In July of 2008, a federal guidance known as the Compensatory Mitigation Rule was issued by the United States Army Corps of Engineers. Among other objectives, this new rule established a hierarchy among mitigation options which established equivalent standards for all types of mitigation. The new rule does not change when mitigation is required rather where and how mitigation is required by the federal permitting agencies. The goal of the new rule is to reduce risk and uncertainty in mitigation and establishes a preference hierarchy when offsetting unavoidable wetland impacts. This new preference establishes wetland mitigation banks as the most preferred option with in-lieu fees as the second option and permittee-responsible mitigation as the third option. The preference of on-site mitigation is replaced with the new hierarchy.
The most significant change in the new rule requires all three mitigation options to have approved mitigation plans in place. If the permit applicant is approved for permittee-responsible mitigation, the applicant must have a mitigation plan with 12 fundamental components:
These components have always been a requirement to permit a mitigation bank.
The new rule was established to create a "level playing field" among all forms of mitigation. Wetland Mitigation Banks were acknowledged as the most effective form of mitigation because banks are generally based on performance and carry less risk and uncertainty. Credits become available for purchase only when performance standards are met at the wetland bank.
