The Proposed Federal Rule on
Compensatory Mitigation
Gail Terzi
US Army Corps of Engineers
(206) 764-6903
gail.m.terzi@usace.army.mil
New Mitigation Rule – Why Now?
“Traditional” mitigation not
successful
NRC Report
Level the playing field
Nationwide consistency
What’s wrong with traditional mitigation?
Based on an inflexible preference for on-site,
in-kind compensation
• Unavailable at or near site may mean no
mitigation at all
• Poorly designed mitigation projects will fail
• Small projects often not cost-effective
• Uncooperative/unqualified responsible parties
• Inadequate oversight by regulatory agencies
• Practicable mitigation may not be sufficient
National Research Council Report (2001)
Study of wetland mitigation for Section 404
activities
Principal Finding:
Goal of no net loss of wetlands not being met
Recommendations:
Watershed approach
Need to improve mitigation performance and
compliance
Adapt the National Academy of Science
recommended guidelines for self-sustaining wetlands
to the Section 404 program
NRC Report
Instrumental for implementing the
National Wetlands Mitigation Action
Plan (MAP) (2002)
MAP is a cooperative effort between the Corps,
EPA, and Departments of Agriculture,
Commerce, Interior, and Transportation
MAP includes 17 tasks designed to improve the
ecological performance and results of
compensatory mitigation
Eight of these tasks have been completed
Proposed Rule on Compensatory Mitigation
Considered the following existing documents on
compensatory mitigation:
Regulatory Guidance Letter 02-02 (2002)
Federal Guidance for the Establishment, Use, and
Operation of Mitigation Banks (1995)
Federal Guidance on the Use of In-Lieu Fee
Arrangements for Compensatory Mitigation (2000)
Memorandum of Agreement Between the EPA and the
Corps Concerning the Determination of Mitigation Under
the Clean Water Act Section 404(b)(1) Guidelines (1990)
Proposed Rule on
Compensatory Mitigation
Joint rule – Corps (33 CFR Part 332) and EPA 40 CFR
Part 230)
Comments on the proposed rule were due by 30 June
2006
Does not change general mitigation requirements under
the Corps regulatory program
Accounts for regional variations of aquatic resource
types
Does not conflict/contradict the general principles of
the new interagency Washington State Guidance on
Wetland Mitigation (2006)
Changes of Interest
Proposed Rule on Compensatory Mitigation
Watershed Approach to Compensatory
Mitigation
Emphasis on Mitigation Banking
Phases out In-lieu Fee Program
Requires that information on how a project
addresses avoidance, minimization, and
compensatory mitigation requirements
Buffers and Upland Riparian Areas receive
credit
The Mitigation Sequence
A process of taking appropriate and practicable steps to:
- avoid impacts to the aquatic environment
- minimize those impacts that can’t otherwise be avoided
- compensate for the impacts that can’t be further minimized
Watershed Approach
Based on analysis of information regarding watershed conditions
and needs (existing watershed plans). If no watershed plans
exist, the following information should be obtained from other
sources:
Current trends in habitat loss or conversion
Cumulative impacts of past development activities
Current development trends
The presence and needs of sensitive species
Site conditions that favor or hinder the success
of mitigation projects
Chronic environmental problems such as flooding
or poor water quality
Local watershed goals and priorities
Proposed Rule Topics:
Purpose and general considerations
Definitions
General compensatory mitigation requirements
Planning and documentation
Ecological performance standards
Monitoring
Management
Mitigation Banks
In-lieu fee programs
Federal Policies, Rules and
Guidance for Mitigation Banks
1995 Federal Banking Guidance
2003 Conservation Banking Guidance
2002 National Wetland Mitigation Action
Plan
Regulatory Guidance Letter 02-02
2003 FHWA policy – TEA-21 banking
preference
2006 Proposed Compensatory Mitigation
Rule
Proposed Rule - Mitigation Banks
Topics covered:
(a) General Considerations
(b) Interagency Review Team
(c) Review Process
(d) Dispute Resolution
(e) Deadline Extensions
(f) Modifications
(g) Umbrella Banks
(h) Coordination with Permit Issuance
(i) Project Implementation
(j) Credit Withdrawals
(k) Credit Determination
(l) Reporting
(m) Use of Credits
(n) IRT Concerns With Credit Use
(o) Long-term Management
(p) Grandfathering of Existing Banks
Seattle District Concerns
Timelines
Clarification Issues
State Role
Service Area
Umbrella Banks
Credit Release
Current Issues with Washington
State Banks
Staffing shortages at the Corps for our banking
program
How much is too much? Are we/will we discourage
banking in Washington State?
How are we to decide which banks get reviewed
next? Placeholder in line, merit of proposal,
market demand?
Are financial assurances overkill? Is it fair that
the same standards are not applied for
concurrent compensatory mitigation?
How do we integrate ESA into banking?
Integrating ESA into the Banking
Program in Washington State
Presents opportunities to address:
Limited Resources in Watersheds
Equitability Issues
Cumulative Impacts
Pertinent Banking Regional Issues
Most banks have to go through Section 7
Endangered Species Act Consultation
Most banks have to perform some kind of cultural
resource investigation and coordinate with
Historic Preservation Office and Native American
Tribes
Conversion of Agricultural Land
Emerging and adapting banking program
Legal and regulatory requirements
Service Area Issues (from high elevation
headwaters systems to tidally influenced wetlands
and estuaries)
Mitigation
Banking
is a Blast!