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Mitigation

Regulatory image of wetlandsMitigation is an important part of the U.S. Army Corps of Engineers’ (Corps) permitting process. It includes avoiding, minimizing and compensating for impacts to aquatic resources.

If your project cannot avoid or sufficiently minimize affects to wetlands or other waters of the United States, you must compensate for the impacts. Compensatory mitigation provides methods to offset these unavoidable losses due to project impacts. These methods include the restoration, establishment, enhancement and/or preservation of aquatic resources.

Federal Mitigation Rule

Mitigation requirements are outlined in Compensatory Mitigation for Losses of Aquatic Resources Final Rule (33 CFR Part 332), commonly referred to as the “Federal mitigation rule.” The mitigation rule promotes consistency and predictability and improves ecological success of mitigation efforts through better site selection, use of a watershed approach for planning and project design, and use of ecological success criteria to evaluate and measure performance of mitigation projects.

Compensatory Mitigation for Losses of Aquatic Resources, Final Rule (Federal Register, 04/10/08
Corps Headquarters Final Compensatory Mitigation Rule information
Watershed Approach
Watch an introductory video on Mitigation
 

Providing compensatory mitigation

There are three ways to provide compensatory mitigation:
Mitigation Banks, In-Lieu Fee Programs and Permittee-Responsible Mitigation. Mitigation banks and in-lieu fee programs are generally the preferred options for mitigation because they consolidate resources and involve more financial planning and scientific expertise. These factors help reduce the risk of failure of mitigation projects. The following are acceptable mitigation options;

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 Mitigation bank. Click for more.

A mitigation bank is one or more sites where aquatic resources such as wetlands or streams are restored, established, enhanced and/or preserved for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources. A bank sells mitigation “credits” to permittees. The obligation to provide mitigation is then transferred to the bank sponsor. The bank sponsor is then responsible for implementing the mitigation, monitoring its performance and long-term site management.

 In-lieu fee program. Click for more

An in-lieu fee (ILF) program involves the restoration, establishment, enhancement and/or preservation of aquatic resources through funds typically paid to state governments, local governments, or non-profit natural resources management organizations. As with banks, credits are sold to permittees by the ILF program sponsor. The in-lieu fee sponsor is then responsible for implementing the mitigation, monitoring its performance and managing the site long-term.

 How to find if credits are available for your proposed project. Click for more
  • The Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) can be found at https://ribits.ops.usace.army.mil/. This publicly available website can be used to determine if your project location is in the service area of a mitigation bank or ILF site and whether or not there are credits available.

    Once in RIBITS, use the following steps to determine if credits are available for your proposed project:
  1. Under MENU, Tools, select Find Credits
  2. Enter the project latitude and longitude in decimal degrees (4X.XXXXXX, -12X.XXXXXX)
  3. Click on Search

If your proposed project is within a mitigation bank or ILF site with available credits it will populate a list.  You will be able to see how many credits are currently available and the contact information of the sponsor.  You may also click on the bank or ILF site name for more information.

 Full list of NWP mitigation banks and ILF sites. Click for more

To view the full list of mitigation banks and ILF sites within the Portland District area of responsibility, you can use the Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS), found here.  Once in RIBITS, use the following steps to view banks and ILF sites:

  1. Under FILTER, select USACE District
  2. From the drop down select Portland
  3. Under MENU, Mitigation, select Banks & Sites

What to include in mitigation plan:
If you’re using a bank or ILF program, you must submit a mitigation plan. This mitigation plan should include a description of the baseline conditions at the impact site, the number and type of resource credits to be secured and how these were determined. You must also provide the name of the specific mitigation bank or ILF program site proposed to be used.

 Permittee-responsible mitigation. Click for more.

Individual mitigation projects constructed by permittees can also compensate for environmental impacts authorized by the Corps. This option makes the permittee responsible for implementing the mitigation, monitoring its performance and long-term site management. Mitigation projects may occur on the same site as the permitted project or at an offsite location usually within the same watershed. In some cases, permittee-responsible mitigation (PRM) is the only option. This is typical when proposed impacts are not located within the service area of an approved mitigation bank or ILF program, or if these mitigation options would not provide appropriate mitigation for the proposed impacts.

What to include in a mitigation plan

If PRM compensatory mitigation is required, you must submit a mitigation plan. There are 13 required components in every mitigation plan.

The mitigation rule (33 CFR 332.4(c)) describes these 13 components in detail:
1) Preparation and approval (This component is guidance specific and is not included as an actual component of a compensatory wetland mitigation plan.)
2) Objectives
3) Site selection
4) Site protection instrument
5) Baseline information
6) Determination of credits
7) Mitigation work plan
8) Maintenance plan
9) Performance standards
10) Monitoring requirements
11) Long-term management plan
12) Adaptive management plan
13) Financial assurances
14) Other relevant information

Although not required, assistance from a qualified environmental consultant may be beneficial in developing a comprehensive and acceptable mitigation plan. All mitigation plans require Corps approval.

Additional mitigation information and tools

NWP Compensatory Mitigation Special Public Notices

Notice of Change to Aquatic Resources Mitigation in Oregon

Portland District
Published March 25, 2019
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Joint Public Notice
Notice of Change to Aquatic Resources Mitigation in Oregon

The Oregon Department of State Lands (DSL), United States (U.S.) Army Corps of Engineers, Portland District (Corps), and U.S. Environmental Protection Agency (EPA) jointly announce changes to mitigation that may be required as part of the state and federal permit programs. The Corps requires an applicant to obtain a permit for the placement of dredge or fill materials into waters of the U.S. under Section 404 of the Clean Water Act and co-administers Section 404 with the EPA. Under the Oregon Removal-Fill Law, DSL requires an applicant to obtain a permit for most projects that either place fill materials into or remove fill from waters of the state. Both the federal and state programs may require mitigation as part of an approved permit.

Oregon Department of State Lands
Beginning April 1, 2019, DSL will implement a rule affecting how mitigation will be determined under the Oregon Removal-Fill Law. DSL’s new rules will bring Oregon’s mitigation program into alignment with the 2008 Federal Compensatory Mitigation Final Rule. The DSL rule will provide more consistent, successful, and sustainable benefits for all aquatic resources across the state. Existing exemptions are not affected. The rule will require that proposed project impacts to wetlands and streams use appropriate assessment tools to ensure proper replacement of functions and values. For wetlands, DSL will require applicants to use the Oregon Rapid Wetland Assessment Protocol (ORWAP 3.1) for impacts to tidal waters, wetland types that are aquatic resources of special concern, and wetland impacts greater than 0.20 acres. For streams DSL will require applicants to use the Stream Function Assessment Method (SFAM) beginning July 1, 2019, for impacts to non-tidally influenced wadeable, intermittent or perennial streams, and aquatic resources of special concern that are associated with these intermittent or perennial streams. As with current DSL rules, under the new rule function and value assessment requirements may be waived for voluntary wetland and stream restoration projects on a case-by-case basis at DSL’s discretion. Assessments are not required for General Authorizations.

DSL will require that best professional judgment be used if ORWAP or SFAM do not apply, and best professional judgment may be used when wetland impacts are less than or equal to 0.2 acres. DSL continues to require that the Vernal Pool Function Assessment Method be used to assess the functions and values of vernal pools in the Agate Desert in Jackson County.

Applicants can use information from the assessments to demonstrate that impacts are being mitigated through avoidance, minimization, and compensatory mitigation. If compensatory mitigation is required for unavoidable impacts, applicants can demonstrate that the proposed mitigation site is eligible to replace the primary functions and values provided at the impact site and will provide a sufficient amount of mitigation to compensate for the impacts. To assist in this demonstration, beginning April 1, 2019, a new protocol for determining wetland and stream mitigation eligibility in Oregon will be available. Applicants will use the protocol for calculating their required amount of mitigation.

To accommodate transition to the new assessment requirements, DSL will continue to accept the following as part of an application that is determined complete by October 1, 2019: 1.) a department approved Hydrogeomorphic Method for wetlands function assessment, and 2.) best professional judgment to assess stream functions and values. Applications that are not complete by October 1, 2019 will need to be resubmitted using the new function assessment and mitigation requirements.

In the future, through additional state rulemaking, the DSL anticipates using SFAM outputs to determine how much stream compensatory mitigation is required. To reach this goal, the Corps, EPA, and DSL will be conducting additional work on SFAM. This phased-in approach to stream mitigation policy will provide incremental improvements in program outcomes, while providing time to adjust to new tools and protocols.

U.S. Army Corps of Engineers
Corps requirements for what constitutes a complete Department of the Army permit application have not changed. To ensure consistency between the federal and state programs, and to prevent the duplication of efforts on behalf of applicants, the Corps encourages applicants to use ORWAP and SFAM assessments where appropriate when submitting an application for a Department of the Army permit. Functions- and values-related information required under the DSL rule will be accepted by the Corps for reviewing proposed projects, including proposed mitigation. In addition the Corps encourages permit applicants to use the new protocols for determining wetland and stream mitigation eligibility and for calculating their required amount of compensatory mitigation. Whereas the Corps will accept DSL-required assessments for wetland impacts greater than 0.20 acres and for stream impacts, on a case-by-case basis the Corps may request the use of assessment tools for impacts up to 0.2 acres.

General Information
Development of the wetland and stream assessment tools and compensatory mitigation protocols has been a joint effort of DSL, Corps and EPA. An applicant’s use of the tools and protocols will help to support decision making in a consistent, predictable, robust, repeatable and defensible way. Changing from acreage-based to functions- and values-based mitigation will make mitigation more function- and watershed-based and provide better ecological outcomes.

Planning mitigation for anticipated impacts will be easier with the use of the Oregon Explorer Aquatic Mitigation Portal. The Portal includes wetland and stream map viewers for completing the office portion of an ORWAP or SFAM assessment, respectively. The Portal also includes a Mitigation Planning Map Viewer, which may be used for strategically planning mitigation projects on a watershed basis. The Portal is located at oregonexplorer.info/topics/aquatic-mitigation?ptopic=38.

For additional information related to the functions- and values-based stream and wetlands mitigation, please see the DSL website at: www.oregon.gov/dsl/WW/pages/aquatic-resources-mitigation-framework.aspx. You also may view the Corps Regulatory website for mitigation at: www.nwp.usace.army.mil/Missions/Regulatory/Mitigation.aspx. These sites provide access to helpful fact sheets, frequently asked questions, the eligibility and accounting protocol, the stream and wetlands assessment tools, and a listing of opportunities for technical training on the assessment tools.

We encourage you to stay informed by visiting the Aquatic Resources Mitigation Framework website: www.oregon.gov/dsl/WW/Pages/Aquatic-Resources-Mitigation-Framework.aspx and the DSL rulemaking website: www.oregon.gov/dsl/Laws/Pages/Rulemaking.aspx. You may ask questions and continue to provide comments regarding SFAM via DSL’s dedicated e-mail box AquaticResourceMitigationProject@dsl.state.or.us.

For additional information, contact the following Agency leads:

Melody Rudenko
Department of State Lands
503-508-4035
melody.rudenko@state.or.us

Tom Taylor
U.S. Army Corps of Engineers
503-808-4386
thomas.j.taylor@usace.army.mil


Interested in starting your own mitigation bank or ILF program?

If you are interested in developing a mitigation bank or ILF program in Oregon, contact the Corps, Portland District Mitigation Bank General Inbox; click here

Related Corps and federal and state agency websites