Beyond Soft, Mushy, or Hard: The Mitigation Rule's Preference Is Banking First

The 2008 Mitigation Rule brought about major changes to the way the U.S. Army Corps of Engineers (the Corps) conducts mitigation. One of these changes was the creation of a regulatory hierarchy, which established mitigation banks as the first option in a list of mitigation options (33 C.F.R. §332.3(b)1-6). Section (b)2 specifically describes this first option as a “preference.” The preamble to the rule (73 Fed. Reg. 70 (Apr. 10, 2008)), which establishes the policy behind the rule, also discusses this hierarchy as a preference for mitigation bank credits in no less than 18 different places.