Operational DRAFT
| Jurisdiction | United States |
(Jan 2002)
Operational DRAFT
The U.S. Army Corps of Engineers' Guidance for Wetland Mitigation Banks in the Omaha District (November 2000)
Prepared by Karen Lawrence, Omaha District Mitigation Banking Coordinator
In consultation with the following: The Nebraska Mitigation Review Team, Omaha District's field personnel, Dr. Robert Brumbaugh and Mr. Jack Chowning.
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TABLE OF CONTENTS
Part A: Introduction
1. Purpose and Scope 3
2. Goals 3
3. Policy Consideration 4
4. Applicable Environmental Laws and Regulations 4
5. Definitions 5
Part B: Mitigation Banking Policy and Guidance
1. Compensation Guidance 12
2. Planning considerations 13
3. Basic standards for mitigation banking 18
4. Role of sponsor, and Mitigation banking Review Team 20
5. Implementation Procedures 21
6. Credits and Accounting 25
7. Monitoring and Reporting 27
8. Bank operational life 28
9. Long-term management and maintenance 29
10. Dispute resolution 29
11. Transfer of Bank Assets 30
12. Other Procedures 30
13. Applicable Literature 32
Attachments:
A - Chronology of Mitigation Bank Planning and Design
B - Outline of Prospectus
C - Outline of Instrument
D - Conservation Easement template
E - Monitoring template
F - Agreement page template
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Operational DRAFT
Omaha District Guidance for Wetland Mitigation Banks
PART A
1. PURPOSE AND SCOPE
This document provides District guidance for the establishment, use and operation of mitigation banks for the Omaha District. The purpose of this guidance is to assist the Omaha District state program managers, bank sponsors, and other interested parties in the mitigation banking process to the goals of Section 404 of the Clean Water Act. Included are the guidelines for establishing, owning and operating wetland mitigation banks. It further sets out the guidelines for authorizing applicants (e.g., individuals, corporations, units of government) to withdraw credits from a mitigation bank to offset unavoidable wetland impacts that would result from the applicant's proposed activity. Also included are some attachments that serve as a template or example to further assist in the development of a mitigation bank.
The Wetland Mitigation Banking program was established to provide options for lessening the cost and regulatory burden of replacing wetlands when it is required under regulatory programs. It also lessens the Corps field office personnel's workload by reducing the number of compliance inspections. Some other advantages of mitigation banking include; implementing compensation prior to impacts that will reduce temporal losses of the aquatic habitat, reducing the regulatory processing time, bringing together proper expertise, and financial resources, aiding in the integrity of the aquatic system by allowing larger complexes, and contributing to the president's goal of no-net-loss of the Nation's wetlands.
2. GOALS
The goal of Wetland Mitigation Banking is to replace physical and biological functions by providing advance compensation of unavoidable wetland losses due to developmental activities. Mitigation banking can be achieved through creation, restoration, enhancement or preservation of other areas generally outside the immediate area of wetland loss or alteration. Functions include, but are not limited to, the following: groundwater recharge/discharge; floodflow alteration; fish and shellfish habitat; sediment/toxicant retention; nutrient removal; production export; sediment/shoreline stabilization; wildlife
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habitat; recreation, educational scientific value; uniqueness/heritage; and visual quality/aesthetics.
The goal of any mitigation bank is to successfully meet, record and convey the objectives of the success criteria approved within the banking instrument. Structural goals should include: The size of the proposed wetland construction, including upland buffers or adjacent habitat areas; The physiognomic types (external aspect) sought, with acreage figures for each cover type; and The projected hydrologic regime including hydroperiods and water depths. Functional goals should have the following characteristics: Listed specific compatible functions; functions should be expressible as structures (i.e. water storage); The appropriate actions/structures to achieve each function should be listed as an element in the wetland construction plan
3. POLICY CONSIDERATION:
The Omaha District's intent for this guidance to be applied to mitigation banks proposed on or after the effective date of this guidance and to those in early stages of development. Any bank that has a ready been approved and signed will remain intact. Because of the nature of umbrella agreements, discretion of the local MBRT will determine if modifications need to be made.
4. APPLICABLE ENVIRONMENTAL LAWS AND REGULATIONS
This guidance is established in accordance with the following statutes, regulations, and policies. It is intended to clarify provisions not to establish new requirements. Projects deemed appropriate for off-site compensation in a mitigation bank must demonstrate full compliance with existing Federal, State and Tribal statutes and regulations as well as consistency with applicable policies, including, but not limited to:
• Clean Water Act {33 U.S.C.1 251 et seq.}, Section 404 and Section 401.
• National Environmental Policy Act (42 U.S.C. 4321 et seq.} and implementing regulations.
• The Fish and Wildlife Coordination Act {16 U.S.C. 661-666 (c) }.
• The U.S. Fish and Wildlife Service Mitigation Policy (January 23, 1981),
• The Rivers and Harbors Act of 1899 {33 U.S.C. 403).
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• Section 404(b)(l) Guidelines {40 C.F.R., Part 230}; including interpretations of the Guidelines in the Memorandum of Agreement between EPA and the Department of the Army Concerning the Determination of Mitigation under the Clean Water Act Section 404(b)(l) Guidelines {February 6, 1990).
• Federal Permit Regulations (33 C.F.R., Part 320-330} including interpretive guidance provided by the U.S. Army Corps of Engineers.
• State Water Quality Certification (Section 401).
• Endangered Species Act, as amended {16 U.S.C. 1531-1543 }
• Federal Agriculture Improvement and Reform Act of 1996 {7 U.S.C. 7201 }.
• National Environmental Policy Act {16 U.S.C. 470 et seq.}.
• Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, (28 December, 1995.).
• Title XII of the Food Security Act of 1985
• Uniform Act (49 CFR Part 24)
• A Corps of Engineers Memorandum - Regulatory Guidance Letter 93-2 (August 23, 1993)
5. DEFINITIONS:
Authorizing Agency: A Federal (U.S. Army Corps of Engineers (Corps) and/or the Natural Resource Conservation Service (NRCS)) or Tribal agency that has authorized the use of a mitigation bank as compensation for an authorized activity. The authorizing agency will typically have the enforcement authority to ensure that the terms and conditions of the banking instrument are satisfied. Also referred to as the 'regulatory authority'.
Bank Operational Life: The period during which the terms and conditions of the enabling instrument are applicable, and signatories of the instrument are responsible for carrying out it provisions. With the exception of arrangements that are required for the long-term management and protection of wetlands in the bank, the bank's operational life terminates at the point when (1) bank credits have been exhausted or banking activity is voluntarily terminated with written notice by the bank sponsor provided to the 'regulatory authority' and any other signatories to the Agreement, and (2) it has been determined by the 'regulatory
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authority' that wetlands in the fully debited bank are functionally mature (i.e., self-sustainable).
Bank Site: The geographic location of an individually created, restored, enhanced, or preserved wetland which serves as the physical resource used to generate bank credits.
Bank Sponsor: Any public or private entity responsible for establishing and, in most circumstances, operating a mitigation bank.
Buffer Zone: A transitional zone t: at provides a vegetated area between the bank site and the adjacent developed land. Though buffers are strongly encouraged, in some cases they might not be required.
Compensatory Mitigation: As a requirement of Section 404 of the Clean Water Act, wetland restoration, creation, enhancement, or in exceptional circumstances, preservation of wetlands (or combination thereof) that results in a functional wetland(s) to the one(s) impacted, resulting in a no-net-loss of the aquatic resource. The purpose being to compensate for those adverse impacts, which remain after all, appropriate steps to avoid and minimize, have been taken.
Consensus: Is a process by which a group synthesized it concerns and ideas to form a common collaborative agreement acceptable to all members. While the primary goal of consensus is to reach agreement on an issue by all parties, unanimity may not always be possible.
Creation: The establishment of a wetland or other aquatic resource where one did not formerly exist.
Credit: A unit of measurement representing the accrual or attainment of wetland functions at a mitigation bank. This can be indexed by either the number of acres restored, created, enhanced, or preserved or by functional capacity units.
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Debit: The unit of measure representing the loss of wetland functions at an impact or project site.
Demonstrable threat: the loss or substantial degradation of the wetland due to human activities that might not otherwise be expected.
Department of the Army Permit: The required authorization for the discharge of dredged or fill material into waters of the United States...
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