Once the Corps issues an individual or a general permit and the permittee has commenced construction of the permitted project, the Corps may visit the construction site to determine whether the avoidance and minimization requirements are being followed. If the permit requires that the permittee provide compensatory mitigation, the Corps may require the permittee to provide periodic monitoring of the physical features of the site. If the compensation is made through a permittee-sponsored or commercial mitigation bank or a fee payment program (see more discussion of the difference in Chapter 5), the inspection process focuses on the off-site mitigation area. In these cases, the Corps also may expect that monitoring reports be filed.
Corps headquarters expects that its staff will inspect a relatively high percentage of compensatory mitigation sites to ensure compliance with permit conditions, the banking instrument, or the conditions in the fee agreement. However, to minimize the number of field visits and the associated expenditure of limited staff resources, Corps field offices may ask the responsible mitigation providers to certify that the mitigation is being done in accordance with agreed-to conditions when they submit their monitoring reports (USACE 1999a).
Once the mitigation site matches predetermined criteria that may be included in a permit's performance standards, a banking instrument, or some other form, the Corps will sign off on the mitigation, deeming that the requirements have been satisfied. Many permits allow for this sign-off or regulatory certification after 5 years. Although the Corps may find that a site satisfies the legal requirements of a permit and will therefore provide its regulatory certification, the mitigation site may not achieve the desired functional effectiveness (Josselyn et al. 1990). Once the sign-off has occurred, there typically is no legal requirement on the permittee to maintain the mitigation site.
The Corps has primary enforcement jurisdiction over violations of permit conditions, including conditions relating to compensatory mitigation (USACE/EPA 1990). If the Corps discovers a violation of a permit condition, it may issue a compliance order, initiate civil judicial action, and/or suspend or revoke the permit (see Figure 4–4). In some cases, especially with mitigation banks, the party responsible for the compensatory mitigation may be asked to post financial assurances against the possibility that the mitigation will not achieve the required results. The Corps can determine whether these financial assurances will be returned to the responsible party or be used to repair the site. However, as with site inspection, enforcement actions are not a high priority for the use of limited Corps staff time and budget. This problem is discussed later in the report.