Lynn Zenczak

August 1, 2009

 Compensatory Mitigation Rule
by Lynn Zenczak
Lynn Zenczak is the marketing manager for Mitigation Marketing in Fort Myers and can be contacted at
In July 2008, a federal guidance known as the Compensatory Mitigation Rule was issued by the United States Army Corps of Engineers. Among other objectives, this new rule established a hierarchy among mitigation options which created equivalent standards for all types of mitigation. The new rule does not change when mitigation is required but rather where and how mitigation is required by the federal permitting agencies.
The goal of the new rule is to reduce risk and uncertainty in mitigation and to establish a preference hierarchy when offsetting unavoidable wetland impacts. This new hierarchy establishes wetland mitigation banks as the most preferred option with in-lieu fees as the second most desirable option and permittee-responsible mitigation as the third option. The old ideal of on-site mitigation is replaced with the new hierarchy.
The most significant change of the new rule is that all three mitigation options will be held to the same standard of quality and results as dictated by the 12 fundamental components: objectives; site selection criteria; site protection instruments such as  conservation easements; baseline information for the impact and the compensation sites; credit determination methodology; a mitigation work plan; a maintenance plan; ecological performance standards; monitoring requirements; a long-term management plan; an adaptive management plan; and financial assurances.  The new rule was established to create a “level playing field” among all forms of mitigation. In the hierarchy, wetland banks are deemed most desirable because of the increased emphasis on large scale, regional mitigation with a watershed context as opposed to the smaller, isolated mitigation efforts resulting from on-site mitigation. Mitigation banks have been required to utilize the 12 fundamental components since the origination of the bank concept. Because of this, in addition to the watershed context, there is less risk and uncertainty involved when purchasing credits. Credits only become available to the bank to sell after performance standards are met. Banks must be  approved to provide for wetland impacts by both state and federal agencies. 
Certain mitigation banks are approved to provide habitat mitigation along with wetland mitigation. For example, both the Big Cypress Mitigation Bank and the Corkscrew Regional Mitigation Bank are approved by the US Fish and Wildlife Service to provide both Panther and Wood Stork Mitigation along with the wetland credits. Additional Panther Mitigation required for the project may be purchased at a Panther Conservation Bank. 
In this depressed real estate market, the cost of many types of mitigation credits have significantly  decreased, some as much as 50%. This provides a wonderful temporary opportunity for the developer to acquire much needed credits  at a steep discount.

Author Bio

A true Florida Native, Lynn has BA from Florida Gulf Coast University and manages day-to-day sale activities for all projects within the state of Florida. Lynn began with EarthMark in 2001, and was an initial team member involved in permitting Big Cypress Mitigation Bank.
She is now the Director of Marketing for Mitigation Marketing.
While working closely with regulatory agencies, consultants, and clients, Lynn has become a well respected expert in wetland mitigation credits as well as the permitting process that clients go through. Her knowledge of the operational aspect of mitigation bank sand sales experience is unique and highly beneficial to her clients.

Lynn is a speaker to special interest groups, association, and real estate industry events concerning wetland mitigation and the permitting process and is highly versed on Habitat Impact Mitigation, Wetland Delineation Determination, and regulatory Environmental Permit Processing.