Significant attention has been paid over the past 20 years to improving the third step in the mitigation sequencing requirement of the Clean Water Act § 404 regulatory program—-compensatory mitigation—-to ensure that the compensation being provided is ecologically effective, self-sustaining, protected in perpetuity, has “assurances of long-term sustainability and stewardship,” and ultimately meets the program’s goal of no net loss. This report focuses on the first two steps in the sequencing process which, to date, have received far less attention: avoidance and minimization. Federal regulations, guidance, and administrative and judicial precedent all combine to establish the current state...
