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Wetland Mitigation Compliance

Regulatory agencies, including the U.S. Army Corps of Engineers (Corps), the U.S. Environmental Protection Agency (EPA), the Washington Department of Ecology, and local governments, must ensure, to the best of their abilities, that compensatory mitigation is not only appropriate and adequate but also successful. To accomplish this, regulatory programs include compliance and enforcement elements.

The purpose of compliance is to ensure that permittees meet the terms and conditions of their permits, including successful implementation of any required mitigation plan. Regulatory agencies strive to work collaboratively with permittees to ensure that the mitigation plan is implemented successfully and complies with the conditions of the permit. Non-compliance, however, may necessitate a compliance or enforcement action by the agencies, which could result in additional compensatory mitigation requirements. Examples of non-compliance related to compensatory mitigation include:

failure to implement the required mitigation plan,
failure to submit required as-built, status, and monitoring reports (see guidance on monitoring reports),
failure to provide the required amount and type of required compensatory mitigation, or
failure to meet the requirements of project-specific permit conditions.

Under their responsibilities relative to mitigation compliance, the agencies typically:

communicate and coordinate with permittees or their agents,
review project as-built, status, and monitoring reports,
inspect mitigation sites (as-built site inspection form), and
determine whether mitigation projects have met their performance standards and mitigation-specific permit conditions.

Research by Ecology found that compensatory mitigation projects that are reviewed for their compliance by regulatory agencies tend to be more successful (see the Wetland Mitigation Evaluation Study - Phase 2, Evaluating Success). Permittees should expect the Corps, EPA, Ecology, and local governments to take an active role in ensuring compliance. A project proponent who fails to comply with the terms and conditions of a permit may be subject to judicial action or a civil penalty.

What is the difference between compliance and enforcement?

In contrast to compliance, enforcement deals with activities that have occurred without proper authorization. In addition to protecting the environment, enforcement actions help preserve the integrity of a regulatory program by ensuring that everyone is treated fairly and consistently. An effective enforcement program also helps eliminate unfair advantages that might accrue to someone who does not abide by environmental laws and regulations.

Enforcement normally involves working cooperatively with a violator to resolve the violation and includes remediation of its adverse environmental impact. When necessary, enforcement actions include civil or criminal procedures that can result in substantial fines and/or imprisonment. For more information on Ecology's enforcement policies, click here.

For more information on wetland mitigation compliance, contact Dana L. Mock at 360-407-6947.