What is the EPA's Compensatory Mitigation Rule?

Environmental Training Resource
July 24, 2012 — 1,108 views  
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Compensatory mitigation refers to the United States' ability to maintain the integrity of the country's waters. It is defined as part of the Clean Water Act (CWA), which prohibits the discharge of dredged or fill material into bodies of water unless approved under Section 404 of the regulation.

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) altered Section 404 of the CWA with its compensatory mitigation modifications. On March 31, 2008, these groups altered the rule to help improve the mitigation review process, increase the public's role in decisions relating to the topic and make the mitigation project review process more predictable.

Take a look at how each of the aforementioned areas were affected by the changes.

An enhanced mitigation review process

The Corps has been able to use a standardized process since the 2008 modifications. This group uses a checklist to examine whether a chemical or petroleum company has violated Section 404. Additionally, government officials can take a step-by-step approach to determine the severity of the offense with this list.

Environmental professionals should consider explaining the concepts and terms included in the list. For instance, the Corps will examine grading plans, erosion controls and preservation if they believe that a business could be completing projects that are harming nearby waters. Explaining such terminology to your clients may help them take preventative measures, as federal penalties could be overwhelming, especially for small companies.

The public's role in the decision making process

The public is directly impacted by any damage to lakes, streams and other waters, and can affect decisions relating to such harm. How land is used in the future is the public's concern, and U.S. citizens have the right to access information regarding planning.

With these changes, public notice for an individual permit must include a statement that explains how impacts related to a proposed activity will be avoided, minimized and provide details of any associated compensation. Final mitigation strategies should include in-depth information such as monitoring requirements and performance standards.

The predictability of the mitigation review process

As businesses are asked to create detailed plans, they improve the predictability of the review process. The EPA and Corps outline the steps that companies must take to get their plans approved, and businesses that fail to do so can understand why their proposals could be rejected.

Be sure to discuss how the 2008 changes to Section 404 of the CWA could affect a project, as this information could prove valuable to your client. 

Environmental Training Resource