Jump to Content

Compensatory Mitigation Research

Background on Compensatory Mitigation

Land development activities may adversely impact wetlands that are protected under federal, state, and local regulatory programs. Wetlands receive legal protection because they are a significant ecological resource and because they provide a variety of functions that are of value to humans, including water purification, flood storage, sediment trapping, wildlife habitat, and groundwater recharge.1

The Clean Water Act

The primary source of federal regulatory jurisdiction over wetlands is the Federal Water Pollution Control Act, or the Clean Water Act (CWA).2 The CWA was established to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. Section 404 of the CWA regulates “discharges” of “dredged or fill material” to waters of the United States, including wetlands and other aquatic resources.3 Several types of activities, such as normal, on-going farming, ranching, and silviculture activities, are exempt from regulation under §404(f) of the CWA unless they convert a wetland to a new use and impair the flow or circulation of waters of the United States or reduce the reach of such waters.

Because of the historical role played by the U.S. Army Corps of Engineers (Corps) in regulating dredging and other activities in navigable waters, Congress assigned the agency primary responsibility for administering the §404 permitting program. Day-to-day permitting activities are carried out by the Corps’ 38 district offices (§404(e)). The Corps has the authority to issue individual permits or general permits. General permits are intended to be issued for categories of activities that are similar in nature and are determined to have only minimal adverse environmental impacts. Individuals or organizations wishing to fill a wetland must first obtain authorization from the Corps.

Although the U.S. Army Corps of Engineers (Corps) plays the lead role in wetlands permitting, the US Environmental Protection Agency (EPA) is responsible for establishing the environmental guidelines (or §404(b)(1) guidelines) that the Corps must use to evaluate the impact of proposed projects when making permit determinations. EPA also has the authority under §404(c) to veto permits approved by the Corps. Other federal agencies, such as the US Fish and Wildlife Service (FWS), Natural Resources Conservation Service (NRCS), and the National Marine Fisheries Service (NMFS), have the opportunity to review and comment upon Corps permit decisions. Under §404(q), EPA, FWS, and NMFS have the ability to “elevate” disputes over specific proposed permits and general policy matters, but FWS and NMFS do not share the veto authority of EPA.

Corps’ regulations define wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”4

Alternatives Analysis

The §404(b)(1) guidelines, or environmental guidelines, established by EPA were finalized in 1980.5 Under these binding rules, all wetlands are considered “special aquatic sites.”6 The §404(b)(1) guidelines set in motion the process referred to as the “practical alternatives analysis” that the Corps must undertake before issuing a §404 permit to fill a wetland. The §404(b)(1) guidelines dictate that the Corps requires applicants to provide documentation that there are no practicable alternatives to the proposed project. In other words, a permit cannot be issued if there is a “practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.”7 An alternative is considered practicable after taking into consideration “cost, existing technology, and logistics in light of overall project purposes.”8 The guidelines also provide that proposed projects may not be permitted unless “appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.”9

No-Net-Loss

The §404 regulatory program is guided by two national goals, 1) the stated purpose of the Clean Water Act (33 U.S.C. §1251) and 2) the national goal, set in 1989 by President George H.W. Bush of "no net loss" of wetlands. The concept of no net loss does not prevent development of wetlands—instead, this central objective underscores the importance of compensatory mitigation to replace lost wetland acres and functions and prevent overall wetland losses.10 In 1990 the Corps and EPA clarified this goal as "no overall net loss of values and functions."11 In the 2008 compensatory mitigation regulations, the agencies provide information on how to reach this goal, requiring that, when functional or condition assessments are used, compensation “must be, to the extent practicable, sufficient to replace lost aquatic resource functions”; when these assessment methodologies are unavailable, a minimum acreage replacement ratio of 1:1 must be used.12 No net loss may limit the use of wetland preservation to compensate for project impacts, or may require preservation to be used in tandem with other wetland compensation techniques that result in an increase in wetland area.13

1990 Federal Mitigation Memorandum of Agreement

In 1990, the Corps and EPA entered into a Memorandum of Agreement (MOA) that clarifies the protocol for determining the type and level of mitigation required under the §404(b)(1) guidelines (“mitigation MOA” or “1990 MOA”).14 This MOA has had a significant impact on the §404 permitting process.

The 1990 mitigation MOA was developed to clarify the “appropriate and practicable measures” required to offset unavoidable impacts permitted through the §404 regulatory program. Under the MOA, the agencies established a three-part process or sequencing guidelines to help guide compensatory mitigation decisions. It is important to note that the mitigation MOA applies only to individual permits, not general permits (i.e., regional permits, nationwide permits, or programmatic permits).15 As many as 85 percent of all §404 projects authorized by the Corps in the waters of the United States are approved under a general permit.16

The mitigation sequencing steps are:

  1. Avoid: This step is in accordance with the alternatives analysis established by the §404(b)(1) guidelines, which allows permits for only the least environmentally damaging practicable alternatives. It restates, “no discharge shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact to the aquatic ecosystem.”17
  2. Minimize: If impacts cannot be avoided, steps must be taken to minimize the adverse impacts through project modifications and permit conditions.18
  3. Compensate: The final step in sequencing, the Corps is required to determine “appropriate and practicable compensatory mitigation for unavoidable adverse impacts which remain after all appropriate and practicable minimization has been required.”19

The sequence was incorporated into regulations in 2008 (see below).

Therefore, before a §404 permit can be issued, the Corps must determine if there is a practicable alternative that avoids impacts to wetlands. If unavoidable, impacts must be minimized. Finally, any resulting unavoidable impacts must then be compensated. The 1990 MOA also clarified the role of wetland mitigation banking as an acceptable form of compensatory mitigation. In a brief nod to the then new practice of wetland mitigation banking, the MOA states “[m]itigation banking may be an acceptable form of compensatory mitigation under specific criteria designed to ensure an environmentally successful bank.”20

Compensatory Mitigation

The three-part mitigation sequence – avoid, minimize, compensate – guides the agencies’ compensatory mitigation decision-making. Each year the Corps permits an estimated 20,000 acres of wetland losses.21 Permittees are required to restore, enhance, establish, or preserve more than 40,000 acres of wetlands or other aquatic resources to compensate for the permitted losses (USEPA 2011).22 Nationwide, an estimated $2.9 billion is spent annually on these compensatory mitigation projects.23

Compensatory mitigation may be accomplished through the restoration, creation, enhancement, or preservation of wetlands.

  • Restoration: Returning natural/historic functions to a former or degraded aquatic resource. For the purpose of tracking net gains in aquatic resource areas, restoration is divided into two categories: reestablishment and rehabilitation.
    • Reestablishment: Re-establishment results in rebuilding a former aquatic resource and results in a gain in aquatic resource area and functions.
    • Rehabilitation: Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in aquatic resource area.
  • Establishment (creation): Developing an aquatic resource that did not previously exist at an upland site. Establishment results in a gain in aquatic resource area and functions.
  • Enhancement: Heightening, intensifying, or improving specific aquatic resource function(s). Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic resource area.
  • Preservation: the removal of a threat to, or preventing the decline of, aquatic resources by an action in or near those aquatic resources. This term includes activities commonly associated with the protection and maintenance of aquatic resources through the implementation of appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic resource area or functions.24

Permittees generally fulfill compensatory mitigation obligations through one of three available mechanisms:

  • Wetland mitigation banking: Wetland mitigation banking is the use of consolidated, off-site wetland restoration, establishment, enhancement, and/or preservation for the purpose of providing compensatory mitigation. These large, off-site compensatory mitigation sites generally provide compensation for multiple, smaller wetland impacts. Mitigation banks sell compensatory mitigation “credits” to permittees with regulatory requirements to offset wetland damages; the purchase of credits transfers liability for compensation from the permittee to the mitigation bank. Before selling compensation credits, mitigation banks must at least acquire a compensation site, establish financial assurances for future site protection, and have an approved mitigation plan. At some stages, banks will have fulfilled ecological performance standards before credit sales.25
  • In-lieu fee program mitigation: In-lieu fee programs allow permittees to satisfy compensatory mitigation obligations by donating funds to a “government or non-profit natural resources management entity.” The government or non-profit organization charged with operation of the in-lieu fee program then uses these funds to complete wetland restoration, establishment, enhancement, and/or preservation and responsibility for compensation is transferred to the in-lieu fee program operator. Although in-lieu fee mitigation typically does not provide compensation until after impacts have occurred, it can be used to restore a variety of wetland types of different sizes at a number of locations, while mitigation banks frequently consolidate numerous wetland impacts into one large site. In order to sell credits, an in-lieu fee program must have an approved governing document, which includes a “compensation planning framework” designed to target high-priority watershed compensation sites.26
  • Permittee-responsible mitigation: Under permittee-responsible mitigation scenarios, a permittee maintains responsibility for achievement of compensation obligations imposed under CWA §404 or alternative regulatory regimes. Permittees may opt to complete wetland compensation on their own or may contract an authorized agent or consultant to restore, establish, enhance, and/or preserve wetlands.27

In 1995, EPA and the Corps jointly released guidance to govern operation of wetland mitigation banks.28 The 1995 federal banking guidance introduced regulatory certainty for public and private banking investors, and subsequently the practice of mitigation banking, and in particular, the entrepreneurial mitigation banking industry, grew substantially.29 In-lieu fee programs also emerged in the late 1980s and expanded in use throughout the 1990s, though they operated under diverse arrangements.30 In 2000, EPA and the Corps issued guidance for in-lieu fee programs to introduce consistency in regulatory requirements for mitigation banks and in-lieu fee programs.31 In 2001, the Corps released a Regulatory Guidance Letter addressing compensatory mitigation. This letter adopted certain approaches recommended by the National Academy of Sciences in a report issued in 2001.32

2008 Compensatory Mitigation Rule

In June 2001, the National Academy of Sciences (NAS) released its report, Compensating for Wetland Losses Under the Clean Water Act.33 The two-year study was initiated in response to a request by the EPA. Among other charges, the Committee on Mitigating Wetland Losses was asked to evaluate the ability of wetland restoration, enhancement, creation, and preservation to adequately restore wetland functions and to evaluate options for improving the ecological effectiveness of wetland mitigation. The report offered 26 recommendations for improving the ecological effectiveness of federally required compensatory mitigation.34

The 2001 NAS study included several recommendations related to adopting a watershed approach to compensatory mitigation. For example, the NAS study states, “preference for on-site and in-kind mitigation should not be automatic, but should follow from an analytically based assessment of the wetland needs in the watershed and the potential for the compensatory wetland to persist over time.”35 However, though the NAS study does promote out-of-kind mitigation when advantageous at a watershed scale, it also states “opportunities for in-kind compensation need to be sought within the larger landscape context.”36 In addition, the NAS report concludes that “third-party compensation approaches (mitigation banks, in-lieu fee programs) offer some advantages over permittee-responsible mitigation.”37

In response to a Congressional mandate, on April 10, 2008 EPA and the Corps jointly  issued the first federal regulation governing compensatory mitigation for impacts to wetlands and other aquatic resources (The Mitigation Rule).38 Although the Rule is largely focused on codifying requirements for compensatory mitigation, it reiterates and codifies the sequencing steps of avoidance and minimization explained in the §404(b)(1) Guidelines and the 1990 Mitigation MOA.39

The Rule is intended to improve the planning, implementation, and management of compensatory mitigation by creating higher standards for compensatory mitigation, and requiring, to the extent practicable and appropriate, that all mitigation decisions be made within the context of a watershed approach (33 CFR 332.3(c)(1)). The 2008 regulations incorporate a majority of the recommendations presented in the NAS 2001 report into the compensatory mitigation program.40 The reliance on a watershed approach, a clear hierarchy in the preference for which mitigation mechanism should be used to offset impacts (see below), and the establishment of equivalent standards for all three mitigation mechanisms are the three fundamental changes in compensatory mitigation practice.

The overarching objective of a watershed approach, according to the Rule, “is to maintain and improve the quality and quantity of aquatic resources within watersheds through strategic selection of compensatory mitigation sites.”41 Individual Corps district engineers are given authority for implementation of a watershed approach, granting regional officers considerable regulatory discretion in compensatory mitigation site selection and necessitating acquisition of adequate data to assess watershed needs.42 The Rule stipulates that district engineers utilize appropriate watershed plans, when available, along with “information provided by the project sponsor or available from other sources” to guide a watershed approach; however the Rule does not require development of watershed plans when they are not previously available.43 In the absence of a suitable watershed plan, district engineers may use data on “current trends in habitat loss or conversion; cumulative impacts of past development activities; current development trends; the presence and needs of sensitive species; site conditions that favor or hinder the success of compensatory mitigation projects; and chronic environmental problems” to prioritize compensation under a watershed approach.44

The Rule provides flexible siting criteria for compensation, holding that “a watershed approach may include on-site compensatory mitigation, off-site compensatory mitigation (including mitigation banks or in-lieu fee programs), or a combination of on-site and off-site compensatory mitigation.” Corps district engineers may also decide that out-of-kind compensatory mitigation is permissible in instances where it “will serve the aquatic resource needs of the watershed,” though in-kind replacement is encouraged for difficult-to-replace aquatic resource types. District engineers may also allow compensation in uplands, buffer zones, or through preservation when they determine it is ecologically preferable and will provide effective enhancement of watershed function.45

The 2008 compensatory mitigation regulations defer decisions on watershed scale to the district engineer and note that “the size of watershed addressed using a watershed approach should not be larger than is appropriate to ensure that the aquatic resources provided through compensation activities will effectively compensate for adverse environmental impacts.”46 Without clear watershed boundaries, the changes promulgated by the Corps and EPA hold no guarantee that mitigation (including mitigation credits generated for out-of-kind mitigation, preservation, uplands, and buffers) will occur in close proximity to permitted impacts.

The Rule states that the watershed approach is designed to enhance the aquatic resource mitigation program, rather than diminish the ability of the program to support the policy of no net loss of wetland and stream functions. For this to hold true, watershed management must be employed with appropriate safeguards. In its report, NAS acknowledged the risks of the watershed approach: “The committee is aware of the concern that a watershed approach might weaken the commitment during the permitting process to protect individual wetlands and the functions they provide, with existing wetlands being too readily traded for compensatory wetlands that might not be ecologically functional.”47 Successful attainment of the advantages of a watershed approach envisioned by the NAS study will require thorough consideration of landscape trends to properly site compensatory wetlands where they will maintain “no net loss” of wetland functions and services.

Another principal objective of the Rule is to create equivalent and effective standards for all compensatory mitigation mechanisms, extending many of the requirements created for mitigation banks under the 1995 Banking Guidance to in-lieu fee programs and permittee-responsible mitigation.48 While these mitigation plan requirements are not identical for all three mitigation types, they are broadly grouped into “objectives; site selection criteria; site protection instruments (e.g., conservation easements); baseline information (for impact and compensation sites); credit determination methodology; mitigation work plan; maintenance plan; ecological performance standards; monitoring requirements; long-term management plan; adaptive management plan; and financial assurances.”49 These mitigation plan requirements are designed to lessen the ecological and administrative uncertainty and risk historically associated with compensation projects.50

Due to perceived advantages of mitigation banking and in-lieu fee programs over permittee-responsible mitigation, the Rule institutes an overall preference for use of mitigation banks and additionally prefers in-lieu fee mitigation to permittee-responsible mitigation.51 Mitigation banking is given the highest preference under the Rule because “development of a mitigation bank requires site identification in advance, project-specific planning, and significant investment of financial resources that is often not practicable for many in-lieu fee programs.”52 Mitigation banks and in-lieu fee programs are additionally preferred over permittee-responsible mitigation because banks and in-lieu fee mitigation “typically involve larger, more ecologically valuable parcels, and more rigorous scientific and technical analysis, planning and implementation than permittee-responsible mitigation.”53 In-lieu fee programs approved under the Rule are also given preference over permittee-responsible mitigation because they are designed to target high-priority watershed needs, as determined by their compensation planning framework.54 However, Corps district engineers are given authority to alter the Rule’s preference for mitigation banking when other forms of compensation are deemed ecologically advantageous.55

Compensatory Mitigation Under the Federal Highway Administration

Wetland mitigation legislation and policies developed by the Federal Highway Administration (FHWA) have been promoting wetland mitigation banking since the early 1990s. As a result, the majority of the wetland mitigation banks that emerged early on were single-user banks established by state departments of transportation. In 1992, nearly half of the existing banks were state highway banks.56

In 1991, Congress passed the Intermodal Surface Transportation Efficiency Act (ISTEA), which included a provision that made the costs of wetland mitigation banks established as compensatory mitigation for impacts due to federal aid highway projects eligible for federal aid highway funds.57 In 1996, the FHWA revised its no net loss of wetlands policy by establishing a goal of replacing 1.5 acres of wetlands for every acre impacted under the federal-aid highway program.58 In 2007, the FHWA reported that in 34 reporting states, for highway projects receiving federal-aid funding, wetland acres were replaced at an average ratio of 3.3:1, resulting in a net gain of 1,586 acres of wetlands.59

Building on ISTEA, Congress passed the Transportation Equity Act for the 21st Century (TEA-21) in 1998.60 Under TEA-21, the costs of wetland and habitat mitigation projects established as mitigation for impacts due to federal aid highway projects are still eligible for federal aid highway funds.61 In 2000, FHWA clarified this provision, establishing that “under current law Federal-aid funds may be used to improve or restore wetlands affected by past Federal-aid highway projects, even when no current Federal-aid project is taking place in the vicinity.”62 In other words, federal highway funds can be used to restore, conserve, enhance, and create wetlands, as mitigation for past wetland impacts due to federal aid highway projects, even if there are currently no wetland-impacting highway projects underway in the immediate area.63

In 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) to govern transportation policy and funding through 2009.64 Subsequent legislation extended SAFETEA-LU through December 31, 2010.65

Section 6001 of SAFETEA-LU requires that long range (20-year) transportation plans include a discussion of the type and location of “potential environmental mitigation activities and potential areas to carry out these activities, including [mitigation] activities that may have the greatest potential to restore and maintain the environmental functions affected by the plan.” This “discussion” must also be developed “in consultation with federal, state, and tribal wildlife, land management, and regulatory agencies.”66 These requirements present a significant opportunity to integrate mitigation for transportation projects with landscape scale, ecologically significant conservation plans, where these exist or are under development.67

Due to shorter permitting times and economies-of-scale associated with consolidated mitigation, TEA-21 introduced a requirement to first consider use of mitigation banks as compensation for highway impacts receiving federal-aid highway funding.68 SAFETEA-LU left FHWA’s preference for mitigation banking unmodified.69 The bank must have sufficient available credits to offset the impacts, be approved in accordance with the 1995 banking guidance, and the use of the bank must be in accordance with all applicable federal laws and regulations.70.

1 For a thorough discussion of wetland functions and services, see: Mitsch, William J. and James G. Gosselink. Wetlands. Hoboken, NJ: John Wiley & Sons, Inc. 2007. 333-376.

2 Federal Water Pollution Control Act, 33 U.S.C. §§1251-1387 [hereinafter Clean Water Act].

3 Clean Water Act, 33 U.S.C. §1344.

4 33 C.F.R. §328.3(b) (2001). See also 40 C.F.R. §§230.3(t), 232.2 (2001).

5 40 C.F.R. §230. See <http://www.epa.gov/OWOW/wetlands/regs.html>.

6 40 C.F.R. §230.41.

7 40 C.F.R. §230.10(a).

8 40 C.F.R. §230 10(a)(2).

9 40 C.F.R. §230.10(d).

10 Palmer Hough and Morgan Robertson. Mitigation under Section 404 of the Clean Water Act: where it comes from, what it means. 17 Wetlands Ecology and Management 15-33, 2009.

11 1990 Memorandum of Agreement between the Department of the Army and the Environmental Protection Agency entiltled: The Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines. Available at http://water.epa.gov/lawsregs/guidance/wetlands/mitigate.cfm.

12 33 C.F.R. § 332.3(f) (2008); 40 C.F.R. § 230.93(f) (2008).

13 Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species, at 7.

14 US Environmental Protection Agency and US Department of the Army. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines. 1990. See <http://www.epa.gov/OWOW/wetlands/regs.html>.

15 Id.

16 National Academy of Sciences. Compensating for Wetland Losses Under the Clean Water Act. Washington, DC: National Academy Press, 2001. 66.

17 US Environmental Protection Agency and US Department of the Army. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines. 1990. II.C(1).

18 Id. II.C(2); 40 C.F.R. §230.10(d).

19 US Environmental Protection Agency and US Department of the Army. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines. 1990. II.C(3).

20 Id.

21 Martin, S. et al. 2006. Compensatory Mitigation Practices in the U.S. Army Corps of Engineers. Institute for Water Resources.

22 U.S. Environmental Protection Agency (USEPA). 2011. Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of Clean Water Act Jurisdiction. Environmental Protection Agency. April 27, 2011.

23 Environmental Law Institute. 2007. Mitigation of Impacts to Fish and Wildlife Habitat: Estimating Costs and Identifying Opportunities. Environmental Law Institute: Washington DC.

24 33 C.F.R. §§ 325, 332 (2008); 40 C.F.R. § 230 (2008).

25 33 C.F.R. §§ 332.2, 332.8(m) (2008); 40 C.F.R. §§ 230.92, 230.98(m) (2008).

26 33 C.F.R. §§ 332.2, 332.8(n) (2008); 40 C.F.R. §§ 230.92, 230.98(n) (2008).

27 33 C.F.R. § 332.2 (2008); 40 C.F.R. § 230.92 (2008).

28 Federal Guidance for the Establishment, Use and Operation of Mitigation Banks. 60 Fed. Reg. 228, 58605-58614. 1995.

29 Banks & Fees 2002

30 Royal Gardner. Money for Nothing? The Rise of Wetland Fee Mitigation. 19 Va. Envtl. L.J. 1, 2000.

31 US Department of the Army, US Environmental Protection Agency, US Department of Interior, and US Department of Commerce.Federal Guidance on the Use of In-Lieu Fee Arrangements for Compensatory Mitigation under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. 2000.

32 Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, RGL No. 02-2 (Dec. 24, 2002). This RGL replaced one that had bee n issued by the Corps a year earlier.

33 National Academy of Sciences. Compensating for Wetland Losses Under the Clean Water Act. Washington, DC: National Academy Press, 2001.

34 Id.

35 National Academy of Sciences. Compensating for Wetland Losses Under the Clean Water Act. Washington, DC: National Academy Press, 2001. 4.

36 Id.

37 Id. at 9.

38 33 C.F.R. §§ 325, 332 (2008); 40 C.F.R. § 230 (2008)

39 33 C.F.R. § 332.1(c) (2008); 40 C.F.R. § 230.91(c) (2008).

40 Hough & Sudol, supra note 18.

41 33 C.F.R. § 332.3(c)(1) (2008); 40 C.F.R. § 230.93(c)(1) (2008).

42 Id.

43 Id.

44 33 C.F.R. § 332.3(c)(3)(i) (2008); 40 C.F.R. § 230.93(c)(3)(i) (2008).

45 33 C.F.R. §§ 332.3(a)(2), 332.3(c)(2)(i) (2008); 40 C.F.R. §§ 230.93(a)(2), 230.93(c)(2)(i) (2008).

46 33 C.F.R. § 332.3(c)(4) (2008); 40 C.F.R. § 230.93(c)(4) (2008).

47 National Academy of Sciences. Compensating for Wetland Losses Under the Clean Water Act. Washington, DC: National Academy Press, 2001. 144.

48 Id.

49 US Department of the Army and US Environmental Protection Agency. Compensatory Mitigation for Losses of Aquatic Resources. 73 Fed. Reg. 19597.

50 Palmer Hough & Mark Sudol. New Regulations to Improve Wetland and Stream Compensatory Mitigation. 30(4) Nat’l Wetlands Newsletter 1, 2008.

51 33 C.F.R. § 332.3(b) (2008); 40 C.F.R. § 230.93(b) (2008).

52 33 C.F.R. § 332.3(b)(2) (2008); 40 C.F.R. § 230.93(b)(2) (2008).

53 33 C.F.R. § 332.3(b)(2)-(3) (2008); 40 C.F.R. § 230.93(b)(2)-(3) (2008).

54 33 C.F.R. § 332.3(b)(3) (2008); 40 C.F.R. § 230.93(b)(3) (2008).

55 33 C.F.R. § 332.3(b) (2008); 40 C.F.R. § 230.93(b) (2008).

56 Wetland Mitigation Banking. Washington, DC: Environmental Law Institute, 1993.

57 Strand, Margaret N. Wetlands Deskbook, 2nd Edition. Washington DC: Environmental Law Institute, 1997. See Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (1991).

58 Slater, Rodney E. Memorandum to Regional Administrators. “Results of the 1996 Performance Agreement on the Protection of Wetlands and Water Quality.” 13 November 1996; Bank, Fred and Paul Garrett. “Federal Aid Highway Program and Wetlands Mitigation.” Roadsides. 8:5 (2001).

59 FHWA Pocket Guide to Transportation, 2010; http://www.bts.gov/publications/pocket_guide_to_transportation/2010/html/table_06_03.html.

60 Pub. L. 105, 178 (1998).

61 Pub. L. 105, 178 Sec. 1106(b)(6)(M),amending 23 U.S.C. §103; Pub. L. 105, 178 Sec. 1108(a)(6)(B),amending 23 U.S.C. §133(b)(11).

62 Mitigation of Impacts to Wetlands and Natural Habitat. 65 Fed. Reg. 251, 82913-82926. 2000.

63 Id.

64 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. No. 109-59, 119 Stat. 1144. See 23 U.S.C. §139, 325, 326 (2006).

65 http://www.aahsa.org/article.aspx?id=11161 (H.I.R.E. Act)

66 23 U.S.C. §§134(i)(2)(B)(ii), 135(f )(4)(B). See generally Fed. Highway Admin. & Fed. Transit Admin., Publ’n No. FHWA-HEP-07-039, The Transportation Planning Process Key Issues: A Briefing Book for Transportation Decisionmakers, Officials, and Staff (2008).

67 Jessica B. Wilkinson & Robert Bendick, The Next Generation of Mitigation: Advancing Conservation Through Landscape-Level Mitigation Planning, 40 Envt’l Law Reporter 10023, 10043-44.

68 Federal Guidance on the Use of the TEA-21 Banking Preference to Fulfill Mitigation Requirements Under Section 404 of the Clean Water Act. July 11, 2003. Web site:www.fhwa.dot.gov/environment/wetland/tea21bnk.htm. Accessed: December 1, 2005.

69 Results of the FHWA Domestic Scan of Successful Wetland Mitigation Programs, Introduction.

70 Pub. L. 105, 178 Sec. 1108(a)(6)(B), amending 23 U.S.C. §133(b)(11); Mitigation of Impacts to Wetlands and Natural Habitat. 65 Fed. Reg. 251, 82913-82926. 2000.