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Eco-Logical Peer Exchange: Mitigation Approaches for State DOTs; March 11-12, 2015

Requirements for Mitigation Bank and In-Lieu Fee Program Instruments

Mitigation bank and in-lieu fee program instruments must include the following information:

  • Description of the proposed service area(s). Service areas may be based on the watershed, ecoregion, or physiographic province, and/or other geographic area in which the bank or in-lieu fee program is authorized to provide compensatory mitigation
  • Accounting procedures
  • Provision stating that legal responsibility for providing mitigation lies with the sponsor once a permittee secures credits from the sponsor
  • Default and closure provisions
  • Reporting protocols
  • Any other information deemed necessary by the district engineer

For a mitigation bank, a complete instrument must also include the following information (33 CFR 332.4(c)(2)-(14)/40 CFR 230.94(c)(2)-(14)):

  • Objectives
  • Site selection factors considered
  • Site protection instrument (conservation easement, declaration of restrictions, title transfer, etc.)
  • Baseline information – description of ecological characteristics of the proposed mitigation bank site
  • Description of number of credits to be provided
  • Mitigation work plan – detailed written specification and work descriptions for the mitigation bank site
  • Maintenance plan – description and schedule of maintenance requirements
  • Performance Standards – ecologically-based standards used to determine whether the project is achieving its objectives
  • Monitoring requirements
  • Long-term management plan – description of mitigation site management after meeting all performance standards to ensure long-term sustainability of the site
  • Adaptive management plan – a management strategy to address unforeseen changes in site conditions or other aspects of the project. It guides decisions for addressing circumstances that adversely affect a mitigation project
  • Financial assurances – a description of any financial assurances that will be provided to ensure that the mitigation project will be completed in accordance with its performance standards.
  • A credit release schedule tied to achievement of specific milestones.

For an in-lieu fee program, a complete instrument must include the following information:

  • Compensation planning framework (33 CFR 332.8(c)/40 CFR 230.98(c));
  • Specification of the amount of advance credits (33 CFR 332.8(n)/40 CFR 230.98(n)) and the fee schedule for these credits;
  • Methodology for determining future project-specific credits and fees;
  • Description of the in-lieu fee program account (33 CFR 332.8(i)/40 CFR 230.98(i)).

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