In 2008, the U.S. Army Corps of Engineers (Corps) and EPA issued a final rule governing compensatory mitigation for activities authorized by Clean Water Act (CWA) section 404 permits and associated losses of aquatic resources (73 FR 19593). The regulation prescribes a review and approval process for the establishment and management of mitigation banks and in-lieu fee programs. The regulation also includes time frames for certain steps in the mitigation bank and in-lieu fee program review and approval process, including an initial opportunity for public and agency review and comment on mitigation banks and in-lieu fee programs, as well as a second review by an interagency review team. This proposal is intended to enhance the efficiency of the mitigation bank and in-lieu fee program approval time frames by generating savings to the public through shorter review times for proposed mitigation banks, in-lieu fee programs, instrument modifications, and credit release requests while also promoting conservation and wetland mitigation projects.

The proposal will also consider whether there are opportunities for efficiency and clarity improvement from relying on other types of credit metrics for stream compensatory mitigation projects rather than linear metrics. The agencies are considering clarifying credit accounting for multipurpose mitigation banks and in-lieu fee programs to increase additional opportunities for investment in conservation and reviewing any clarification needed regarding the standards for audits of in-lieu fee programs.