In 1958 Congress passed the Fish & Wildlife Coordination Act (FWCA) which, for the first time, required the U.S. Army Corps of Engineers (USACE) to seek the inputs of both federal and state fish and wildlife regulatory and management agencies in the development of projects that impact water resources. Further, FWCA requires that USACE consider adoption of specific recommendations from those agencies into plans for federal water resource projects or as conditions for the issuance of permits. This was the first tangible step toward the active mitigation protocol and widespread practices of today, though mitigation as a concept and a policy was primarily focused on wetlands until the 1990s.
Mitigation was given a major boost in the passage of the Clean Water Act (CWA) in 1972 and its reauthorization in 1977, when water quality standards were strengthened and greater protections put in place. CWA establishes a shared authority for the protection of water resources between USACE and the U.S. Environmental Protection Agency (EPA), and Section 404 of CWA codifies the “avoid, minimize, compensate” protocol and guidelines for applying the protocol to federally sponsored or permitted projects. This was formalized into policy through Executive Order 11990 Protection of Wetlands issued by President Carter in 1977, which directs federal agencies to: “…avoid to the extent possible the long and short term adverse impacts associated with the destruction or modification of wetlands and to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative...". This has the effect of forbidding the use of federal funds in projects that adversely impact wetlands without mitigation of those impacts.
The preparation of this report has been financed in part through grant[s] from the Federal Highway Administration and Federal Transit Administration, U.S. Department of Transportation, under the State Planning and Research Program, Section 505 [or Metropolitan Planning Program, Section 104(f)] of Title 23, U.S. Code. The contents of this report do not necessarily reflect the official views or policy of the U.S. Department of Transportation.