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Compensatory Mitigation Rule: Corps/EPA Notice of Proposed Rulemaking

Compensatory Mitigation Rule: Corps/EPA Notice of Proposed Rulemaking. Regulatory Branch U.S. Army Corps of Engineers Office of Wetlands, Oceans and Watersheds U.S. Environmental Protection Agency October 2006. Overview. Status of compensation Rule drivers and timeline Rule outline

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Compensatory Mitigation Rule: Corps/EPA Notice of Proposed Rulemaking

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  1. Compensatory Mitigation Rule:Corps/EPA Notice of Proposed Rulemaking Regulatory Branch U.S. Army Corps of Engineers Office of Wetlands, Oceans and Watersheds U.S. Environmental Protection Agency October 2006

  2. Overview • Status of compensation • Rule drivers and timeline • Rule outline • Key changes in practice • Next steps

  3. Type of Compensation • Permittee-responsible mitigation (PRM) • Third-party mitigation • Mitigation Banks • In-lieu fee (ILF) (USACOE, 2006)

  4. Rule Drivers and Timeline • 2001 NRC report on compensation • 2002 Initiation of Mitigation Action Plan • Defense Authorization Act for 2004 • Timeline: • 1/05 – 12/05– Corps/EPA coordination • 12/5/05-3/10/06 – OMB review • 3/28/06 – Federal Register publication • 6/30/06 – Comment period closed

  5. Supporting Materials • Primary sources used in drafting: • 2002 Mitigation RGL • 2000 ILF Guidance • 1995 Banking Guidance • 1990 Army/EPA Mitigation MOA • 2001 NRC Report, others • 2003/2004 MAP work-productions and stakeholder input

  6. Purpose and general considerations Definitions General requirements Planning and documentation Ecological performance standards Monitoring Management Mitigation banks In-lieu fee mitigation Rule Outline

  7. Changes: 3rd Party Compensation • Grandfathers existing banks • Instrument modification will trigger compliance with new requirements • In-lieu Fee mitigation • Suspension of new authorizations • Existing ILFs: 5-yr transition period • Preamble solicits comment on: • Impacts of and alternatives to ILF phase-out

  8. Changes: Public Notice • Individual permits - • “…the public notice for the proposed activity must explain how impacts associated with the proposed activity are to be avoided, minimized, and compensated for.” §332.4/230.94 • Mitigation banks – • All proposed banks to receive public notice and comment

  9. Project objectives Site selection factors Site protection instrument Baseline information (at impact site and compensation site) Credit determination methodology Work plan Maintenance plan Performance standards Monitoring requirements Long-term management plan Adaptive management plan Financial assurances Changes: Contents of Mitigation Plans

  10. Additionally for Banks… • Prospectus and draft and final instruments must include: • Service area • Credit release schedule • Accounting procedures • Transfer of liability for site success • Default and closure provisions • Rule includes timelines for bank review and dispute resolution

  11. Next Steps • Process/post public comments • ~12,100 total comment letters • ~900 unique comment letters • Analyze public comments • Draft comment response • Implementation • MBRT/IRT Academy

  12. Questions • Compensatory Mitigation Website: • http://www.epa.gov/wetlandsmitigation/ • Federal Docket • http://www.regulations.gov • Contacts: • Corps HQ: David Olson David.B.Olson@HQ02.USACE.ARMY.MIL • EPA HQ: Palmer Hough Hough.palmer@epa.gov

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