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Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy


J. B. Ruhl


Vanderbilt University - Law School

James Salzman


Duke University - School of Law

Iris Goodman


Government of the United States of America - Environmental Protection Agency (EPA)

October 8, 2008

Stetson Law Review, Vol. 38, 2009
FSU College of Law, Public Law Research Paper No. 323

Abstract:     
On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into the mitigation decision-making standards, requiring that "compensatory mitigation...should be located where it is most likely to successfully replace lost...services." Easily overlooked in the in the 210-page Federal Register document, this is a potentially significant development, but it will be unlikely to gain policy traction without substantial research into the development of efficient and reliable wetland ecosystem service assessment methods. To help orient such research efforts, this article provides: (1) background on the compensatory mitigation program and ecosystem services prior to promulgation of the new rule; (2) an overview of how the new rule integrates ecosystem service analysis into compensatory mitigation decisions; and (3) suggestions for a research agenda to support implementation of that feature of the rule.

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Date posted: October 12, 2008 ; Last revised: June 17, 2009

Suggested Citation

Ruhl, J. B. and Salzman, James and Goodman, Iris, Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy (October 8, 2008). Stetson Law Review, Vol. 38, 2009; FSU College of Law, Public Law Research Paper No. 323. Available at SSRN: http://ssrn.com/abstract=1281048

Contact Information

J. B. Ruhl (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
James E. Salzman
Duke University - School of Law ( email )
P.O. Box 90360
Durham, NC 27708
United States
Iris Goodman
Government of the United States of America - Environmental Protection Agency (EPA) ( email )
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, DC 20460
United States
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