September 01, 2015

Wetland mitigation banking: An innovative practice grows to a major industry and provides an additional land revenue option

Eric T. Olsen

Conducting land development activities resulting in discharges of fill material to wetlands and other surface waters considered “Waters of the United States” requires a section 404 Clean Water Act permit. One requirement to obtain this permit is to provide compensatory mitigation to offset unavoidable impacts. Starting in the mid-1990s, the means of providing required compensatory mitigation evolved. Whereas before the 404 permit applicant would provide mitigation either on-site or in close proximity to the impact, beginning in the mid-1990s the focus changed to allowing third parties to provide the mitigation through an offsite mitigation bank with watershed scale benefits. Mitigation banks are now the preferred form of compensatory mitigation.

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