Compensatory Mitigation

Compensatory Mitigation

When impacts to waters of the United States including wetlands, are proposed, mitigation is often required. The application must include a statement describing how impacts to waters of the United States are to be avoided and minimized.

The objective of compensatory mitigation is to offset environmental losses resulting from unavoidable impacts to waters of the United States. In general, the mitigation should be located within the same watershed as the impact site and should be located where it is most likely to successfully replace functions and services lost as a result of the impact to waters.

Compensatory mitigation can be carried out through four methods: the restoration of a previously-existing wetland or other aquatic site, the establishment (i.e. creation) of a new aquatic site, the enhancement of an existing aquatic site’s functions, or the preservation of an existing aquatic site. There are three mechanisms for providing compensatory mitigation: mitigation banks, in-lieu fee mitigation and permittee-responsible compensatory mitigation.

Mitigation requirements can be found in Title 33 of the Code of Federal Regulations Part 332. The New York District Public Notice Announcing the Compensatory Mitigation Guidelines and Mitigation Checklists dated January 10, 2005, can also be helpful.

As part of a mitigation plan, permanent land preservation, by deeds transferring land to a government or conservation agency, conservation easement or other restriction may be required. Areas to be preserved can include on-site waters or wetlands not impacted by a project, mitigation areas and buffer zones. Land transfers and conservation easements are preferred methods of preservation, as they offer the greatest protection.