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HomeMy WebLinkAbout09-17-25 Public Comment - L. Reed - Compensatory Mitigation L V" g111�s The following is the information we have been provided by our licensed attorney with experience in Compensatory Mitigation, Pat Byorth: The City of Bozeman may restrict development within the City limits to mitigate within the Gallatin Watershed. Note, the term Clean Water Rule encompasses the whole application of Section 404 to the Clean Water Act. Note that the Sackett Decision only altered the definition of what comprises a jurisdictional wetland. It did not modify the other parts of the rule governing how USACE regulates 404 permits. First, 33 CFR 325.4 authorizes USACE District Engineers to add special conditions to 404 permits, particularly "...(2) Where appropriate, the district engineer may take into account the existence of controls imposed under other federal, state, or local programs which would achieve the objective of the desired condition, or the existence of an enforceable agreement between the applicant and another party concerned with the resource in question, in determining whether a proposal complies with the 404(b)(1) guidelines, ocean dumping criteria, and other applicable statutes, and is not contrary to the public interest. Second, 33 CFR 332 is the rule regulating compensatory mitigation with respect to 404 permits (Which was termed the Clean Water Rule in our comment letter). This part of the Clean Water Rule — the compensatory mitigation rule (and Sect. 324 above ) are current and unchanged as of July 1, 2024, and have not been modified since. I attached pages 406 to 436. This is the standing rule about compensatory mitigation, including the preference hierarchy for compensatory mitigation that requires mitigation in proximity and prioritizes mitigation banks within the subwatershed of impacts. Thus, if an impact takes place in the Gallatin Valley, the rule dictates that USACE should require compensatory mitigation of jurisdictional wetlands first to the closest mitigation bank, then to a mitigation bank farther out in the watershed, then to in-lieu fee mitigation, and lastly to permittee sponsored mitigation. There is nothing in the rule that would foreclose the City of Bozeman from requiring, as a condition of its land use planning authority, to require mitigation at any Wetland Bank in the Gallatin Watershed, so long as such requirements were consistent with the rule. This should verify the accuracy of SAS's statement. Pt.332 33 CFR Ch. II (7-1-24 Edition) PART 332—COMPENSATORY MITI- pared jointly by U.S. EPA and the GATION FOR LOSSES OF A®UAT- Corps at the national or regional level. IC RESOURCES No modifications to the basic applica- tion, meaning, or intent of this part Sec. will be made without further joint 332.1 Purpose and general considerations, rulemaking by the Secretary of the 332.2 Definitions. Army, acting through the Chief of En- 332.3 General compensatory mitigation re- gineers and the Administrator of the quirements. Environmental Protection Agency, 332.4 Planning and documentation. pursuant to the Administrative Proce- 332.5 Ecological performance standards. dure Act(5 U.S.C.551 et seq.). 332.6 Monitoring. 332.7 Management. (b) Applicability. This part does not 332.8 Mitigation banks and in-lieu fee pro- alter the regulations at§320.4(r)of this grams. title,which address the general mitiga- AUTxOR=: 33 U.S.C. 401 et seq.; 33 U.S.C. tion requirements for DA permits. In 1344;and Pub.L.108-136. particular, it does not alter the cir- SOURCE: 73 FR 19670, Apr. 10, 2008, unless cumstances under which compensatory otherwise noted. mitigation is required or the defini- tions of "waters of the United States" §332.1 Purpose and general consider- or "navigable waters of the United ations. States," which are provided at parts (a) Purpose. (1) The purpose of this 328 and 329 of this chapter, respec- part is to establish standards and cri- tively. Use of resources as compen- teria for the use of all types of compen- satory mitigation that are not other- satory mitigation, including on-site wise subject to regulation under sec- and off-site permittee-responsible miti- tion 404 of the Clean Water Act and/or gation, mitigation banks, and in-lieu sections 9 or 10 of the Rivers and Har- fee mitigation to offset unavoidable bors Act of 1899 does not in and of itself impacts to waters of the United States make them subject to such regulation. authorized through the issuance of De- (c)Sequencing. (1)Nothing in this sec- partment of the Army (DA) permits tion affects the requirement that all pursuant to section 404 of the Clean DA permits subject to section 404 of Water Act (33 U.S.C. 1344) and/or sec- the Clean Water Act comply with ap- tions 9 or 10 of the Rivers and Harbors plicable provisions of the Section Act of 1899(33 U.S.C. 401,403).This part 404(b)(1) Guidelines at 40 CFR part 230. implements section 314(b) of the 2004 (2) Pursuant to these requirements, National Defense Authorization Act the district engineer will issue an indi- (Pub. L. 108-136),which directs that the vidual section 404 permit only upon a standards and criteria shall, to the determination that the proposed dis- maximum extent practicable, maxi- charge complies with applicable provi- mize available credits and opportuni- sions of 40 CFR part 230, including ties for mitigation,provide for regional those which require the permit appli- variations in wetland conditions, func- cant to take all appropriate and prac- tions, and values, and apply equivalent ticable steps to avoid and minimize ad- standards and criteria to each type of verse impacts to waters of the United compensatory mitigation. This part is States. Practicable means available intended to further clarify mitigation and capable of being done after taking requirements established under U.S. into consideration cost, existing tech- Army Corps of Engineers (Corps) and nology, and logistics in light of overall U.S. Environmental Protection Agency project purposes. Compensatory miti- (U.S. EPA) regulations at 33 CFR part gation for unavoidable impacts may be 320 and 40 CFR part 230,respectively. required to ensure that an activity re- (2) This part has been jointly devel- quiring a section 404 permit complies oped by the Secretary of the Army, with the Section 404(b)(1)Guidelines. acting through the Chief of Engineers, (3) Compensatory mitigation for un- and the Administrator of the Environ- avoidable impacts may be required to mental Protection Agency. From time ensure that an activity requiring a sec- to time guidance on interpreting and tion 404 permit complies with the Sec- implementing this part may be pre- tion 404(b)(1) Guidelines. During the 406 §332.2 33 CFR Ch. II (7-1-24 Edition) Condition means the relative ability filled, an equal number of new advance of an aquatic resource to support and credits is restored to the program spon- maintain a community of organisms sor for sale or transfer to permit appli- having a species composition, diver- cants. sity, and functional organization com- Functional capacity means the degree parable to reference aquatic resources to which an area of aquatic resource in the region, performs a specific function. Credit means a unit of measure (e.g., Functions means the physical, chem- a functional or areal measure or other ical, and biological processes that suitable metric) representing the ac- occur in ecosystems. crual or attainment of aquatic func- Impact means adverse effect. tions at a compensatory mitigation In-kind means a resource of a similar site. The measure of aquatic functions structural and functional type to the is based on the resources restored, es- impacted resource. tablished,enhanced, or preserved. In-lieu fee program means a program DA means Department of the Army. involving the restoration, establish- Days means calendar days. ment, enhancement, and/or preserva- Debit means a unit of measure(e.g., a tion of aquatic resources through funds functional or areal measure or other paid to a governmental or non-profit suitable metric) representing the loss natural resources management entity of aquatic functions at an impact or to satisfy compensatory mitigation re- project site. The measure of aquatic quirements for DA permits. Similar to functions is based on the resources im- a mitigation bank, an in-lieu fee pro- pacted by the authorized activity. gram sells compensatory mitigation Enhancement means the manipulation credits to permittees whose obligation of the physical, chemical, or biological to provide compensatory mitigation is characteristics of an aquatic resource then transferred to the in-lieu program to heighten, intensify, or improve a sponsor. However, the rules governing specific aquatic resource function(s), the operation and use of in-lieu fee pro- Enhancement results in the gain of se- grams are somewhat different from the lected aquatic resource function(s), but rules governing operation and use of may also lead to a decline in other mitigation banks. The operation and aquatic resource function(s). Enhance- use of an in-lieu fee program are gov- ment does not result in a gain in erned by an in-lieu fee program instru- aquatic resource area. ment. Establishment (creation) means the In-lieu fee program instrument means manipulation of the physical, chem- the legal document for the establish- ical, or biological characteristics meat, operation, and use of an in-lieu present to develop an aquatic resource fee program. that did not previously exist at an up- Instrument means mitigation banking land site. Establishment results in a instrument or in-lieu fee program in- gain in aquatic resource area and func- strument. tions. Interagency Review Team (IRT) means Fulfillment of advance credit sales of an an interagency group of federal, tribal, in-lieu fee program means application of state, and/or local regulatory and re- credits released in accordance with a source agency representatives that re- credit release schedule in an approved views documentation for, and advises mitigation project plan to satisfy the the district engineer on, the establish- mitigation requirements represented ment and management of a mitigation by the advance credits. Only after any bank or an in-lieu fee program. advance credit sales within a service Mitigation bank means a site, or suite area have been fulfilled through the ap- of sites, where resources (e.g., wet- plication of released credits from an in- lands, streams, riparian areas) are re- lieu fee project(in accordance with the stored, established, enhanced, and/or credit release schedule for an approved preserved for the purpose of providing mitigation project plan), may addi- compensatory mitigation for impacts tional released credits from that authorized by DA permits.In general,a project be sold or transferred to per- mitigation bank sells compensatory mittees. When advance credits are ful- mitigation credits to permittees whose 408 §332.3 33 CFR Ch. II (7-1-24 Edition) Temporal loss is the time lag between §332.3 General compensatory mitiga- the loss of aquatic resource functions tion requirements. caused by the permitted impacts and (a) General considerations. (1)The fun- the replacement of aquatic resource damental objective of compensatory functions at the compensatory mitiga- mitigation is to offset environmental tion site. Higher compensation ratios losses resulting from unavoidable im- may be required to compensate for temporal loss. When the compensatory pacts iz waters of the United States mitigation project is initiated prior to, authorized us DA permits. The district or concurrent with, the permitted im- engineer must determine the comin a pacts, the district engineer may deter- satory mitigation to be required r a mine that compensation for temporal DA permit, based on what is prac- loss is not necessary, unless the re- for the and capable of compensating source has a long development time, for the aquatic resource functions that Watershed means a land area that will be lost as a result of the permitted drains to a common waterway, such as activity. When evaluating compen- a stream, lake, estuary, wetland, or ul- satory mitigation options, the district timately the ocean. engineer will consider what would be Watershed approach means an analyt- environmentally preferable. In making ical process for making compensatory this determination, the district engi- mitigation decisions that support the neer must assess the likelihood for eco- sustainability or improvement of logical success and sustainability, the aquatic resources in a watershed. It in- location of the compensation site rel- volves consideration of watershed ative to the impact site and their sig- needs, and how locations and types of nificance within the watershed,and the compensatory mitigation projects ad- costs of the compensatory mitigation dress those needs. A landscape perspec- project. In many cases, the environ- tive is used to identify the types and mentally preferable compensatory locations of compensatory mitigation mitigation may be provided through projects that will benefit the watershed mitigation banks or in-lieu fee pro- and offset losses of aquatic resource grams because they usually involve functions and services caused by activi- consolidating compensatory mitigation ties authorized by DA permits.The wa- projects where ecologically appro- tershed approach may involve consider- priate, consolidating resources, pro- ation of landscape scale, historic and viding financial planning and scientific potential aquatic resource conditions, expertise (which often is not practical past and projected aquatic resource im- for permittee-responsible compen- pacts in the watershed, and terrestrial satory mitigation projects), reducing connections between aquatic resources temporal losses of functions, and re- when determining compensatory miti- ducing uncertainty over project auc- gation requirements for DA permits. cess. Compensatory mitigation require- Watershed plan means a plan devel- ments must be commensurate with the oped by federal, tribal, state, and/or amount and type of impact that is as- local government agencies or appro- sociated with a particular DA permit. priate non-governmental organiza- Permit applicants are responsible for tions, in consultation with relevant proposing an appropriate compensatory stakeholders, for the specific goal of mitigation option to offset unavoidable aquatic resource restoration, establish- impacts. ment, enhancement, and preservation. (2) Compensatory mitigation may be A watershed plan addresses aquatic re- performed using the methods of res- source conditions in the watershed, toration, enhancement, establishment, multiple stakeholder interests, and and in certain circumstances preserva- land uses. Watershed plans may also tion. Restoration should generally be identify priority sites for aquatic re- the first option considered because the source restoration and protection. Ex- likelihood of success is greater and the amples of watershed plans include spe- impacts to potentially ecologically im- cial area management plans, advance portant uplands are reduced compared identification programs, and wetland to establishment, and the potential management plans. gains in terms of aquatic resource 410 §332.3 33 CFR Ch. II (7-1-24 Edition) resource type of credits available to (6) Permittee-responsible mitigation offset those impacts,in-lieu fee mitiga- through off--site and/or out-of-kind mitiga- tion, if available, is generally pref- tion. If, after considering opportunities erable to permittee-responsible mitiga- for on-site, in-kind compensatory miti- tion. In-lieu fee projects typically in- gation as provided in paragraph (b)(5) volve larger, more ecologically valu- of this section, the district engineer de- able parcels, and more rigorous sci- termines that these compensatory entific and technical analysis,planning mitigation opportunities are not prac- and implementation than permittee-re- ticable, are unlikely to compensate for sponsible mitigation. They also devote the permitted impacts, or will be in- significant resources to identifying and compatible with the proposed project, addressing high-priority resource needs and an alternative, practicable off-site on a watershed scale, as reflected in and/or out-of-kind mitigation oppor- their compensation planning frame- tunity is identified that has a greater work. For these reasons, the district likelihood of offsetting the permitted engineer should give preference to in- impacts or is environmentally pref- lieu fee program credits over per- erable to on-site or in-kind mitigation, mittee-responsible mitigation, where the district engineer should require these considerations are applicable. that this alternative compensatory However, as with the preference for mitigation be provided. mitigation bank credits, these same (c) Watershed approach to compen- considerations may be used to override satory mitigation. (1) The district engi- this preference where appropriate. Ad- neer must use a watershed approach to ditionally,in cases where permittee-re- establish compensatory mitigation re- sponsible mitigation is likely to suc- quirements in DA permits to the ex- cessfully meet performance standards tent appropriate and practicable. before advance credits secured from an Where a watershed plan is available, in-lieu fee program are fulfilled, the the district engineer will determine district engineer should also give con- whether the plan is appropriate for use sideration to this factor in deciding be- in the watershed approach for compen- tween in-lieu fee mitigation and per- satory mitigation. In cases where the mittee-responsible mitigation. district engineer determines that an (4) Permittee-responsible mitigation appropriate watershed plan is avail- under a watershed approach. Where per- able, the watershed approach should be mitted impacts are not in the service based on that plan. Where no such plan area of an approved mitigation bank or is available, the watershed approach in-lieu fee program that has the appro- should be based on information pro- priate number and resource type of vided by the project sponsor or avail- credits available, permittee-responsible able from other sources. The ultimate mitigation is the only option. Where goal of a watershed approach is to practicable and likely to be successful maintain and improve the quality and and sustainable, the resource type and quantity of aquatic resources within location for the required permittee-re- watersheds through strategic selection sponsible compensatory mitigation of compensatory mitigation sites. should be determined using the prin- (2) Considerations. (i) A watershed ap- ciples of a watershed approach as out- proach to compensatory mitigation lined in paragraph(c)of this section. considers the importance of landscape (5) Permittee-responsible mitigation position and resource type of compen- through on-site and in-kind mitigation. In satory mitigation projects for the sus- cases where a watershed approach is tainability of aquatic resource func- not practicable, the district engineer tions within the watershed. Such an should consider opportunities to offset approach considers how the types and anticipated aquatic resource impacts locations of compensatory mitigation by requiring on-site and in-kind com- projects will provide the desired aquat- pensatory mitigation. The district en- is resource functions,and will continue gineer must also consider the practica- to function over time in a changing bility of on-site compensatory mitiga- landscape. It also considers the habitat tion and its compatibility with the pro- requirements of important species, posed project. habitat loss or conversion trends, 412 §332.3 33 CFR Ch. II (7-1-24 Edition) for adverse environmental impacts re- aquatic resource functions and serv- sulting from activities authorized by ices. DA permits. The district engineer (3) Applicants should propose com- should consider relevant environ- pensation sites adjacent to existing mental factors and appropriate locally aquatic resources or where aquatic re- developed standards and criteria when sources previously existed. determining the appropriate watershed (e) Mitigation type. (1) In general, in- scale in guiding compensation activi- kind mitigation is preferable to out-of- ties. kind mitigation because it is most (d) Site selection. (1) The compen- likely to compensate for the functions satory mitigation project site must be and services lost at the impact site. ecologically suitable for providing the For example, tidal wetland compen- desired aquatic resource functions. In satory mitigation projects are most determining the ecological suitability likely to compensate for unavoidable of the compensatory mitigation project impacts to tidal wetlands, while peren- site, the district engineer must con- nial stream compensatory mitigation sider, to the extent practicable, the fol- projects are most likely to compensate lowing factors: for unavoidable impacts to perennial (i)Hydrological conditions, soil char- streams. Thus, except as provided in acteristics, and other physical and paragraph (e)(2) of this section, the re- chemical characteristics; quired compensatory mitigation shall (ii) Watershed-scale features, such as be of a similar type to the affected aquatic habitat diversity, habitat aquatic resource. connectivity, and other landscape scale (2) If the district engineer deter- functions; mines, using the watershed approach in (III)The size and location of the com accordance with paragraph (c) of this - pensator a mitigation site relative t section that out-of-kind compensatory mitigation will serve the aquatic re- hydrologic sources (including the source needs of the watershed, the availability of water rights) and other trict engineer may authorize the usee o of ecological features; (iv) Compatibility with adjacent land such out-of--kind compensatory tion o- � tion. The basis for authorization of uses and watershed management plans; out-of-kind compensatory mitigation (v)Reasonably foreseeable effects the must be documented in the administra- compensatory mitigation project will tive record for the permit action. have on ecologically important aquatic (3) For difficult-to-replace resources or terrestrial resources (e.g., shallow (e.g., bogs, fens, springs, streams, At- sub-tidal habitat, mature forests), cul- lantic white cedar swamps) if further tural sites, or habitat for federally- or avoidance and minimization is not state-listed threatened and endangered practicable, the required compensation species; and should be provided, if practicable, (vi) Other relevant factors including, through in-kind rehabilitation, en- but not limited to, development trends, hancement, or preservation since there anticipated land use changes, habitat is greater certainty that these methods status and trends, the relative loca- of compensation will successfully off- tions of the impact and mitigation set permitted impacts. sites in the stream network, local or (f) Amount of compensatory mitigation. regional goals for the restoration or (1) If the district engineer determines protection of particular habitat types that compensatory mitigation is nec- or functions (e.g., re-establishment of essary to offset unavoidable impacts to habitat corridors or habitat for species aquatic resources, the amount of re- of concern), water quality goals, flood- quired compensatory mitigation must plain management goals, and the rel- be, to the extent practicable, sufficient ative potential for chemical contami- to replace lost aquatic resource func- nation of the aquatic resources, tions. In cases where appropriate func- (2)District engineers may require on- tional or condition assessment meth- site, off-site, or a combination of on- ods or other suitable metrics are avail- site and off-site compensatory mitiga- able, these methods should be used tion to replace permitted losses of where practicable to determine how 414 §332.3 33 CFR Ch. it (7-1-24 Edition) for unavoidable impacts to aquatic re- quired for the compensatory mitiga- sources authorized by that permit. tion project, unless they are provided (ii) Under no circumstances may the in the approved final mitigation plan; same credits be used to provide mitiga- and tion for more than one permitted activ- (iv) Describe any required financial ity. However, where appropriate, com- assurances or long-term management pensatory mitigation projects, includ- provisions for the compensatory miti- ing mitigation banks and in-lieu fee gation project, unless they are speci- projects, may be designed to holis- fled in the approved final mitigation tically address requirements under plan. multiple programs and authorities for (3)For a general permit activity that the same activity. requires permittee-responsible compen- (2)Except for projects undertaken by satory mitigation, the special condi- federal agencies, or where federal fund- tions must describe the compensatory ing is specifically authorized to provide mitigation proposal, which may be ei- compensatory mitigation, federally- ther conceptual or detailed. The gen- funded aquatic resource restoration or eral permit verification must also in- conservation projects undertaken for clude a special condition that states purposes other than compensatory that the permittee cannot commence mitigation, such as the Wetlands Re- work in waters of the United States serve Program, Conservation Reserve until the district engineer approves Program, and Partners for Wildlife Program activities, cannot be used for final mitigation plan, unlessthe the h the purpose of generating compen- tract engineer determines that suchh a a special condition fa not practicable and satory mitigation credits for activities authorized by DA permits. However, tionnot necessary to ensure timely compencomplsatory mitigation credits may mat of the required compensatory be generated by activities undertaken mitigation. bl the extent appropriate in conjunction with, but supplemental and practicable, special conditions to, such programs in order to maximize the general permit verification should also address the requirements of para- the overall ecological benefits of the restoration or conservation project. graph(k)(2)of this section. (3) Compensatory mitigation projects (4) If a mitigation bank or in-lieu fee may also be used to provide compen- program is used to provide the required satory mitigation under the Endan- compensatory mitigation, the special gered Species Act or for Habitat Con- conditions must indicate whether a servation Plans, as long as they com- mitigation bank or in-lieu fee program ply with the requirements of paragraph will be used, and specify the number (j)(1)of this section. and resource type of credits the per- (k) Permit conditions. (1) The compen- mittee is required to secure. In the satory mitigation requirements for a case of an individual permit, the spe- DA permit, including the amount and cial condition must also identify the type of compensatory mitigation, must specific mitigation bank or in-lieu fee be clearly stated in the special condi- program that will be used. For general tions of the individual permit or gen- permit verifications, the special condi- eral permit verification (see 33 CFR tions may either identify the specific 325.4 and 330.6(a)). The special condi- mitigation bank or in-lieu fee program, tions must be enforceable. or state that the specific mitigation (2) For an individual permit that re- bank or in-lieu fee program used to quires permittee-responsible mitiga- provide the required compensatory tion, the special conditions must: mitigation must be approved by the (i) Identify the party responsible for district engineer before the credits are providing the compensatory mitiga- secured. tion; (1) Party responsible for compensatory (fi) Incorporate, by reference, the mitigation. (1) For permittee-respon- final mitigation plan approved by the sible mitigation, the special conditions district engineer; of the DA permit must clearly indicate (iii) State the objectives, perform- the party or parties responsible for the ance standards, and monitoring re- implementation, performance, and 416 §332.4 33 CFR Ch. 11 (7-1-24 Edition) standards. The DA permit or instru- Clean Water Act, the public notice for ment must clearly specify the condi- the proposed activity must contain a tions under which the financial assur- statement explaining how impacts as- ances are to be released to the per- sociated with the proposed activity are mittee, sponsor, and/or other financial to be avoided, minimized, and com- assurance provider, including, as ap- pensated for.This explanation shall ad- propriate, linkage to achievement of dress, to the extent that such informa- performance standards, adaptive man- tion is provided in the mitigation agement, or compliance with special statement required by §325.1(d)(7) of conditions. this chapter, the proposed avoidance (5)A financial assurance must be in a and minimization and the amount, form that ensures that the district en- type, and location of any proposed gineer will receive notification at least compensatory mitigation, including 120 days in advance of any termination any out-of-kind compensation, or indi- or revocation. For third-party assur- cate an intention to use an approved ance providers, this may take the form mitigation bank or in-lieu fee program. of a contractual requirement for the The level of detail provided in the pub- assurance provider to notify the dis- lic notice must be commensurate with trict engineer at least 120 days before the scope and scale of the impacts. The the assurance is revoked or termi- notice shall not include information nated. that the district engineer and the per- (6) Financial assurances shall be pay- mittee believe should be kept confiden- able at the direction of the district en- tial for business purposes, such as the gineer to his designee or to a standby exact location of a proposed mitigation trust agreement. When a standby trust site that has not yet been secured. The is used(e.g.,with performance bonds or permittee must clearly identify any in- letters of credit) all amounts paid by formation being claimed as confiden- the financial assurance provider shall be deposited directly into the standby ub in the mitigation statement when s trust fund for distribution by the trust- submitted. such cases, the notice ee in accordance with the district engi- must still provide vide enough information neer's instructions. to enable the public to provide mean- (o) Compliance with applicable law, ingful comment on the proposed miti- The compensatory mitigation project gation, must comply with all applicable fed- (2) For individual permits, district eral, state, and local laws. The DA per- engineers must consider any timely mit, mitigation banking instrument, or comments and recommendations from in-lieu fee program instrument must other federal agencies; tribal, state, or not require participation by the Corps local governments;and the public. or any other federal agency in project (3) For activities authorized by let- management,including receipt or man- ters of permission or general permits, agement of financial assurances or the review and approval process for long-term financing mechanisms, ex- compensatory mitigation proposals and cept as determined by the Corps or plans must be conducted in accordance other agency to be consistent with its with the terms and conditions of those statutory authority, mission, and pri- permits and applicable regulations in- orities. cluding the applicable provisions of this part. §332.4 Planning and documentation. (c) Mitigation plan—(1) Preparation (a) Pre-application consultations. Po- and approval. (i) For individual per- tential applicants for standard permits mits, the permittee must prepare a are encouraged to participate in pre- draft mitigation plan and submit it to application meetings with the Corps the district engineer for review. After and appropriate agencies to discuss po- addressing any comments provided by tential mitigation requirements and the district engineer, the permittee information needs, must prepare a final mitigation plan, (b) Public review and comment. (1) For which must be approved by the district an activity that requires a standard DA engineer prior to issuing the individual permit pursuant to section 404 of the permit. The approved final mitigation 418 §332.5 33 CFR Ch. II (7-1-24 Edition) the impact site, not the mitigation ing on monitoring results to the dis- bank or in-lieu fee project site. trict engineer must be included. (See (6) Determination of credits. A descrip- §332.6.) tion of the number of credits to be pro- (11) Long-term management plan. A de- vided, including a brief explanation of scription of how the compensatory the rationale for this determination, mitigation project will be managed (See§332.3(f).) after performance standards have been (i) For permittee-responsible mitiga- achieved to ensure the long-term sus- tion, this should include an expla- tainability of the resource, including nation of how the compensatory miti- long-term financing mechanisms and gation project will provide the required the party responsible for long-term compensation for unavoidable impacts management. (See§332.7(d).) to aquatic resources resulting from the (12) Adaptive management plan. A permitted activity. management strategy to address un- (ii) For permittees intending to se- foreseen changes in site conditions or cure credits from an approved mitiga- other components of the compensatory tion bank or in-lieu fee program, it mitigation project, including the party should include the number and re- or parties responsible for implementing source type of credits to be secured and adaptive management measures. The how these were determined. adaptive management plan will guide (7) Mitigation work plan. Detailed decisions for revising compensatory written specifications and work de- mitigation plans and implementing scriptions for the compensatory miti- measures to address both foreseeable gation project, including, but not lim- and unforeseen circumstances that ad- ited to, the geographic boundaries of versely affect compensatory mitigation the project;construction methods, tim- success. (See§332.7(c).) ing, and sequence; source(s) of water, (13) Financial assurances. A descrip- including connections to existing tion of financial assurances that will waters and uplands; methods for estab- be provided and how they are sufficient lishing the desired plant community; to ensure a high level of confidence plans to control invasive plant species; that the compensatory mitigation the proposed grading plan, including project will be successfully completed, elevations and slopes of the substrate; in accordance with its performance soil management; and erosion control standards(see§332.3(n)). measures. For stream compensatory (14) Other information. The district mitigation projects, the mitigation engineer may require additional infor- work plan may also include other rel- mation as necessary to determine the evant information, such as planform appropriateness, feasibility, and prac- geometry, channel form (e.g., typical ticability of the compensatory mitiga- channel cross-sections), watershed size, tion project. design discharge, and riparian area plantings. §332.5 Ecological performance stand- (8) Maintenance plan. A description a'ds• and schedule of maintenance require- (a) The approved mitigation plan ments to ensure the continued viabil- must contain performance standards ity of the resource once initial con- that will be used to assess whether the struction is completed. project is achieving its objectives. Per- (9) Performance standards. Eco- formance standards should relate to logically-based standards that will be the objectives of the compensatory used to determine whether the compen- mitigation project, so that the project satory mitigation project is achieving can be objectively evaluated to deter- its objectives. (See§332.5.) mine if it is developing into the desired (10) Monitoring requirements. A de- resource type, providing the expected scription of parameters to be mon- functions, and attaining any other ap- itored in order to determine if the com- plicable metrics(e.g.,acres). pensatory mitigation project is on (b) Performance standards must be track to meet performance standards based on attributes that are objective and if adaptive management is needed, and verifiable. Ecological performance A schedule for monitoring and report- standards must be based on the best 420 §332.7 33 CFR Ch. II (7-1-24 Edition) resource agencies, and the public, upon cation to the district engineer before request. any action is taken to void or modify the§332.7 Management. long-term instrument, management plan, or g- protection mechanism, in- (a) Site protection. (1) The aquatic cluding transfer of title to, or estab- habitats, riparian areas, buffers, and lishment of any other legal claims uplands that comprise the overall com- over, the compensatory mitigation pensatory mitigation project must be site. provided long-term protection through (4) For compensatory mitigation real estate instruments or other avail- projects on public lands, where federal able mechanisms,as appropriate.Long- facility management plans or inte- term protection may be provided grated natural resources management through real estate instruments such plans are used to provide long-term as conservation easements held by en- protection, and changes in statute, reg- tities such as federal, tribal, state, or ulation, or agency needs or mission re- local resource agencies, non-profit con- sults in an incompatible use on public servation organizations, or private lands originally set aside for compen- land managers; the transfer of title to satory mitigation, the public agency such entities; or by restrictive cov- authorizing the incompatible use is re- enants. For government property,long- sponsible for providing alternative term protection may be provided compensatory mitigation that is ac- through federal facility management ceptable to the district engineer for plans or integrated natural resources any loss in functions resulting from management plans. When approving a the incompatible use. method for long-term protection of (5)A real estate instrument, manage- non-government property other than ment plan, or other long-term protec- transfer of title, the district engineer tion mechanism used for site protec- shall consider relevant legal con- tion of permittee-responsible mitiga- straints on the use of conservation tion must be approved by the district easements and/or restrictive covenants engineer in advance of, or concurrent in determining whether such mecha- with, the activity causing the author- nisms provide sufficient site protec- ized impacts. tion. To provide sufficient site protec- (b)Sustainability. Compensatory miti- tion, a conservation easement or re- gation projects shall be designed, to strictive covenant should, where prac- the maximum extent practicable, to be ticable, establish in an appropriate self-sustaining once performance third party (e.g., governmental or non- standards have been achieved. This in- profit resource management agency) cludes minimization of active engineer- the right to enforce site protections ing features (e.g., pumps) and appro- and provide the third party the re- priate siting to ensure that natural hy- sources necessary to monitor and en- drology and landscape context will sup- force these site protections, port long-term sustainability. Where (2) The real estate instrument, man- active long-term management and agement plan, or other mechanism pro- maintenance are necessary to ensure viding long-term protection of the long-term sustainability (e.g., pre- compensatory mitigation site must, to scribed burning, invasive species con- the extent appropriate and practicable, trol, maintenance of water control prohibit incompatible uses (e.g., clear structures, easement enforcement), the cutting or mineral extraction) that responsible party must provide for such might otherwise jeopardize the objec- management and maintenance.This in- tives of the compensatory mitigation cludes the provision of long-term fi- project. Where appropriate, multiple nancing mechanisms where necessary. instruments recognizing compatible Where needed, the acquisition and Aro- uses (e.g., fishing or grazing rights) tection of water rights must be secured may be used. and documented in the permit condi- (3) The real estate instrument, man- tions or instrument. agement plan, or other long-term pro- (c) Adaptive management. (1) If the tection mechanism must contain a pro- compensatory mitigation project can- vision requiring 60-day advance notifi- not be constructed in accordance with 422 §332.8 33 CFR Ch. II (7-1-24 Edition) the absence of natural fire and control- ticable in reviewing proposed mitiga- ling invasive exotic plant species. tion banks and in-lieu fee programs. (3) All mitigation banks and in-lieu Members of the IRT may also sign the fee programs must comply with the instrument, if they so choose. By sign- standards in this part, if they are to be ing the instrument, the IRT members used to provide compensatory mitiga- indicate their agreement with the tion for activities authorized by DA terms of the instrument. As an alter- permits,regardless of whether they are native, a member of the IRT may sub- sited on public or private lands and mit a letter expressing concurrence whether the sponsor is a governmental with the instrument. The IRT will also or private entity. advise the district engineer in assess- (b) Interagency Review Team. (1) The ing monitoring reports, recommending district engineer will establish an remedial or adaptive management Interagency Review Team (IRT) to re- measures, approving credit releases, view documentation for the establish- and approving modifications to an in- ment and management of mitigation strument. In order to ensure timely banks and in-lieu fee programs. The processing of instruments and other district engineer or his designated rep- documentation, comments from IRT resentative serves as Chair of the IRT. members must be received by the dis- In cases where a mitigation bank or in- trict engineer within the time limits lieu fee program is proposed to satisfy specified in this section. Comments re- the requirements of another federal, ceived after these deadlines will only tribal, state, or local program, in addi- be considered at the discretion of the tion to compensatory mitigation re- district engineer to the extent that quirements of DA permits, it may be doing so does not jeopardize the dead- appropriate for the administering lines for district engineer action. agency to serve as co-Chair of the IRT. (4)The district engineer will give full (2) In addition to the Corps, rep- consideration to any timely comments resentatives from the U.S. Environ- and advice of the IRT. The district en- mental Protection Agency, U.S. Fish gineer alone retains final authority for and Wildlife Service, NOAA Fisheries, approval of the instrument in cases the Natural Resources Conservation where the mitigation bank or in-lieu Service, and other federal agencies, as fee program is used to satisfy compen- appropriate, may participate in the satory mitigation requirements of DA IRT. The IRT may also include rep- permits. resentatives from tribal, state, and (b) MOAs with other agencies. The dis- local regulatory and resource agencies, trict engineer and members of the IRT where such agencies have authorities may enter into a memorandum of and/or mandates directly affecting, or agreement (MOA) with any other fed- affected by, the establishment, oper- eral, state or local government agency ation, or use of the mitigation bank or to perform all or some of the IRT re- in-lieu fee program. The district engi- view functions described in this sec- neer will seek to include all public tion. Such MOAs must include provi- agencies with a substantive interest in sions for appropriate federal oversight the establishment of the mitigation of the review process.The district engi- bank or in-lieu fee program on the IRT, neer retains sole authority for final ap- but retains final authority over its proval of instruments and other docu- composition. mengation required under this section. (3) The primary role of the IRT is to (c) Compensation planning framework facilitate the establishment of mitiga- for in-lieu fee programs. (1)The approved tion banks or in-lieu fee programs instrument for an in-lieu fee program through the development of mitigation must include a compensation planning banking or in-lieu fee program instru- framework that will be used to select, ments. The IRT will review the pro- secure, and implement aquatic re- spectus, instrument, and other appro- source restoration, establishment, en- priate documents and provide com- hancement, and/or preservation activi- ments to the district engineer. The dis- ties. The compensation planning trict engineer and the IRT should use a framework must support a watershed watershed approach to the extent prac- approach to compensatory mitigation. 424 §332.8 33 CFR Ch. II (7-1-24 Edition) (i) The objectives of the proposed spectus or an instrument modification mitigation bank or in-lieu fee program. request that will be processed in ac- (ii) How the mitigation bank or in- cordance with paragraph (g)(1) of this lieu fee program will be established section, the district engineer will pro- and operated. vide public notice of the proposed miti- (iii)The proposed service area. gation bank or in-lieu fee program, in (iv) The general need for and tech- accordance with the public notice pro- nical feasibility of the proposed miti- cedures at 33 CFR 326.3. The public no- gation bank or in-lieu fee program. tice must, at a minimum, include a (v) The proposed ownership arrange- summary of the prospectus and indi- ments and long-term management cate that the full prospectus is avail- strategy for the mitigation bank or in- able to the public for review upon re- lieu fee project sites. quest. For modifications of approved (vi) The qualifications of the sponsor instruments, the public notice must in- to successfully complete the type(s) of stead summarize, and make available mitigation project(s) proposed, includ- to the public upon request, whatever ing information describing any past documentation is appropriate for the such activities by the sponsor. modification (e.g., a new or revised (vii) For a proposed mitigation bank, mitigation plan). The comment period the prospectus must also address: for public notice will be 30 days, unless (A) The ecological suitability of the the district engineer determines that a site to achieve the objectives of the longer comment period is appropriate. proposed mitigation bank, including The district engineer will notify the the physical, chemical, and biological characteristics of the bank site and sponsor if the comment period is ex- how that site will support the planned tended beyond days,including an ex- types of aquatic resources and func- planation period is why the longer comment tions;and necessary. Copies of all com- (B) Assurance of sufficient water ments received in response to the pub- rights to support the long-term sus- lic notice must be distributed to the tainability of the mitigation bank. other IRT members and to the sponsor (viii) For a proposed in-lieu fee pro- within 16 days of the close of the public gram, the prospectus must also in- comment period. The district engineer clude: and IRT members may also provide (A) The compensation planning comments to the sponsor at this time, framework (see paragraph (c) of this and copies of any such comments will section);and also be distributed to all IRT members. (B) A description of the in-lieu fee If the construction of a mitigation program account required by para- bank or an in-lieu fee program project graph(i)of this section. requires a DA permit, the public notice (3) Preliminary review of prospectus. requirement may be satisfied through Prior to submitting a prospectus, the the public notice provisions of the per- sponsor may elect to submit a draft mit processing procedures, provided all prospectus to the district engineer for of the relevant information is provided. comment and consultation. The dis- (5) Initial evaluation. (i) After the end trict engineer will provide copies of the of the comment period, the district en- draft prospectus to the IRT and will gineer will review the comments re- provide comments back to the sponsor ceived in response to the public notice, within 30 days. Any comments from and make a written initial evaluation IRT members will also be forwarded to as to the potential of the proposed the sponsor. This preliminary review is mitigation bank or in-lieu fee program optional but is strongly recommended. to provide compensatory mitigation It is intended to identify potential for activities authorized by DA per- issues early so that the sponsor may mits. This initial evaluation letter attempt to address those issues prior must be provided to the sponsor within to the start of the formal review proc- 30 days of the end of the public notice ess. comment period. (4) Public review and comment. Within (ii) If the district engineer deter- 30 days of receipt of a complete pro- mines that the proposed mitigation 426 §332.8 33 CFR Ch. II (7-1-24 Edition) (B) A credit release schedule, which sion-making time frames specified in is tied to achievement of specific mile- this section. Within 90 days of receipt stones. All credit releases must be ap- of the complete draft instrument or proved by the district engineer, in con- amendment by the IRT members, the sultation with the IRT, based on a de- district engineer must notify the spon- termination that required milestones sor of the status of the IRT review. have been achieved. The district engi- Specifically, the district engineer must neer, in consultation with the IRT, indicate to the sponsor if the draft in- may modify the credit release sched- strument or amendment is generally ule, including reducing the number of acceptable and what changes, if any, available credits or suspending credit are needed. If there are significant un- sales or transfers altogether, where resolved concerns that may lead to a necessary to ensure that all credit formal objection from one or more IRT sales or transfers remain tied to com- members to the final instrument or pensatory mitigation projects with a amendment, the district engineer will high likelihood of meeting performance indicate the nature of those concerns. standards; (8)Final instrument.The sponsor must (iv) For an in-lieu fee program, a submit a final instrument to the dis- complete draft instrument must in- clude the following additional informa- port engineer for approval, with sup- tion: porting documentation that explains (A) The compensation planning how the final instrument addresses the framework (see paragraph (c) of this comments provided by the ]RT. For section); modifications of approved instruments, (B)Specification of the initial alloca- the sponsor must submit a final tion of advance credits (see paragraph amendment to the district engineer for (n) of this section) and a draft fee approval, with supporting documenta- schedule for these credits, by service tion that explains how the final amend- area, including an explanation of the ment addresses the comments provided basis for the allocation and draft fee by the IRT. The final instrument or schedule; amendment must be provided directly (C) A methodology for determining by the sponsor to all members of the future project-specific credits and fees; IRT. Within 30 days of receipt of the and final instrument or amendment, the (D) A description of the in-lieu fee district engineer will notify the IRT program account required by para- members whether or not he intends to graph(i)of this section. approve the instrument or amendment. (7) IRT review, Upon receipt of notifi- If no IRT member objects,by initiating cation by the district engineer that the the dispute resolution process in para- draft instrument or amendment is graph (e) of this section within 46 days complete, the sponsor must provide the of receipt of the final instrument or district engineer with a sufficient num- amendment, the district engineer will ber of copies of the draft instrument or notify the sponsor of his final decision amendment to distribute to the IRT and, if the instrument or amendment is members. The district engineer will approved, arrange for it to be signed by promptly distribute copies of the draft the appropriate parties. If any IRT instrument or amendment to the IRT member initiates the dispute resolu- members for a 30-day comment period. tion process, the district engineer will The 30-day comment period begins 6 notify the sponsor. Following conclu- days after the district engineer distrib- sfon of the dispute resolution process, utes the copies of the draft instrument the district engineer will notify the or amendment to the IRT. Following sponsor of his final decision, and if the the comment period, the district engi- instrument or amendment is approved, neer will discuss any comments with arrange for it to be signed by the ap- the appropriate agencies and with the propriate parties. For mitigation sponsor. The district engineer will seek banks, the final instrument must con- to resolve issues using a consensus tain the information items listed in based approach, to the extent prac- paragraphs (d)(6)(ii), and (fii) of this ticable, while still meeting the deci- section. For in-lieu fee programs, the 428 §332.8 33 CFR Ch. II (7-1-24 Edition) (f) Extension of deadlines. (1) The the proposed modification. IRT mem- deadlines in paragraphs (d) and (e) of bers and the sponsor have 30 days to this section may be extended by the notify the district engineer if they district engineer at his sole discretion have concerns with the proposed modi- in cases where: fication. If IRT members or the sponsor (i) Compliance with other applicable notify the district engineer of such laws, such as consultation under sec- concerns,the district engineer shall at- tion 7 of the Endangered Species Act or tempt to resolve those concerns. With- section 106 of the National Historic in 60 days of providing the proposed Preservation Act,is required; modification to the IRT, the district (ii)It is necessary to conduct govern- engineer must notify the IRT members ment-to-government consultation with of his intent to approve or disapprove Indian tribes; the proposed modification. If no IRT (iii)Timely submittal of information member objects, by initiating the dis- necessary for the review of the pro- pute resolution process in paragraph posed mitigation bank or in-lieu fee (e) of this section, within 16 days of re- program or the proposed modification ceipt of this notification, the district of an approved instrument is not ac- engineer will notify the sponsor of his complished by the sponsor; or final decision and, if the modification (iv) Information that is essential to is approved, arrange for it to be signed the district engineer's decision cannot by the appropriate parties. If any IRT be reasonably obtained within the spec- member initiates the dispute resolu- ified time frame. tion process, the district engineer will (2) In such cases, the district engi- so notify the sponsor. Following con- neer must promptly notify the sponsor clusion of the dispute resolution proc- in writing of the extension and the rea- ess, the district engineer will notify son for it. Such extensions shall be for the sponsor of his final decision, and if the minimum time necessary to re- solve the issue necessitating the exten- the modification is approved, arrange sion. for it to be signed by the appropriate (g)Modification of instruments—(1)Ap- Parties. proval of an amendment to an approved (h) Umbrella mitigation banking instru- instrument. Modification of an approved ments. A single mitigation banking in- instrument, including the addition and strument may provide for future au- approval of umbrella mitigation bank thorization of additional mitigation sites or in-lieu fee project sites or ex- bank sites. As additional sites are se- pansions of previously approved miti- lected, they must be included in the gation bank or in-lieu fee project sites, mitigation banking instrument as must follow the appropriate procedures modifications, using the procedures in in paragraph (d) of this section, unless paragraph (g)(1) of this section. Credit the district engineer determines that withdrawal from the additional bank the streamlined review process de- sites shall be consistent with para- scribed in paragraph (g)(2) of this sec- graph(m)of this section. tion is warranted. (i) In-lieu fee program account. (1) The (2) Streamlined review process. The in-lieu fee program sponsor must estab- streamlined modification review proc- lish a program account after the in- ess may be used for the following modi- strument is approved by the district fications of instruments: changes re- engineer, prior to accepting any fees flecting adaptive management of the from permittees. If the sponsor accepts mitigation bank or in-lieu fee program, funds from entities other than permit- credit releases, changes in credit re- tees, those funds must be kept in sepa- leases and credit release schedules, and rate accounts. The program account changes that the district engineer de- must be established at a financial in- termines are not significant. If the dis- stitution that is a member of the Fed- trict engineer determines that the eral Deposit Insurance Corporation.All streamlined review process is war- interests and earnings accruing to the ranted, he must notify the IRT mem- program account must remain in that bers and the sponsor of this determina- account for use by the in-lieu fee pro- tion and provide them with copies of gram for the purposes of providing 430 §332.8 33 CFR Ch. II (7-1-24 Edition) (2) Authorization to sell credits to tees when the instrument is approved. satisfy compensatory mitigation re- The number of advance credits will be quirements in DA permits is contin- determined by the district engineer, in gent on compliance with all of the consultation with the IRT, and will be terms of the instrument. This includes specified for each service area in the constructing a mitigation bank or in- instrument. The number of advance lieu fee project in accordance with the credits will be based on the following mitigation plan approved by the dis- considerations: trict engineer and incorporated by ref- (i)The compensation planning frame- erence in the instrument. If the aquat- work; is resource restoration, establishment, (ii) The sponsor's past performance enhancement, and/or preservation ac- for implementing aquatic resource res- tivities cannot be implemented in ac- toration, establishment, enhancement, cordance with the approved mitigation and/or preservation activities in the plan, the district engineer must con- proposed service area or other areas; sult with the sponsor and the IRT to and consider modifications to the instru- (III) The projected financing nec- ment, including adaptive management, eseary to begin planning and imple- revisions to the credit release schedule, mentation of in-lieu fee projects. and alternatives for providing compen- (2) To determine the appropriate satory mitigation to satisfy any cred- number of advance credits for a par- its that have already been sold. ticular service area, the district engi- (3) An in-lieu fee program sponsor is neer may require the sponsor to pro- responsible for the implementation, vide confidential supporting informa- long-term management, and any re- tion that will not be made available to quired remediation of the restoration, the general public. Examples of con- establishment, enhancement, and/or fidential supporting information may preservation activities, even though include prospective in-lieu fee project those activities may be conducted by sites. other parties through requests for pro- (3) As released credits are produced posals or other contracting mecha- by in-lieu fee projects, they must be nisms. used to fulfill any advance credits that (m) Credit withdrawal from mitigation have already been provided within the banks. The mitigation banking instru- project service area before any remain- ment may allow for an initial debiting ing released credits can be sold or of a percentage of the total credits pro- transferred to permittees. Once pre- jected at mitigation bank maturity, viously provided advance credits have provided the following conditions are been fulfilled, an equal number of ad- satisfied: the mitigation banking in- vance credits is re-allocated to the strument and mitigation plan have sponsor for sale or transfer to fulfill been approved, the mitigation bank new mitigation requirements, con- site has been secured, appropriate fi- sistent with the terms of the instru- nancial assurances have been estab- ment. The number of advance credits lished, and any other requirements de- available to the sponsor at any given termined to be necessary by the dis- time to sell or transfer to permittees in trict engineer have been fulfilled. The a given service area is equal to the mitigation banking instrument must number of advance credits specified in provide a schedule for additional credit the instrument, minus any that have releases as appropriate milestones are already been provided but not yet ful- achieved (see paragraph (o)(8) of this filled. section). Implementation of the ap- (4) Land acquisition and initial phys- proved mitigation plan shall be initi- ical and biological improvements must ated no later than the first full grow- be completed by the third full growing ing season after the date of the first season after the first advance credit in credit transaction, that service area is secured by a per- (n) Advance credits for in-lieu fee Pro- mittee, unless the district engineer de- grams. (1) The in-lieu fee program in- termines that more or less time is strument may make a limited number needed to plan and implement an in- of advance credits available to permit- lieu fee project. If the district engineer 432 V §332.8 33 CFR Ch. II (7-1-24 Edition) resources. In determining the compen- credit release schedule, credits are gen- satory mitigation requirements for DA erated in accordance with the credit re- permits using mitigation banks and in- lease schedule for the approved mitiga- lieu fee programs, the district engineer tion plan. If the in-lieu fee project or may authorize the use of riparian area, umbrella mitigation bank site does not buffer, and/or upland credits if he de- achieve those performance-based mile- termines that these areas are essential stones, the district engineer may mod- to sustaining aquatic resource func- ify the credit release schedule, includ- tions in the watershed and are the ing reducing the number of credits. most appropriate compensation for the (9) Credit release approval. Credit re- authorized impacts. leases for mitigation banks and in-lieu (8) Credit release schedule. (i) General fee projects must be approved by the considerations. Release of credits must district engineer.In order for credits to be tied to performance-based mile- be released, the sponsor must submit stones (e.g., construction, planting, es- documentation to the district engineer tablishment of specified plant and ani- demonstrating that the appropriate mal communities). The credit release milestones for credit release have been schedule should reserve a significant achieved and requesting the release. share of the total credits for release The district engineer will provide cop- only after full achievement of ecologi- ies of this documentation to the IRT cal performance standards.When deter- members for review. IRT members mining the credit release schedule, fac- must provide any comments to the dis- tors to be considered may include, but trict engineer within 15 days of receiv- are not limited to: The method of pro- ing this documentation. However, if viding compensatory mitigation cred- the district engineer determines that a Its (e.g., restoration), the likelihood of site visit is necessary, IRT members success, the nature and amount of must provide any comments to the dis- work needed to generate the credits, and the aquatic resource type(s) and isit engineer within 15 days of the site v function(s) to be provided by the miti- gation bank or in-lieu fee project. The ule the site visit so that it occurs as district engineer will determine the soon as it is practicable, but the site credit release schedule, including the visit may be delayed by seasonal con- share to be released only after full siderations that affect the ability of achievement of performance standards, the district engineer and the IRT to as- after consulting with the IRT. Once re- seas whether the applicable credit re- leased, credits may only be used to sat- lease milestones have been achieved. isfy compensatory mitigation require- After full consideration of any com- ments of a DA permit if the use of cred- ments received, the district engineer its for a specific permit has been ap- will determine whether the milestones proved by the district engineer. have been achieved and the credits can (ii) For single-site mitigation banks, be released. The district engineer shall the terms of the credit release schedule make a decision within 30 days of the must be specified in the mitigation end of that comment period,and notify banking instrument. The credit release the sponsor and the IRT. schedule may provide for an initial (10) Suspension and termination. If the debiting of a limited number of credits district engineer determines that the once the instrument is approved and mitigation bank or in-lieu fee program other appropriate milestones are is not meeting performance standards achieved(see paragraph(m)of this sec- or complying with the terms of the in- tion), strument, appropriate action will be (III) For in-lieu fee projects and um- taken. Such actions may include, but brella mitigation bank sites, the terms are not limited to, suspending credit of the credit release schedule must be sales, adaptive management, decreas- specified in the approved mitigation ing available credits, utilizing finan- plan. When an in-lieu fee project or cial assurances, and terminating the umbrella mitigation bank site is imple- instrument. mented and is achieving the perform- (p) Accounting procedures. (1) For ance-based milestones specified in the mitigation banks,the instrument must 434 Pt.334 33 CFR Ch. 11 (7-1-24 Edition) (2) For in-lieu fee project sites, real land bank)must be consistent with the estate instruments,management plans, terms of this part. or other long-term protection mecha- (2) In-lieu fee Program instruments. All nisms used for site protection must be in-lieu fee program instruments ap- finalized before advance credits can be- proved on or after July 9, 2008 must come released credits. meet the requirements of this part. In- (u) Long-term management. (1) The lieu fee programs operating under in- legal mechanisms and the party re- struments approved prior to July 9, sponsible for the long-term manage- 2008 may continue to operate under ment and the protection of the mitiga- those instruments for two years after tion bank site must be documented in the effective date of this rule, after the instrument or, in the case of um- which time they must meet the re- brella mitigation banking instruments quirements of this part, unless the dis- and in-lieu fee programs, the approved trict engineer determines that cir- mitigation plans.The responsible party cumstances warrant an extension of up should make adequate provisions for to three additional years. The district the operation, maintenance, and long- engineer must consult with the IRT be- term management of the compensatory fore approving such extensions.Any re- mitigation project site. The long-term visions made to the in-lieu fee program management plan should include a de- instrument on or after July 9, 2008 scription of long-term management must be consistent with the terms of needs and identify the funding mecha- this part. Any approved project for nism that will be used to meet those which construction was completed needs. under the terms of a previously ap- (2) The instrument may contain pro- proved instrument may continue to op- visions for the sponsor to transfer long- erate indefinitely under those terms if term management responsibilities to a the district engineer determines that land stewardship entity, such as a pub- the project is providing appropriate lic agency,non-governmental organiza- mitigation substantially consistent tion, or private land manager. with the terms of this part. (3) The instrument or approved miti- gation plan must address the financial arrangements and timing of any nec- RESTRICTED AREA REGULATIONS essary transfer of long-term manage- ment funds to the steward. Sec. (4)Where needed, the acquisition and 334.1 Purpose. protection of water rights should be se- 334.2 Definitions. cured and documented in the instru- 334.3 Special policies. meet or, in the case of umbrella miti- 334.4 Establishment and amendment proce- dures. gation banking instruments and in-lieu 334.6 Disestablishment of a danger zone. fee programs, the approved mitigation 334.6 Datum. site plan. 334.10 Gulf of Maine off Seal Island, Maine; (v) Grandfathering of existing instru- naval aircraft bombing target area. ments—(1) Mitigation banking instru- 334.20 Gulf of Maine off Cape Small, Maine; meets. All mitigation banking instru- naval aircraft practice mining range ments approved on or after July 9, 2008 area. must meet the requirements Of this 334.30 Gulf of Maine off Pemaquid Point, Maine;naval sonobuoy test area. part. Mitigation banks approved prior 334.40 Atlantic ocean in vicinity of Duck Is- to July 9, 2008 may continue to operate land, Maine, Isles of Shoals; naval air- under the terms of their existing in- craft bombing target area. struments. However, any modification 334.45 Kennebec River, Bath Iron Works to such a mitigation banking instru- Shipyard, naval restricted area, Bath, ment on or after July 9, 2008, including Maine. authorization of additional sites under 334.60 Piscataqua River at Portsmouth an umbrella mitigation banking instru- Naval shipyard, Kittery, Maine; re- stricted areas. ment, expansion of an existing site, or 334.60 Cape Cod Bay south of Wellfleet Har- addition of a different type of resource bor,Mass.;naval aircraft bombing target credits (e.g., stream credits to a wet- area. 436