5

Compensatory Mitigation Mechanisms Under Section 404

The previous chapter provides an overview of the statutory and regulatory framework for compensatory mitigation. Agency guidance suggests that there are three general, discrete mechanisms for providing compensatory mitigation: permittee-responsible mitigation, mitigation banks, and in-lieu fees. In practice, however, there are many variations within and among these mechanisms. This chapter expands on the discussion in the previous chapter to further compare and categorize compensatory mitigation mechanisms. In developing these categories, the committee considered the following areas of possible differences as reflected in regulations, guidelines, and field practice:

  • Where the compensatory mitigation is located: on-site or off-site.

  • Who is legally responsible for meeting regulator-defined criteria for compensatory mitigation compliance: the permittee or a third party.

  • What compensatory mitigation actions are required before the permittee is allowed to proceed with the activity authorized by the permit.

  • Whether the criteria for compensatory mitigation actions have been approved through the interagency Mitigation Banking Review Team (MBRT) process.

  • Whether requirements are imposed for the stewardship of the compensatory mitigation site.

Each area is discussed and then used to develop a taxonomy of six mechanisms for securing compensatory mitigation. Permit-specific and



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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT 5 Compensatory Mitigation Mechanisms Under Section 404 The previous chapter provides an overview of the statutory and regulatory framework for compensatory mitigation. Agency guidance suggests that there are three general, discrete mechanisms for providing compensatory mitigation: permittee-responsible mitigation, mitigation banks, and in-lieu fees. In practice, however, there are many variations within and among these mechanisms. This chapter expands on the discussion in the previous chapter to further compare and categorize compensatory mitigation mechanisms. In developing these categories, the committee considered the following areas of possible differences as reflected in regulations, guidelines, and field practice: Where the compensatory mitigation is located: on-site or off-site. Who is legally responsible for meeting regulator-defined criteria for compensatory mitigation compliance: the permittee or a third party. What compensatory mitigation actions are required before the permittee is allowed to proceed with the activity authorized by the permit. Whether the criteria for compensatory mitigation actions have been approved through the interagency Mitigation Banking Review Team (MBRT) process. Whether requirements are imposed for the stewardship of the compensatory mitigation site. Each area is discussed and then used to develop a taxonomy of six mechanisms for securing compensatory mitigation. Permit-specific and

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT single-user mitigation banks are two forms of permittee-responsible mitigation; commercial mitigation banks, in-lieu fee programs, cash donation programs, and revolving fund programs are third-party mitigation mechanisms (see Table 5–1). Central to developing a taxonomy is the definition of mitigation “action.” A compensatory mitigation project consists of distinct actions, including a general design concept, identification of a general watershed location for the project, development of site design plans, development of ecological performance standards (target wetland functions), site acquisition, construction in accordance with design standards, monitoring to determine whether the design is trending toward the target wetland functions, achievement of performance standards, and regulatory certification that a site meets required mitigation requirements. Another distinct stage is an action to assure that the site is protected and managed in perpetuity. With each step the actions taken increase the assurance that the compensatory wetlands will contribute to the ecological values of the watershed. Much of this chapter is devoted to describing compensatory mitigation mechanisms where a third party (some entity other than the permit recipient) is responsible for each of these mitigation actions. It is important to note, however, that the typical permittee will perform the mitigation itself or hire an agent to perform it, and the permittee remains responsible for the mitigation. For example, the U.S. Army Corps of Engineers (Corps) Headquarters, Operations, Construction, and Readiness Division reports that 75% of the compensatory mitigation required in 1998, under NWP 26, which is no longer in effect, was expected to be implemented by the permit recipient. Nine percent of this mitigation was done at a mitigation bank, and the balance was to be provided through other mechanisms (e.g., in-lieu fees and in-kind exchanges). It is not clear from the data description whether the banks were single-user or commercial; however, in either case, permittee-responsible mitigation is the dominant means for offering mitigation. LOCATION OF THE COMPENSATORY MITIGATION ACTION On-site mitigation is restoring, enhancing, creating, or preserving wetlands adjacent to an impact site. The Corps and the U.S. Environmental Protection Agency (EPA) define on-site mitigation as mitigation in “areas adjacent or contiguous to the discharge site” (USACE/EPA 1990). When on-site mitigation is not warranted, the agencies state that it should be “in close proximity [to] and, to the extent possible, [in] the same watershed” of the project that is adversely affecting wetlands. The agencies' preference for on-site mitigation is not absolute, however, and does not preclude the use of off-site mitigation when it provides greater environ-

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT TABLE 5–1 Taxonomy of Compensatory Mitigation Mechanisms   Permittee-Responsible Mitigation Third-Party-Responsible Mitigation   Permit Specific Single-user Mitigation Bank Commercial Mitigation Bank Location of compensatory mitigation action On- or off-site On- or off-site Off-site Responsible party Permittee Permittee Sponsor, typically a private firm that provides capital for project initiation. Recovers cost and earns a market rate of return by selling mitigation credits to permittees. Relationship of mitigation actions to permitted activities (timing) Mitigation action required concurrent with or soon after the project begins. Mitigation action required before permitted activity can begin varies by permittee. Permitted activity cannot commence unless there are available credits; number of credits available is generally commensurate with the level of aquatic functions at a bank's site. Limited early withdrawals from the bank may be possible. Permitted activity cannot commence unless there are credits available for sale to the permit recipient. Number of credits available is generally commensurate with the level of aquatic functions at a bank site. Limited early sales of credits may be possible. MBRT review No Yes Yes Stewardship requirements None required, although requirements may be imposed on an ad hoc basis. Yes. Banking instrument should contain provisions for long-term management endowment and transfer of site to government agency or appropriate stewardship organization. Yes. Banking instrument should contain provisions for long-term management endowment, and transfer site to government agency or appropriate stewardship organization.

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT In-Lieu Fee Cash Donations Wetland Revolving Fund Off-site Off-site Off-site Fee administrator, typically conservation organizations or government agencies that have entered into a formal MOA with the Corps and collect cash payments for initiating mitigation actions. Typically conservation organizations or government agencies that use the cash donation for an ongoing action, but there is no in-lieu fee MOA. State agency, which initially provides capital for mitigation projects; recovers costs through collection of fee payments from permittees. Permitted activity cannot commence until a fee has been paid to the fund administrator. Compensation actions are taken after adequate funds are collected. Permitted activity cannot commence until a fee has been paid. Funds are typically applied to an ongoing mitigation project. Permitted activity cannot commence until a fee has been paid to the fund administrator. Mitigation actions, up to and including certification of credits, may be implemented before the permitted activity occurs. Yes, to compensate for impacts associated with individual permits. No, to compensate for impacts associated with general permits. Requirements of the MBRT review may not be similar to banks. No No Yes. In-lieu fee agreement should contain provisions for long-term management endowment and transfer off-site to government agency or conservation organization. None required, although requirements may be imposed on an ad hoc basis. The fund assumes responsibility for long-term stewardship. Management oversight may be transferred to a conservation entity.

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT mental benefits than on-site mitigation (Fed. Regist. 60(Nov. 28):58605 – 58614). As a general rule, the compensatory mitigation undertaken under all but the permit-specific mitigation mechanism is located off-site. Off-site mitigation mechanisms tend to “consolidate” at a single site the compensatory mitigation required to offset the impacts of numerous permitted activities that may be scattered across the landscape. LEGAL RESPONSIBILITY FOR THE MITIGATION Initially, a permittee is legally responsible for satisfying permit conditions relating to compensatory mitigation. A permittee may choose to implement the mitigation project or hire an environmental or engineering firm to do so. Alternatively, the compensatory mitigation condition in the permit may allow use of the permittee's own single-user mitigation bank. A permittee may develop a “single-user mitigation bank” by making an up-front investment in creating mitigation credits (see below for a definition) and then draw credits from the bank to satisfy mitigation conditions for future permits. A permittee who expects to have a significant number of future permits and has access to a source of funds to capitalize the bank might develop a single-user bank. In either scenario the permittee remains the party responsible for fulfilling the compensatory mitigation actions. If a permittee fails to comply with the compensatory mitigation stated in the permit conditions, the Corps may issue a compliance order, initiate a civil judicial action, and/or revoke or suspend the permit. In the case of a single-user mitigation bank, the permittee may have posted a financial assurance, and the Corps may require that the escrowed funds be used to undertake the action required in the permit. In the case of a “commercial mitigation bank,” legal responsibility is shifted from the permittee to the bank sponsor (Shabman et al. 1998). The permittee is required to secure a certain number and type of wetland credits in a certain general location as a condition of the permit. By making a payment to the commercial bank that has made an investment to create credits for sale, the permittee satisfies its compensatory mitigation requirement when it purchases the requisite credits. At the time of credit purchase, responsibility for the mitigation site shifts to the commercial bank. The mitigation banking guidance defines a credit as “a unit of measure representing the accrual or attainment of aquatic functions at a mitigation bank; the measure of function is typically indexed to the number of wetland acres restored, created, enhanced or preserved” (Fed. Regist. 60(Nov. 28):58605–58614). In concept, credits are realized after inspection and monitoring have established that functional performance standards have been met. To ensure that a bank sponsor is legally responsible for the

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT mitigation credits, the Corps and EPA state that “the bank sponsor should sign such [Clean Water Act Section 404 and/or Rivers and Harbors Act Section 10] permits for the limited purpose …of confirming that those [mitigation] responsibilities are enforceable against the bank sponsor if necessary.” In addition, the banking guidance calls for the posting of financial assurances so that the Corps may require that the escrowed funds be used to rectify conditions at the bank site that may prevent it from meeting the performance standard. Legal responsibility also will be shifted under in-lieu fee arrangements (a fee is paid in lieu of permittee-responsible mitigation). In this case, once the permittee provides the required funds to the entity administering the in-lieu fee financial account, the permittee has satisfied its compensatory mitigation obligations. The in-lieu fee financial account holds the funds until they are adequate for mitigation actions to begin. In practice, the actions taken by the in-lieu fee programs had no binding requirement to meet formal design or performance standards established at the time the permit was issued (Scodari and Shabman 2000). Instead, there was an expectation that the in-lieu fee administrator would undertake actions that would lead to functional wetland sites. Indeed, prior to the October 2000 interagency guidance on in-lieu fees, the legal responsibilities of in-lieu fee administrators for meeting either design or performance criteria as a condition of accepting the fees was unclear. As a practical matter, it appears that in-lieu fee administrators did not accept such legal responsibility. For example, the Nature Conservancy's in-lieu fee agreement with the Corps Sacramento district states that the Conservancy” does not guarantee any specific results, actions or effects on any lands acquired, managed or restored under this agreement but will use good faith efforts to meet the objectives. The Corps recognizes that The Nature Conservancy cannot guarantee specific results for mitigation efforts. ” The October 2000 guidance provides that in-lieu fee agreements should now “clearly state” that legal responsibility for undertaking specified mitigation actions for the ecological performance of mitigation site conditions rests with the organization accepting the in-lieu fee. Some Corps districts authorize permittees to make cash donations on an ad hoc basis to satisfy their compensatory mitigation obligations (Gardner 2000). Such donations are not technically in-lieu fee arrangements because there is no formal general agreement between the Corps and the entity accepting the fee. These cash donations are often used to defray the expenses of an ongoing mitigation project; in contrast, most formal in-lieu fee arrangements (at least prior to the October 2000 guidance) involved the collection of funds for future mitigation projects. It is not clear what design or performance criteria the recipient of the cash donation must meet. As in the case of commercial mitigation banks and

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT in-lieu fees, however, these ad hoc cash donations shift the legal responsibility for site conditions from the permittee to the recipient of the funds. RELATIONSHIP OF MITIGATION ACTIONS TO PERMITTED ACTIVITIES (TIMING) Permittee-responsible permit-specific mitigation actions will only be implemented concurrent with or after initiation of a permitted development project. At best, permit-specific compensatory mitigation actions (the dominant mechanism for compensatory mitigation) required as a permit condition include a regulator-approved plan for site location, design, and construction. However, it is also possible that the compensation plan may be just a conceptual idea that is a “promise” of future detailed design and follow-on construction. If a permittee makes a payment to a mitigation bank, the permitted activity may move forward. Mitigation banks, whether single-user or commercial, are often described as “advance” mitigation. Consider that the Corps and the EPA define a mitigation bank as “a site where wetlands and/or other aquatic resources are restored, created, enhanced, or in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources” (Fed. Regist. 60(Nov. 28):58605–58614). As noted above, a credit from a bank presumes that the credits are compensation wetlands that have met performance standards. More realistically, the MBRT process may ask that only certain actions be taken before some of the bank credits can be accepted as compensatory mitigation for wetland impacts. There are several distinct stages in a compensatory mitigation project, beginning with conceptual design, moving through site identification and acquisition, to detailed project design and initiation, and ending with a certification of success based on specified success criteria. At each stage of the process, the assurance of ecological performance increases. Limited debiting from the bank may be made before there is any construction activity, especially if there are financial assurances in place. However, the 1995 federal mitigation banking guidance contemplates that most bank credits will not be released until the mitigation project is actually constructed or completed. For example, as practiced in Florida under state regulations and federal guidance, mitigation banks are typically allowed to debit about 15% of their credits upon perpetual preservation of a mitigation site and implementation of the short- and long-term financial obligations. In these cases, 85% of the credits can be used only after project implementation and certification that performance standards have been met. As a result, mitigation banks have been developed when there was a private-sector (permittee or

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT third-party) source of funds to capitalize the investment in developing credits for future use or sale. Permission to use some credit sales in advance of certification of performance allows for some early return on the invested funds. If the prices for the credits are high enough, the sale of a small number of credits may yield enough up-front revenue to encourage private investment in credit development. However, the conditions necessary for encouraging such investment are not always present (Shabman et al. 1994). (More discussion of the financial conditions surrounding private credit sales is found in Chapter 8.) Nonetheless, if a permittee satisfies its mitigation obligation with a payment to a mitigation bank, actions required of a bank sponsor are likely to offer greater assurance of long-term performance than is the case with permit-specific compensation. Permittees also may commence with activities authorized by a permit if they have made a payment to an in-lieu fee program. In the 1995 mitigation banking guidance, the agencies define in-lieu fees as an arrangement where a permittee pays money “to a natural resource management entity for implementation of either specific or general wetland or other aquatic resource development projects, [which] …do not typically provide compensatory mitigation in advance of project impacts” (Fed. Regist. 60(Nov. 28):58605–58614; Fed. Regist. 65(Nov. 7):66914–66917). Viewed in the context of the preceding paragraphs, this definition suggests that an in-lieu fee is paid to a program where there are no specific locations chosen, no sites acquired, and no detailed plans in place for the compensatory mitigation action; only after adequate funds are acquired will these actions be undertaken. However, the guidance also says that the Corps may approve payments of in-lieu fees for compensatory mitigation if “they meet the requirements that would otherwise apply to an off-site, prospective mitigation effort and [provide] adequate assurances of success and timely implementation. ” This language is confusing because these requirements would suggest that there must be a plan in place for mitigation actions at a specific site. The October 2000 guidance on in-lieu fees offers some clarification and timetables for implementation of mitigation actions funded through in-lieu fees. Before the Corps approves the use of in-lieu fee mitigation, the in-lieu fee administrator and the Corps should enter into a formal agreement that describes “potential site locations, baseline conditions at the sites, and general plans that indicate what kind of wetland compensation can be provided” and a “schedule for conducting the activities that will provide compensatory mitigation or a requirement that projects will be started within a specified time after impacts occur.” With respect to timing, the guidance suggests that actions to include “[l]and acquisition and initial physical and biological improvements should be completed by

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT the first full growing season following collection of initial funds. ” In limited circumstances the guidance does allow initial physical and biological improvements to commence in the second full growing season. If these requirements were to be applied, then the in-lieu fee programs would be similar to permit-specific compensation conditions that require only that mitigation plans be in place when the permitted activities are initiated and that plans be implemented expeditiously. However, as noted elsewhere, some requirements, such as timing, may not be stated in all permits. A significant difference between mitigation banks and in-lieu fee programs, such as third-party compensation, is the different ability of each to financially capitalize mitigation actions. In a commercial mitigation bank, the private-sector bank sponsor invests money prior to Corps approval of the use or sale of mitigation credits. In an in-lieu fee arrangement, the entity administering the fund does not invest its own money. However, up-front capitalization need not be confined to private-sector entrepreneurs: government agencies may also provide the initial funding. The state of North Carolina, which is implementing a wetland revolving fund, offers an important illustration (discussed again in Chapter 8). The North Carolina system operates in one sense as an in-lieu fee: the permittee pays a fee into a wetland restoration fund that has been recognized by a Memorandum of Agreement (MOA) between the Corps and the state, with the state serving as the fund administrator. However, the state also initially capitalized that fund to set up watershed plans and compensation site designs and to implement projects before fees are collected. The goal of the fund is to have wetland restoration projects in place before impacts are permitted (Scodari and Shabman 2000). Therefore, the desire is to have many compensatory mitigation actions completed in advance of project impacts, as envisioned in a mitigation banking system. Of course, in all cases execution of mitigation actions by the responsible party will depend, in part, on inspection and enforcement. For permittee-specific compensation, inspection may include only the Corps's review of a conceptual mitigation plan prior to permit issuance. There may be little follow-up to see if the plan is refined and executed. Third-party mitigation is generally provided by entities that have a financial (bonds and future business) or other (their reputation with the agency) stake in meeting their mitigation obligations. Each time the third-party mitigation site is used by a permittee (i.e., credits are purchased), that use must be approved by the Corps. Thus, until credits are fully sold, the third party has regular oversight by the Corps. Although the Corps may still need to exercise careful oversight on these mitigation providers, inspection and enforcement challenges may be less severe. Confidence in the final result may be increased when the compensatory mitigation has

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT been reviewed by the MBRT or if the Corps has entered into a formal MOA with an in-lieu fee mitigation provider. THE MBRT PROCESS As discussed in the previous chapter, a mitigation bank sponsor must proceed through the MBRT process to develop the banking instrument, a formal agreement that describes how the bank is to provide compensatory mitigation. The MBRT process can be time consuming and can impose significant approval costs on the prospective banker (Shabman et al. 1994; Rolband et al. 2001). The 1995 mitigation banking guidance calls on the Corps to enter into formal agreements with in-lieu fee administrators, “similar to a banking instrument,” although the guidance does not specify the level of involvement of other agencies or the detail required by the MBRT review. When a permittee provides permit-specific compensatory mitigation, it does not proceed through the MBRT process; rather, the Corps approves the mitigation proposal that is the condition of the permit, although it may consider comments from other agencies. The October 2000 guidance on in-lieu fees creates two separate processes for in-lieu fee arrangements. If the in-lieu fee arrangement is to offset impacts from individual permits, the in-lieu fee administrator should go through the MBRT process. It is unclear whether this guidance means that in-lieu fee arrangements that compensate for individual permits should secure the capital necessary to take some mitigation actions in advance of impacts or whether it simply requires interagency involvement in the approval of the MOA that sets up the in-lieu fee program. For in-lieu fee arrangements designed to offset impacts from activities authorized under general permits, the process appears to be less formal than the MBRT process. A formal agreement between the in-lieu fee administrator and the Corps is still necessary, but the Corps need only consult with other federal agencies; apparently, those agencies are not necessarily expected to be parties to the formal agreement. STEWARDSHIP REQUIREMENTS Once the Corps determines that the responsible party has met its design or performance obligation for a site, the agency signs off on the mitigation project, and the compensatory mitigation condition is deemed satisfied. Although Corps and EPA guidance stresses that compensatory mitigation should be self-sustaining, it is clear that many sites may require management and corrective actions after sign-off. Moreover, a mitigation site may require an entity or organization that is committed, both by its mission and financially, to the site 's long-term stewardship.

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT Although a particular individual permit may impose stewardship conditions, such as an endowment fund for corrective action after sign-off and the transfer of an easement or title to a conservation entity, nothing in Corps and EPA regulations or guidance documents requires that permittee-responsible mitigation account for the long-term stewardship of compensatory sites. Indeed, the 1990 Corps and EPA mitigation MOA, which provides the most comprehensive guidance with respect to permittee-specific mitigation, is silent on the matter. In contrast, a mitigation bank's banking instrument should provide for long-term stewardship. For example, the 1995 mitigation banking guidance states that the bank operator is responsible for securing adequate funds for “long-term management” of the bank site. Additionally, to assist in protecting the bank site in perpetuity, the banking instrument should specify that title or a conservation easement will be transferred to a government agency or nonprofit conservation organization. Prior to the October 2000 in-lieu fee guidance, agencies had not clearly articulated the long-term stewardship responsibilities of in-lieu fee administrators. On the other hand, most in-lieu fee administrators were entities that were philosophically oriented to long-term stewardship of protected lands. The guidance suggests that these in-lieu sponsors should secure adequate funds for site maintenance and arrange for the site to be protected in perpetuity by conveying an easement or title to a government agency or nonprofit conservation organization. A TAXONOMY The committee found it instructive to develop a taxonomy of compensatory mitigation mechanisms (Table 5–1) to discuss differences among the alternative mechanisms for achieving compensatory mitigation. There are two main categories: permittee-responsible mitigation and third-party-responsible mitigation. Permittee-responsible mitigation includes permit-specific mitigation and single-user mitigation banks, and third-party-responsible mitigation includes commercial mitigation banks, inlieu fees, cash donations, and revolving funds. The differences in mechanisms turn primarily on the factors listed on the left side of the table and discussed in detail in this chapter. Other descriptors, such as in-kind or use of restoration, creation, enhancement, or preservation, are not necessarily specific to a type of mitigation mechanism. Instead, differences in mitigation practices are attributed to site-specific conditions and not to the mitigation mechanism used.

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COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT RECOMMENDATION The committee suggests that this taxonomy be used as a reference point for discussions about compensatory mitigation. In practice, however, a compensatory mitigation mechanism may not fit neatly into one of the listed categories (e.g., mitigation bank versus in-lieu fee versus cash donation). Accordingly, the committee recommends that when an agency reviews mitigation options, it is most important to focus on their characteristics or attributes (e.g., who is legally responsible, the timing of the mitigation actions, whether the MBRT process is used, and whether stewardship requirements are in place).