Compensating for Wetland Losses Under the Clean Water Act (2001) / Chapter Skim
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5 Compensatory Mitigation Mechanisms Under Section 404
5 Compensatory Mitigation Mechanisms Under Section 404
Pages 82-93
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From page 82... ...
· What compensatory mitigation actions are required before the permittee is allowed to proceed with the activity authorized by the permit. · Whether the criteria for compensatory mitigation actions have been approved through the interagency Mitigation Banking Review Team (MBRT)
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From page 83... ...
, site acquisition, construction in accordance with design standards, monitoring to determine whether the design is trending toward the target wetland functions, achievement of performance standards, and regulatory certification that a site meets required mitigation requirements. Another distinct stage is an action to assure that the site is protected and managed in perpetuity.
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From page 84... ...
Banking instrument requirements although instrument should should contain provisions requirements may contain provisions for long-term management be imposed on an for long-term endowment, and transfer ad hoc basis. management site to government agency endowment and or appropriate stewardship transfer of site to organization.
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From page 85... ...
Mitigation actions, up to and including certification of credits, may be implemented before the permitted activity occurs. No The fund assumes responsibility for long-term stewardship.
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From page 86... ...
Offsite mitigation mechanisms tend to "consolidate" at a single site the compensatory mitigation required to offset the impacts of numerous permitted activities that may be scattered across the landscape. LEGAL RESPONSIBILITY FOR THE MITIGATION Initially, a permittee is legally responsible for satisfying permit conditions relating to compensatory mitigation.
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From page 87... ...
The Corps recognizes that The Nature Conservancy cannot guarantee specific results for mitigation efforts." The October 2000 guidance provides that in-lieu fee agreements should now "clearly state" that legal responsibility for undertaking specified mitigation actions for the ecological performance of mitigation site conditions rests with the organization accepting the in-lieu fee. Some Corps districts authorize permitters to make cash donations on an ad hoc basis to satisfy their compensatory mitigation obligations (Gardner 2000~.
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From page 88... ...
However, the 1995 federal mitigation banking guidance contemplates that most bank credits will not be released until the mitigation project is actually constructed or completed. For example, as practiced in Florida under state regulations and federal guidance, mitigation banks are typically allowed to debit about 15% of their credits upon perpetual preservation of a mitigation site and implementation of the short- and long-term financial obligations.
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From page 89... ...
The October 2000 guidance on in-lieu fees offers some clarification and timetables for implementation of mitigation actions funded through in-lieu fees. Before the Corps approves the use of in-lieu fee mitigation, the in-lieu fee administrator and the Corps should enter into a formal agreement that describes "potential site locations, baseline conditions at the sites, and general plans that indicate what kind of wetland compensation can be provided" and a "schedule for conducting the activities that will provide compensatory mitigation or a requirement that projects will be started within a specified time after impacts occur." With respect to timing, the guidance suggests that actions to include "[liand acquisition and initial physical and biological improvements should be completed by
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From page 90... ...
However, as noted elsewhere, some requirements, such as timing, may not be stated in all permits. A significant difference between mitigation banks and in-lieu fee programs, such as third-party compensation, is the different ability of each to financially capitalize mitigation actions.
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From page 91... ...
If the in-lieu fee arrangement is to offset impacts from individual permits, the in-lieu fee administrator should go through the MBRT process. It is unclear whether this guidance means that in-lieu fee arrangements that compensate for individual permits should secure the capital necessary to take some mitigation actions in advance of impacts or whether it simply requires interagency involvement in the approval of the MOA that sets up the in-lieu fee program.
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From page 92... ...
There are two main categories: permittee-responsible mitigation and thirdparty-responsible mitigation. Permittee-responsible mitigation includes permit-specific mitigation and single-user mitigation banks, and thirdparty-responsible mitigation includes commercial mitigation banks, inlieu fees, cash donations, and revolving funds.
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From page 93... ...
. Accordingly, the committee recommends that when an agency reviews mitigation options, it is most important to focus on their characteristics or attributes (e.g., who is legally responsible, the timing of the mitigation actions, whether the MBRT process is used, and whether stewardship requirements are in place)
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