Compensatory Mitigation Regulation ( Mitigation( Rule )

Transcription

1 Compensatory Mitigation Regulation ( Mitigation( Rule ) 33 CFR Part 332 (Corps) 40 CFR Part 230 (EPA) 3/20/09

2 Agenda Complete application Definitions What didn t t change? How does this rule affect existing guidance? General principles Location and type of compensation Watershed approach Planning and documentation Requirements for mitigation plans Other provisions Mitigation banks and ILFs Final rule status What s s new/different? 2

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4 Complete Application (33 CFR 325.1) Mitigation statement required for individual 404 permit applications Mitigation statement: how avoidance, minimization, & compensation will be accomplished.

5 Definitions (332.2) Mitigation bank Commercial entity or a single user (e.g., State DOT) One or more sites where larger compensatory mitigation projects are done Permittees obtain credits from sponsor Sponsor assumes responsibility for providing the mitigation ILF program Government or non-profit natural resource management entity Collects fees to do larger compensatory mitigation projects Sponsor assumes responsibility for providing mitigation Permittee-responsible responsible mitigation Compensatory mitigation activity undertaken by permittee or contractor (cont.) 5

6 Definitions (cont.) Credit a gain in aquatic resource functions at mitigation project Debit a loss of aquatic resource functions at impact site Credits and debits measured by: Acres/linear feet or Functional assessments or Other appropriate measures Credits and debits form the currency to track gains and losses 6

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8 What didn t t change as a result of the Rule? Avoid and minimize first; compensation last General mitigation policy 33 CFR 320.4(r) General policies for evaluating permit applications Corps regulatory jurisdiction under 10 and 404 Still 2 reasons why mitigation is required: Comply with 404(b)(1) Guidelines Ensure project is not contrary to the public interest Rule focuses on the where and how 8

9 Affect on existing guidance Replaces: 1995 mitigation banking guidance 2000 ILF guidance Regulatory Guidance Letter Certain provisions of the 1990 Mitigation MOA between Army and EPA Amount, type, and location of compensatory mitigation projects (including the on-site preference) Use of preservation Other provisions remain in effect 9

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11 General Principles Focus on compensatory mitigation planning and performance self-sustaining sustaining aquatic resources that provide desired functions Clear standards, more accountability, better performance Permit applicants responsible for proposing appropriate compensatory mitigation option (cont.) 11

12 General Principles (cont.) Corps is decision-maker Compensatory mitigation requirements for DA permits Approval of mitigation banking and ILF program instruments If mitigation bank or ILF program used, responsibility to provide compensatory mitigation is transferred to sponsor when permittee secures credits (cont.) 12

13 General Principles (cont.) Preference hierarchy for mitigation 1. Bank credits Helps reduce risk and uncertainty Credits usually further along in development Approved instrument Approved mitigation plan Credits released as milestones achieved 2. ILF program credits Helps reduce risk and uncertainty Projects often address high priority aquatic resource needs in watershed Compensation planning framework required 13

14 General Principles (cont.) Permittee-responsible responsible mitigation 3. Determined using watershed approach 4. On-site and in-kind Consider practicability and compatibility with proposed project 5. Off-site and/or out-of of-kind (rationale for out-of of-kind in this situation must be in administrative record) 14

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16 Location & Type of Compensation (33 CFR 332.3(b)) Within same watershed as impact AND where most likely to replace lost functions Consider: Habitat diversity Connectivity Land use trends Compatibility with adjacent uses Marine resources Risks to aviation Coastal Watersheds 16

17 Location and Type of Compensation (cont.) Doesn t t make preservation a last-resort option May be used in certain circumstances Must provide important physical, chemical, biological functions for watershed Must contribute significantly to ecological sustainability Must be under threat of destruction or adverse modifications Determined by DE to be appropriate and practicable, AND Will be permanently protected by easement or title transfer Option (with rehabilitation) for difficult-to-replace resources Bogs, fens, springs, streams, Atlantic white cedar swamps, etc. 17

18 Location and Type of Compensation (cont.) DE may require buffers to Ensure long-term viability Provide habitat or corridors necessary to functioning of aquatic resources 18

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20 Watershed Approach Strategic site selection to improve or maintain watershed functions Consider likelihood for ecological success and sustainability, location in watershed, and practicability Use available aquatic resource watershed planning information Level of information/analysis commensurate with the scope of permitted activity Generally don t t focus on specific functions Provide suite of functions typically provided by affected aquatic resource (cont.) 20

21 Watershed Approach (cont.) May use more than one site to provide compensatory mitigation for a permitted activity On-site mitigation measures for water quality, flood storage Off-site mitigation that provides the desired aquatic resource type (habitat and other functions) Use of preservation for protection and maintenance of terrestrial resources, such as non-wetland riparian areas and uplands Must contribute to or improve ecological functioning of aquatic resources Not appropriate for marine resources 21

22 New Hampshire ILF Program - Merrimack River Watershed Site must be > 5 ac Consider: Ecological integrity Significant habitat Flood flow control potential Groundwater use potential Water quality functions Sustainability Landscape position 22

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24 Planning and Documentation (332.4) Standard permit application form (ENG 4345) being modified to require mitigation statement for individual 404 permits Application must describe proposed avoidance, minimization, compensation will be used in PN Requirements for mitigation plans (cont.) 24

25 Planning and Documentation (cont.) Individual permits Final compensatory mitigation plan must be approved prior to issuance of permit If using mitigation bank or in-lieu fee program, permit must identify specific bank or ILF program General permits May approve conceptual or detailed mitigation plan to meet general permit timeframes Final mitigation plan must be approved before commencing work in waters of the U.S. If using mitigation bank or in-lieu fee program, the specific bank or ILF program can be identified ahead of time. 25

26 Requirements for Mitigation Plans Components: banks, ILF, and project proponent Objective(s) of the compensatory mitigation project Site selection information Site protection instrument to be used Baseline information (impact and compensation site) Number of credits to be provided Mitigation work plan Maintenance plan (cont.) 26

27 Requirements for Mitigation Plans (cont.) Ecological performance standards May be revised to address deficiencies in project, to reflect changes in management strategies/ objectives if + or > ecological benefits Monitoring requirements Long-term management plan Adaptive management plan Make fixes for successful performance Long-term protection Through appropriate mechanisms (e.g., transfer of title, conservation easements, management plans) May be transferred to a land stewardship entity Financial assurances Necessary to ensure successful completion? 27

28 Management of Mitigation Projects (33 CFR 332.7) Site protection Maintenance Plan Long-term management Identify responsible party If long-term management is required, funding arrangements must be described 28

29 Adaptive Management Plan (33 CFR 332.7(c)) Plan Construction Performance standards Monitoring Management activities 29

30 Other Provisions Identify responsible party Use ecological performance standards (next slide) Monitoring requirements Performance standards may be revised to address deficiencies in project, to reflect changes in management strategies/ objectives if + or > ecological benefits Are financial assurances necessary to ensure successful completion? Provide long-term protection through appropriate mechanisms (e.g., transfer of title, conservation easements, management plans) Adaptive management make fixes for successful performance Long-term management may be transferred to a land stewardship 30 entity

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33 Mitigation Banks and In-Lieu Fees Final rule has standards and requirements for mitigation banks and in-lieu fee programs Commercial banks, single-user banks, umbrella banks In-lieu fee programs Must have an approved instrument signed by the district engineer and sponsor Rule provisions intended to make the instrument approval process more efficient Timeline with milestones to provide predictability and accountability in the instrument approval process 33

34 Requirements for Mitigation Banks and In-Lieu Fee Programs Prospectus Public notice and comment process Interagency review Approved instrument Approved mitigation plans with credit release schedules Ledgers for all credit transactions Corps approval required to release credits 34

35 Additional Requirements for In-Lieu Fee Mitigation Limited to non-profit organizations or governments Compensation planning framework required Identify, plan, and implement in-lieu fee projects Support watershed approach Justify advance credits Advance credits Limited number of credits that can be sold before in-lieu fee projects are established and meeting performance standards Sponsor required to establish an in-lieu fee program account 35

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37 Final Rule Status Published April 10, 2008 Effective date June 9,

38 What s s New/Different? Old guidance and Mitigation RGL now obsolete Including amount, type, location of projects and use of preservation from the 1990 Mitigation MOA Preference for on-site mitigation gone Preservation recognized as being important Acknowledges preservation as valid compensation for difficult-to to-replace aquatic resource types Preference for bank, then ILF, and only finally, permittee-responsible responsible projects (cont.) 38

39 What s s New/Different? (cont.) Permittee-responsible responsible mitigation should focus on watershed approach before on- site/in-kind On-site for water quality/flood storage; off- site for habitat and other functions Acknowledges riparian areas provide functions to improve/maintain WQ Greater than 1:1 acreage ratios must be used to address uncertainty, functional differences, temporal losses, difficulty, and mitigation type (cont.) 39

40 What s s New/Different? (cont.) Submission of monitoring reports to Corps required Minimum 5 years Longer required for aquatic resources with slow development rates (e.g., forested wetlands, bogs) DE may extend monitoring period if performance standards not reached When 3 rd party overseeing easement, must provide $ to monitor and enforce IP application form being modified 40

41 What s s New/Different? (cont.) IPs cannot be issued without final mitigation plan or ID of bank/ilf PGPs can be issued without final plan but work cannot start without approved final plan Defines temporal loss If no financial assurances, public record will need to explain why (cont.) 41

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44 New England District s Mitigation Ratio Guidance

45 Guidance, NOT Policy! On New England District website: under Regulatory/Permitting, then Mitigation Key points: Supplement to existing district guidance No Net Loss of FUNCTIONS not happening yet Buffers are important Wetlands are difficult to build Wetlands take time to mature Supported by Mitigation Rule 45

46 Mitigation Guidelines: Recommended Ratios Form of Mitigation Restoration Creation Enhancement Preservation impacts Emergent Wetlands (ac) 2:1 2:1 to 3:1 3:1 to 10:1 15:1 Scrub-shrub Wetlands (ac) 2:1 2:1 to 3:1 3:1 to 10:1 15:1 Forested Wetlands (ac) 2:1 to 3:1 3:1 to 4:1 5:1 to 10:1 15:1 Open Water (ac) 1:1 1:1 Project specific Project specific Submerged Aquatic Vegetation (ac) 3:1 to 5:1 Project specific Project specific Project specific Streams (lf) 2:1 N/A 3:1 to 5:1 10:1 to 20:1 Mudflat (ac) 2:1 2:1 Project specific Project specific Upland (ac) >10:1 N/A Project specific 15:1 46