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Mitigation

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Each year thousands of property owners undertake projects that affect the nation's aquatic resources, such as wetlands and streams. Before property owners may proceed, a permit from the U.S. Army Corps of Engineers (Corps) is often required to satisfy the requirements of the Clean Water Act or the Rivers and Harbors Act. Through its regulatory program, the Corps ensures that any environmental impact on aquatic resources from these projects is avoided and minimized as much as possible. In some cases, the Corps may require compensatory mitigation to offset the unavoidable losses of aquatic resources.

WATCH an introductory video on Mitigation (type in: Regulatory Mitigation in the Search Box, then scroll down to select the video)

Compensatory mitigation is the restoration, establishment, enhancement, or preservation of aquatic resources for the purpose of offsetting unavoidable losses of aquatic resources resulting from activities authorized by Corps permits.

The Corps' mitigation policy, relative to projects authorized under our Regulatory Program, is explained in a Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army, which was signed on February 6, 1990. The memorandum establishes that: "The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will strive to achieve a goal of no overall net loss of values and functions."

If a proposed permit action would result in impacts to wetlands, these special conditions often include provisions requiring the permittee to compensate for the expected impact. This compensation is commonly referred to as compensatory mitigation. It may also be referred to simply as mitigation, although strictly speaking, it is only one of three forms of mitigation.

The first two forms, avoidance and minimization are typically addressed through alternative siting and/or modifications to the project design. For most permits and in particular those subject to regulation under the Clean Water Act, avoidance and minimization of impacts to aquatic resources, including wetlands, must be addressed prior to considering compensatory mitigation. Compensatory mitigation, therefore, is only utilized to offset impacts which are otherwise unavoidable. The process of incorporating all appropriate and practicable measures to avoid, minimize and, finally, compensate for impacts to aquatic resources caused by permit actions is referred to as mitigation sequencing.

There are three ways compensatory mitigation can be provided: mitigation banks, in-lieu fee programs, and permittee-responsible mitigation. Mitigation banks and in-lieu fee programs are generally the preferred options for compensatory mitigation because they consolidate resources and involve more financial planning and scientific expertise. These factors help reduce the risk of failure of mitigation projects.

Click on the links below for more information on different types of compensatory mitigation.

Mitigation Bank - A mitigation bank is a wetland, stream, or other aquatic resource area that has been restored, established, enhanced, or in certain circumstances, preserved for the purpose of providing compensation for unavoidable impacts to aquatic resources permitted under Section 404 or a similar state or local wetland regulation. A mitigation bank may be created when a government agency, corporation, nonprofit organization, or other entity undertakes these activities under a formal agreement with a regulatory agency.

A mitigation bank sponsor sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor. Where proposed impacts are located within the service area of an approved mitigation bank and the bank is determined to be ecologically appropriate and environmentally desirable to other mitigation alternatives, the permittee's compensatory mitigation requirements may be met by securing those credits from the sponsor. The bank must provide the appropriate number and resource type of credits.

Linear projects that contain at least one impact within a bank's service area, such as roadways, transmission lines, distribution lines, pipelines, or railways, may be eligible to use a bank even though not all of the projects' impacts are located within the bank's service area. Any credit use to compensate for impacts located outside of the service area will be authorized on a case-by-case basis, where it is determined to be ecologically appropriate and environmentally desirable to other mitigation alternatives.

Information related to mitigation banks located in Washington State and around the country is available at the Corps' Regional Internet Bank Information Tracking System (RIBITS) website or the Washington Department of Ecology's Wetland Mitigation Banking website . Location and service area maps, mitigation banking instruments, credit balances, credit release schedules, and supporting technical information can be viewed and downloaded from Ecology's website. In addition, general information pertaining to wetland mitigation banking is available on Ecology's website.

Applicants wishing to utilize a bank as compensatory mitigation for unavoidable impacts associated with their project must complete and submit a Bank Use Plan.

In-lieu Fee Program - In this approach to mitigation, a permittee pays a fee to a third party in-lieu of conducting project-specific mitigation or buying credits from a mitigation bank. In-lieu fee mitigation is used mainly to compensate for minor impacts to wetlands and other aquatic resources when better approaches to compensation are not available, practicable, or when the use of an in-lieu fee (ILF) program is in the best interest of the environment and watershed. Compensation for larger impacts is usually provided by a mitigation bank or project-specific mitigation.

Where proposed impacts are located within the service area of an approved in-lieu fee program, the permittee's compensatory mitigation requirements may be met by paying an established fee to the sponsor.

An in-lieu fee represents the expected costs to a third party of replacing the wetland or other aquatic resource functions lost or degraded as a result of the permittee's project. In-lieu fees are typically held in trust until they can be combined with other in-lieu fees to finance a specific mitigation project. The entity operating the trust is typically a nonprofit organization such as a local land trust, private conservation group, or government agency with demonstrated competence in natural resource management.

The Seattle District is processing our first ILF program and expects to have several programs up and running in the near future. To learn more about ILF programs, please click on the following link: ILF Programs in WA State.

  • Template for an ILF Prospectus (WORD version; use Save, not Open)
  • - Template for an ILF Instrument (WORD version; use Save, not Open)
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    Permittee-Responsible Mitigation - This mitigation approach includes the restoration, establishment, enhancement, or preservation of wetlands undertaken by a permittee to compensate for wetland impacts resulting from a specific project. The permittee performs the mitigation after the permit is issued and is ultimately responsible for implementation and success of the mitigation. Permittee-responsible mitigation may occur at the site of the permitted impacts or at an off-site location within the same watershed.

    Where proposed impacts are not located within the service area of an approved mitigation bank or in-lieu fee program, or if these mitigation options would not provide appropriate mitigation for the proposed impacts, permittee-responsible mitigation is the only option.

    Nationally, the most significant change required by the new rule is that compensation projects provided by all three compensation mechanisms (i.e., mitigation banks, in-lieu fee programs, permittee-responsible compensatory mitigation) must have mitigation plans that include the same 12 fundamental components:

        1.  objectives 
        2.  site selection criteria 
        3.  site protection instruments (e.g., conservation easements) 
        4.  a maintenance plan 
        5.  baseline information (for impact and compensation sites) 
        6.  credit determination methodology 
        7.  a mitigation work plan 
        8.  ecological performance standards 
        9.  monitoring requirements 
        10.  a long-term management plan 
        11.  an adaptive management plan 
        12.  financial assurances

    More information on these components can be found on the the document entitled  Components of a Mitigation Plan per the Final Rule or in the full text of the Compensatory Mitigation for Losses of Aquatic Resources; Federal Rule .

    In Washington State, because these components very closely match the requirements of the Wetland Mitigation in Washington State, we recommend you utilize this guidance when preparing mitigation plans in Washington State.

    The 2004 National Defense Authorization Act (PL 108-136) calls for the development of regulations, consistent with Section 404 of the Clean Water Act, that establish equivalent standards and criteria for mitigation banks, in-lieu fee programs, and permittee-responsible mitigation.

    On June 9, 2008, 33 CFR Parts 325 and 332, Compensatory Mitigation for Losses of Aquatic Resources; Federal Rule went into effect. The goal of the compensatory mitigation rule is to provide more opportunities for compensatory mitigation and provide similar standards and criteria for mitigation projects. The new rule promotes consistency and predictability and improves ecological success of compensatory mitigation efforts through: better site selection, the use of a watershed approach for planning and project design, and use of ecological success criteria to evaluate and measure performance of mitigation projects. Using a watershed approach, mitigation project sites will be selected to offset permitted losses of aquatic resources and to provide ecological benefits to an entire watershed.