History of Legislation:

·      The 1990 Memorandum of Agreement concerning the Determination of Mitigation under the Clean Water Act Section 404(b)(1) Guidelines (Mitigation MOA) between the Environmental Protection Agency (EPA) and the Department of Army;

·      The 1995 Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (Banking Guidance);

·      The 2000 Federal Guidance on the Use of In-Lieu-Fee Arrangements for Compensatory Act (ILF Guidance);

·      The 2002 Corps Regulatory Guidance Letter (RGL) 02-2, Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.

SAFTEA-LU (Transportation Act 2005)

·      Authorized $286.5 Billion from 2006 to 2009 with a Mitigation Bank Preference for Compensatory Mitigation

·      Bipartisan

·      Legislative History: preference for private-sector mitigation banks

·      Preference intended to “encourage the use of approved private-sector banks for wetlands lost through highway construction.” H.R. Rep. 105-550, at 432 (1998).

2004 DOD Authorization Act

·      Allows use of mitigation banks and in-lieu-fee programs;

·      Mandates rulemaking

·      To ensure opportunities for Federal agency participation in mitigation banking, the Secretary of the Army, acting through the Chief of Engineers, shall issue regulations establishing performance standards, and criteria for the use, consistent with section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344), of on-site, off-site, and in-lieu fee mitigation and mitigation banking as compensation for lost wetlands functions in permits issued by the Secretary of the Army under such section.  To the maximum extent practicable, the regulatory standards and criteria shall maximize available credits and opportunities for mitigation, provide flexibility for regional variations in wetland conditions, functions and values, and apply equivalent standards and criteria to each type of compensatory mitigation.

Proposed Rule: Compensatory Mitigation for Losses of Aquatic Resources

·         Published:  March 28, 2006

·         U.S. Army Corps of Engineers 33 CFR Parts 325 and 332

·         Environmental Protection Agency 40 CFR Part 230

·         Major Themes:

o   Implementing effective, equivalent standards:

“Raising the bar for compensatory mitigation”

·         Emphasizing best available science

o   Watershed approach

·         Ensuring predictability and efficiency

·         Expanding public participation