The Environmental Law Institute conducts detailed research to evaluate compensatory mitigation required to offset adverse impacts to wetlands. ELI studies a wide variety of compensatory mitigation programs, with a particular focus on compensatory mitigation carried out under Section 404 of the Clean Water Act. Within the Section 404 Program, ELI has analyzed all three available mechanisms, including mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation. For additional information on compensatory mitigation under Section 404, see Related Links.
Featured Areas of Expertise and Resources:
- Compensatory Mitigation: Improving Success Under Changing Circumstances: Funded by an EPA Wetland Programs Development Grant, ELI has produced a report examining whether and how compensatory mitigation providers have considered climate and changing conditions in their projects. This report is a resource for the compensatory mitigation industry—including In-Lieu Fee Program sponsors, mitigation bankers, EPA, and the Army Corps—as it continues to confront the challenges of developing self-sustaining mitigation projects in the face of climate change.
- In-Lieu Fee Mitigation: Review of Program Instruments and Implementation Across the Country: In collaboration with Stetson University College of Law, ELI has developed a report outlining the range of practice in in-lieu fee (ILF) mitigation and describing innovative approaches across the country. The report serves to support the development of effective ILF mitigation programs and enhance the capacity of state/local/tribal governments and others that develop or oversee ILF programs. Check out our ILF mitigation page for more resources, including links to past reports, webinars, and workshops.
- Improving Compensatory Mitigation Project Review: Evaluation of opportunities, sticking points, and best practices for regulators and Interagency Review Teams to review proposed compensatory mitigation projects. ELI collaborated with EPA’s Office of Wetlands, Oceans, and Watersheds and the Southern California Coastal Water Research Project (SCCWRP) on An Integrated Framework for Evaluating Wetland and Stream Compensatory Mitigation, Summary of Pilot Applications and the Data Management Template to help states, tribes and other interested parties develop a long-term, scientifically rigorous approach to evaluating the overall performance of wetland and stream compensatory mitigation programs.
- Natural Resource Damages, Mitigation Banking, and the Watershed Approach: Integrating the natural resource damage assessment process with mitigation banking, conservation banking, and in lieu fee programs offers many benefits. Free for download, this report explains how natural resource trustees can integrate natural resource damage restoration with the Clean Water Act §404 compensatory mitigation program and offers offers several useful observations and recommendations.
- The State of Stream Compensatory Mitigation: Science, Policy, and Practice: In collaboration with Stream Mechanics and The Nature Conservancy, ELI has produced three white papers and a handbook to provide a wide-ranging view of the state of stream compensatory mitigation. The reports examine how stream compensatory mitigation has evolved in policy and practice in the more than seven years since the U.S. Army Corps of Engineers and the EPA's joint 2008 Rule on compensatory mitigation. The reports identify major trends, as well as areas for improvement and best practices. We also examine how stream restoration science continues to evolve and what progress can still be made.
- Watershed Approach Handbook: In collaboration with The Nature Conservancy, ELI has developed Watershed Approach Handbook: Improving Outcomes and Increasing Benefits Associated with Wetland and Stream Restoration Projects. The report advances the use of a watershed approach in the selection, design and siting of wetland and stream restoration and protection projects, including projects required by compensatory mitigation, and demonstrates how using a watershed approach can help ensure that these projects also contribute to goals of improved water quality, increased flood mitigation, improved quality and quantity of habitat, and increases in other services and benefits. The handbook provides an overall framework for the spectrum of watershed approaches, examples of specific types of these approaches, examples of types of analyses that may be useful for using one, and a list of national data sources that might inform all of the above. It also provides some guidance and lessons learned about considerations when developing wetland and stream protection and restoration projects. Click here to watch a webinar describing the Handbook.
- Wetland Prioritization Mapping: Thanks to the support of the U.S. Environmental Protection Agency, the Environmental Law Institute has released a new resource - A Handbook for Prioritizing Wetland and Stream Restoration and Protection Using Landscape Analysis Tools. This handbook was designed to provide states, tribes, and local governments with valuable information to guide the development, establishment, and refinement of geospatial tools for identifying restoration and protection prioritization priorities. This handbook is accompanied by an interactive website, that includes information on how research was carried out, the project's findings, and factsheets on the programs studied.
- Ecological Effectiveness of Compensatory Mitigation: ELI is leading efforts to evaluate compensatory mitigation required to offset adverse impacts to wetlands.
- In-Lieu Fee Mitigation: ELI's In-Lieu Fee Mitigation Program is designed to help states, tribes, and local governments; conservation organizations; and other interested groups develop or refine rigorous in-lieu-fee programs that yield ecologically effective and sustainable compensatory mitigation. We have hosted several webinars on the topic. Our 2015-2016 webinar series focuses on implementation of ILF programs. The 2013-2014 webinar series focused on developing an ILF program instrument. See also archived workshop materials from our 2016 In-Lieu Fee Mitigation Workshop and 2017 In-Lieu Fee Mitigation Workshop. In 2009, ELI published In-Lieu Fee Mitigation: Model Instrument Language and Resources, which offers model language that could be incorporated into in-lieu fee program instruments being developed by state agencies and non-profit organizations. In 2006, ELI completed the first-ever in-depth analysis of the nation's active aquatic resource in-lieu fee mitigation programs, the results of which are available in The Status and Character of In-Lieu Fee Mitigation in the United States.
- Wetland and Stream Mitigation: A Handbook for Land Trusts: In partnership with the Land Trust Alliance, ELI has developed a resource for land trusts to help them navigate the federal wetland and stream compensatory mitigation program and evaluate their engagement in the program. It provides background on the federal regulatory program, an overview of the different phases of a compensatory mitigation project, a discussion of the different roles that a land trust can play in compensatory mitigation, a framework for land trusts to assess their participation in a compensatory mitigation project, and technical guides on site protection instruments, long-term management plans, and long-term financing mechanisms.
- The Next Generation of Mitigation: This white paper, The Next Generation of Mitigation: Linking Current and Future Mitigation Programs with State Wildlife Action Plans and Other State and Regional Plans (2009), was prepared by ELI and The Nature Conservancy. The paper suggests that a more comprehensive approach to environmental mitigation by federal agencies will result in improved conservation and economic outcomes. "The Next Generation of Mitigation" seeks to define and describe a new approach to the use of mitigation that would support significant, landscape-scale conservation results, while accommodating energy and infrastructure investments in the coming decades.
- Wetland and Habitat Banking: In Design of U.S. Habitat Banking Systems to Support the Conservation of Wildlife Habitat and At-Risk Species (2008), ELI and the Environmental Defense Fund assessed the potential for habitat banking to contribute to the conservation of priority wildlife habitat identified in the state wildlife action plans.
- Banking and Compensatory Mitigation Status Reports: ELI has published several data-rich status reports on wetland mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation. ELI's 2005 Status Report on Compensatory Mitigation in the United States (2006) describes the extent and nature of wetland mitigation banking and in-lieu fee mitigation activities in the nation. The Status and Character of In-Lieu Fee Mitigation in the United States (2006) provides in-depth analysis of the nation's active aquatic resource in-lieu fee mitigation programs, and Banks and Fees: The Status of Off-Site Wetland Mitigation in the United States (2002), examines wetland mitigation banks, in-lieu fee programs, and umbrella banking operations in the U.S. ELI published Wetland Mitigation Banking (1993), the first study to examine the status of wetland mitigation banking in the United States. This series of studies provides a rich source of information on the policy development and institutional evolution of this important area of ecosystems service offsets.
- Mitigation Costs Study: Every year, human activities cause significant harm to fish and wildlife habitat and the environment. Many of the impacts to these natural resources are never addressed. In certain cases, however, federal, state, and local laws and programs can require monetary or in-kind compensation for these impacts. In the report Mitigation of Impacts to Fish and Wildlife Habitat: Estimating Costs and Identifying Opportunities (2007), ELI determined that private and public expenditures for such ecological compensation under key federal programs are approximately $3.8 billion annually.
- Training for Interagency Review Teams: ELI worked with The Conservation Fund to design a training course for Interagency Review Teams on mitigation banking and in-lieu fee mitigation. The course is offered by The Conservation Fund in partnership with the US Army Corps of Engineers, the US Environmental Protection Agency, and the US Fish & Wildlife Service. For additional information on the course and the course materials developed by ELI, see the IRT Training Course Website.