Mitigation Rule Memo - 16 Sep 2024.pdf.pdf [PDF - 339.5 KB]
WASHINGTON – Michael L. Connor, Assistant Secretary of the Army for Civil Works, signed a memorandum Sept. 16 providing the U.S. Army Corps of Engineers clarification on certain aspects of the 2008 Mitigation Rule to improve compliance with the mitigation bank and in-lieu fee (ILF) program review timeline.
The memorandum addresses the review timeline stipulated by the 2008 Mitigation Rule in reviewing proposed mitigation banks and ILF programs and should support rapid investment in, and timely production of, conserved and restored aquatic resources. The availability of mitigation banks and ILF programs provides benefits not only to permittees, but also projects implemented through the Army’s Civil Works Program.
Mitigation banks and ILF programs are both tools used to help achieve conservation goals. They are used to compensate for the ecological loss of a development project by restoring, creating, enhancing or preserving wetlands, streams, or threatened or endangered species habitats.
“The 2008 Mitigation Rule stipulates a review timeline of no longer than 225 days for the Corps’ steps in the review process,” Connor wrote. “Recent analysis of Corps data has shown that this timeline is not, on average, being met.”
Several positive trends have been documented since the issuance of the 2008 Mitigation Rule. In the 10 years following issuance of the rule, the number of mitigation banks doubled and, as of 2018, all or part of 46 states were covered by the geographic service areas of approved mitigation banks and/or ILF programs.
Additionally, the percentage of permits using mitigation bank credits or ILF program credits doubled between 2010 and 2017. The use of mitigation banks and ILF programs has improved USACE’s permit processing times, which are approximately 50% faster when compared to using permittee-responsible mitigation.
“Taking the actions delineated in this memorandum is consistent with the [Biden-Harris] administration’s priorities of improving the permitting process and expanding the tools available to preserve, restore, enhance and establish critical aquatic resources,” Connor added.
The memorandum primarily applies to the USACE Regulatory Program, and in particular USACE’s role in reviewing, approving and evaluating mitigation banks and ILF programs and projects under 33 CFR Part 332, but could also benefit other parts of the Army Civil Works Program.
The Office of the Assistant Secretary of the Army for Civil Works establishes policy direction and provides supervision of the Department of the Army functions relating to all aspects of the Civil Works Program of the United States Army Corps of Engineers. For more information, please contact Matt Rabe at james.m.rabe.civ@army.mil or (503) 265-9150.
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