U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act:

A Legacy for Users

Compensatory Mitigation for Losses of Aquatic Resources;

Proposed Rule

June 2006

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Proposed Rule Summary

Intends to establish performance standards and criteria for use of mitigation banks and permittee responsible mitigation.

Improve the quality and success of mitigations.

Apply equivalent standards to each type of compensatory mitigation; banks, permittee-responsible, in-lieu fee.

Stresses a watershed approach to compensatory wetland mitigation.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Does not change mitigation requirement itself

Does not alter the circumstances which compensatory mitigation is required. Must adhere to the sequencing of avoidance, minimization, and mitigation.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Favors Mitigation Banking

• The proposed rule requires project-by-project mitigation to essentially meet the same standards as those already being met by existing approved mitigation banks.

• For mitigation banks, the detailed operational, financial, and ecological standards have already been established in the mitigation banking instrument. Project by project mitigation and in-lieu fee programs would now be subject to equivalent standards.

• Project-by-project mitigation proposals will have to present a very detailed mitigation plan for approval during the section 404 permit application

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

In the NRC report, the committee concluded that a watershed approach would improve the permit decision-making and is the best method of determining where mitigation is needed.

The watershed approach uses a landscape perspective that places primary emphasis on site selection through landscape attributes that will help provide the desired aquatic resource types and ensure they are self-sustaining.

The proposed rule states that an ideal situation would be to have a formal watershed plan which was developed by Federal, State, and local environmental managers in consultation with stakeholders.

Watershed Focus on Mitigation

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

New Requirements for 404 Permit Applications

Applicants will now have to submit a statement in the permit application explaining how impacts to waters of the United States are to be avoided, minimized and compensated. This statement can be conceptual.

A final mitigation plan must be submitted.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Mitigation Plan Components

1. Description of impacted site, avoidance and minimization efforts, Proposed compensation.

2. Site selection. 3. Site protection

instrument. 4. Baseline info on proposed

mitigation site.5. Determination of credits

to be provided by mitigation.

6. Work plan. Geographic limits, hydrology, grading plan, species,

7. Maintenance plan.8. Ecologically based

performance standards.9. Monitoring requirements.10. Long term management

plan.11. Adaptive management

plan –contingency.12. Financial assurances to

ensure performance.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Repeat: Mitigation Banks already meet those standards.

The proposed rule is requiring permittee-responsible mitigation, mitigation banks, and in-lieu fee programs to meet the same performance standards. Mitigation banks already have the highest standards regarding ecological performance, site protection, and management requirements. The same requirements were already completed during the proposed bank review process by the MBRT.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Mitigation Banks Draft suggests a HUC-8

Geographic Service Area. HUC-8 area is too small to

reasonably mitigate for impacts in the DOT single-user banks. The pre-amble of the regs appears to offer some flexibility for single user banks.

There are too many HUC-8 areas to establish a separate bank and do all the required paper work for establishment, accounting, and monitoring.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Death of In-lieu Fee Programs?? No new in-lieu fee programs

after 90 days from the date of the final rule. Existing in-lieu fee programs can continue to operate for up to five years then convert to a bank.

Rationale is that in-lieu fee programs collect fees to perform mitigation in the future rather than in advance.

Substantial time lag from impact to mitigation.

In-lieu fees credits released immediately. Not the case for banks.

.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Elimination of In-lieu Fees

Financial guarantees usually not required for in-lieu fees.

Banks must also meet and prove ecological performance requirements prior to release of credits.

The greater uncertainty of in-lieu fee mitigations being successful and the more stringent requirement for banks has led to the proposed elimination.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Other Highlights Limited time periods for review of

prospective mitigation banks. Deadlines for a decision on prospective banks.

Identification of the party responsible for long term management of the mitigation site in the Corps permit conditions. DOTs often try to transfer mitigation sites to State resource agency. Could be unknown at time of permit issuance.

Mitigation credit for upland buffers.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Highlights Continues

No credit for temporal gain. Higher mitigation ratios often required to compensate for temporal loss of function. No such comparable credit is given for the temporal gain when using banks.

No credit for water quality/storm water management features.

SAFETEA-LU

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

The End