New Proposed Rule Expands Use of Conservation Easements to Protect Mitigation Areas under Clean Water Act


The Army Corps of Engineers (Army Corps) and Environmental Protection Agency (EPA) recently proposed a new joint rule under the Clean Water Act (CWA) that clarifies and expands requirements associated with compensatory mitigation for losses to aquatic resources allowed by Army Corps


The CWA requires that a proposed discharge of dredged or fill material into a wetland or waterbody take all appropriate and practicable steps to avoid and minimize impacts to aquatic resources. However, in some situation, certain impacts may be unavoidable. In such circumstances, the proposed discharger is required to replace the loss of wetland, stream, or other aquatic resource; this is known as compensatory mitigation. The proposed rule would require that land set aside for such compensatory mitigation be subject to long-term protection through an “appropriate real estate instrument,” such as a conservation easement. The real estate instrument must restrict or prohibit

incompatible uses that would jeopardize the mitigation project while allowing for the long-term management of the site.

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