The EPA issued its Section 404(b)(1) guidelines in 1975 (Fed. Regist. 40(Sept. 5):41292–41298)). In their first iteration the guidelines stressed the need to avoid wetland impacts. If no less environmentally damaging prac-ticable alternative existed and if a project would not cause unacceptable adverse impacts on aquatic resources, the Corps could issue a permit. The guidelines also called for the impacts of a permitted project to be minimized. No mention was made of restoration, enhancement, or creation of wetlands, although the 1975 guidelines stated that “[c]onsideration shall be given to preservation of submersed and emergent vegetation.”
The current Section 404(b)(1) guidelines, promulgated in 1980, reaffirmed the avoidance and minimization requirements in greater detail (Fed. Regist. 45(Dec. 24):85336–85357). Subpart H (230.70–77) describes a number of actions that the Corps should consider as permit conditions to minimize adverse effects—for example, actions concerning the location of discharge, composition of discharge material, control of material after discharge, method of dispersal, and use of appropriate equipment and technology. Included in the minimization discussion is a reference to compensatory mitigation: “Habitat development and restoration techniques can be used to minimize adverse impacts and to compensate for destroyed habitat.” Thus, in the Section 404(b)(1) guidelines, compensatory mitigation, such as the restoration of wetlands, is a subset of minimization.
Additional support for compensatory mitigation can also be found elsewhere in the Section 404(b)(1) guidelines. The guidelines require that a permitted activity not cause or contribute to significant degradation of the waters of the United States, either individually or cumulatively. When determining whether a proposed activity will result in significant degradation, the Corps will consider to what extent compensatory mitigation will offset the activity's adverse effects.
The Section 404(b)(1) guidelines were developed in accordance with the Administrative Procedure Act's public notice and comment procedures and are binding regulations that appear in the Code of Federal Regulations. Frequently, agencies turn to less formal documents, such as MOAs or regulatory guidance letters (which are typically not subjected to public notice and comment) to interpret the requirements of the CWA and the Section 404(b)(1) guidelines (Gardner 1991). These documents are issued to provide guidance to agency personnel and the public to explain how the agencies intend to apply the statute and regulations in the field. Much of the detail of the mitigation policies for the Section 404 program is found in these guidance documents.
A 1990 MOA between EPA and the Department of the Army explains how mitigation determinations should be made (Fed. Regist. 55(Mar. 12):9210). The MOA notes that the mitigation requirements of CEQ's regu-