Mitigation
The objective of the Clean Water Act (CWA) is "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." Toward achievement of this goal, the
CWA prohibits the discharge of dredged or fill material into wetlands, streams, and other waters of the United
States unless a permit issued by the U.S. Army Corps of Engineers (Corps) .When there is a proposed discharge,
all appropriate and practicable steps must first be taken to avoid and minimize impacts to aquatic resources. For
unavoidable impacts, compensatory mitigation is required to replace the loss of wetland, stream, and/or other aquatic
resource functions. The Corps is responsible for determining the appropriate form and amount of compensatory mitigation
required. Methods of providing compensatory mitigation include aquatic resource restoration, establishment, enhancement,
and in certain circumstances, preservation.
Mitigation is frequently required as a condition for issuing DA Permits and is intended to replace lost natural
functions and values. When evaluating compensatory mitigation options, the Corps will consider what would be environmentally
preferable. In making this determination, the Corps shall assess the likelihood for ecological success and sustainability,
the location of the compensation site relative to the impact site and their significance within the watershed,
and the costs of the compensatory mitigation project. Compensatory mitigation requirements shall be commensurate
with the amount and type of impact that is associated with a particular DA Permit. Permit applicants are responsible
for proposing an appropriate compensatory mitigation option to offset unavoidable impacts. Due to the difficulty
of precisely quantifying the functional value of aquatic systems, including wetlands, the Chicago District currently
accepts acreage replacement of the impacted system.
On April 10, 2008, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency issued the Final Compensatory Mitigation Rule to clarify how to provide compensatory mitigation for unavoidable impacts to the nation's
wetlands and streams. The rule enables the agencies to promote greater consistency, predictability and ecological
success of mitigation projects under the Clean Water Act. The new rule improves and consolidates existing regulations
and guidance, to establish equivalent standards for all types of mitigation under the Clean Water Act Section 404
regulatory program. The rule does not change when compensatory mitigation is required, but it does change where
and how it is required.
These equivalent standards take into account the inherent differences among mitigation banks, in-lieu fee programs,
and permittee-responsible mitigation, in an effort to maximize the number of ecologically-successful compensatory
mitigation projects that project proponents can use to offset their permitted losses of aquatic resources.
Compensatory mitigation is typically accomplished through either Mitigation
Banks, In-Lieu
Fee Mitigation, or Permittee
Responsible Mitigation.
Mitigation Banks
A permit applicant may obtain credits from a mitigation bank. A mitigation bank
is a wetland, stream or other aquatic resource area that has been restored, established, enhanced, or preserved.
This resource area is then set aside to compensate for future impacts to aquatic resources resulting from permitted
activities. The value of a bank is determined by quantifying the aquatic resource functions restored, established,
enhanced, and/or preserved in terms of "credits." Permittees, upon approval of regulatory agencies, can
acquire these credits to meet their requirements for compensatory mitigation.
Mitigation banking involves the restoration, creation, enhancement, and, in exceptional circumstances, preservation
of wetlands and/or other aquatic resources expressly for the purpose of providing compensatory mitigation for wetland
losses authorized by Corps permits. The newly established wetland acreage (credits) may then be sold to permittees
who need to provide compensatory mitigation for unavoidable impacts. (i.e., "debits"). The U.S. Army
Corps of Engineers tracks credits through RIBITS -
Regional In-Lieu Fee and Banking Information Tracking System.
The decision to allow the use of a mitigation bank for compensatory mitigation
rests solely with the Chicago District Corps of Engineers. The presence of a bank in a particular service area
with available credits does not override the requirement to fully consider opportunities for on-site and in-kind
compensation first.
There is currently one mitigation bank with available credit available for areas in northwest Indiana regulated by the Chicago
District.
In-Lieu Fee Mitigation
A permit applicant may make a payment to an in-lieu fee program that will conduct
wetland, stream or other aquatic resource restoration, creation, enhancement, or preservation activities. In-lieu
fee programs are generally administered by government agencies or non-profit organizations that have established
an agreement with the regulatory agencies to use in-lieu fee payments collected from permit applicants. There is currently no approved In-Lieu Fee Mitigation in the Chicago District.
Mitigation banks and in-lieu fee mitigation are forms of "third-party" compensation because a third party,
the bank or in-lieu fee sponsor assumes responsibility from the permittee for the implementation and success of
the compensatory mitigation
Permittee Responsible Mitigation
Permittee responsible mitigation is defined as an aquatic resource restoration,
establishment, enhancement, and/or preservation activity undertaken by the permittee (or an authorized agent or
contractor) to provide compensatory mitigation for which the permittee retains full responsibility. Permittee responsible
mitigation may include on-site or offsite mitigation. The proposed compensatory mitigation should utilize a watershed
approach and fully consider the ecological needs of the watershed. Where an appropriate watershed or sub-watershed
plan is available, mitigation site selection should be based on recommendations in the plan. The applicant shall
describe in detail how the mitigation site was chosen and will be developed, based on the specific resource need
of the impacted watershed. A good mitigation design selects an appropriate site and takes into consideration all-important
multi-disciplinary factors that affect self-sustaining ecological systems, such as wetlands and associated uplands.
If the whole landscape design is not integrated with site water management, mitigation efforts may not achieve
the performance standards. The District has developed the Permittee
Responsible Compensatory Mitigation Requirements. These requirements
outline the criteria for establishing permittee responsible mitigation
