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In 2008, the Corps and the U.S. Environmental Protection Agency (EPA) issued a final rule governing compensatory mitigation for 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. The review and approval process for mitigation banks and in-lieu fee programs includes an opportunity for public and agency review and comment, as well as a second review by an interagency review team. The interagency review team consists of Federal, Tribal, State, and local agencies that review documentation and provide the Corps advice on the establishment and management of mitigation banks and in-lieu fee programs. The Corps is reviewing the review and approval process and the interagency review team process to identify ways 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 Corps 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.

Statement of Need:

This proposed rule would remove duplication in the review process for mitigation banks and in-lieu fee programs that offset losses of jurisdictional waters and wetlands authorized by Department of the Army permits issued under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899.  It could reduce duplication, increase efficiency, and lower costs by providing one review process for proposed mitigation banks and in-lieu fee programs, instead of two processes.  Depending on the outcome of this rulemaking, Federal, Tribal, state, and local agencies could end up using a more focused approach to provide input into the mitigation bank and in-lieu fee program review process by participating in the public notice and comment process along with the general public.

Summary of the Legal Basis:

The Corps' legal authority for conducting this rulemaking is section 404 of the Clean Water Act (33 U.S.C. 1344) and section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).

Alternatives:

Alternatives that may be considered during the rulemaking process might include, but are not limited to, options such as removing the interagency review team process from the regulation, using other approaches to increase efficiency in the mitigation bank and in-lieu fee program review and approval process, or making no changes to the regulation.

Anticipated Costs and Benefits:

The proposed rule is anticipated to reduce costs for sponsors of mitigation banks and in-lieu fee programs, by reducing the amount of time it takes to review and approve their mitigation banks and in-lieu fee programs, and oversee their operation. The proposed rule is also anticipated to reduce costs to the Corps and other Federal, Tribal, State, and local government agencies by eliminating costs associated with the current interagency review team processes, including staff time for review of documentation for mitigation banks and in-lieu fee programs, site visits, travel, and participation in meetings. A regulatory impact analysis will be prepared to evaluate the anticipated costs and benefits of the proposal.

Risks:

The proposed rule is not anticipated to increase risks to public health, safety, or the environment because the Corps would retain its authority to review and approve mitigation banks and in-lieu fee programs, as well as modification of mitigation banking instruments and in-lieu fee program instruments. It might only alter how Federal, Tribal, State, and local government agencies provide their views on proposed mitigation banks and in-lieu fee programs, and modifications to approved mitigation banks and in-lieu fee programs. Mitigation banks and in-lieu fee programs would continue to be required to provide ecologically successful aquatic resource compensatory mitigation projects to offset permitted impacts to jurisdictional waters and wetlands.