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Upping The Ante On Wetlands Mitigation

The U.S. Army Corps of Engineers has issued a comprehensive new set of guidelines for mitigation to be required under Section 404 wetland fill permits. The 2015 Regional Compensatory Mitigation and Monitoring Guidelines for the South Pacific Division USACE became final on January 12, 2015, and will apply to all wetland permits issued throughout the State of California. They will undoubtedly complicate and significantly increase the cost of preparing and implementing mitigation plans for new development.

On one hand, the Guidelines seek to increase the predictability of the Corps’ regulatory process by defining the various technical considerations that should go into the development of wetland mitigation plans. On the other hand, the Guidelines recognize the vastly increased scientific understanding of wetlands that has developed since the Corps’ regulatory program was born in the 1980s. Basically, wetlands have become a much more complicated business over the last twenty-five years. The Guidelines seek to improve the effectiveness of the wetlands regulatory program by harnessing this growing body of knowledge.

Building on nationwide regulations adopted by the Corps in 2008, the Guidelines strongly support a “watershed approach” to mitigation projects, particularly where mitigation is implemented through an in lieu fee program or mitigation bank (rather than a turnkey mitigation project proposed by a developer). This can offer a welcome degree of flexibility in certain instances, particularly where the agencies have developed or are developing regional conservation plans such as those in Contra Costa, Santa Clara, Placer, or Solano Counties.

If you are a developer, however, be prepared for a long lead time in developing and securing approval of your mitigation plan. The Guidelines require the Corps to apply a high level of rigor in reviewing mitigation plans, and may result in mitigation ratios significantly higher than those we are used to seeing from the Corps. Moreover, it is quite possible that the Guidelines’ new requirements relative to conservation easements and financial assurances will conflict directly with those adopted by the California Department of Fish and Wildlife. And we expect it will take some time for the agencies to sort out the disagreements that are likely to arise.