ELI's Compensatory Mitigation Research

The Environmental Law Institute conducts detailed research to evaluate compensatory mitigation required to offset adverse impacts to wetlands. ELI studies a wide variety of compensatory mitigation programs, with a particular focus on compensatory mitigation carried out under Section 404 of the Clean Water Act. Within the Section 404 Program, ELI has analyzed all three available mechanisms, including mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation. For additional information on compensatory mitigation under Section 404, see Related Links.

Featured Areas of Expertise and Resources:

• Wetland and Stream Mitigation: A Handbook for Land Trusts: In partnership with the Land Trust Alliance, ELI has developed a resource for land trusts to help them navigate the federal wetland and stream compensatory mitigation program and evaluate their engagement in the program. It provides background on the federal regulatory program, an overview of the different phases of a compensatory mitigation project, a discussion of the different roles that a land trust can play in compensatory mitigation, a framework for land trusts to assess their participation in a compensatory mitigation project, and technical guides on site protection instruments, long-term management plans, and long-term financing mechanisms.

• The Next Generation of Mitigation: This white paper, The Next Generation of Mitigation: Linking Current and Future Mitigation Programs with State Wildlife Action Plans and Other State and Regional Plans (2009), was prepared by ELI and The Nature Conservancy. The paper suggests that a more comprehensive approach to environmental mitigation by federal agencies will result in improved conservation and economic outcomes. "The Next Generation of Mitigation" seeks to define and describe a new approach to the use of mitigation that would support significant, landscape-scale conservation results, while accommodating energy and infrastructure investments in the coming decades.

• In-Lieu Fee Mitigation: In 2009, ELI published In-Lieu Fee Mitigation: Model Instrument Language and Resources, which offers model language that could be incorporated into in-lieu fee program instruments being developed by state agencies and non-profit organizations. In 2006, ELI completed the first-ever in-depth analysis of the nation's active aquatic resource in-lieu fee mitigation programs, the results of which are available in The Status and Character of In-Lieu Fee Mitigation in the United States.

• Wetland and Habitat Banking: In Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species (2008), ELI and the Environmental Defense Fund assessed the potential for habitat banking to contribute to the conservation of priority wildlife habitat identified in the state wildlife action plans.

• Banking and Compensatory Mitigation Status Reports: ELI has published several data-rich status reports on wetland mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation. ELI's 2005 Status Report on Compensatory Mitigation in the United States (2006) describes the extent and nature of wetland mitigation banking and in-lieu fee mitigation activities in the nation. The Status and Character of In-Lieu Fee Mitigation in the United States (2006) provides in-depth analysis of the nation's active aquatic resource in-lieu fee mitigation programs, and Banks and Fees: The Status of Off-Site Wetland Mitigation in the United States (2002), examines wetland mitigation banks, in-lieu fee programs, and umbrella banking operations in the U.S. Additional information and a searchable database of the data collected in 2002 is available through ELI's Banks and Fees website. ELI published Wetland Mitigation Banking (1993), the first study to examine the status of wetland mitigation banking in the United States. This series of studies provides a rich source of information on the policy development and institutional evolution of this important area of ecosystems service offsets.

• Mitigation Costs Study. Every year, human activities cause significant harm to fish and wildlife habitat and the environment. Many of the impacts to these natural resources are never addressed. In certain cases, however, federal, state, and local laws and programs can require monetary or in-kind compensation for these impacts. In the report Mitigation of Impacts to Fish and Wildlife Habitat: Estimating Costs and Identifying Opportunities (2007), ELI determined that private and public expenditures for such ecological compensation under key federal programs are approximately $3.8 billion annually.

• Training for Interagency Review Teams: ELI worked with The Conservation Fund to design a training course for Interagency Review Teams on mitigation banking and in-lieu fee mitigation. The course is offered by The Conservation Fund in partnership with the US Army Corps of Engineers, the US Environmental Protection Agency, and the US Fish & Wildlife Service. For additional information on the course and the course materials developed by ELI, see the IRT Training Course Website.

• Ecological Effectiveness of Compensatory Mitigation: ELI has convened a panel of expert wetland scientists to develop a study design to assess the regulatory and ecological outcomes of the three compensatory mitigation mechanisms — mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation — in a manner that will enable comparisons of the three mechanisms nationwide. The final study design will be completed in early 2011 and will help establish a protocol for the on-going national assessment of mitigation sites. A National Wetlands Newsletter article, "Success of Wetland Mitigation Projects" (2008), provides a summary of ELI's review of recent literature on the track record of compensatory mitigation projects in replacing lost aquatic resource functions and acres, as well as meeting administrative requirements.

Related ELI Project Areas: Ocean; Water Quality; Water Resource Management; Wetlands; International Water.

Freshwater & Ocean Publications

Freshwater & Ocean Workshops & Seminars

Contact the Freshwater & Ocean Programs