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.

Information for Users of Mitigation Banks:

Applicants wishing to utilize a bank as compensatory mitigation for unavoidable impacts associated with their project must complete and submit a Bank Use Plan.  Please use these Instructions and Template to prepare your Bank Use Plan (PDF)(WORD).

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.

Information for Users of In-lieu Fee Programs:

• Approved ILF Programs in Washington State (additional information can be found on WA Dept of Ecology's website)
  • King County ILF Program - ILF and contact information
  • Hood Canal Coordinating Council ILF Program - ILF and contact information
  • Pierce County ILF Program - ILF and contact information
• ILF Use Plan template (pdf) - This must be completed and submitted to the Corps if you propose to purchase credits from an ILF.

Information for Prospective Sponsors of In-lieu Fee Programs:

• ILF Prospectus Template (WORD)
• ILF Basic Agreement Template 
• ILF Spending Agreement Template (WORD)
• Conservation Easement Template (WORD)

Interagency Review Team: ILF proposals are reviewed, evaluated, and negotiated by a team of agencies called the Interagency Review Team (IRT).  The role of the IRT is to work with applicants to develop an ILF Instrument or Agreement and appendices detailing the terms and conditions of ILF approval.  If you are interested in developing an ILF program in Washington State, contact the Corps, Seattle District:  Michael LaDouceur, (206) 472-0783 or Michael.A.LaDouceur@usace.army.mil.

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.

• The Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) can be found at https://ribits.ops.usace.army.mil/. This publicly available website can be used to determine if your project location is in the service area of a mitigation bank or ILF site and whether or not there are credits available.
  
  Once in RIBITS, use the following steps to determine if credits are available for your proposed project:

1. Under MENU, Tools, select Find Credits
2. Enter the project latitude and longitude in decimal degrees (4X.XXXXXX, -12X.XXXXXX)
3. Click on Search

If your proposed project is within a mitigation bank or ILF site with available credits it will populate a list.  You will be able to see how many credits are currently available and the contact information of the sponsor.  Please contact the sponsor to verify that they have credits available. You may also click on the bank or ILF site name for more information.

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.

    Mitigation Tools

• Selecting Wetland Mitigation Sites Using a Watershed Approach (Western Washington)
• Selecting Wetland Mitigation Sites Using a Watershed Approach (Eastern Washington)
• Required Components of a Mitigation Plan (pdf) 
• Wetland Mitigation in Washington State Part 1: Agency Policies and Guidance  
• Wetland Mitigation in Washington State Part 2: Developing Mitigation Plans  
• Calculating Debits and Credits in Western Washington
• Calculating Debits and Credits in Eastern Washington
• Using the Credit/Debit Method for Temporary Impacts
• Washington State Wetland Rating System for Western Washington 
• Washington State Wetland Rating System for Eastern Washington 
• Guidance to Applicants on Submittal Contents for Bank Use Plans - Updated 9/30/2022 (WORD version - Use "Save" not "Open"; PDF version) 
• Guidance and Template Format for In-Lieu Fee Use Plans (pdf) (WORD version - Use "Save" not "Open")
• Regulatory In-Lieu Fee Program and Bank Information Tracking System (RIBITS) 
• Advance Permittee-Responsible Mitigation Guide (pdf)
• Conservation Easement Template (Site Protection Mechanism) (WORD version - Select "Save" not "Open") *UPDATED August 2016
• Template Long-Term Management and Maintenance Endowment Fund Escrow Agreement (word)
• Mitigation Plan Template for Overwater Structure Projects (WORD version - Select "Save" not "Open")
• Mitigation Planting Monitoring Report Format for riparian planting sites (WORD version - Select "Save As" not "Open")

    Mitigation References

• Use of Un-Manipulated Native Plant Species versus Native Cultivars - White Paper, November 3, 2016
• Special Public Notice - Clarification of the U.S. Army Corps of Engineers Regulatory Program Mitigation Requirements, May 19, 2016

    Mitigation Regulations

• Ecology's Wetland Mitigation Banking Website 
• State Rule: Chapter 173-300 WAC, Wetland Mitigation Banks 
• EPA's Wetland and Compensatory Mitigation Website

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.

The U.S. Army Corps of Engineers works in partnership with the Washington Department of Ecology, as the co-chairs of the Interagency Review Team (IRT), to certify and regulate mitigation banks in Washington.

For a detailed list of information required to propose a mitigation bank in Washington State, please refer to the Washington State wetland mitigation banking rule and checklists provided below:

Prospectus

• Final Prospectus Checklist (January 2024)

Mitigation Banking Instrument (MBI)

• Mitigation banking instrument instructions and checklist (doc) (2019)
• Mitigation banking instrument template (doc) (2013)
  • Resource folder (pdf) (2013)

Ledger templates

• Wetland only: ledger template  (June 2015).  
• Multi-resource: ledger Template (August 2016). 

Conservation easement

• Outline/template (2016)

Credit Transaction Notification Letter

• Outline/template (October 2022)

Watershed Approach

• Selecting Wetland Mitigation Sites Using a Watershed Approach (Western Washington)
• Selecting Wetland Mitigation Sites Using a Watershed Approach (Eastern Washington)

Appendix A to Selecting Wetland Mitigation Sites Using a Watershed Approach

• ILF Prospectus Template (WORD)
• ILF Basic Agreement Template (WORD)
• ILF Spending Agreement Template (WORD)
• Conservation Easement Template (WORD)

• Michael LaDouceur, (206) 472-0783 or Michael.A.Ladouceur@usace.army.mil
• Shane Skaar, (208) 449-5051 or Shane.K.Skaar@usace.army.mil