9 Envtl. Law. 253 (2002-2003)
The Effect of SWANCC on Wetlands Mitigation Banking

handle is hein.journals/environ9 and id is 261 raw text is: NOTE

THE EFFECT OF SWANCC ON
WETLANDS MITIGATION BANKING
I. INTRODUCTION
The primary federal protection program for wetlands is Section 404
of the Clean Water Act (CWA).' Under section 404, the United States
Army Corps of Engineers (the Corps) has the authority to issue or
deny permits for discharges of dredged or fill material into the waters of
the United States.' When wetlands can potentially be impacted by
development, the U.S. Environmental Protection Agency's (EPA's)
section 404(b)(1) Guidelines require that alternatives be examined so
that wetland loss can be avoided.3     EPA   and the Corps, in a
Memorandum of Agreement (MOA) agreed on a three step process for
addressing potential wetland impacts.  First, permit applicants must
attempt to avoid impacts to wetlands.      Second, if impacts are
unavoidable, applicants must attempt to minimize them.' Finally, if
neither of these actions are feasible, then the Corps may permit
compensatory mitigation either on- or off-site to prevent the overall loss
of wetlands.6
One method of compensatory mitigation is wetlands mitigation
banking, which has been defined by the Federal Guidance on Wetland
Mitigation Banking as wetlands restoration, creation, enhancement,
and in exceptional circumstances, preservation undertaken expressly for
the purpose of compensating for unavoidable wetland losses in advance
of development actions, when such compensation cannot be achieved at
the development site or would not be as environmentally beneficial.7
In 2002, mitigation banking has become a common practice, with over
Clean Water Act (CWA) § 404, 33 U.S.C. § 1344 (2000).
2  Id. § 404(a)-(b), 33 U.S.C. § 1344(a)-(b).
3  40 C.F.R. § 230.10 (2002).
4 Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of Mitigation Under the
Clean Water Act Section 404(b)(1) Guidelines 3 (Feb. 6, 1990) [hereinafter MOA].
'  Id. at 3-4.
6  Id. at 4.
7 Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, 60
Fed. Reg. 58,605, 58,606 (Nov. 28, 1995) (emphasis added).

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