What is Compensatory Mitigation?

Compensatory mitigation commonly refers to the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts after all appropriate and practicable avoidance and minimization has been achieved.

The Clean Water Act requirements are the primary driver for compensatory mitigation.  The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s water.” In 2008, the US Environmental Protection Agency and the US Army Corps of Engineers revised the federal mitigation guidelines regarding compensatory mitigation.  The overall goal is to achieve ‘no net loss’ of aquatic resources, which is why compensatory mitigation is critically important.

How is Compensatory Mitigation accomplished?

When a permitted activity results in the loss of aquatic resources, all practicable steps must be taken to first avoid or minimize the impacts to the aquatic resource. If the impact is unavoidable then compensatory mitigation is required in same watershed to replace these lost functions.   There are three mechanisms or sources for providing compensatory mitigation: mitigation banks, in-lieu fee programs, and permittee-responsible mitigation (listed in the preferred order).

Mitigation banking and in-lieu fee programs are the preferred methods of completing compensatory mitigation.  In other words, the mitigation bank sponsors or in-lieu fee programs assume responsibility from the party that committed the impacts.  The banks and in-lieu fee program administrators are responsible for the implementation and success of the mitigation project.  

Compensatory mitigation guidelines and interpretations are constantly evolving.  WLS works with clients and stakeholders to evaluate cost-effective solutions to meet their mitigation needs.

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What is Conservation Banking?

Similar to a mitigation bank, the US Fish and Wildlife Service (USFWS) defines a conservation bank as ‘a site or suite of sites containing natural resource values that are conserved and managed in perpetuity for specified endangered, threatened, or at-risk species and used to offset impacts occurring elsewhere to the same type of resource (i.e., in-kind for species, off-site compensatory mitigation.  To comply with the Endangered Species Act (ESA), conservation banking results in a net species conservation benefit (e.g., contribution to recovery of federally listed species).  The expectation is a net gain for species or ecological lift.

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