Federal agencies have proposed to change their requirements for what developers must do to make up for wetlands destroyed by construction projects. According to agency officials, this proposed rule may encourage use of “mitigation banks,” wetlands tracts that are preserved or newly created that can be used to offset lost wetlands elsewhere.
Benjamin Grumbles, the Environmental Protection Agency’s assistant administrator for water, says the new regulation “takes us to the next level” in wetlands conservation and restoration. He says the rule, proposed jointly by EPA and the Army Corps of Engineers, will accelerate the pace of restoring wetlands, increase accountability and provide “clear, results-oriented standards” for replacing lost tracts.
George Dunlop, deputy assistant Army secretary for civil works, says that the new rule doesn’t increase or decrease the amount of required wetlands mitigation. However, he says it does mark a change from the current “top down, one size fits all” system to a “compliance-based as opposed to an enforcement-based” program.
Currently, when developers seek a permit under Section 404 of the Clean Water Act to dredge or fill wetlands, they must follow a multi-part sequence: 1) minimize wetlands losses, 2) mitigate such losses or, when damage is unavoidable, 3) compensate for it by creating a new wetland somewhere else, buying mitigation bank “credits” or paying a fee.
“The [new] rule establishes a single set of standards which all forms of [wetlands] compensation must satisfy that is based on better science, increased public participation and innovative market-based tools”, says Dunlop
Grumbles says the proposed rule will require developers seeking a permit to submit a specific wetlands mitigation plan and then be subject to monitoring for five years.
If a builder chooses to use a mitigation bank, the plan will spell out standards and criteria for a bank’s scope and a process to ensure that it is ecologically sound. If a developer decides to pay a compensatory fee, there would be much more accountability required, adds Grumbles.
Craig Denisoff, president of the National Mitigation Banking Association, said, “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.”
The proposed rule is posted on the EPA’s web site.