been reviewed by the MBRT or if the Corps has entered into a formal MOA with an in-lieu fee mitigation provider.


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.


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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