requires public notice and comment for standard permits as well as a brief statement describing how impacts to aquatic resources will be avoided, minimized, and any compensation.

Most importantly, the new compensatory mitigation rule establishes a hierarchy for mitigation. The most preferred method is mitigation bank credits, followed by in-lieu fee programs, and finally permittee-responsible mitigation. The regulations are designed to help meet the national goal of “No Net Loss” of wetlands. 

The complete rule, as well as other guidance, can be found at the EPA’s website at: The new rule will go into effect on June 9, 2008.

Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.