Background
When the U.S. Army Corps of Engineers (Corps) reviews a project that requires Department of the Army authorization, our evaluation typically includes a determination of whether the applicant has taken sufficient measures to mitigate the project’s likely adverse impact on the aquatic ecosystem. Mitigation is a three-step sequential process:
Avoid: Take all appropriate and practicable measures to avoid those adverse impacts to the aquatic ecosystem that are not necessary.
Minimize: Take all appropriate and practicable measures to minimize those adverse impacts to the aquatic ecosystem that cannot reasonably be avoided.
Compensate: Implement appropriate and practicable measures to compensate for adverse project impacts to the aquatic ecosystem that cannot reasonably be avoided or further minimized. This step is also referred to as compensatory mitigation.
Mitigation Rule
The Corps and the Environmental Protection Agency (EPA) issued regulations regarding mitigation on April 10, 2008. The Compensatory Mitigation Rule (Rule), which became effective on June 9, 2008, governs compensatory mitigation for activities authorized by Corps permits.
The Rule states that a permit application must include a statement describing how impacts to waters of the United States (U.S.) are to be avoided and minimized. The application must also include either a statement describing how impacts to waters of the U.S. are to be compensated for or a statement explaining why compensatory mitigation should not be required for the proposed impacts (33 CFR 325.1).
Mitigation Ratio-Setting Checklist
The document titled South Pacific Division Regulatory Program Standard Operating Procedure for Determination of Mitigation Ratios outlines the process for determining compensatory mitigation requirements as required for processing of Department of the Army (DA) permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and Section 103 of the Marine Protection, Research, and Sanctuaries Act.
Mitigation Plan Requirements for Permits
For individual permits, the permittee must prepare a draft mitigation plan and submit it with the application for review. A final mitigation plan must be submitted to and approved by the USACE before an individual permit can be issued (33 CFR 332.4(c)).
For general permits, if compensatory mitigation is required, the USACE may approve a conceptual or detailed mitigation plan but a final mitigation plan must be approved before the permittee commences work in waters of the United States (33 CFR 332.4(c)).
Regional Compensatory Mitigation and Monitoring Guidelines
The South Pacific Division has published Regional Compensatory Mitigation and Monitoring Guidelines (Guidelines) to be followed in South Pacific Division’s subordinate districts (Albuquerque, San Francisco, Sacramento, and Los Angeles districts) regarding procedures for compensatory mitigation as required for processing of Department of the Army (DA) permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and Section 103 of the Marine Protection, Research, and Sanctuaries Act. The Public Notice, including the Guidelines and Mitigation Monitoring Report Form, can be viewed at the link below:
http://www.spd.usace.army.mil/Missions/Regulatory/PublicNoticesandReferences/tabid/10390/Article/558934/final-regional-compensatory-mitigation-and-monitoring-guidelines.aspx
Uniform Performance Standards
The Uniform Performance Standards inclulde phsical, hydrological, and biological metrics for use in determining interim and final mitigation success, as well as adaptive management measures. These performance standards are required as part of any mitigation plan. The USACE Project Manager will work with applicants and their consultants to assist in identifying applicable performance standards for mitigation sites.
Mitigation Banking
To find Mitigation Banking information, click here to access the Regional In-lieu Fee and Banking Information Tracking System (RIBITS).
There are currently no Mitigation Banks in New Mexico or in the Albuquerque District's Area of Responsibility in Texas.
Mitigation Workshop Materials
The Regulatory Division held a workshop on March 12, 2015 on both the Regional Compensatory Mitigation and Monitoring Guidelines and the Mitigation Ratio-Setting Checklist. The presenations may be obtained by clicking on the links below:
Regional Compensatory Mitigation and Monitoring Guidelines Presentation
Mitigation Ratio-Setting Checklist Presentation