CWA In-Lieu Fee Mitigation: Project and Programmatic Risks

9 Pages Posted: 29 Jun 2020

See all articles by Royal C. Gardner

Royal C. Gardner

Stetson University - Institute for Biodiversity Law and Policy

Erin Okuno

University of Miami School of Law

Rebecca Kihslinger

Environmental Law Institute

Christina Libre

Environmental Law Institute

Date Written: June 2019

Abstract

In 2008, after prompting by the U.S. Congress, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) issued a regulation governing compensatory mitigation under the Clean Water Act (CWA). The agencies’ primary goal was to improve the effectiveness of mitigation projects to offset the impacts of filling wetlands and streams. The 2008 Compensatory Mitigation Rule was also designed to level the playing field for the three types of mitigation providers: mitigation banks, in-lieu fee (ILF) programs, and permittee-responsible mitigation.

After a decade of experience with this regulation, it is appropriate to reflect on its implementation. Although much has been written about mitigation banks, less attention (in the literature at least) has been paid to ILF programs and permittee-responsible mitigation. This Comment focuses on ILF programs.

Keywords: compensatory mitigation, Clean Water Act, wetlands, streams, in-lieu fee programs

JEL Classification: K32, K23, Q2, Q25, Q28

Suggested Citation

Gardner, Royal C. and Okuno, Erin and Kihslinger, Rebecca and Libre, Christina, CWA In-Lieu Fee Mitigation: Project and Programmatic Risks (June 2019). Environmental Law Reporter, Vol. 49, 2019, Available at SSRN: https://ssrn.com/abstract=3619468

Royal C. Gardner (Contact Author)

Stetson University - Institute for Biodiversity Law and Policy ( email )

1401 61st Street South
Gulfport, FL 33707-3299
United States

Erin Okuno

University of Miami School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

Rebecca Kihslinger

Environmental Law Institute ( email )

2000 L Street, NW, Suite 620
Washington, DC 20036
United States

Christina Libre

Environmental Law Institute ( email )

2000 L Street, NW, Suite 620
Washington, DC 20036
United States

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