2. The Role of Mitigation in Conditioning Certification 



Many States are trying to determine the role that mitigation should play in 40l 

 certification decisions. We cannot answer this question definitively for each State, but 

 offer as a guide EPA's general fiamework for mitigation under the Section 404(b)(1) 

 Guidelines used to evaluate applications for Section 404 permits. In assuring 

 compliance of a projea with the Guidelines, EPA's approach is to first, consider 

 avoidance of adverse impacts, next, determine ways to minimize the impacts, and 

 finally, require appropriate and practicable compensation for unavoidable impacts. 



The Guidelines provide for avoiding adverse impacts by selecting the least 

 environmentally damaging practicable alternative. In addition, wetlands are "special 

 aquatic sites." For such sites, if the proposed activity is not "water dependent," 

 practicable alternatives with less adverse environmental impacts are presumed to be 

 available imless the applicant clearly demonstrates otherwise.^ 



The Guidelines also require an applicant to take "appropriate and practicable" 

 steps to minimize the impacts of the least environmentally damaging alternative 

 selected.^^ Examples in the Guidelines for minimizing impacts through project 

 modifications and best management practices are provided in Appendix E. 



After these two steps are' complete, appropriate compensation is required for the 

 remaining unavoidable adverse impacts. Compensation would consist of restoration of 

 previously altered wetlands or creation of wetlands frbm upland sites. In most cases, 

 compensation on or adjacent to the project site is preferred over off-site locations. The 

 restoration or creation should be functionally equiv^ent to the values which are lost 

 Finally, compensating with the same type of wetland lost is preferred to using another 

 wetland type. 



The States may choose to adopt mitigation policies which require additional 

 replacement to help accoimt for the uncertainty in the science of wetland creation and 

 restoration. What is important from EPA's perspective is that mitigation not be used as 

 a trade-off for avoidable losses of wetlands, and that mitigation compensate, to the 

 fullest extent possible, for the functional values provided to the local ecosystem by the 

 wetlands unavoidably lost by the project 



3. The Role of Other State Laws 



Another question that has been asked is what State law or other requirements 

 are appropriately used to condition a 401 certification. The legislative history of 

 Section 401(d) indicates that Congress meant for the States to condition certifications 

 on compliance with any State and local law requirements related to water quality 



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