1. Overview
Each year thousands of projects occur that affect the nation's aquatic resources, including wetlands, nearshore areas, streams, and open waters. 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 adverse impact to aquatic resources from these projects is avoided and minimized as much as possible. In some cases, the Corps may require compensatory mitigation to offset unavoidable adverse impacts to aquatic resources. See an introductory video on Mitigation (Regulatory)
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.
a. Mitigation Policy
The Corps' mitigation policy at 33 CFR 320.4(r), is applicable to all projects authorized under the Regulatory Program, including general permits (see additional resources). The 1990 Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army on the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines, defined the sequential process of avoiding, minimizing, and compensating for adverse impacts to the aquatic ecosystem and establishes the Corps’ “no net loss” policy for wetlands.
Avoid and Minimize: Typically addressed through alternative siting and modifications to the project design. For all permits, avoidance and minimization of impacts to aquatic resources, including wetlands, must be addressed prior to considering compensatory mitigation.
Compensatory Mitigation: Take appropriate and practicable measures to compensate for adverse impacts to the aquatic ecosystem that cannot reasonably be avoided or further minimized. This step is only utilized to offset environmentallosses (i.e., area and function) which are otherwise unavoidable. The process of incorporating all appropriate and practicable measures to avoid, minimize and, finally, compensate for impacts to aquaticresources caused by permit actions is referred to as mitigation sequencing.
b. Mitigation Hierarchy The 2008 Federal Mitigation Rule (33 CFR 332) promotes consistency and predictability and improves ecological success of compensatory mitigation efforts through better site selection, use of a watershed approach for planning and project design, and use of ecological success criteria to evaluate and measure the performance of mitigation projects. These requirements are applicable to all compensatory mitigation projects that are to be used to compensate for impacts authorized by Corps permits.
In general, compensatory mitigation should be located within the same watershed as the impact site and be located where it is most likely to successfully replace lost functions and services. Mitigation banks and in-lieu fee programs are 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. If a compensatory mitigation plan proposes to override this preference hierarchy, the Corps requires ecological justification.
2. Mitigation Banks
a. Overview
A site or multiple sites where wetland, stream, or other aquatic resources have been restored, established, enhanced, or in certain circumstances, preserved for the purpose of providing compensation for unavoidable impacts authorized by Corps permits. The bank sells mitigation credits to permittees, whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor. When 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.
Mitigation banks are established by a third party (e.g., a government agency, corporation, nonprofit organization, or other entity) and the Corps does not determine the price of credits. The operation and use of the bank is governed by a Mitigation Banking Instrument (MBI).
b. Using Mitigation Bank Credits
Permit applicants wishing to utilize bank credits as compensatory mitigation for unavoidable impacts associated with their project must complete and submit a Bank Use Plan to the Corps. See Mitigation Resources and Reference section for a template. Mitigation bank and credit information is located at the Regulatory In-Lieu Fee and Bank Information Tracking System (RIBITS) website.
c. Information for Prospective Sponsors of Mitigation Banks
Mitigation banks require establishment of a formal agreement between the U.S. Army Corps of Engineers and the bank sponsor. The bank sponsor can be a government agency, a corporation, a private landowner, a nonprofit organization or a tribe that will have the responsibility for the restoration or preservation activities associated with the bank. The value of a bank's resources is measured in credits, which are units of measure representing the attainment of aquatic resource function or services at the bank site.
See Mitigation Resources and Reference section for a detailed list of information required to propose a mitigation bank in Washington State.
3. In-Lieu Fee (ILF) Programs
a. Overview
A program managed by a public agency (e.g., governmental or non-profit organization) that collects funds from permittees and uses the pooled funds to create one or more sites that involve the restoration, establishment, enhancement, and occasionally preservation of aquatic resources to compensate for lost aquatic resource functions as a result of the permitted impacts. In this approach, the permittee pays a fee to a third party in lieu of performing permittee-responsible mitigation or buying credits from a mitigation bank. Similar to mitigation bank credits, the obligation of compensatory mitigation is transferred from the permittee to the ILF program.
In-lieu fee mitigation is generally preferable when mitigation bank credits are not available or practicable because ILF projects typically involve more technical analysis, are able to address high-priority resource needs within the watershed and are more likely to achieve ecological success.
When proposed impacts are located within the service area of an approved ILF program, the permittee's compensatory mitigation requirements may be met by paying an established fee to the in-lieu-fee sponsor. 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 sponsor 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.
b. Using ILF Program Credits
Permit applicants wishing to utilize ILF credits as compensatory mitigation for unavoidable impacts associated with their project must complete and submit a ILF Use Plan to the Corps. See Mitigation Resources and Reference section for a template.
Approved ILF Programs in Washington State
King County ILF Program
Hood Canal Coordinating Council ILF Program
Pierce County ILF Program
ILF and contact information
4. Permittee-Responsible
a. Overview
This mitigation approach includes the restoration, establishment, enhancement, or preservation of waters undertaken by a permittee to compensate for adverse impacts to waters 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.
When 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.
b. Proposing Permittee-Responsible Mitigation
Permit applicants wishing to propose permittee responsible mitigation for unavoidable impacts associated with their project must develop and submit a compensatory mitigation plan to the Corps. See Mitigation Resources and References section for resources and joint agency guidance.
5. Mitigation Resources and References
a. General Mitigation Resources and References
b. Mitigation Bank / ILF Program Resources