2020-08-10-minutes-public-works-study-session

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agencies with jurisdiction will require in the permit for the aquatic impact, the appropriate number of advance credits necessary for mitigation. If necessary, the agencies will also define specific areas of the advance mitigation site designed to address compensation for specific impacts to critical on-site functions or habitat type that might be required (e.g. a created stream channel may be required to mitigate for filling a stream). In some cases the agencies may require critical functions to be mitigated on-site at the impact location while other functions may be appropriately mitigated at the advance site ("decoupling"). Critical functions are those site specific functions the agencies have determined must be maintained on-site. The agency -approved use as compensatory mitigation of all advance credits must be documented in a ledger managed by the advance mitigation permittee, and submitted to the appropriate regulatory agencies for each ledger transaction. The transaction must document the use of credits and in some cases specific areas on a map that will be deducted or shown as used if necessary to offset critical habitat or function impacts (i.e. a stream creation area to offset stream loss). Any generated credits will not be officially accepted or released by the agencies for compensatory use until the time an applicant proposes the use of credits as mitigation for a specific impacting project, and the regulatory agencies approve use of those credits as mitigation. However if a site has achieved performance standards as outlined in the advance mitigation plan but the advance site has not been approved by the regulatory agencies for use, , the opportunity for the permittee to use the advance mitigation site will not expire. The functional lift achieved by the site will be considered by the agencies when proposed for use by the permittee. Pertinent Regulations Federal The Corps and the Environmental Protection Agency (EPA) published a rule on Compensatory Mitigation for Losses of Aquatic Resources (Mitigation Rule) (33 CFR Parts 325 and 332, 40 CFR Part 230), dated April 10, 20082. The Mitigation Rule defines requirements of compensatory mitigation for unavoidable impacts to the nation's aquatic resources resulting from authorized activities. The Mitigation Rule is intended to enable the agencies to promote greater consistency, predictability and ecological success of mitigation projects under the Clean Water Act and Rivers and Harbors Act. The Mitigation Rule defines three forms of compensatory mitigation: mitigation banks; in -lieu fee programs; and permittee -responsible mitigation. The Federal hierarchy of preferred forms of mitigation is 1. Mitigation banks 2. In -lieu fee programs 3. Permittee -responsible mitigation that is undertaken using a watershed approach, if appropriate and practicable 4. On-site and in-kind 5. Off-site and/or out -of -kind. When proposing advance mitigation in a service area where a mitigation bank or in -lieu fee program has been approved, the applicant must demonstrate why the advance site is ecologically preferable to 2 The Mitigation Rule can be found online at: http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmiti ag tion_index; efm. 3