Eco-Logical Peer Exchange: Mitigation Approaches for State DOTs; March 11-12, 2015

Requirements for Mitigation Bank and In-Lieu Fee Program Instruments

Mitigation bank and in-lieu fee program instruments must include the following information:

• Description of the proposed service area(s). Service areas may be based on the watershed, ecoregion, or physiographic province, and/or other geographic area in which the bank or in-lieu fee program is authorized to provide compensatory mitigation
• Accounting procedures
• Provision stating that legal responsibility for providing mitigation lies with the sponsor once a permittee secures credits from the sponsor
• Default and closure provisions
• Reporting protocols
• Any other information deemed necessary by the district engineer

For a mitigation bank, a complete instrument must also include the following information (33 CFR 332.4(c)(2)-(14)/40 CFR 230.94(c)(2)-(14)):

• Objectives
• Site selection factors considered
• Site protection instrument (conservation easement, declaration of restrictions, title transfer, etc.)
• Baseline information – description of ecological characteristics of the proposed mitigation bank site
• Description of number of credits to be provided
• Mitigation work plan – detailed written specification and work descriptions for the mitigation bank site
• Maintenance plan – description and schedule of maintenance requirements
• Performance Standards – ecologically-based standards used to determine whether the project is achieving its objectives
• Monitoring requirements
• Long-term management plan – description of mitigation site management after meeting all performance standards to ensure long-term sustainability of the site
• Adaptive management plan – a management strategy to address unforeseen changes in site conditions or other aspects of the project. It guides decisions for addressing circumstances that adversely affect a mitigation project
• Financial assurances – a description of any financial assurances that will be provided to ensure that the mitigation project will be completed in accordance with its performance standards.
• A credit release schedule tied to achievement of specific milestones.

For an in-lieu fee program, a complete instrument must include the following information:

• Compensation planning framework (33 CFR 332.8(c)/40 CFR 230.98(c));
• Specification of the amount of advance credits (33 CFR 332.8(n)/40 CFR 230.98(n)) and the fee schedule for these credits;
• Methodology for determining future project-specific credits and fees;
• Description of the in-lieu fee program account (33 CFR 332.8(i)/40 CFR 230.98(i)).

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