Federal Guidance for the Establishment,
Use and Operation of Mitigation Banks
NOTICE
Federal Register: November 28, 1995 (Volume 60, Number 228)
Page 58605-58614
http://www.epa.gov/owow/wetlands/guidance/mitbankn.html
I. Introduction
A. Purpose and Scope of
Guidance
This document provides policy guidance for the establishment, use and
operation of mitigation banks for the purpose of providing compensatory
mitigation for authorized adverse impacts to wetlands and other aquatic
resources. This guidance is provided expressly to assist Federal personnel,
bank sponsors, and others in meeting the requirements of Section 404 of
the Clean Water Act (CWA), Section 10 of the Rivers and Harbors Act, the
wetland conservation provisions of the Food Security Act (FS) (i.e., ``Swampbuster''),
and other applicable Federal statutes and regulations. The policies and
procedures discussed herein are consistent with current requirements of
the Section 10/404 regulatory program and ``Swampbuster'' provisions
and are intended only to clarify the applicability of existing requirements
to mitigation banking.
The policies and procedures discussed herein are applicable to the establishment,
use and operation of public mitigation banks, as well as privately-sponsored
mitigation banks, including third party banks (e.g. entrepreneurial banks).
B. Background
For purposes of this guidance, mitigation banking means the restoration,
creation, enhancement and, in exceptional circumstances, preservation
of wetlands and/or other aquatic resources expressly for the purpose of
providing compensatory mitigation in advance of authorized impacts to
similar resources.
The objective of a mitigation bank is to provide for the replacement
of the chemical, physical and biological functions of wetlands and other
aquatic resources which are lost as a result of authorized impacts. Using
appropriate methods, the newly established functions are quantified as
mitigation ``credits'' which are available for use by the bank
sponsor or by other parties to compensate for adverse impacts (i.e., ``debits'').
Consistent with mitigation policies established under the Council on Environmental
Quality Implementing Regulations (CEQ regulations) (40 CFR Part 1508.20),
and the Section 404(b)(1) Guidelines (Guidelines) (40 CFR Part 230), the
use of credits may only be authorized for purposes of complying with Section
10/404 when adverse impacts are unavoidable. In addition, for both the
Section 10/404 and ``Swampbuster'' programs, credits may only
be authorized when on-site compensation is either not practicable or use
of a mitigation bank is environmentally preferable to on-site compensation.
Prospective bank sponsors should not construe or anticipate participation
in the establishment of a mitigation bank as ultimate authorization for
specific projects, as excepting such projects from any applicable requirements,
or as preauthorizing the use of credits from that bank for any particular
project.
Mitigation banks provide greater flexibility to applicants needing to
comply with mitigation requirements and can have several advantages over
individual mitigation projects, some of which are listed below:
1. It may be more advantageous for maintaining the integrity of the aquatic
ecosystem to consolidate compensatory mitigation into a single large parcel
or contiguous parcels when ecologically appropriate;
2. Establishment of a mitigation bank can bring together financial resources,
planning and scientific expertise not practicable to many project-specific
compensatory mitigation proposals. This consolidation of resources can
increase the potential for the establishment and long- term management
of successful mitigation that maximizes opportunities for contributing
to biodiversity and/or watershed function;
3. Use of mitigation banks may reduce permit processing times and provide
more cost-effective compensatory mitigation opportunities for projects
that qualify;
4. Compensatory mitigation is typically implemented and functioning in
advance of project impacts, thereby reducing temporal losses of aquatic
functions and uncertainty over whether the mitigation will be successful
in offsetting project impacts;
5. Consolidation of compensatory mitigation within a mitigation bank
increases the efficiency of limited agency resources in the review and
compliance monitoring of mitigation projects, and thus improves the reliability
of efforts to restore, create or enhance wetlands for mitigation purposes.
6. The existence of mitigation banks can contribute towards attainment
of the goal for no overall net loss of the Nation's wetlands by providing
opportunities to compensate for authorized impacts when mitigation might
not otherwise be appropriate or practicable.
II. Policy Considerations
The following policy considerations provide general guidance for the
establishment, use and operation of mitigation banks. It is the agencies'
intent that this guidance be applied to mitigation bank proposals submitted
for approval on or after the effective date of this guidance and to those
in early stages of planning or development. It is not intended that this
policy be retroactive for mitigation banks that have already received
agency approval. While it is recognized that individual mitigation banking
proposals may vary, it is the intent of this guidance that the fundamental
precepts be applicable to future mitigation banks.
For the purposes of Section 10/104, and consistent with the CEQ regulations,
the Guidelines, and the Memorandum of Agreement Between the Environmental
Protection Agency (EPA) and the Department of the Army Concerning the
Determination of Mitigation under the Clean Water Act Section 404(b)(1)
Guidelines, mitigation means sequentially avoiding impacts, minimizing
impacts, and compensating for remaining unavoidable impacts. Compensatory
mitigation, under Section 10/404, is the restoration, creation, enhancement,
or in exceptional circumstances, preservation of wetlands and/or other
aquatic resources for the purpose of compensating for unavoidable adverse
impacts. A site where wetlands and/or other aquatic resources are restored,
created, enhanced, or in exceptional circumstances, preserved expressly
for the purpose of providing compensatory mitigation in advance of authorized
impacts to similar resources is a mitigation bank.
A. Authorities
This guidance is established in accordance with the following statutes,
regulations, and policies. It is intended to clarify provisions within
these existing authorities and does to establish any new requirements.
1. Clean Water Act Section 404 (33 U.S.C. 1344).
2. Rivers and Harbors Act of 1899 Section 10 (33 U.S.C. 403 et seq.)
3. Environmental Protection Agency, Section 404(b)(1) Guidelines (40
CFR Part 230). Guidelines for Specification of Disposal Sites for Dredged
or Fill Material.
4. Department of the Army, Section 404 Permit Regulations (33 CFR Parts
320-330). Policies for evaluating permit applications to discharge dredged
or fill material.
5. Memorandum of Agreement between the Environmental Protection Agency
and the Department of the Army Concerning the Determination of Mitigation
under the Clean Water Act Section 404(b)(1) Guidelines (February 6, 1990).
6. Title XII Food Security Act of 1985 as amended by the Food, Agriculture,
Conservation and Trade Act of 1990 (16 U.S.C. 3801 et seq.).
7. National Environmental Policy Act (42 U.S.C. 4321 et seq.), including
the Council on Environmental Quality's implementing regulations (40
CFR Parts 1500-1508).
8. Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).
9. Fish and Wildlife Service Mitigation Policy (46 FR pages 7644- 7663,
1981).
10. Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801
et seq.).
11. National Marine Fisheries Service Habitat Conservation Policy (48
FR pages 53142-53147, 1983).
The policies set out in this document are not final agency action, but
are intended solely as guidance. The guidance is not intended, nor can
it be relied upon, to create any rights
enforceable by any party in litigation with the United States. This guidance
does not establish or affect legal rights or obligations, establish a
binding norm on any party and it is not finally determinative of the issues
addressed. Any regulatory decisions made by the agencies in any particular
matter addressed by this guidance will be made by applying the governing
law and regulations to the relevant facts.
B. Planning Considerations
1. Goal Setting
The overall goal of a mitigation bank is to provide economically efficient
and flexible mitigation opportunities, while fully compensating for wetland
and other aquatic resource losses in a manner that contributes to the
long-term ecological functioning of the watershed within which the bank
is to be located. The goal will include the need to replace essential
aquatic functions which are anticipated to be lost through authorized
activities within the bank's service area. In some cases, banks may
also be used to address other resource objectives that have been identified
in a watershed management plan or other resource assessment. It is desirable
to set the particular objectives for a mitigation bank (i.e., the type
and character of wetlands and/or aquatic resources to be established)
in advance of site selection. The goal and objectives should be driven
by the anticipated mitigation need; the site selected should support achieving
the goal and objectives.
2. Site Selection
The agencies will give careful consideration to the ecological suitability
of a site for achieving the goal and objectives of a bank, i.e., that
it posses the physical, chemical and biological characteristics to support
establishment of the desired aquatic resources and functions. Size and
location of the site relative to other ecological features, hydrologic
sources (including the availability of water rights), and compatibility
with adjacent land uses and watershed management plans are important factors
for consideration. It also is important that ecologically significant
aquatic or upland resources (e.g., shallow sub-tidal habitat, mature forests),
cultural sites, or habitat for Federally or State-listed threatened and
endangered species are not compromised in the process of establishing
a bank. Other significant factors for consideration include, but are not
limited to, development trends (i.e., anticipated land use changes), habitat
status and trends, local or regional goals for the restoration or protection
of particular habitat types or functions (e.g., re-establishment of habitat
corridors or habitat for species of concern), water quality and floodplain
management goals, and the relative potential for chemical contamination
of the wetlands and/ or other aquatic resources.
Banks may be sited on public or private lands. Cooperative arrangements
between public and private entities to use public lands for mitigation
banks may be acceptable. In some circumstances, it may be appropriate
to site banks on Federal, state, tribal or locally-owned resource management
areas (e.g., wildlife management areas, national or state forests, public
parks, recreation areas). The siting of banks on such lands may be acceptable
if the internal policies of the public agency allow use of its land for
such purposes, and the public agency grants approval. Mitigation credits
generated by banks of this nature should be based solely on those values
in the bank that are supplemental to the public program(s) already planned
or in place, that is, baseline values represented by existing or already
planned public programs, including preservation value, should not be counted
toward bank credits.
Similarly, Federally-funded wetland conservation projects undertaken
via separate authority and for other purposes, such as the Wetlands Reserve
Program, Farmer's Home Administration fee title transfers or conservation
easements, and Partners for Wildlife Program, cannot be used for the purpose
of generating credits within a mitigation bank. However, mitigation credit
may be given for activities undertaken in conjunction with, but supplemental
to, such programs in order to maximize the overall ecological benefit
of the conservation project.
3. Technical Feasibility
Mitigation banks should be planned and designed to be self- sustaining
over time to the extent possible. The techniques for establishing wetlands
and/or other aquatic resources must be carefully selected, since this
science is constantly evolving. The restoration of historic or substantially-degraded
wetlands and/or other aquatic resources (e.g., prior-converted cropland,
farmed wetlands) utilizing proven techniques increases the likelihood
of success and typically does not result in the loss of other valuable
resources. Thus, restoration should be the first option considered when
siting a bank. Because of the difficulty in establishing the correct hydrologic
conditions associated with many creation projects and the tradeoff in
wetland functions involved with certain enhancement activities, these
methods should only be considered where there are adequate assurances
to ensure success and that the project will result in an overall environmental
benefit.
In general, banks which involve complex hydraulic engineering features
and/or questionable water sources (e.g., pumped) are most costly to develop,
operate and maintain, and have a higher risk of failure than banks designed
to function with little or no human intervention. The former situations
should only be considered where there are adequate assurances to ensure
success. This guidance recognizes that in some circumstances wetlands
must be actively managed to ensure their viability and sustainability.
Furthermore, long-term maintenance requirements may be necessary and appropriate
in some cases (e.g., to maintain fire-dependent plant communities in the
absence of natural fire; to control invasive exotic plant species).
Proposed mitigation techniques should be well-understood and reliable.
When uncertainties surrounding the technical feasibility of a proposed
mitigation technique exist, appropriate arrangements (e.g., financial
assurances, contingency plans, additional monitoring requirements) should
be in place to increase the likelihood of success. Such arrangements may
be phased-out or reduced once the attainment of prescribed performance
standards is demonstrated.
4. Role of Preservation
Credit may be given when existing wetlands and/or other aquatic resources
are preserved in conjunction with restoration, creation or enhancement
activities, and when it is demonstrated that the preservation will augment
the functions of the restored, created or enhanced aquatic resource. Such
augmentation may be reflected in the total number of credits available
from the bank.
In addition, the preservation of existing wetlands and/or other aquatic
resources in perpetuity may be authorized as the sole basis for generating
credits in mitigation banks only in exceptional circumstances, consistent
with existing regulations, policies and guidance. Under such circumstances,
preservation may be accomplished through the implementation of appropriate
legal mechanisms (e.g., transfer of deed, deed restrictions, conservation
easement) to protect wetlands and/or other aquatic resources, accompanied
by implementation of appropriate changes in land use or other physical
changes as necessary (e.g., installation of restrictive fencing).
Determining whether preservation is appropriate as the sole basis for
generating credits at a mitigation bank requires careful judgment regarding
a number of factors. Consideration must be given to whether wetlands and/or
other aquatic resources proposed for preservation (1) perform physical
or biological functions, the preservation of which is important to the
region in which the aquatic resources are located, and (2) are under demonstrable
threat of loss or substantial degradation due to human activities that
might not otherwise be expected to be restricted. The existence of a demonstrable
threat will be based on clear evidence of destructive land use changes
which are consistent with local and regional land use trends and are not
the consequence of actions under the control of the bank sponsor. Wetlands
and other aquatic resources restored under the Conservation Reserve Program
or similar programs requiring only temporary conservation easements may
be eligible for banking credit upon termination of the original easement
if the wetlands are provided permanent protection and it would otherwise
be expected that the resources would be converted upon termination of
the easement. The number of mitigation credits available from a bank that
is based solely on preservation should be based on the functions that
would otherwise be lost or degraded if the aquatic resources were not
preserved, and the timing of such loss or degradation. As such, compensation
for aquatic resource impacts will typically require a greater number of
acres from a preservation bank than from a bank which is based on restoration,
creation or enhancement.
5. Inclusion of Upland Areas
Credit may be given for the inclusion of upland areas occurring within
a bank only to the degree that such features increase the overall ecological
functioning of the bank. If such features are included as part of a bank,
it is important that they receive the same protected status as the rest
of the bank and be subject to the same operational procedures and requirements.
The presence of upland areas may increase the per-unit value of the aquatic
habitat in the bank. Alternatively, limited credit may be given to upland
areas protected within the bank to reflect the functions inherently provided
by such areas (e.g., nutrient and sediment filtration of stormwater runoff,
wildlife habitat diversity) which directly enhance or maintain the integrity
of the aquatic ecosystem and that might otherwise be subject to threat
of loss or degradation. An appropriate functional assessment methodology
should be used to determine the manner and extent to which such features
augment the functions of restored, created or enhanced wetlands and/or
other aquatic resources.
6. Mitigation Banking and Watershed Planning
Mitigation banks should be planned and developed to address the specific
resource needs of a particular watershed. Furthermore, decisions regarding
the location, type of wetlands and/or other aquatic resources to be established,
and proposed uses of a mitigation bank are most appropriately made within
the context of a comprehensive watershed plan. Such watershed planning
efforts often identify categories of activities having minimal adverse
effects on the aquatic ecosystem and that, therefore, could be authorized
under a general permit. In order to reduce the potential cumulative effects
of such activities, it may be appropriate to offset these types of impacts
through the use of a mitigation bank established in conjunction with a
watershed plan.
C. Establishment of Mitigation
Banks
1. Prospectus
Prospective bank sponsors should first submit a prospectus to the Army
Corps of Engineers (Corps) or Natural Resources Conservation Service (NRCS)\1\
to initiate the planning and review process by the appropriate agencies.
Prior to submitting a prospectus, bank sponsors are encouraged to discuss
their proposal with the appropriate agencies (e.g., pre-application coordination).
\1\ The Corps will typically serve as the lead agency for
the establishment of mitigation banks. Bank sponsors proposing establishment
of mitigation banks solely for the purpose of complying with the ``Swampbuster''
provisions of FSA should submit their prospectus to the NRCS.
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It is the intent of the agencies to provide practical comments to the
bank sponsors regarding the general need for and technical feasibility
of proposed banks. Therefore, bank sponsors are encouraged to include
in the prospectus sufficient information concerning the objectives for
the bank and how it will be established and operated to allow the agencies
to provide such feedback. Formal agency involvement and review is initiated
with submittal of a prospectus.
2. Mitigation Banking Instruments
Information provided in the prospectus will serve as the basis for establishing
the mitigation banking instrument. All mitigation banks need to have a
banking instrument as documentation of agency concurrence on the objectives
and administration of the bank. The banking instrument should describe
in detail the physical and legal characteristics of the bank, and how
the bank will be established and operated. For regional banking programs
sponsored by a single entity (e.g., a state transportation agency), it
may be appropriate to establish an ``umbrella'' instrument for
the establishment and operation of multiple bank sites. In such circumstances,
the need for supplemental site-specific information (e.g., individual
site plans) should be addressed in the banking instrument. The banking
instrument will be signed by the bank sponsor and the concurring regulatory
and resource agencies represented on the Mitigation Bank Review Team (section
II.C.2). The following information should be addressed, as appropriate,
within the banking instrument:
a. Bank goals and objectives;
b. Ownership of bank lands;
c. Bank size and classes of wetlands and/or other aquatic resources proposed
for inclusion in the bank, including a site plan and specifications;
d. Description of baseline conditions at the bank site;
e. Geographic service area;
f. Wetland classes or other aquatic resource impacts suitable for compensation;
g. Methods for determining credits and debits;
h. accounting procedures;
i. Performance standards for determining credit availability and bank
success;
j. Reporting protocols and monitoring plan;
k. Contingency and remedial actions and responsibilities;
l. Financial assurances;
m. Compensation ratios;
n. Provisions for long-term management and maintenance.
The terms and conditions of the banking instrument may be amended, in
accordance with the procedures used to establish the instrument and subject
to agreement by the signatories.
In cases where initial establishment of the mitigation bank involves
a discharge into waters of the United States requiring Section 10/404
authorization, the banking instrument will be made part of a Department
of the Army permit for that discharge. Submittal of an individual permit
application should be accompanied by a sufficiently- detailed prospectus
to allow for concurrent processing of each. Preparation of a banking instrument,
however, should not alter the normal permit evaluation process timeframes.
A bank sponsor may proceed with activities for the construction of a bank
subsequent to receiving the Department of the Army authorization. It should
be noted, however, that a bank sponsor who proceeds in the absence of
a banking instrument does so at his/her own risk.
In cases where the mitigation bank is established pursuant to the FSA,
the banking instrument will be included in the plan developed or approved
by NRCS and the Fish and Wildlife Service (FWS).
3. Agency Roles and Coordination
Collectively, the signatory agencies to the banking instrument will comprise
the Mitigation Bank Review Team (MBRT). Representatives from the Corps,
EPA, FWS, National Marine Fisheries Service (NMFS) and NRCS, as appropriate
given the projected use for the bank, should typically comprise the MBRT.
In addition, it is appropriate for representatives from state, tribal
and local regulatory and resource agencies to participate where an agency
has authorities and/or mandates directly affecting or affected by the
establishment, use or operation of a bank. No agency is required to sign
a banking instrument; however, in signing a banking instrument, an agency
agrees to the terms of that instrument.
The Corps will serve as Chair of the MBRT, except in cases where the
bank is proposed solely for the purpose of complying with the FSA, in
which case NRCS will be the MBRT Chair. In addition, where a bank is proposed
to satisfy the requirements of another Federal, state, tribal or local
program, it may be appropriate for the administering agency to serve as
co-Chair of the MBRT.
The primary role of the MBRT is to facilitate the establishment of mitigation
banks through the development of mitigation banking instruments. Because
of the different authorities and responsibilities of each agency represented
on the MBRT, there is a benefit in achieving agreement on the banking
instrument. For this reason, the MBRT will strive to obtain consensus
on its actions. The Chair of the MBRT will have the responsibility for
making final decisions regarding the terms and conditions of the banking
instrument where consensus cannot otherwise be reached within a reasonable
timeframe (e.g., 90 days from the date of submittal of a complete prospectus).
The MBRT will review and seek consensus on the banking instrument and
final plans for the restoration, creation, enhancement, and/or preservation
of wetlands and other aquatic resources.
Consistent with its authorities under Section 10/404, the Corps is responsible
for authorizing use of a particular mitigation bank on a project-specific
basis and determining the number and availability of credits required
to compensate for proposed impacts in accordance with the terms of the
banking instrument. Decisions rendered by the Corps must fully consider
review agency comments submitted as part of the permit evaluation process.
Similarly, the NRCS, in consultation with the FWS, will make the final
decision pertaining to the withdrawal of credits from banks as appropriate
mitigation pursuant to FSA.
4. Role of the Bank Sponsor
The bank sponsor is responsible for the preparation of the banking instrument
in consultation with the MBRT. The bank sponsor should, therefore, have
sufficient opportunity to discuss the content of the banking instrument
with the MBRT. The bank sponsor is also responsible for the overall operation
and management of the bank in accordance with the terms of the banking
instrument, including the preparation and distribution of monitoring reports
and accounting statements/ledger, as necessary.
5. Public Review and Comment
The public should be notified of and have an opportunity to comment on
all bank proposals. For banks which require authorization under an individual
Section 10/404 permit or a state, tribal or local program that involves
a similar public notice and comment process, this condition will typically
be satisfied through such standard procedures. For other proposals, the
Corps or NRCS, upon receipt of a complete banking prospectus, should provide
notification of the availability of the prospectus for a minimum 21-day
public comment period. Notification procedures will be similar to those
used by the Corps in the standard permit review process. Copies of all
public comments received will be distributed to the other members of the
MBRT and the bank sponsor for full consideration in the development of
the final banking instrument.
6. Dispute Resolution Procedure
The MBRT will work to reach consensus on its actions in accordance with
this guidance. It is anticipated that all issues will be resolved by the
MBRT in this manner.
a. Development of the Banking Instrument
During the development of the banking instrument, if any agency representative
considers that a particular decision raises concern regarding the application
of existing policy or procedures, an agency may request, through written
notification, that the issue be reviewed by the Corps District Engineer,
or NRCS State Conservationist, as appropriate. Said notification will
describe the issue in sufficient detail and provide recommendations for
resolution. Within 20 days, the District Engineer or State Conservationist
(as appropriate) will consult with the notifying agency(ies) and will
resolve the issue. The resolution will be forwarded to the other MBRT
member agencies. The bank sponsor may also request the District Engineer
or State Conservationist review actions taken to develop the banking instrument
if the sponsor believes that inadequate progress has been made on the
instrument by the MBRT.
b. Application of the Banking Instrument
As previously stated, the Corps and NRCS are responsible for making final
decisions on a project-specific basis regarding the use of a mitigation
bank for purposes of Section 10/404 and FSA, respectively. In the event
an agency on the MBRT is concerned that a proposed use may be inconsistent
with the terms of the banking instrument, that agency may raise the issue
to the attention of the Corps or NRCS through the permit evaluaiton process.
In order to facilitate timely and effective consideration of agency comments,
the Corps or NRCS, as appropriate, will advise the MBRT agencies of a
proposed use of a bank. The Corps will fully consider comments provided
by the review agencies regarding mitigation as part of the permit evaluation
process. The NCRS will consult with FWA is making its decisions pertaining
to mitigation.
If, in the view of an agency on the MBRT, an issued permit or series
of permits reflects a pattern of concern regarding the application of
the terms of the banking instrument, that agency may initiate review of
the concern by the full MBRT through written notification to the MBRT
Chair. The MBRT Chair will convene a meeting of the MBRT, or initiate
another appropriate forum for communication, typically within 20 days
of receipt of notification, to resolve concerns. Any such effort to address
concerns regarding the application of a banking instrument will not delay
any decision pending before the authorizing agency (e.g., Corps or NRCS).
D. Criteria for Use of
a Mitigation Bank
1. Project Applicability
All activities regulated under Section 10/404 may be eligible to use
a mitigation bank as compensation for unavoidable impacts to wetlands
and/or other aquatic resources. Mitigation banks established for FSA purposes
may be debited only in accordance with the mitigation and replacement
provisions of 7 CFR Part 12.
Credits from mitigation banks may also be used to compensate for environmental
impacts authorized under other programs (e.g., state or local <strong>wetland</strong>
regulatory programs, NPDES program, Corps civil works projects, Superfund
removal and remedial actions). In no case may the same credits be used
to compensate for more than one activity; however, the same credits may
be used to compensate for an activity which requires authorization udner
more than one program.
2. Relationship to Mitigation Requirements
Under the existing requirements of Section 10/404, all appropriate and
practicable steps must be undertaken by the applicant to first avoid and
then minimize adverse impacts to aquatic resources, prior to authorization
to use a particular mitigation bank. Remaining unavoidable impacts must
be compensated to the extent appropriate and practicable. For both the
Section 10/404 and ``Swampbuster'' programs, requirements for
compensatory mitigation may be satisfied through the use of mitigation
banks when either on-site compensation is not practicable or use of the
mitigation bank is environmentally preferable to on-site compensation.
It is important to emphasize that applicants should not expect that establishment
of, or purchasing credits from, a mitigation bank will necessarily lead
to a determination of compliance with applicable mitigation requirements
(i.e., Section 404(b)(1) Guidelines or FSA Manual), or as excepting projects
from any applicable requirements.
3. Geographic Limits of Applicability
The service area of a mitigation bank is the area (e.g., watershed, county)
wherein a bank can reasonably be expected to provide appropriate compensation
for impacts to wetlands and/or other aquatic resources. This area should
be designated in the banking instrument. Designation of the service area
should be based on consideration of hydrologic and biotic criteria, and
be stipulated in the banking instrument. Use of a mitigation bank to compensate
for impacts beyond the designated service area may be authorized, on a
case-by-case basis, where it is determined to be practicable and environmentally
desirable.
The geographic extent of a service area should, to the extent environmentally
desirable, be guided by the cataloging unit of the ``Hydrologic Unit map
of the United States'' (USGS, 1980) and the ecoregion of the ``Ecoregions
of the United States'' (James M. Omernik, EPA, 1986) or section
of the ``Descriptions of the Ecoregions of the United States''
(Robert G. Bailey, USDA, 1980). It may be appropriate to use other classification
systems developed at the state or regional level for the purpose of specifying
bank service areas, when such systems compare favorably in their objectives
and level of detail. In the interest of the integrating banks with other
resource management objectives, bank service areas may encompass larger
watershed areas if the designation of such areas is supported by local
or regional management plans (e.g., Special Area Management Plans, Advance
Identification), State Wetland Conservation Plans or other Federally sponsored
or recognized resource management plans. Furthermore, designation of a
more inclusive service area may be appropriate for mitigation banks whose
primary purpose is to compensate for linear projects that typically involve
numerous small impacts in several different watersheds.
4. Use of a Mitigation Bank vs. On-Site Mitigation
The agencies' preference for on-site mitigation, indicated in the
1990 Memorandum of Agreement on mitigation between the EPA and the Department
of the Army, should not preclude the use of a mitigation bank when there
is no practicable opportunity for on-site compensation, or when use of
a bank is environmentally preferable to on-site compensation. On-site
mitigation may be preferable where there is a practicable opportunity
to compensate for important local functions including local flood control
functions, habitat for a species or population with a very limited geographic
range or narrow environmental requirements, or where local water quality
concerns dominate.
In choosing between on-site mitigation and use of a mitigation bank,
careful consideration should be given to the likelihood for successfully
establishing the desired habitat type, the compatibility of the mitigation
project with adjacent land uses, and the practicability of long-term monitoring
and maintenance to determine whether the effort will be ecologically sustainable,
as well as the relative cost of mitigation alternatives. In general, use
of a mitigation bank to compensate for minor aquatic resource impacts
(e.g., numerous, small impacts associated with linear projects; impacts
authorized under nationwide permits) is preferable to on-site mitigation.
With respect to larger aquatic resource impacts, use of a bank may be
appropriate if it is capable of replacing essential physical and/or biological
functions of the aquatic resources which are expected to be lost or degraded.
Finally, there may be circumstances warranting a combination of on-site
and off-site mitigation to compensate for losses.
5. In-kind vs. Out-of-kind Mitigation Determinations
In the interest of achieving functional replacement, in-kind compensation
of aquatic resource impacts should generally be required. Out-of-kind
compensation may be acceptable if it is determined to be practicable and
environmentally preferable to in-kind compensation (e.g., of greater ecological
value to a particular region). However, non-tidal wetlands should typically
not be used to compensate for the loss or degradation of tidal wetlands.
Decisions regarding out-of-kind mitigation are typically made on a case-by-case
basis during the permit evaluation process. The banking instrument may
identify circumstances in which it is environmentally desirable to allow
out-of-kind compensation within the context of a particular mitigation
bank (e.g., for banks restoring a complex of associated wetland types).
Mitigation banks developed as part of an area-wide management plan to
address a specific resource objective (e.g., restoration of a particularly
vulnerable or valuable wetland habitat type) may be such an example.
6. Timing of Credit Withdrawal
The number of credits available for withdrawal (i.e., debiting) should
generally be commensurate with the level of aquatic functions attained
at a bank at the time of debiting. The level of function may be determined
through the application of performance standards tailored to the specific
restoration, creation or enhancement activity at the bank site or through
the use of an appropriate functional assessment methodology.
The success of a mitigation bank with regard to its capacity to establish
a healthy and fully functional aquatic system relates directly to both
the ecological and financial stability of the bank. Since financial considerations
are particularly critical in early stages of bank development, it is generally
appropriate, in cases where there is adequate financial assurance and
where the likelihood of the success of the bank is high, to allow limited
debiting of a percentage of the total credits projected for the bank at
maturity. Such determinations should take into consideration the initial
capital costs needed to establish the bank, and the likelihood of its
success. However, it is the intent of this policy to ensure that those
actions necessary for the long-term viability of a mitigation bank be
accomplished prior to any debiting of the bank. In this regard, the following
minimum requirements should be satisfied prior to debiting: (1) banking
instrument and mitigation plans have been approved; (2) bank site has
been secured; and (3) appropriate financial assurances have been established.
In addition, initial physical and biological improvements should be completed
no later than the first full growing season following initial debiting
of a bank. The temporal loss of functions associated with the debiting
of projected credits may justify the need for requiring higher compensation
ratios in such cases. For mitigation banks which propose multiple-phased
construction, similar conditions should be established for each phase.
Credits attributed to the preservation of existing aquatic resources
may become available for debiting immediately upon implementation of appropriate
legal protection accompanied by appropriate changes in land use or other
physical changes, as necessary.
7. Crediting/Debiting/Accounting Procedures
Credits and debits are the terms used to designate the units of trade
(i.e., currency) in mitigation banking. Credits represent the accrual
or attainment of aquatic functions at a bank; debits represent the loss
of aquatic functions at an impact or project site. Credits are debited
from a bank when they are used to offset aquatic resource impacts (e.g.
for the purpose of satisfying Section 10/404 permit or FSA requirements).
An appropriate functional assessment methodology (e.g., Habitat Evaluation
Procedures, hydrogeomorphic approach to wetlands functional assessment,
other regional assessment methodology) acceptable to all signatories should
be used to assess wetland and/or other aquatic resource restoration, creation
and enhancement activities within a mitigation bank, and to quantify the
amount of available credits. The range of functions to be assessed will
depend upon the assessment methodology identified in the banking instrument.
The same methodology should be used to assess both credits and debits.
If an appropriate functional assessment methodology is impractical to
employ, acreage may be used as a surrogate for measuring function. Regardless
of the method employed, the number of credits should reflect the difference
between site conditions under the with-and without-bank scenarios.
The bank sponsor should be responsible for assessing the development
of the bank and submitting appropriate documentation of such assessments
to the authorizing agency(ies), who will distribute the documents to the
other members of the MBRT for review. Members of the MBRT are encouraged
to conduct regular (e.g., annual) on-site inspections, as appropriate,
to monitor bank performance. Alternatively, functional assessments may
be conducted by a team representing involved resources and regularly agencies
and other appropriate parties. The number of available credits in a mitigation
bank may need to be adjusted to reflect actual conditions.
The banking instrument should require that bank sponsors establish and
maintain an accounting system (i.e., ledger) which documents the activity
of all mitigation bank accounts. Each time an approved debit/ credit transaction
occurs at a given bank, the bank sponsor should submit a statement to
the authorizing agency(ies). The bank sponsor should also generate an
annual ledger report for all mitigation bank accounts to be submitted
to the MBRT Chair for distribution to each member of the MBRT.
Credits may be sold to third parties. The cost of mitigation credits
to a third party is determined by the bank sponsor.
Party Responsible for Bank Success
The bank sponsor is responsible for assuring the success of the debited
restoration, creation, enhancement and preservation activities at the
mitigation bank, and it is therefore extremely important that an enforceable
mechanism be adopted establishing the responsibility of the bank sponsor
to develop and operate the bank properly. Where authorization under Section
10/404 and/or FSA is necessary to establish the bank, the Department of
the Army permit or NRCS plan should be conditioned to ensure that provisions
of the banking instrument are enforceable by the appropriate agency(ies).
In circumstances where establishment of a bank does not require such authorization,
the details of the bank sponsor's responsibilities should be delineated
by the relevant authorizing agency (e.g., the Corps in the case of Section
10/404 permits) in any permit in which the permittee's mitigation
obligations are met through use of the bank. In addition, the bank sponsor
should sign such permits for the limited purpose of meeting those mitigation
responsibilities, thus confirming that those responsibilities are enforceable
against the bank sponsor if necessary.
E. Long-Term Management,
Monitoring and Remediation
1. Bank Operational Life
The operational life of a bank refers to the period during which the
terms and conditions of the banking instrument are in effect. With the
exception of arrangements for the long-term management and protection
in perpetuity of the wetlands and/or other aquatic resources, the operational
life of a mitigation bank terminates at the point when (1) Compensatory
mitigation credits have been exhausted or banking activity is voluntarily
terminated with written notice by the bank sponsor provided to the Corps
or NRCS and other members of the MBRT, and (2) it has been determined
that the debited bank is functionally mature and/or self-sustaining to
the degree specified in the banking instrument.
2. Long-term Management and Protection
The wetlands and/or other aquatic resources in a mitigation bank should
be protected in perpetuity with appropriate real estate arrangements (e.g.,
conservation easements, transfer of title to Federal or State resource
agency or non-profit conservation organization). Such arrangements should
effectively restrict harmful activities (i.e., incompatible uses \2\)
that might otherwise jeopardize the purpose of the bank. In exceptional
circumstances, real estate arrangements may be approved which dictate
finite protection for a bank (e.g., for coastal protection projects which
prolong the ecological viability of the aquatic system). However, in no
case should finite protection extend for a lesser time than the duration
of project impacts for which the bank is being used to provide compensation.
\2\ For example, certain silvicultural practices (e.g. clear cutting
and/or harvests on short-term rotations) may be incompatible with the
objectives of a mitigation bank. In contrast, silvicultural practices
such as long-term rotations, selective cutting, maintenance of vegetation
diversity, and undisturbed buffers are more likely to be considered a
compatible use.
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The bank sponsor is responsible for securing adequate funds for the operation
and maintenance of the bank during its operational life, as well as for
the long-term management of the wetlands and/or other aquatic resources,
as necessary. The banking instrument should identify the entity responsible
for the ownership and long-term management of the wetlands and/or other
aquatic resources. Where needed, the acquisition and protection of water
rights should be secured by the bank sponsor and documented in the banking
instrument.
3. Monitoring Requirements
The bank sponsor is responsible for monitoring the mitigation bank in
accordance with monitoring provisions identified in the banking instrument
to determine the level of success and identify problems requiring remedial
action. Monitoring provisions should be set forth in the banking instrument
and based on scientifically sound performance standards prescribed for
the bank. monitoring should be conducted at time intervals appropriate
for the particular project type and until such time that the authorizing
agency(ies), in consultation with the MBRT, are confident that success
is being achieved (i.e., performance standards are attained). The period
for monitoring will typically be five years; however, it may be necessary
to extend this period for projects requiring more time to reach a stable
condition (e.g., forested wetlands) or where remedial activities were
undertaken. Annual monitoring reports should be submitted to the authorizing
agency(ies), who is responsible for distribution to the other members
of the MBRT, in accordance with the terms specified in the banking instrument.
4. Remedial Action
The banking instrument should stipulate the general procedures for identifying
and implementing remedial measures at a bank, or any portion thereof.
Remedial measures should be based on information contained in the monitoring
reports (i.e., the attainment of prescribed performance standards), as
well as agency site inspections. The need for remediation will be determined
by the authorizing agency(ies) in consultation with the MBRT and bank
sponsor.
5. Financial Assurances
The bank sponsor is responsible for securing sufficient funds or other
financial assurances to cover contingency actions in the event of bank
default or failure. Accordingly, banks posing a greater risk of failure
and where credits have been debited, should have comparatively higher
financial sureties in place, than those where the likelihood of success
is more certain. In addition, the bank sponsor is responsible for securing
adequate funding to monitor and maintain the bank throughout its operational
life, as well as beyond the operational life if not self-sustaining. Total
funding requirements should reflect realistic cost estimates for monitoring,
long-term maintenance, contingency and remedial actions.
Financial assurances may be in the form of performance bonds, irrevocable
trusts, escrow accounts, casualty insurance, letters of credit, legislatively-enacted
dedicated funds for government operate banks or other approved instruments.
Such assurances may be phased-out or reduced, once it has been demonstrated
that the bank is functionally mature and/or self-sustaining (in accordance
with performance standards).
F. Other Considerations
1. In-lieu-fee Mitigation Arrangements
For purposes of this guidance, in-lieu-fee, fee mitigation, or other
similar arrangements, wherein funds are paid to a natural resource management
entity for implementation of either specific or general wetland or other
aquatic resource development projects, are not considered to meet the
definition of mitigation banking because they do not typically provide
compensatory mitigation in advance of project impacts. Moreover, such
arrangements do not typically provide a clear timetable for the initiation
of mitigation efforts. The Corps, in consultation with the other agencies,
may find there are circumstances where such arrangements are appropriate
so long as they meet the requirements that would otherwise apply to an
offsite, prospective mitigation effort and provides adequate assurances
of success and timely implementation. In such cases, a formal agreement
between the sponsor and the agencies, similar to a banking instrument,
is necessary to define the conditions under which its use is considered
appropriate.
2. Special Considerations for ``Swampbuster''
Current FSA legislation limits the extent to which mitigation banking
can be used for FSA purposes. Therefore, if a mitigation bank is to be
used for FSA purposes, it must meet the requirements of FSA.
III. Definitions
For the purposes of this guidance document the following terms are defined:
A. Authorizing agency. Any Federal, state, tribal or local agency that
has authorized a particular use of a mitigation bank as compensation for
an authorized activity; the authorizing agency will typically have the
enforcement authority to ensure that the terms and conditions of the banking
instrument are satisfied.
B. Bank sponsor. Any public or private entity responsible for establishing
and, in most circumstances, operating a mitigation bank.
C. Compensatory mitigation. For purposes of Section 10/404, compensatory
mitigation is the restoration, creation, enhancement, or in exceptional
circumstances, preservation of wetlands and/or other aquatic resources
for the purpose of compensating for unavoidable adverse impacts which
remain after all appropriate and practicable avoidance and minimization
has been achieved.
D. Consensus. The term consensus, as defined herein, is a process by
which a group synthesizes its concerns and ideas to form a common collaborative
agreement acceptable to all members. While the primary goal of consensus
is to reach agreement on an issue by all parties, unanimity may not always
be possible.
E. Creation. The establishment of a <strong>wetland</strong>
or other aquatic resource where one did not formerly exist.
F. Credit. A unit of measure representing the accrual or attainment of
aquatic functions at a mitigation bank; the measure of function is typically
indexed to the number of wetland acres restored, created, enhanced or
preserved.
G. Debit. A unit of measure representing the loss of aquatic functions
at an impact or project site.
H. Enhancement. Activities conducted in existing wetlands or other aquatic
resources which increase one or more aquatic functions.
I. Mitigation. For purposes of Section 10/404 and consistent with the
Council on Environmental Quality regulations, the Section 404(b)(1) Guidelines
and the Memorandum of Agreement Between the Environmental Protection Agency
and the Department of the Army Concerning the Determination of Mitigation
under the Clean Water Act Section 404(b)(1) Guidelines, mitigation means
sequentially avoiding impacts, minimizing impacts, and compensating for
remaining unavoidable impacts.
J. Mitigation bank. A mitigation bank is a site where wetlands and/ or
other aquatic resources are restored, created, enhanced, or in exceptional
circumstances, preserved expressly for the purpose of providing compensatory
mitigation in advance of authorized impacts to similar resources. For
purposes of Section 10/404, use of a mitigation bank may only be authorized
when impacts are unavoidable.
K. Mitigation Bank Review Team (MBRT). An interagency group of Federal,
state, tribal and/or local regulatory and resource agency representatives
which are signatory to a banking instrument and oversee the establishment,
use and operation of a mitigation bank. L. Practicable. Available and
capable of being done after taking into consideration cost, existing technology,
and logistics in light of overall project purposes.
M. Preservation. The protection of ecologically important wetlands or
other aquatic resources in perpetuity through the implementation of appropriate
legal and physical mechanisms. Preservation may include protection of
upland areas adjacent to wetlands as necessary to ensure protection and/or
enhancement of the aquatic ecosystem.
N. Restoration. Re-establishment of <strong>wetland</strong>
and/or other aquatic resource characteristics and function(s) at a site
where they have ceased to exist, or exist in a substantially degraded
state.
O. Service area. The service area of a mitigation bank is the designated
area (e.g., watershed, county) wherein a bank can reasonably be expected
to provide appropriate compensation for impacts to wetlands and/or other
aquatic resources.
John H. Zirschky,
Acting Assistant Secretary (Civil Works),
Department of the Army.
Robert Perciasepe,
Assistant Administrator for Water,
Environmental Protection Agency.
Thomas R. Hebert,
Acting Undersecretary for Natural Resources and Environment,
Department of Agriculture.
Robert P. Davison,
Acting Assistant Secretary for Fish and Wildlife and Parks,
Department of the Interior.
Douglas K. Hall,
Assistant Secretary for Oceans and Atmosphere,
Department of Commerce.
[FR Doc. 95-28907 Filed 11-27-95; 8:45 am]
BILLING CODE 3710-92-M
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