Information pertaining to mitigation banks is available at the Regulatory In-Lieu fee and Bank Information Tracking System (RIBITS).
Compensatory Mitigation Rule
Implications of the New Mitigation Rule in Florida
The Corps of Engineers permit regulations, at 33 CFR 325.4, stipulate that special conditions may be added to permits in order to satisfy public interest concerns and/or legal requirements, such as compliance with the Clean Water Act 404(b)(1) Guidelines. If a proposed permit action would result in impacts to wetlands, these special conditions often include provisions requiring the permittee to compensate for the expected impact. This compensation is commonly referred to as compensatory mitigation. It may also be referred to simply as mitigation, although strictly speaking, it is only one of three forms of mitigation. The first two forms, avoidance and minimization are typically addressed through alternative siting and/or modifications to the project design. For most standard permits (i.e., those that require issuance of a public notice), and in particular those subject to regulation under the Clean Water Act, avoidance and minimization of impacts to aquatic resources, including wetlands, must be addressed prior to considering compensatory mitigation. Compensatory mitigation, therefore, is only utilized to offset impacts which are otherwise unavoidable. The process of incorporating all appropriate and practicable measures to avoid, minimize and, finally, compensate for impacts to aquatic resources caused by permit actions is referred to as sequencing.
The Corps of Engineers' mitigation policy relative to projects authorized under Section 404 of the Clean Water Act is explained in a Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army, which was signed on February 6, 1990. The memorandum establishes that: "The Corps will strive to avoid adverse impacts and offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will strive to achieve a goal of no overall net loss of values and functions." Compensatory mitigation for wetland impacts may be accomplished in several ways. The most common forms of mitigation are projects which result in the restoration, enhancement or creation of wetlands. In exceptional circumstances, compensatory mitigation may also be accomplished through the preservation of unique and valuable wetlands which are under demonstrable threat of destruction. In general, the memorandum establishes a preference for onsite mitigation at or in the immediate vicinity of the wetland impact site and for in-kind replacement using wetlands which are similar to those which would be impacted. These preferences may be overriden, however, if onsite and in-kind mitigation is not available, not practicable or if another mitigation option is environmentally preferable. Compensatory mitigation for wetland impacts should, to the extent practicable, result in a minimum of one-to-one functional replacement, or one-to-one acreage replacement if adequate functional assessment techniques are not available.
Mitigating the environmental impacts of necessary development actions on the Nation's wetlands and other aquatic resources is a central premise of Federal wetlands programs. The Clean Water Act (CWA) Section 404 permit program relies on the use of compensatory mitigation to offset unavoidable damage to wetlands and other aquatic resources through, for example, the restoration or creation of wetlands. Under the "Swampbuster" provisions of the Food Security Act (FSA), farmers are required to provide mitigation to offset certain conversions of wetlands for agricultural purposes in order to maintain their program eligibility.
Mitigation for wetland impacts may take place on-site, off-site, in mitigation banks, or be funded by in-lieu fees. Mitigation may include creation, enhancement or restoration of wetlands and their functions or, in some cases, may include preservation of wetlands and associated upland buffers.