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Draft Federal Guidance on the Use of Off-Site and Out-of-Kind Compensatory Mitigation Under Section 404 of the Clean Water Act

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Environmental Protection Agency (EPA); National Oceanic and Atmospheric Administration (NOAA), Commerce; U.S. Army Corps of Engineers (USACE), Defense; U.S. Fish and Wildlife Service (USFWS), Interior; Natural Resources Conservation Service (NRCS), Agriculture; Department of Transportation.


Notice of availability to review and comment.


In accordance with the National Mitigation Action Plan signed in December of 2002 by the Environmental Protection Agency, Department of Commerce, Department of Defense, Department of the Interior, Department of Agriculture, and Department of Transportation, the Federal Interagency Mitigation Workgroup (FIMW) has prepared Draft Federal Guidance on the Use of Off-Site and Out-of-Kind Compensatory Mitigation Under Section 404 of the Clean Water Act (Site/Kind Guidance). The Site/Kind Guidance provides direction for the application of existing regulations and policies to decisions about the appropriate use of off-site and out-of-kind compensatory mitigation within the context of the Clean Water Act Section 404 permitting program.


In order to be considered, comments must be postmarked or e-mailed on or before May 24, 2004.


Comments may be submitted electronically, by mail, or by hand delivery/courier. E-mail comments to Please put “Site/Kind Comments” in the Subject Line and include your comments as an attachment to the e-mail in either Word or Wordperfect format. Mail or hand deliver/courier comments to: Susan-Marie Stedman, F/HC Room 14102, NOAA Fisheries, 1315 East-West Highway, Silver Spring, MD 20910.

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Mitigation Action Plan Web site at or contact either Palmer Hough, U.S. Environmental Protection Agency, Wetlands Division (4502T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone: (202) 566-1374, e-mail:, Alan Miller, U.S. Army Corps of Engineers, 441 G Street, NW., Washington, DC 20314-1000, phone: (202) 761-7763, e-mail:, or Susan-Marie Stedman, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, phone: (301) 713-2325, e-mail:

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Reports published in 2001 by the National Academy of Sciences (NAS) and the General Accounting Office (GAO) provided a critical evaluation of the effectiveness of wetlands compensatory mitigation for authorized losses of wetlands and other waters under Section 404 of the CWA. Section 404 regulates discharges of dredged and fill materials into waters of the United States and requires compensatory mitigation for unavoidable impacts. The independent analyses and other commentaries highlighted a number of shortfalls and identified a variety of technical, programmatic, and policy recommendations for the Federal agencies, States, and other involved parties.

An interagency team drafted the National Mitigation Action Plan endorsing the goal of no net loss of wetlands and outlining specific action items that address the concerns of the NAS, GAO, and other independent evaluations. The 17 actions, with various agency leads, address areas of concern, including collection and availability of data, clarifying performance standards, improving accountability, and integrating mitigation into the watershed approach. Development of Site/Kind Guidance is one of these action items. A preliminary draft of the Site/Kind Guidance was reviewed by participants at a July 2003 stakeholder forum held in Portland, Oregon, that brought together a diverse group of individuals representing the regulated community, environmental organizations, academia, non-governmental organizations, and mitigation providers. The preliminary draft has been revised based on comments received at that stakeholder forum. The FIMW is seeking additional public review before finalizing the guidance. Please note that comments, including names and street addresses of respondents, are available for public review in a docket.

Copies of the Draft Site/Kind Guidance are available at the Mitigation Action Plan Web site at (click on “Status of Action Items” and locate and click on “On-site/Off-site and In-kind/Out-of-kind Draft Guidance” in the summary table). A printed copy of the draft guidance can be obtained by contacting: Susan-Marie Stedman, F/HC Room 14102, NOAA Fisheries, 1315 East-West Highway, Silver Spring MD 20910.

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Dated: April 15, 2004.

Benjamin H. Grumbles,

Acting Assistant Administrator for Water.

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[FR Doc. 04-9046 Filed 4-22-04; 8:45 am]