The Final Rule

(also known as the “new rule”)

The driving force behind 2008’s Final Rule was 1995’s federal guidance, which directed each USACE district to interpret the guidance on its own. The differing interpretations created an uneven system in which some districts strictly preferred mitigation banking while others took a more varied approach to wetland conservation. Because such approaches meant that some districts were losing waters/wetlands and some weren’t, the Final Rule sought to set a stronger federal preference for mitigation banking.

| 2008 | 2010 |

(click dates to view more detailed information)


| 2008 |

Final Rule was issued, defining stricter rules for in-lieu fees—must be nonprofit, more checks and balances on how money is used and collected, must come into compliance by 2014, and preference must be given for mitigation banking as the Gold Standard for offsetting impacts to wetlands and streams.


| 2010 |

Memorandum issued stating that if a USACE district does not choose to have a developer offset impacts using credits from a mitigation bank, the district must document the reasons, further strengthening the preference for banking as the Gold Standard for offsetting impacts to wetlands and streams.



Conservation Bank – Mitigation banking approach to endangered species

Guidance – Non-binding statement issued by a government agency that advises how an organization can comply with legislation

Memorandum of Agreement – Written understanding of the agreement of cooperation between parties

Mitigation Bank – Restoration, creation, enhancement, or preservation of wetlands or streams that offsets expected adverse impacts to nearby wetlands or streams. Developers buy credits from USACE-permitted banks to fulfill requirements to offset impacts per the Clean Water Act to gain 404 permits and move forward with their projects.

No Net Loss – One acre of restored or preserved wetlands for every one acre of impacted wetlands, ensuring that No Net Loss of wetlands occurs

Rule – Administrative rules are officially promulgated agency regulations that have the force and effect of law. Generally these rules elaborate the requirements of a law or policy.


Mitigation Timeline information compiled and summarized from various sources, including:
Carroll, Nathaniel, Jessica Fox, and Ricardo Bayon. Conservation and Biodiversity Banking: A Guide to Setting Up and Running Biodiversity Credit Trading Systems. London and Sterling: Earthscan, 2008. Print.
Denny, Jemma. Personal Interview. July 2012.
EPA at 40. 2012. United States Environmental Protection Agency. July 2012.


Read about: The Mitigation Timeline