Compensating for Wetland Losses Under the Clean Water Act

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Compensating for Wetland Losses Under the Clean Water Act (2001)
Board on Environmental Studies and Toxicology (BEST)

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. "4 Wetland Permitting: History and Overview." Compensating for Wetland Losses Under the Clean Water Act . Washington, DC: The National Academies Press, 2001.

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT

BOX 4–1 Timeline of Significant Federal Actions Regarding Wetland Permit and Mitigation Requirements
1890s	Rivers and Harbors Act enacted (the earliest regulation of activities in waters of the United States)
1934	Fish and Wildlife Coordination Act enacted
1968	Corps Public Interest Review promulgated
1969	National Environmental Policy Act enacted
1972	Federal Water Pollution Control Act (FWPCA) enacted
1973	Endangered Species Act enacted
1975	U.S. Environmental Protection Agency (EPA) Section 404(b)(1) Guidelines Promulgated
1977	FWPCA amended (as Clean Water Act)
1980	EPA Section 404(b)(1) Guidelines revised
1990	U.S. Congress instructs the Corps to pursue the goal of “no overall net loss” (Section 307, Water Resources Development Act)
1990	Corps and EPA mitigation Memorandum of Agreement calls for sequencing and establishes preferences for on-site, in-kind mitigation
1993	Corps and EPA Joint Memorandum (Interim Guidance) on Mitigation Banking issued
1995	Interagency Mitigation Banking Guidance issued
1998	Transportation Equity Act for the 21st Century enacted, expressing congressional preference that mitigation for highway projects be supplied by mitigation banks
2000	In-Lieu Fee Guidance issued

GENERAL MITIGATION REQUIREMENTS

Fish and Wildlife Coordination Act

Mitigation to offset the impacts of dredging and filling projects is not a new concept for the federal government. Indeed, in 1934 the Fish and Wildlife Coordination Act required federal agencies that construct or permit dams to consult with the then-existing Bureau of Fisheries to make provisions for fish migration (Public Law 73 –121). Subsequent amendments to the act now require federal agencies that engage in or permit projects that modify bodies of water to consult about habitat loss with the Fish and Wildlife Service (FWS). Thus, prior to making Section 404 permit decisions, the Corps must discuss with the FWS a proposal's impact on wildlife resources. The act calls on the FWS to advise federal agencies about proposed projects ' impacts on fish and wildlife habitats and to recommend compensatory mitigation measures. Agencies are not, however, required to follow the FWS's recommendations (Sierra Club v. Alexander, 484 F. Supp. 455 (D.C.N.Y. 1980)).