New Rules for Compensatory Mitigation Under Section 404

• Overview
• OnDemand Credit

Overview
In 2008, the U.S. Army Corps of Engineers adopted new rules that dramatically changed its approach to mitigation under Section 404 of the Clean Water Act, which regulates fill in wetlands and other waters of the United States. The new rules adopt a mitigation hierarchy that moves away from the prior preference for onsite, in-kind mitigation in favor of mitigation banks and watershed-based mitigation programs. The rules also clarify the financial measures the corps will require to ensure that the mitigation is actually carried out. Finally, the rules change a wide range of requirements in the Section 404 program, including new requirements for the information in a permit application and in public notices. This OnDemand Webinar will describe the new rules, explain the most important changes from the old rules and give practical tips on complying with the new approach to compensatory mitigation- a must for developers, consultants and attorneys in the field.

Authors
Deborah M. Rosenthal, AICP
Robert J. Uram, Sheppard Mullin Richter & Hampton, LLP

Self Study Credit - OnDemand Webinar

Agenda

1. General Discussion of Compensatory Mitigation under Section 404
1. Definition of Compensatory Mitigation
2. Purpose of Compensatory Mitigation
3. Enforcement Authority
2. The Prior System
1. Application and Public notice
2. The Mitigation Hierarchy
3. Mitigation Planning
3. Description of New Compensatory Mitigation Rules
1. Understanding the Corps Goals
2. Application and Public Notice
3. The Mitigation Sequence
4. The 'Watershed' Approach - What is a Watershed?
5. The Three Acceptable Mitigation Mechanisms
6. The Mitigation Plan Requirement
4. Practical Impacts
1. Increased Importance of Mitigation Banks
2. Need for Watershed Planning
3. Effects on Avoidance Requirements
4. Locating, Securing and Funding Mitigation Lands
5. Complying with Concurrent State and Local Requirements
5. Emerging Trends
1. Performance-Based Mitigation
2. Mitigation Banks
3. Enforcement