sponsor, and must be based on the size and complexity of the
compensatory mitigation project, the degree of completion of the
project at the time of project approval, the likelihood of success, the
past performance of the project sponsor, and any other factors the
district engineer deems appropriate. Financial assurances may be in the
form of performance bonds, escrow accounts, casualty insurance, letters
of credit, legislative appropriations for government sponsored
projects, or other appropriate instruments, subject to the approval of
the district engineer. The rationale for determining the amount of the
required financial assurances must be documented in the administrative
record for either the DA permit or the instrument. In determining the
assurance amount, the district engineer shall consider the cost of
providing replacement mitigation, including costs for land acquisition,
planning and engineering, legal fees, mobilization, construction, and
monitoring.
    (3) If financial assurances are required, the DA permit must
include a special condition requiring the financial assurances to be in
place prior to commencing the permitted activity.
    (4) Financial assurances shall be phased out once the compensatory
mitigation project has been determined by the district engineer to be
successful in accordance with its performance standards. The DA permit
or instrument must clearly specify the conditions under which the
financial assurances are to be released to the permittee, sponsor, and/
or other financial assurance provider, including, as appropriate,
linkage to achievement of performance standards, adaptive management,
or compliance with special conditions.
    (5) A financial assurance must be in a form that ensures that the
district engineer will receive notification at least 120 days in
advance of any termination or revocation. For third-party assurance
providers, this may take the form of a contractual requirement for the
assurance provider to notify the district engineer at least 120 days
before the assurance is revoked or terminated.
    (6) Financial assurances shall be payable at the direction of the
district engineer to his designee or to a standby trust agreement. When
a standby trust is used (e.g., with performance bonds or letters of
credit) all amounts paid by the financial assurance provider shall be
deposited directly into the standby trust fund for distribution by the
trustee in accordance with the district engineer's instructions.
    (o) Compliance with applicable law. The compensatory mitigation
project must comply with all applicable federal, state, and local laws.
The DA permit, mitigation banking instrument, or in-lieu fee program
instrument must not require participation by the Corps or any other
federal agency in project management, including receipt or management
of financial assurances or long-term financing mechanisms, except as
determined by the Corps or other agency to be consistent with its
statutory authority, mission, and priorities.

Sec.  230.94  Planning and documentation.

    (a) Pre-application consultations. Potential applicants for
standard

permits are encouraged to participate in pre-application meetings with
the Corps and appropriate agencies to discuss potential mitigation
requirements and information needs.
    (b) Public review and comment. (1) For an activity that requires a
standard DA permit pursuant to section 404 of the Clean Water Act, the
public notice for the proposed activity must contain a statement
explaining how impacts associated with the proposed activity are to be
avoided, minimized, and compensated for. This explanation shall
address, to the extent that such information is provided in the
mitigation statement required by 33 CFR 325.1(d)(7), the proposed
avoidance and minimization and the amount, type, and location of any
proposed compensatory mitigation, including any out-of-kind
compensation, or indicate an intention to use an approved mitigation
bank or in-lieu fee program. The level of detail provided in the public
notice must be commensurate with the scope and scale of the impacts.
The notice shall not include information that the district engineer and
the permittee believe should be kept confidential for business
purposes, such as the exact location of a proposed mitigation site that
has not yet been secured. The permittee must clearly identify any
information being claimed as confidential in the mitigation statement
when submitted. In such cases, the notice must still provide enough
information to enable the public to provide meaningful comment on the
proposed mitigation.
    (2) For individual permits, district engineers must consider any
timely comments and recommendations from other federal agencies;
tribal, state, or local governments; and the public.
    (3) For activities authorized by letters of permission or general
permits, the review and approval process for compensatory mitigation
proposals and plans must be conducted in accordance with the terms and
conditions of those permits and applicable regulations including the
applicable provisions of this part.
    (c) Mitigation plan. (1) Preparation and Approval. (i) For
individual permits, the permittee must prepare a draft mitigation plan
and submit it to the district engineer for review. After addressing any
comments provided by the district engineer, the permittee must prepare
a final mitigation plan, which must be approved by the district
engineer prior to issuing the individual permit. The approved final
mitigation plan must be incorporated into the individual permit by
reference. The final mitigation plan must include the items described
in paragraphs (c)(2) through (c)(14) of this section, but the level of
detail of the mitigation plan should be commensurate with the scale and
scope of the impacts. As an alternative, the district engineer may
determine that it would be more appropriate to address any of the items
described in paragraphs (c)(2) through (c)(14) of this section as
permit conditions, instead of components of a compensatory mitigation
plan. For permittees who intend to fulfill their compensatory
mitigation obligations by securing credits from approved mitigation
banks or in-lieu fee programs, their mitigation plans need include only
the items described in paragraphs (c)(5) and (c)(6) of this section,
and the name of the specific mitigation bank or in-lieu fee program to
be used.
    (ii) For general permits, if compensatory mitigation is required,
the district engineer may approve a conceptual or detailed compensatory
mitigation plan to meet required time frames for general permit
verifications, but a final mitigation plan incorporating the elements
in paragraphs (c)(2) through (c)(14) of this section, at a level of
detail commensurate with the scale and scope of the impacts, must be
approved by the district engineer before the permittee commences work
in waters of the United States. As an alternative, the district
engineer may determine that it would be more appropriate to address any
of the items described in paragraphs (c)(2) through (c)(14) of this
section as permit conditions, instead of components of a compensatory
mitigation plan. For permittees who intend to fulfill their
compensatory mitigation obligations by securing credits from approved
mitigation banks or in-lieu fee programs, their mitigation plans need
include only the items described in paragraphs (c)(5) and (c)(6) of
this section, and either the name of the specific mitigation bank or
in-lieu fee program to be used or a statement indicating that a
mitigation bank or in-lieu fee program will be used (contingent upon
approval by the district engineer).
    (iii) Mitigation banks and in-lieu fee programs must prepare a
mitigation plan including the items in paragraphs (c)(2) through
(c)(14) of this section for each separate compensatory mitigation
project site. For mitigation banks and in-lieu fee programs, the
preparation and approval process for mitigation plans is described in
Sec.  230.98.
    (2) Objectives. A description of the resource type(s) and amount(s)
that will be provided, the method of compensation (i.e., restoration,
establishment, enhancement, and/or preservation), and the manner in
which the resource functions of the compensatory mitigation project
will address the needs of the watershed, ecoregion, physiographic
province, or other geographic area of interest.
    (3) Site selection. A description of the factors considered during
the site selection process. This should include consideration of
watershed needs, on-site alternatives where applicable, and the
practicability of accomplishing ecologically self-sustaining aquatic
resource restoration, establishment, enhancement, and/or preservation
at the compensatory mitigation project site. (See Sec.  230.93(d).)
    (4) Site protection instrument. A description of the legal
arrangements and instrument, including site ownership, that will be
used to ensure the long-term protection of the compensatory mitigation
project site (see Sec.  230.97(a)).
    (5) Baseline information. A description of the ecological
characteristics of the proposed compensatory mitigation project site
and, in the case of an application for a DA permit, the impact site.
This may include descriptions of historic and existing plant
communities, historic and existing hydrology, soil conditions, a map
showing the locations of the impact and mitigation site(s) or the
geographic coordinates for those site(s), and other site
characteristics appropriate to the type of resource proposed as
compensation. The baseline information should also include a
delineation of waters of the United States on the proposed compensatory
mitigation project site. A prospective permittee planning to secure
credits from an approved mitigation bank or in-lieu fee program only
needs to provide baseline information about the impact site, not the
mitigation bank or in-lieu fee project site.
    (6) Determination of credits. A description of the number of
credits to be provided, including a brief explanation of the rationale
for this determination. (See Sec.  230.93(f).)
    (i) For permittee-responsible mitigation, this should include an
explanation of how the compensatory mitigation project will provide the
required compensation for unavoidable impacts to aquatic resources
resulting from the permitted activity.
    (ii) For permittees intending to secure credits from an approved
mitigation bank or in-lieu fee program, it should include the number
and resource type of credits to be secured and how these were
determined.
    (7) Mitigation work plan. Detailed written specifications and work
descriptions for the compensatory

mitigation project, including, but not limited to, the geographic
boundaries of the project; construction methods, timing, and sequence;
source(s) of water, including connections to existing waters and
uplands; methods for establishing the desired plant community; plans to
control invasive plant species; the proposed grading plan, including
elevations and slopes of the substrate; soil management; and erosion
control measures. For stream compensatory mitigation projects, the
mitigation work plan may also include other relevant information, such
as planform geometry, channel form (e.g., typical channel cross-
sections), watershed size, design discharge, and riparian area
plantings.
    (8) Maintenance plan. A description and schedule of maintenance
requirements to ensure the continued viability of the resource once
initial construction is completed.
    (9) Performance standards. Ecologically-based standards that will
be used to determine whether the compensatory mitigation project is
achieving its objectives. (See Sec.  230.95.)
    (10) Monitoring requirements. A description of parameters to be
monitored in order to determine if the compensatory mitigation project
is on track to meet performance standards and if adaptive management is
needed. A schedule for monitoring and reporting on monitoring results
to the district engineer must be included. (See Sec.  230.96.)
    (11) Long-term management plan. A description of how the
compensatory mitigation project will be managed after performance
standards have been achieved to ensure the long-term sustainability of
the resource, including long-term financing mechanisms and the party
responsible for long-term management. (See Sec.  230.97(d).)
    (12) Adaptive management plan. A management strategy to address
unforeseen changes in site conditions or other components of the
compensatory mitigation project, including the party or parties
responsible for implementing adaptive management measures. The adaptive
management plan will guide decisions for revising compensatory
mitigation plans and implementing measures to address both foreseeable
and unforeseen circumstances that adversely affect compensatory
mitigation success. (See Sec.  230.97(c).)
    (13) Financial assurances. A description of financial assurances
that will be provided and how they are sufficient to ensure a high
level of confidence that the compensatory mitigation project will be
successfully completed, in accordance with its performance standards
(see Sec.  230.93(n)).
    (14) Other information. The district engineer may require
additional information as necessary to determine the appropriateness,
feasibility, and practicability of the compensatory mitigation project.

Sec.  230.95  Ecological performance standards.

    (a) The approved mitigation plan must contain performance standards
that will be used to assess whether the project is achieving its
objectives. Performance standards should relate to the objectives of
the compensatory mitigation project, so that the project can be
objectively evaluated to determine if it is developing into the desired
resource type, providing the expected functions, and attaining any
other applicable metrics (e.g., acres).
    (b) Performance standards must be based on attributes that are
objective and verifiable. Ecological performance standards must be
based on the best available science that can be measured or assessed in
a practicable manner. Performance standards may be based on variables
or measures of functional capacity described in functional assessment
methodologies, measurements of hydrology or other aquatic resource
characteristics, and/or comparisons to reference aquatic resources of
similar type and landscape position. The use of reference aquatic
resources to establish performance standards will help ensure that
those performance standards are reasonably achievable, by reflecting
the range of variability exhibited by the regional class of aquatic
resources as a result of natural processes and anthropogenic
disturbances. Performance standards based on measurements of hydrology
should take into consideration the hydrologic variability exhibited by
reference aquatic resources, especially wetlands. Where practicable,
performance standards should take into account the expected stages of
the aquatic resource development process, in order to allow early
identification of potential problems and appropriate adaptive
management.

Sec.  230.96  Monitoring.

    (a) General. (1) Monitoring the compensatory mitigation project
site is necessary to determine if the project is meeting its
performance standards, and to determine if measures are necessary to
ensure that the compensatory mitigation project is accomplishing its
objectives. The submission of monitoring reports to assess the
development and condition of the compensatory mitigation project is
required, but the content and level of detail for those monitoring
reports must be commensurate with the scale and scope of the
compensatory mitigation project, as well as the compensatory mitigation
project type. The mitigation plan must address the monitoring
requirements for the compensatory mitigation project, including the
parameters to be monitored, the length of the monitoring period, the
party responsible for conducting the monitoring, the frequency for
submitting monitoring reports to the district engineer, and the party
responsible for submitting those monitoring reports to the district
engineer.
    (2) The district engineer may conduct site inspections on a regular
basis (e.g., annually) during the monitoring period to evaluate
mitigation site performance.
    (b) Monitoring period. The mitigation plan must provide for a
monitoring period that is sufficient to demonstrate that the
compensatory mitigation project has met performance standards, but not
less than five years. A longer monitoring period must be required for
aquatic resources with slow development rates (e.g., forested wetlands,
bogs). Following project implementation, the district engineer may
reduce or waive the remaining monitoring requirements upon a
determination that the compensatory mitigation project has achieved its
performance standards. Conversely the district engineer may extend the
original monitoring period upon a determination that performance
standards have not been met or the compensatory mitigation project is
not on track to meet them. The district engineer may also revise
monitoring requirements when remediation and/or adaptive management is
required.
    (c) Monitoring reports. (1) The district engineer must determine
the information to be included in monitoring reports. This information
must be sufficient for the district engineer to determine how the
compensatory mitigation project is progressing towards meeting its
performance standards, and may include plans (such as as-built plans),
maps, and photographs to illustrate site conditions. Monitoring reports
may also include the results of functional, condition, or other
assessments used to provide quantitative or qualitative measures of the
functions provided by the compensatory mitigation project site.
    (2) The permittee or sponsor is responsible for submitting
monitoring reports in accordance with the special conditions of the DA
permit or the terms

of the instrument. Failure to submit monitoring reports in a timely
manner may result in compliance action by the district engineer.
    (3) Monitoring reports must be provided by the district engineer to
interested federal, tribal, state, and local resource agencies, and the
public, upon request.

Sec.  230.97  Management.

    (a) Site protection. (1) The aquatic habitats, riparian areas,
buffers, and uplands that comprise the overall compensatory mitigation
project must be provided long-term protection through real estate
instruments or other available mechanisms, as appropriate. Long-term
protection may be provided through real estate instruments such as
conservation easements held by entities such as federal, tribal, state,
or local resource agencies, non-profit conservation organizations, or
private land managers; the transfer of title to such entities; or by
restrictive covenants. For government property, long-term protection
may be provided through federal facility management plans or integrated
natural resources management plans. When approving a method for long-
term protection of non-government property other than transfer of
title, the district engineer shall consider relevant legal constraints
on the use of conservation easements and/or restrictive covenants in
determining whether such mechanisms provide sufficient site protection.
To provide sufficient site protection, a conservation easement or
restrictive covenant should, where practicable, establish in an
appropriate third party (e.g., governmental or non-profit resource
management agency) the right to enforce site protections and provide
the third party the resources necessary to monitor and enforce these
site protections.
    (2) The real estate instrument, management plan, or other mechanism
providing long-term protection of the compensatory mitigation site
must, to the extent appropriate and practicable, prohibit incompatible
uses (e.g., clear cutting or mineral extraction) that might otherwise
jeopardize the objectives of the compensatory mitigation project. Where
appropriate, multiple instruments recognizing compatible uses (e.g.,
fishing or grazing rights) may be used.
    (3) The real estate instrument, management plan, or other long-term
protection mechanism must contain a provision requiring 60-day advance
notification to the district engineer before any action is taken to
void or modify the instrument, management plan, or long-term protection
mechanism, including transfer of title to, or establishment of any
other legal claims over, the compensatory mitigation site.
    (4) For compensatory mitigation projects on public lands, where
Federal facility management plans or integrated natural resources
management plans are used to provide long-term protection, and changes
in statute, regulation, or agency needs or mission results in an
incompatible use on public lands originally set aside for compensatory
mitigation, the public agency authorizing the incompatible use is
responsible for providing alternative compensatory mitigation that is
acceptable to the district engineer for any loss in functions resulting
from the incompatible use.
    (5) A real estate instrument, management plan, or other long-term
protection mechanism used for site protection of permittee-responsible
mitigation must be approved by the district engineer in advance of, or
concurrent with, the activity causing the authorized impacts.
    (b) Sustainability. Compensatory mitigation projects shall be
designed, to the maximum extent practicable, to be self-sustaining once
performance standards have been achieved. This includes minimization of
active engineering features (e.g., pumps) and appropriate siting to
ensure that natural hydrology and landscape context will support long-
term sustainability. Where active long-term management and maintenance
are necessary to ensure long-term sustainability (e.g., prescribed
burning, invasive species control, maintenance of water control
structures, easement enforcement), the responsible party must provide
for such management and maintenance. This includes the provision of
long-term financing mechanisms where necessary. Where needed, the
acquisition and protection of water rights must be secured and
documented in the permit conditions or instrument.
    (c) Adaptive management. (1) If the compensatory mitigation project
cannot be constructed in accordance with the approved mitigation plans,
the permittee or sponsor must notify the district engineer. A
significant modification of the compensatory mitigation project
requires approval from the district engineer.
    (2) If monitoring or other information indicates that the
compensatory mitigation project is not progressing towards meeting its
performance standards as anticipated, the responsible party must notify
the district engineer as soon as possible. The district engineer will
evaluate and pursue measures to address deficiencies in the
compensatory mitigation project. The district engineer will consider
whether the compensatory mitigation project is providing ecological
benefits comparable to the original objectives of the compensatory
mitigation project.
    (3) The district engineer, in consultation with the responsible
party (and other federal, tribal, state, and local agencies, as
appropriate), will determine the appropriate measures. The measures may
include site modifications, design changes, revisions to maintenance
requirements, and revised monitoring requirements. The measures must be
designed to ensure that the modified compensatory mitigation project
provides aquatic resource functions comparable to those described in
the mitigation plan objectives.
    (4) Performance standards may be revised in accordance with
adaptive management to account for measures taken to address
deficiencies in the compensatory mitigation project. Performance
standards may also be revised to reflect changes in management
strategies and objectives if the new standards provide for ecological
benefits that are comparable or superior to the approved compensatory
mitigation project. No other revisions to performance standards will be
allowed except in the case of natural disasters.
    (d) Long-term management. (1) The permit conditions or instrument
must identify the party responsible for ownership and all long-term
management of the compensatory mitigation project. The permit
conditions or instrument may contain provisions allowing the permittee
or sponsor to transfer the long-term management responsibilities of the
compensatory mitigation project site to a land stewardship entity, such
as a public agency, non-governmental organization, or private land
manager, after review and approval by the district engineer. The land
stewardship entity need not be identified in the original permit or
instrument, as long as the future transfer of long-term management
responsibility is approved by the district engineer.
    (2) A long-term management plan should include a description of
long-term management needs, annual cost estimates for these needs, and
identify the funding mechanism that will be used to meet those needs.
    (3) Any provisions necessary for long-term financing must be
addressed in the original permit or instrument. The district engineer
may require provisions to address inflationary adjustments and other
contingencies, as appropriate. Appropriate long-term financing

mechanisms include non-wasting endowments, trusts, contractual
arrangements with future responsible parties, and other appropriate
financial instruments. In cases where the long-term management entity
is a public authority or government agency, that entity must provide a
plan for the long-term financing of the site.
    (4) For permittee-responsible mitigation, any long-term financing
mechanisms must be approved in advance of the activity causing the
authorized impacts.

Sec.  230.98  Mitigation banks and in-lieu fee programs.

    (a) General considerations. (1) All mitigation banks and in-lieu
fee programs must have an approved instrument signed by the sponsor and
the district engineer prior to being used to provide compensatory
mitigation for DA permits.
    (2) To the maximum extent practicable, mitigation banks and in-lieu
fee project sites must be planned and designed to be self-sustaining
over time, but some active management and maintenance may be required
to ensure their long-term viability and sustainability. Examples of
acceptable management activities include maintaining fire dependent
habitat communities in the absence of natural fire and controlling
invasive exotic plant species.
    (3) All mitigation banks and in-lieu fee programs must comply with
the standards in this part, if they are to be used to provide
compensatory mitigation for activities authorized by DA permits,
regardless of whether they are sited on public or private lands and
whether the sponsor is a governmental or private entity.
    (b) Interagency Review Team. (1) The district engineer will
establish an Interagency Review Team (IRT) to review documentation for
the establishment and management of mitigation banks and in-lieu fee
programs. The district engineer or his designated representative serves
as Chair of the IRT. In cases where a mitigation bank or in-lieu fee
program is proposed to satisfy the requirements of another federal,
tribal, state, or local program, in addition to compensatory mitigation
requirements of DA permits, it may be appropriate for the administering
agency to serve as co-Chair of the IRT.
    (2) In addition to the Corps, representatives from the U.S.
Environmental Protection Agency, U.S. Fish and Wildlife Service, NOAA
Fisheries, the Natural Resources Conservation Service, and other
federal agencies, as appropriate, may participate in the IRT. The IRT
may also include representatives from tribal, state, and local
regulatory and resource agencies, where such agencies have authorities
and/or mandates directly affecting, or affected by, the establishment,
operation, or use of the mitigation bank or in-lieu fee program. The
district engineer will seek to include all public agencies with a
substantive interest in the establishment of the mitigation bank or in-
lieu fee program on the IRT, but retains final authority over its
composition.
    (3) The primary role of the IRT is to facilitate the establishment
of mitigation banks or in-lieu fee programs through the development of
mitigation banking or in-lieu fee program instruments. The IRT will
review the prospectus, instrument, and other appropriate documents and
provide comments to the district engineer. The district engineer and
the IRT should use a watershed approach to the extent practicable in
reviewing proposed mitigation banks and in-lieu fee programs. Members
of the IRT may also sign the instrument, if they so choose. By signing
the instrument, the IRT members indicate their agreement with the terms
of the instrument. As an alternative, a member of the IRT may submit a
letter expressing concurrence with the instrument. The IRT will also
advise the district engineer in assessing monitoring reports,
recommending remedial or adaptive management measures, approving credit
releases, and approving modifications to an instrument. In order to
ensure timely processing of instruments and other documentation,
comments from IRT members must be received by the district engineer
within the time limits specified in this section. Comments received
after these deadlines will only be considered at the discretion of the
district engineer to the extent that doing so does not jeopardize the
deadlines for district engineer action.
    (4) The district engineer will give full consideration to any
timely comments and advice of the IRT. The district engineer alone
retains final authority for approval of the instrument in cases where
the mitigation bank or in-lieu fee program is used to satisfy
compensatory mitigation requirements of DA permits.
    (5) MOAs with other agencies. The district engineer and members of
the IRT may enter into a memorandum of agreement (MOA) with any other
federal, state or local government agency to perform all or some of the
IRT review functions described in this section. Such MOAs must include
provisions for appropriate federal oversight of the review process. The
district engineer retains sole authority for final approval of
instruments and other documentation required under this section.
    (c) Compensation planning framework for in-lieu fee programs. (1)
The approved instrument for an in-lieu fee program must include a
compensation planning framework that will be used to select, secure,
and implement aquatic resource restoration, establishment, enhancement,
and/or preservation activities. The compensation planning framework
must support a watershed approach to compensatory mitigation. All
specific projects used to provide compensation for DA permits must be
consistent with the approved compensation planning framework.
Modifications to the framework must be approved as a significant
modification to the instrument by the district engineer, after
consultation with the IRT.
    (2) The compensation planning framework must contain the following
elements:
    (i) The geographic service area(s), including a watershed-based
rationale for the delineation of each service area;
    (ii) A description of the threats to aquatic resources in the
service area(s), including how the in-lieu fee program will help offset
impacts resulting from those threats;
    (iii) An analysis of historic aquatic resource loss in the service
area(s);
    (iv) An analysis of current aquatic resource conditions in the
service area(s), supported by an appropriate level of field
documentation;
    (v) A statement of aquatic resource goals and objectives for each
service area, including a description of the general amounts, types and
locations of aquatic resources the program will seek to provide;
    (vi) A prioritization strategy for selecting and implementing
compensatory mitigation activities;
    (vii) An explanation of how any preservation objectives identified
in paragraph (c)(2)(v) of this section and addressed in the
prioritization strategy in paragraph (c)(2)(vi) satisfy the criteria
for use of preservation in Sec.  230.93(h);
    (viii) A description of any public and private stakeholder
involvement in plan development and implementation, including, where
appropriate, coordination with federal, state, tribal and local aquatic
resource management and regulatory authorities;
    (ix) A description of the long-term protection and management
strategies for activities conducted by the in-lieu fee program sponsor;

    (x) A strategy for periodic evaluation and reporting on the
progress of the program in achieving the goals and objectives in
paragraph (c)(2)(v) of this section, including a process for revising
the planning framework as necessary; and
    (xi) Any other information deemed necessary for effective
compensation planning by the district engineer.
    (3) The level of detail necessary for the compensation planning
framework is at the discretion of the district engineer, and will take
into account the characteristics of the service area(s) and the scope
of the program. As part of the in-lieu fee program instrument, the
compensation planning framework will be reviewed by the IRT, and will
be a major factor in the district engineer's decision on whether to
approve the instrument.
    (d) Review process. (1) The sponsor is responsible for preparing
all documentation associated with establishment of the mitigation bank
or in-lieu fee program, including the prospectus, instrument, and other
appropriate documents, such as mitigation plans for a mitigation bank.
The prospectus provides an overview of the proposed mitigation bank or
in-lieu fee program and serves as the basis for public and initial IRT
comment. For a mitigation bank, the mitigation plan, as described in
Sec.  230.94(c), provides detailed plans and specifications for the
mitigation bank site. For in-lieu fee programs, mitigation plans will
be prepared as in-lieu fee project sites are identified after the
instrument has been approved and the in-lieu fee program becomes
operational. The instrument provides the authorization for the
mitigation bank or in-lieu fee program to provide credits to be used as
compensatory mitigation for DA permits.
    (2) Prospectus. The prospectus must provide a summary of the
information regarding the proposed mitigation bank or in-lieu fee
program, at a sufficient level of detail to support informed public and
IRT comment. The review process begins when the sponsor submits a
complete prospectus to the district engineer. For modifications of
approved instruments, submittal of a new prospectus is not required;
instead, the sponsor must submit a written request for an instrument
modification accompanied by appropriate documentation. The district
engineer must notify the sponsor within 30 days whether or not a
submitted prospectus is complete. A complete prospectus includes the
following information:
    (i) The objectives of the proposed mitigation bank or in-lieu fee
program.
    (ii) How the mitigation bank or in-lieu fee program will be
established and operated.
    (iii) The proposed service area.
    (iv) The general need for and technical feasibility of the proposed
mitigation bank or in-lieu fee program.
    (v) The proposed ownership arrangements and long-term management
strategy for the mitigation bank or in-lieu fee project sites.
    (vi) The qualifications of the sponsor to successfully complete the
type(s) of mitigation project(s) proposed, including information
describing any past such activities by the sponsor.
    (vii) For a proposed mitigation bank, the prospectus must also
address:
    (A) The ecological suitability of the site to achieve the
objectives of the proposed mitigation bank, including the physical,
chemical, and biological characteristics of the bank site and how that
site will support the planned types of aquatic resources and functions;
and
    (B) Assurance of sufficient water rights to support the long-term
sustainability of the mitigation bank.
    (viii) For a proposed in-lieu fee program, the prospectus must also
include:
    (A) The compensation planning framework (see paragraph (c) of this
section); and
    (B) A description of the in-lieu fee program account required by
paragraph (i) of this section.
    (3) Preliminary review of prospectus. Prior to submitting a
prospectus, the sponsor may elect to submit a draft prospectus to the
district engineer for comment and consultation. The district engineer
will provide copies of the draft prospectus to the IRT and will provide
comments back to the sponsor within 30 days. Any comments from IRT
members will also be forwarded to the sponsor. This preliminary review
is optional but is strongly recommended. It is intended to identify
potential issues early so that the sponsor may attempt to address those
issues prior to the start of the formal review process.
    (4) Public review and comment. Within 30 days of receipt of a
complete prospectus or an instrument modification request that will be
processed in accordance with paragraph (g)(1) of this section, the
district engineer will provide public notice of the proposed mitigation
bank or in-lieu fee program, in accordance with the public notice
procedures at 33 CFR 325.3. The public notice must, at a minimum,
include a summary of the prospectus and indicate that the full
prospectus is available to the public for review upon request. For
modifications of approved instruments, the public notice must instead
summarize, and make available to the public upon request, whatever
documentation is appropriate for the modification (e.g., a new or
revised mitigation plan). The comment period for public notice will be
30 days, unless the district engineer determines that a longer comment
period is appropriate. The district engineer will notify the sponsor if
the comment period is extended beyond 30 days, including an explanation
of why the longer comment period is necessary. Copies of all comments
received in response to the public notice must be distributed to the
other IRT members and to the sponsor within 15 days of the close of the
public comment period. The district engineer and IRT members may also
provide comments to the sponsor at this time, and copies of any such
comments will also be distributed to all IRT members. If the
construction of a mitigation bank or an in-lieu fee program project
requires a DA permit, the public notice requirement may be satisfied
through the public notice provisions of the permit processing
procedures, provided all of the relevant information is provided.
    (5) Initial evaluation. (i) After the end of the comment period,
the district engineer will review the comments received in response to
the public notice, and make a written initial evaluation as to the
potential of the proposed mitigation bank or in-lieu fee program to
provide compensatory mitigation for activities authorized by DA
permits. This initial evaluation letter must be provided to the sponsor
within 30 days of the end of the public notice comment period.
    (ii) If the district engineer determines that the proposed
mitigation bank or in-lieu fee program has potential for providing
appropriate compensatory mitigation for activities authorized by DA
permits, the initial evaluation letter will inform the sponsor that he/
she may proceed with preparation of the draft instrument (see paragraph
(d)(6) of this section).
    (iii) If the district engineer determines that the proposed
mitigation bank or in-lieu fee program does not have potential for
providing appropriate compensatory mitigation for DA permits, the
initial evaluation letter must discuss the reasons for that
determination. The sponsor may revise the prospectus to address the
district engineer's concerns, and submit the revised prospectus to the
district engineer. If the sponsor submits a revised prospectus, a
revised public notice will be issued in accordance with paragraph
(d)(4) of this section.

    (iv) This initial evaluation procedure does not apply to proposed
modifications of approved instruments.
    (6) Draft instrument. (i) After considering comments from the
district engineer, the IRT, and the public, if the sponsor chooses to
proceed with establishment of the mitigation bank or in-lieu fee
program, he must prepare a draft instrument and submit it to the
district engineer. In the case of an instrument modification, the
sponsor must prepare a draft amendment (e.g., a specific instrument
provision, a new or modified mitigation plan), and submit it to the
district engineer. The district engineer must notify the sponsor within
30 days of receipt, whether the draft instrument or amendment is
complete. If the draft instrument or amendment is incomplete, the
district engineer will request from the sponsor the information
necessary to make the draft instrument or amendment complete. Once any
additional information is submitted, the district engineer must notify
the sponsor as soon as he determines that the draft instrument or
amendment is complete. The draft instrument must be based on the
prospectus and must describe in detail the physical and legal
characteristics of the mitigation bank or in-lieu fee program and how
it will be established and operated.
    (ii) For mitigation banks and in-lieu fee programs, the draft
instrument must include the following information:
    (A) A description of the proposed geographic service area of the
mitigation bank or in-lieu fee program. The service area is the
watershed, ecoregion, physiographic province, and/or other geographic
area within which the mitigation bank or in-lieu fee program is
authorized to provide compensatory mitigation required by DA permits.
The service area must be appropriately sized to ensure that the aquatic
resources provided will effectively compensate for adverse
environmental impacts across the entire service area. For example, in
urban areas, a U.S. Geological Survey 8-digit hydrologic unit code
(HUC) watershed or a smaller watershed may be an appropriate service
area. In rural areas, several contiguous 8-digit HUCs or a 6-digit HUC
watershed may be an appropriate service area. Delineation of the
service area must also consider any locally-developed standards and
criteria that may be applicable. The economic viability of the
mitigation bank or in-lieu fee program may also be considered in
determining the size of the service area. The basis for the proposed
service area must be documented in the instrument. An in-lieu fee
program or umbrella mitigation banking instrument may have multiple
service areas governed by its instrument (e.g., each watershed within a
State or Corps district may be a separate service area under the
instrument); however, all impacts and compensatory mitigation must be
accounted for by service area;
    (B) Accounting procedures;
    (C) A provision stating that legal responsibility for providing the
compensatory mitigation lies with the sponsor once a permittee secures
credits from the sponsor;
    (D) Default and closure provisions;
    (E) Reporting protocols; and
    (F) Any other information deemed necessary by the district
engineer.
    (iii) For a mitigation bank, a complete draft instrument must
include the following additional information:
    (A) Mitigation plans that include all applicable items listed in
Sec.  230.94(c)(2) through (14); and
    (B) A credit release schedule, which is tied to achievement of
specific milestones. All credit releases must be approved by the
district engineer, in consultation with the IRT, based on a
determination that required milestones have been achieved. The district
engineer, in consultation with the IRT, may modify the credit release
schedule, including reducing the number of available credits or
suspending credit sales or transfers altogether, where necessary to
ensure that all credits sales or transfers remain tied to compensatory
mitigation projects with a high likelihood of meeting performance
standards;
    (iv) For an in-lieu fee program, a complete draft instrument must
include the following additional information:
    (A) The compensation planning framework (see paragraph (c) of this
section);
    (B) Specification of the initial allocation of advance credits (see
paragraph (n) of this section) and a draft fee schedule for these
credits, by service area, including an explanation of the basis for the
allocation and draft fee schedule;
    (C) A methodology for determining future project-specific credits
and fees; and
    (D) A description of the in-lieu fee program account required by
paragraph (i) of this section.
    (7) IRT review. Upon receipt of notification by the district
engineer that the draft instrument or amendment is complete, the
sponsor must provide the district engineer with a sufficient number of
copies of the draft instrument or amendment to distribute to the IRT
members. The district engineer will promptly distribute copies of the
draft instrument or amendment to the IRT members for a 30 day comment
period. The 30-day comment period begins 5 days after the district
engineer distributes the copies of the draft instrument or amendment to
the IRT. Following the comment period, the district engineer will
discuss any comments with the appropriate agencies and with the
sponsor. The district engineer will seek to resolve issues using a
consensus based approach, to the extent practicable, while still
meeting the decision-making time frames specified in this section.
Within 90 days of receipt of the complete draft instrument or amendment
by the IRT members, the district engineer must notify the sponsor of
the status of the IRT review. Specifically, the district engineer must
indicate to the sponsor if the draft instrument or amendment is
generally acceptable and what changes, if any, are needed. If there are
significant unresolved concerns that may lead to a formal objection
from one or more IRT members to the final instrument or amendment, the
district engineer will indicate the nature of those concerns.
    (8) Final instrument. The sponsor must submit a final instrument to
the district engineer for approval, with supporting documentation that
explains how the final instrument addresses the comments provided by
the IRT. For modifications of approved instruments, the sponsor must
submit a final amendment to the district engineer for approval, with
supporting documentation that explains how the final amendment
addresses the comments provided by the IRT. The final instrument or
amendment must be provided directly by the sponsor to all members of
the IRT. Within 30 days of receipt of the final instrument or
amendment, the district engineer will notify the IRT members whether or
not he intends to approve the instrument or amendment. If no IRT member
objects, by initiating the dispute resolution process in paragraph (e)
of this section within 45 days of receipt of the final instrument or
amendment, the district engineer will notify the sponsor of his final
decision and, if the instrument or amendment is approved, arrange for
it to be signed by the appropriate parties. If any IRT member initiates
the dispute resolution process, the district engineer will notify the
sponsor. Following conclusion of the dispute resolution process, the
district engineer will notify the sponsor of his final decision, and if
the instrument or amendment is approved, arrange for it to be signed by
the appropriate parties. For mitigation banks, the final instrument
must contain

the information items listed in paragraphs (d)(6)(ii), and (iii) of
this section. For in-lieu fee programs, the final instrument must
contain the information items listed in paragraphs (d)(6)(ii) and (iv)
of this section. For the modification of an approved instrument, the
amendment must contain appropriate information, as determined by the
district engineer. The final instrument or amendment must be made
available to the public upon request.
    (e) Dispute resolution process. (1) Within 15 days of receipt of
the district engineer's notification of intent to approve an instrument
or amendment, the Regional Administrator of the U.S. EPA, the Regional
Director of the U.S. Fish and Wildlife Service, the Regional Director
of the National Marine Fisheries Service, and/or other senior officials
of agencies represented on the IRT may notify the district engineer and
other IRT members by letter if they object to the approval of the
proposed final instrument or amendment. This letter must include an
explanation of the basis for the objection and, where feasible, offer
recommendations for resolving the objections. If the district engineer
does not receive any objections within this time period, he may proceed
to final action on the instrument or amendment.
    (2) The district engineer must respond to the objection within 30
days of receipt of the letter. The district engineer's response may
indicate an intent to disapprove the instrument or amendment as a
result of the objection, an intent to approve the instrument or
amendment despite the objection, or may provide a modified instrument
or amendment that attempts to address the objection. The district
engineer's response must be provided to all IRT members.
    (3) Within 15 days of receipt of the district engineer's response,
if the Regional Administrator or Regional Director is not satisfied
with the response he may forward the issue to the Assistant
Administrator for Water of the U.S. EPA, the Assistant Secretary for
Fish and Wildlife and Parks of the U.S. FWS, or the Undersecretary for
Oceans and Atmosphere of NOAA, as appropriate, for review and must
notify the district engineer by letter via electronic mail or facsimile
machine (with copies to all IRT members) that the issue has been
forwarded for Headquarters review. This step is available only to the
IRT members representing these three federal agencies, however, other
IRT members who do not agree with the district engineer's final
decision do not have to sign the instrument or amendment or recognize
the mitigation bank or in-lieu fee program for purposes of their own
programs and authorities. If an IRT member other than the one filing
the original objection has a new objection based on the district
engineer's response, he may use the first step in this procedure
(paragraph (e)(1) of this section) to provide that objection to the
district engineer.
    (4) If the issue has not been forwarded to the objecting agency's
Headquarters, then the district engineer may proceed with final action
on the instrument or amendment. If the issue has been forwarded to the
objecting agency's Headquarters, the district engineer must hold in
abeyance the final action on the instrument or amendment, pending
Headquarters level review described below.
    (5) Within 20 days from the date of the letter requesting
Headquarters level review, the Assistant Administrator for Water, the
Assistant Secretary for Fish and Wildlife and Parks, or the
Undersecretary for Oceans and Atmosphere must either notify the
Assistant Secretary of the Army (Civil Works) (ASA(CW)) that further
review will not be requested, or request that the ASA(CW) review the
final instrument or amendment.
    (6) Within 30 days of receipt of the letter from the objecting
agency's Headquarters request for ASA(CW)'s review of the final
instrument, the ASA(CW), through the Director of Civil Works, must
review the draft instrument or amendment and advise the district
engineer on how to proceed with final action on that instrument or
amendment. The ASA(CW) must immediately notify the Assistant
Administrator for Water, the Assistant Secretary for Fish and Wildlife
and Parks, and/or the Undersecretary for Oceans and Atmosphere of the
final decision.
    (7) In cases where the dispute resolution procedure is used, the
district engineer must notify the sponsor of his final decision within
150 days of receipt of the final instrument or amendment.
    (f) Extension of deadlines. (1) The deadlines in paragraphs (d) and
(e) of this section may be extended by the district engineer at his
sole discretion in cases where:
    (i) Compliance with other applicable laws, such as consultation
under section 7 of the Endangered Species Act or section 106 of the
National Historic Preservation Act, is required;
    (ii) It is necessary to conduct government-to-government
consultation with Indian tribes;
    (iii) Timely submittal of information necessary for the review of
the proposed mitigation bank or in-lieu fee program or the proposed
modification of an approved instrument is not accomplished by the
sponsor; or
    (iv) Information that is essential to the district engineer's
decision cannot be reasonably obtained within the specified time frame.
    (2) In such cases, the district engineer must promptly notify the
sponsor in writing of the extension and the reason for it. Such
extensions shall be for the minimum time necessary to resolve the issue
necessitating the extension.
    (g) Modification of instruments. (1) Approval of an amendment to an
approved instrument. Modification of an approved instrument, including
the addition and approval of umbrella mitigation bank sites or in-lieu
fee project sites or expansions of previously approved mitigation bank
or in-lieu fee project sites, must follow the appropriate procedures in
paragraph (d) of this section, unless the district engineer determines
that the streamlined review process described in paragraph (g)(2) of
this section is warranted.
    (2) Streamlined review process. The streamlined modification review
process may be used for the following modifications of instruments:
changes reflecting adaptive management of the mitigation bank or in-
lieu fee program, credit releases, changes in credit releases and
credit release schedules, and changes that the district engineer
determines are not significant. If the district engineer determines
that the streamlined review process is warranted, he must notify the
IRT members and the sponsor of this determination and provide them with
copies of the proposed modification. IRT members and the sponsor have
30 days to notify the district engineer if they have concerns with the
proposed modification. If IRT members or the sponsor notify the
district engineer of such concerns, the district engineer shall attempt
to resolve those concerns. Within 60 days of providing the proposed
modification to the IRT, the district engineer must notify the IRT
members of his intent to approve or disapprove the proposed
modification. If no IRT member objects, by initiating the dispute
resolution process in paragraph (e) of this section, within 15 days of
receipt of this notification, the district engineer will notify the
sponsor of his final decision and, if the modification is approved,
arrange for it to be signed by the appropriate parties. If any IRT
member initiates the dispute resolution process, the district engineer
will so notify the sponsor. Following conclusion of the dispute
resolution

process, the district engineer will notify the sponsor of his final
decision, and if the modification is approved, arrange for it to be
signed by the appropriate parties.
    (h) Umbrella mitigation banking instruments. A single mitigation
banking instrument may provide for future authorization of additional
mitigation bank sites. As additional sites are selected, they must be
included in the mitigation banking instrument as modifications, using
the procedures in paragraph (g)(1) of this section. Credit withdrawal
from the additional bank sites shall be consistent with paragraph (m)
of this section.
    (i) In-lieu fee program account. (1) The in-lieu fee program
sponsor must establish a program account after the instrument is
approved by the district engineer, prior to accepting any fees from
permittees. If the sponsor accepts funds from entities other than
permittees, those funds must be kept in separate accounts. The program
account must be established at a financial institution that is a member
of the Federal Deposit Insurance Corporation. All interests and
earnings accruing to the program account must remain in that account
for use by the in-lieu fee program for the purposes of providing
compensatory mitigation for DA permits. The program account may only be
used for the selection, design, acquisition, implementation, and
management of in-lieu fee compensatory mitigation projects, except for
a small percentage (as determined by the district engineer in
consultation with the IRT and specified in the instrument) that can be
used for administrative costs.
    (2) The sponsor must submit proposed in-lieu fee projects to the
district engineer for funding approval. Disbursements from the program
account may only be made upon receipt of written authorization from the
district engineer, after the district engineer has consulted with the
IRT. The terms of the program account must specify that the district
engineer has the authority to direct those funds to alternative
compensatory mitigation projects in cases where the sponsor does not
provide compensatory mitigation in accordance with the time frame
specified in paragraph (n)(4) of this section.
    (3) The sponsor must provide annual reports to the district
engineer and the IRT. The annual reports must include the following
information:
    (i) All income received, disbursements, and interest earned by the
program account;
    (ii) A list of all permits for which in-lieu fee program funds were
accepted. This list shall include: the Corps permit number (or the
state permit number if there is no corresponding Corps permit number,
in cases of state programmatic general permits or other regional
general permits), the service area in which the authorized impacts are
located, the amount of authorized impacts, the amount of required
compensatory mitigation, the amount paid to the in-lieu fee program,
and the date the funds were received from the permittee;
    (iii) A description of in-lieu fee program expenditures from the
account, such as the costs of land acquisition, planning, construction,
monitoring, maintenance, contingencies, adaptive management, and
administration;
    (iv) The balance of advance credits and released credits at the end
of the report period for each service area; and
    (v) Any other information required by the district engineer.
    (4) The district engineer may audit the records pertaining to the
program account. All books, accounts, reports, files, and other records
relating to the in-lieu fee program account shall be available at
reasonable times for inspection and audit by the district engineer.
    (j) In-lieu fee project approval. (1) As in-lieu fee project sites
are identified and secured, the sponsor must submit mitigation plans to
the district engineer that include all applicable items listed in Sec.
230.94(c)(2) through (14). The mitigation plan must also include a
credit release schedule consistent with paragraph (o)(8) of this
section that is tied to achievement of specific performance standards.
The review and approval of in-lieu fee projects will be conducted in
accordance with the procedures in paragraph (g)(1) of this section, as
modifications of the in-lieu fee program instrument. This includes
compensatory mitigation projects conducted by another party on behalf
of the sponsor through requests for proposals and awarding of
contracts.
    (2) If a DA permit is required for an in-lieu fee project, the
permit should not be issued until all relevant provisions of the
mitigation plan have been substantively determined, to ensure that the
DA permit accurately reflects all relevant provisions of the approved
mitigation plan, such as performance standards.
    (k) Coordination of mitigation banking instruments and DA permit
issuance. In cases where initial establishment of the mitigation bank,
or the development of a new project site under an umbrella banking
instrument, involves activities requiring DA authorization, the permit
should not be issued until all relevant provisions of the mitigation
plan have been substantively determined. This is to ensure that the DA
permit accurately reflects all relevant provisions of the final
instrument, such as performance standards.
    (l) Project implementation. (1) The sponsor must have an approved
instrument prior to collecting funds from permittees to satisfy
compensatory mitigation requirements for DA permits.
    (2) Authorization to sell credits to satisfy compensatory
mitigation requirements in DA permits is contingent on compliance with
all of the terms of the instrument. This includes constructing a
mitigation bank or in-lieu fee project in accordance with the
mitigation plan approved by the district engineer and incorporated by
reference in the instrument. If the aquatic resource restoration,
establishment, enhancement, and/or preservation activities cannot be
implemented in accordance with the approved mitigation plan, the
district engineer must consult with the sponsor and the IRT to consider
modifications to the instrument, including adaptive management,
revisions to the credit release schedule, and alternatives for
providing compensatory mitigation to satisfy any credits that have
already been sold.
    (3) An in-lieu fee program sponsor is responsible for the
implementation, long-term management, and any required remediation of
the restoration, establishment, enhancement, and/or preservation
activities, even though those activities may be conducted by other
parties through requests for proposals or other contracting mechanisms.
    (m) Credit withdrawal from mitigation banks. The mitigation banking
instrument may allow for an initial debiting of a percentage of the
total credits projected at mitigation bank maturity, provided the
following conditions are satisfied: the mitigation banking instrument
and mitigation plan have been approved, the mitigation bank site has
been secured, appropriate financial assurances have been established,
and any other requirements determined to be necessary by the district
engineer have been fulfilled. The mitigation banking instrument must
provide a schedule for additional credit releases as appropriate
milestones are achieved (see paragraph (o)(8) of this section).
Implementation of the approved mitigation plan shall be initiated no
later than the first full growing season after the date of the first
credit transaction.

    (n) Advance credits for in-lieu fee programs. (1) The in-lieu fee
program instrument may make a limited number of advance credits
available to permittees when the instrument is approved. The number of
advance credits will be determined by the district engineer, in
consultation with the IRT, and will be specified for each service area
in the instrument. The number of advance credits will be based on the
following considerations:
    (i) The compensation planning framework;
    (ii) The sponsor's past performance for implementing aquatic
resource restoration, establishment, enhancement, and/or preservation
activities in the proposed service area or other areas; and
    (iii) The projected financing necessary to begin planning and
implementation of in-lieu fee projects.
    (2) To determine the appropriate number of advance credits for a
particular service area, the district engineer may require the sponsor
to provide confidential supporting information that will not be made
available to the general public. Examples of confidential supporting
information may include prospective in-lieu fee project sites.
    (3) As released credits are produced by in-lieu fee projects, they
must be used to fulfill any advance credits that have already been
provided within the project service area before any remaining released
credits can be sold or transferred to permittees. Once previously
provided advance credits have been fulfilled, an equal number of
advance credits is re-allocated to the sponsor for sale or transfer to
fulfill new mitigation requirements, consistent with the terms of the
instrument. The number of advance credits available to the sponsor at
any given time to sell or transfer to permittees in a given service
area is equal to the number of advance credits specified in the
instrument, minus any that have already been provided but not yet
fulfilled.
    (4) Land acquisition and initial physical and biological
improvements must be completed by the third full growing season after
the first advance credit in that service area is secured by a
permittee, unless the district engineer determines that more or less
time is needed to plan and implement an in-lieu fee project. If the
district engineer determines that there is a compensatory mitigation
deficit in a specific service area by the third growing season after
the first advance credit in that service area is sold, and determines
that it would not be in the public interest to allow the sponsor
additional time to plan and implement an in-lieu fee project, the
district engineer must direct the sponsor to disburse funds from the
in-lieu fee program account to provide alternative compensatory
mitigation to fulfill those compensation obligations.
    (5) The sponsor is responsible for complying with the terms of the
in-lieu fee program instrument. If the district engineer determines, as
a result of review of annual reports on the operation of the in-lieu
fee program (see paragraphs (p)(2) and (q)(1) of this section), that it
is not performing in compliance with its instrument, the district
engineer will take appropriate action, which may include suspension of
credit sales, to ensure compliance with the in-lieu fee program
instrument (see paragraph (o)(10) of this section). Permittees that
secured credits from the in-lieu fee program are not responsible for
in-lieu fee program compliance.
    (o) Determining credits. (1) Units of measure. The principal units
for credits and debits are acres, linear feet, functional assessment
units, or other suitable metrics of particular resource types.
Functional assessment units or other suitable metrics may be linked to
acres or linear feet.
    (2) Assessment. Where practicable, an appropriate assessment method
(e.g., hydrogeomorphic approach to wetlands functional assessment,
index of biological integrity) or other suitable metric must be used to
assess and describe the aquatic resource types that will be restored,
established, enhanced and/or preserved by the mitigation bank or in-
lieu fee project.
    (3) Credit production. The number of credits must reflect the
difference between pre- and post-compensatory mitigation project site
conditions, as determined by a functional or condition assessment or
other suitable metric.
    (4) Credit value. Once a credit is debited (sold or transferred to
a permittee), its value cannot change.
    (5) Credit costs. (i) The cost of compensatory mitigation credits
provided by a mitigation bank or in-lieu fee program is determined by
the sponsor.
    (ii) For in-lieu fee programs, the cost per unit of credit must
include the expected costs associated with the restoration,
establishment, enhancement, and/or preservation of aquatic resources in
that service area. These costs must be based on full cost accounting,
and include, as appropriate, expenses such as land acquisition, project
planning and design, construction, plant materials, labor, legal fees,
monitoring, and remediation or adaptive management activities, as well
as administration of the in-lieu fee program. The cost per unit credit
must also take into account contingency costs appropriate to the stage
of project planning, including uncertainties in construction and real
estate expenses. The cost per unit of credit must also take into
account the resources necessary for the long-term management and
protection of the in-lieu fee project. In addition, the cost per unit
credit must include financial assurances that are necessary to ensure
successful completion of in-lieu fee projects.
    (6) Credits provided by preservation. These credits should be
specified as acres, linear feet, or other suitable metrics of
preservation of a particular resource type. In determining the
compensatory mitigation requirements for DA permits using mitigation
banks or in-lieu fee programs, the district engineer should apply a
higher mitigation ratio if the requirements are to be met through the
use of preservation credits. In determining this higher ratio, the
district engineer must consider the relative importance of both the
impacted and the preserved aquatic resources in sustaining watershed
functions.
    (7) Credits provided by riparian areas, buffers, and uplands. These
credits should be specified as acres, linear feet, or other suitable
metrics of riparian area, buffer, and uplands respectively. Non-aquatic
resources can only be used as compensatory mitigation for impacts to
aquatic resources authorized by DA permits when those resources are
essential to maintaining the ecological viability of adjoining aquatic
resources. In determining the compensatory mitigation requirements for
DA permits using mitigation banks and in-lieu fee programs, the
district engineer may authorize the use of riparian area, buffer, and/
or upland credits if he determines that these areas are essential to
sustaining aquatic resource functions in the watershed and are the most
appropriate compensation for the authorized impacts.
    (8) Credit release schedule. (i) General considerations. Release of
credits must be tied to performance based milestones (e.g.,
construction, planting, establishment of specified plant and animal
communities). The credit release schedule should reserve a significant
share of the total credits for release only after full achievement of
ecological performance standards. When determining the credit release
schedule, factors to be considered may include, but are not limited to:
The method of providing compensatory mitigation credits (e.g.,
restoration), the likelihood of success, the nature and amount of work
needed to generate the credits, and

the aquatic resource type(s) and function(s) to be provided by the
mitigation bank or in-lieu fee project. The district engineer will
determine the credit release schedule, including the share to be
released only after full achievement of performance standards, after
consulting with the IRT. Once released, credits may only be used to
satisfy compensatory mitigation requirements of a DA permit if the use
of credits for a specific permit has been approved by the district
engineer.
    (ii) For single-site mitigation banks, the terms of the credit
release schedule must be specified in the mitigation banking
instrument. The credit release schedule may provide for an initial
debiting of a limited number of credits once the instrument is approved
and other appropriate milestones are achieved (see paragraph (m) of
this section).
    (iii) For in-lieu fee projects and umbrella mitigation bank sites,
the terms of the credit release schedule must be specified in the
approved mitigation plan. When an in-lieu fee project or umbrella
mitigation bank site is implemented and is achieving the performance-
based milestones specified in the credit release schedule, credits are
generated in accordance with the credit release schedule for the
approved mitigation plan. If the in-lieu fee project or umbrella
mitigation bank site does not achieve those performance-based
milestones, the district engineer may modify the credit release
schedule, including reducing the number of credits.
    (9) Credit release approval. Credit releases for mitigation banks
and in-lieu fee projects must be approved by the district engineer. In
order for credits to be released, the sponsor must submit documentation
to the district engineer demonstrating that the appropriate milestones
for credit release have been achieved and requesting the release. The
district engineer will provide copies of this documentation to the IRT
members for review. IRT members must provide any comments to the
district engineer within 15 days of receiving this documentation.
However, if the district engineer determines that a site visit is
necessary, IRT members must provide any comments to the district
engineer within 15 days of the site visit. The district engineer must
schedule the site visit so that it occurs as soon as it is practicable,
but the site visit may be delayed by seasonal considerations that
affect the ability of the district engineer and the IRT to assess
whether the applicable credit release milestones have been achieved.
After full consideration of any comments received, the district
engineer will determine whether the milestones have been achieved and
the credits can be released. The district engineer shall make a
decision within 30 days of the end of that comment period, and notify
the sponsor and the IRT.
    (10) Suspension and termination. If the district engineer
determines that the mitigation bank or in-lieu fee program is not
meeting performance standards or complying with the terms of the
instrument, appropriate action will be taken. Such actions may include,
but are not limited to, suspending credit sales, adaptive management,
decreasing available credits, utilizing financial assurances, and
terminating the instrument.
    (p) Accounting procedures. (1) For mitigation banks, the instrument
must contain a provision requiring the sponsor to establish and
maintain a ledger to account for all credit transactions. Each time an
approved credit transaction occurs, the sponsor must notify the
district engineer.
    (2) For in-lieu fee programs, the instrument must contain a
provision requiring the sponsor to establish and maintain an annual
report ledger in accordance with paragraph (i)(3) of this section, as
well as individual ledgers that track the production of released
credits for each in-lieu fee project.
    (q) Reporting. (1) Ledger account. The sponsor must compile an
annual ledger report showing the beginning and ending balance of
available credits and permitted impacts for each resource type, all
additions and subtractions of credits, and any other changes in credit
availability (e.g., additional credits released, credit sales
suspended). The ledger report must be submitted to the district
engineer, who will distribute copies to the IRT members. The ledger
report is part of the administrative record for the mitigation bank or
in-lieu fee program. The district engineer will make the ledger report
available to the public upon request.
    (2) Monitoring reports. The sponsor is responsible for monitoring
the mitigation bank site or the in-lieu fee project site in accordance
with the approved monitoring requirements to determine the level of
success and identify problems requiring remedial action or adaptive
management measures. Monitoring must be conducted in accordance with
the requirements in Sec.  230.96, and at time intervals appropriate for
the particular project type and until such time that the district
engineer, in consultation with the IRT, has determined that the
performance standards have been attained. The instrument must include
requirements for periodic monitoring reports to be submitted to the
district engineer, who will provide copies to other IRT members.
    (3) Financial assurance and long-term management funding report.
The district engineer may require the sponsor to provide an annual
report showing beginning and ending balances, including deposits into
and any withdrawals from, the accounts providing funds for financial
assurances and long-term management activities. The report should also
include information on the amount of required financial assurances and
the status of those assurances, including their potential expiration.
    (r) Use of credits. Except as provided below, all activities
authorized by DA permits are eligible, at the discretion of the
district engineer, to use mitigation banks or in-lieu fee programs to
fulfill compensatory mitigation requirements for DA permits. The
district engineer will determine the number and type(s) of credits
required to compensate for the authorized impacts. Permit applicants
may propose to use a particular mitigation bank or in-lieu fee program
to provide the required compensatory mitigation. In such cases, the
sponsor must provide the permit applicant with a statement of credit
availability. The district engineer must review the permit applicant's
compensatory mitigation proposal, and notify the applicant of his
determination regarding the acceptability of using that mitigation bank
or in-lieu fee program.
    (s) IRT concerns with use of credits. If, in the view of a member
of the IRT, an issued permit or series of issued permits raises
concerns about how credits from a particular mitigation bank or in-lieu
fee program are being used to satisfy compensatory mitigation
requirements (including concerns about whether credit use is consistent
with the terms of the instrument), the IRT member may notify the
district engineer in writing of the concern. The district engineer
shall promptly consult with the IRT to address the concern. Resolution
of the concern is at the discretion of the district engineer,
consistent with applicable statutes, regulations, and policies
regarding compensatory mitigation requirements for DA permits. Nothing
in this section limits the authorities designated to IRT agencies under
existing statutes or regulations.
    (t) Site protection. (1) For mitigation bank sites, real estate
instruments, management plans, or other long-term mechanisms used for
site protection must be finalized before any credits can be released.

    (2) For in-lieu fee project sites, real estate instruments,
management plans, or other long-term protection mechanisms used for
site protection must be finalized before advance credits can become
released credits.
    (u) Long-term management. (1) The legal mechanisms and the party
responsible for the long-term management and the protection of the
mitigation bank site must be documented in the instrument or, in the
case of umbrella mitigation banking instruments and in-lieu fee
programs, the approved mitigation plans. The responsible party should
make adequate provisions for the operation, maintenance, and long-term
management of the compensatory mitigation project site. The long-term
management plan should include a description of long-term management
needs and identify the funding mechanism that will be used to meet
those needs.
    (2) The instrument may contain provisions for the sponsor to
transfer long-term management responsibilities to a land stewardship
entity, such as a public agency, non-governmental organization, or
private land manager.
    (3) The instrument or approved mitigation plan must address the
financial arrangements and timing of any necessary transfer of long-
term management funds to the steward.
    (4) Where needed, the acquisition and protection of water rights
should be secured and documented in the instrument or, in the case of
umbrella mitigation banking instruments and in-lieu fee programs, the
approved mitigation site plan.
    (v) Grandfathering of existing instruments. (1) Mitigation banking
instruments. All mitigation banking instruments approved on or after
July 9, 2008 must meet the requirements of this part. Mitigation banks
approved prior to July 9, 2008 may continue to operate under the terms
of their existing instruments. However, any modification to such a
mitigation banking instrument on or after July 9, 2008, including
authorization of additional sites under an umbrella mitigation banking
instrument, expansion of an existing site, or addition of a different
type of resource credits (e.g., stream credits to a wetland bank) must
be consistent with the terms of this part.
    (2) In-lieu fee program instruments. All in-lieu fee program
instruments approved on or after July 9, 2008 must meet the
requirements of this part. In-lieu fee programs operating under
instruments approved prior to July 9, 2008 may continue to operate
under those instruments for two years after the effective date of this
rule, after which time they must meet the requirements of this part,
unless the district engineer determines that circumstances warrant an
extension of up to three additional years. The district engineer must
consult with the IRT before approving such extensions. Any revisions
made to the in-lieu-fee program instrument on or after July 9, 2008
must be consistent with the terms of this part. Any approved project
for which construction was completed under the terms of a previously
approved instrument may continue to operate indefinitely under those
terms if the district engineer determines that the project is providing
appropriate mitigation substantially consistent with the terms of this
part.

    Dated: March 28, 2008.
Stephen L. Johnson,
Administrator, U.S. Environmental Protection Agency.
 [FR Doc. E8-6918 Filed 4-9-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 113 (Wednesday, June 12, 2013)]
[Notices]
[Pages 35305-35307]
[FR Doc No: 2013-13934]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2013-0002; Internal Agency Docket No. FEMA-B-1324]

Changes in Flood Hazard Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice lists communities where the addition or
modification of Base Flood Elevations (BFEs), base flood depths,
Special Flood Hazard Area (SFHA) boundaries or zone designations, or
the regulatory floodway (hereinafter referred to as flood hazard
determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and
where applicable, in the supporting Flood Insurance Study (FIS)
reports, prepared by the Federal Emergency Management Agency (FEMA) for
each community, is appropriate because of new scientific or technical
data. The FIRM, and where applicable, portions of the FIS report, have
been revised to reflect these flood hazard determinations through
issuance of a Letter of Map Revision (LOMR), in accordance with Title
44, Part 65 of the Code of Federal Regulations (44 CFR Part 65). The
LOMR will be used by insurance agents and others to calculate
appropriate flood insurance premium rates for new buildings and the
contents of those buildings. For rating purposes, the currently
effective community number is shown in the table below and must be used
for all new policies and renewals.

DATES: These flood hazard determinations will become effective on the
dates listed in the table below and revise the FIRM panels and FIS
report in effect prior to this determination for the listed
communities.
    From the date of the second publication of notification of these
changes in a newspaper of local circulation, any person has ninety (90)
days in which to request through the community that the Deputy
Associate Administrator for Mitigation reconsider the changes. The
flood hazard determination information may be changed during the 90-day
period.

ADDRESSES: The affected communities are listed in the table below.
Revised flood hazard information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA Map Service Center at www.msc.fema.gov for comparison.
    Submit comments and/or appeals to the Chief Executive Officer of
the community as listed in the table below.

FOR FURTHER INFORMATION CONTACT: Luis Rodriguez, Chief, Engineering
Management Branch, Federal Insurance and Mitigation Administration,
FEMA, 500 C Street SW., Washington, DC 20472,<PHONE_NUMBER>, or
(email<EMAIL_ADDRESS>or visit the FEMA Map Information
eXchange (FMIX) online at www.floodmaps.fema.gov/fhm/fmx_main.html.

SUPPLEMENTARY INFORMATION: The specific flood hazard determinations are
not described for each community in this notice. However, the online
location and local community map repository address where the flood
hazard determination information is available for inspection is
provided.
    Any request for reconsideration of flood hazard determinations must
be submitted to the Chief Executive Officer of the community as listed
in the table below.
    The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
    The FIRM and FIS report are the basis of the floodplain management
measures that the community is required either to adopt or to show
evidence of having in effect in order to qualify or remain qualified
for participation in the National Flood Insurance Program (NFIP).
    These flood hazard determinations, together with the floodplain
management criteria required by 44 CFR 60.3, are the minimum that are
required. They should not be construed to mean that the community must
change any existing ordinances that are more stringent in their
floodplain management requirements. The community may at any time enact
stricter requirements of its own or pursuant to policies established by
other Federal, State, or regional entities. The flood hazard
determinations are in accordance with 44 CFR 65.4.
    The affected communities are listed in the following table. Flood
hazard determination information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA Map Service Center at www.msc.fema.gov for comparison.

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                                                       Chief executive                       Online location
        State and county          Location and case      officer of        Community map    of  Letter of Map        Effective date of        Community
                                         No.              community          repository          Revision              modification              No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico:
    Bernalillo.................  City of             The Honorable       Development and    http://www.rampp-  August 12, 2013.............       350002
                                  Albuquerque, (12-   Richard J. Berry,   Building           team.com/
                                  06-3488P).          Mayor, City of      Services           lomrs.htm.
                                                      Albuquerque, P.O.   Division, 600
                                                      Box 1293,           2nd Street
                                                      Albuquerque, NM     Northwest, Suite
                                                      87103.              201,
                                                                          Albuquerque, NM
                                                                          87102.
Oklahoma:
    Oklahoma...................  City of Oklahoma    The Honorable Mick  420 West Main      http://www.rampp-  August 12, 2013.............       405378
                                  City,.              Cornett, Mayor,     Street, Suite      team.com/
                                 (12-06-4147P).....   City of Oklahoma    700, Oklahoma      lomrs.htm.
                                                      City, 200 North     City, OK 73102.
                                                      Walker Avenue,
                                                      3rd Floor,
                                                      Oklahoma City, OK
                                                      73102.
    Woods......................  Unincorporated      The Honorable       Woods County       http://www.rampp-  August 12, 2013.............       400481
                                  areas of Woods      Clint Strawn,       Courthouse, 407    team.com/
                                  County, (12-06-     Chairman, Woods     Government         lomrs.htm.
                                  2877P).             County Board of     Street, Alva, OK
                                                      Commissioners,      73717.
                                                      P.O. Box 386,
                                                      Alva, OK 73717.
Texas:
    Brazos.....................  City of Bryan, (12- The Honorable       City Hall, 300     http://www.rampp-  August 12, 2013.............       480082
                                  06-2987P).          Jason Bienski,      South Texas        team.com/
                                                      Mayor, City of      Avenue, Bryan,     lomrs.htm.
                                                      Bryan, 300 South    TX 77803.
                                                      Texas Avenue,
                                                      Bryan, TX 77803.
    Denton.....................  City of Frisco,     The Honorable       City Hall, 6101    http://www.rampp-  August 19, 2013.............       480134
                                  (12-06-4054P).      Maher Maso,         Frisco Square      team.com/
                                                      Mayor, City of      Boulevard,         lomrs.htm.
                                                      Frisco, 6101        Frisco, TX 75034.
                                                      Frisco Square
                                                      Boulevard,
                                                      Frisco, TX 75034.
    Denton.....................  Town of Little      The Honorable       Town Hall, 100     http://www.rampp-  August 19, 2013.............       481152
                                  Elm, (12-06-        David Hillock,      West Eldorado      team.com/
                                  4054P).             Mayor, Town of      Parkway, Little    lomrs.htm.
                                                      West Elm, 100       Elm, TX 75068.
                                                      West Eldorado
                                                      Parkway, Little
                                                      Elm, TX 75068.
    Fort Bend..................  City of Katy, (12-  The Honorable Don   Public Works       http://www.rampp-  August 2, 2013..............       480301
                                  06-1798P).          Elder, Jr.,         Department, 910    team.com/
                                                      Mayor, City of      Avenue C, Katy,    lomrs.htm.
                                                      Katy, P.O. Box      TX 77493.
                                                      617, Katy, TX
                                                      77493.
    Hays.......................  City of             The Honorable       City Office,       http://www.rampp-  August 15, 2013.............       481670
                                  Niederwald, (12-    Reynell Smith,      13851 Camino       team.com/
                                  06-3911P).          Mayor, City of      Real,              lomrs.htm.
                                                      Niederwald, 13851   Niederwald, TX
                                                      Camino Real,        78640.
                                                      Niederwald, TX
                                                      78640.
    Hays.......................  Unincorporated      The Honorable Bert  Hays County        http://www.rampp-  August 15, 2013.............       480321
                                  areas of Hays       Cobb, M.D., Hays    Environmental      team.com/
                                  County, (12-06-     County Judge, 111   Health             lomrs.htm.
                                  3911P).             East San Antonio    Department, 1251
                                                      Street, Suite       Civic Center
                                                      300, San Marcos,    Loop, San
                                                      TX 78666.           Marcos, TX 78666.
    Tarrant....................  City of Fort        The Honorable       Department of      http://www.rampp-  May 20, 2013................       480596
                                  Worth, (12-06-      Betsy Price,        Transportation     team.com/
                                  1459P).             Mayor, City of      and Public         lomrs.htm.
                                                      Fort Worth, 1000    Works, 1000
                                                      Throckmorton        Throckmorton
                                                      Street, Fort        Street, Fort
                                                      Worth, TX 76102.    Worth, TX 76102.
    Tarrant....................  City of Fort        The Honorable       Department of      http://www.rampp-  July 11, 2013...............       480596
                                  Worth, (12-06-      Betsy Price,        Transportation     team.com/
                                  3084P).             Mayor, City of      and Public         lomrs.htm.
                                                      Fort Worth, 1000    Works, 1000
                                                      Throckmorton        Throckmorton
                                                      Street, Fort        Street, Fort
                                                      Worth, TX 76102.    Worth, TX 76102.
    Tarrant....................  City of Westworth   The Honorable Tony  City Hall, 311     http://www.rampp-  May 20, 2013................       480616
                                  Village, (12-06-    Yeager, Mayor,      Burton Hall        team.com/
                                  1459P).             City of Westworth   Road, Westworth    lomrs.htm.
                                                      Village, 311        Village, TX
                                                      Burton Hill Road,   76114.
                                                      Westworth
                                                      Village, TX 76114.
    Travis.....................  City of Austin,     The Honorable Lee   Stormwater         http://www.rampp-  August 8, 2013..............       480624
                                  (13-06-0132P).      Leffingwell,        Management         team.com/
                                                      Mayor, City of      Division, 505      lomrs.htm.
                                                      Austin, P.O. Box    Barton Springs
                                                      1088, Austin, TX    Road, Suite 908,
                                                      78767.              Austin, TX 78704.
West Virginia:
    Kanawha....................  Unincorporated      The Honorable W.    Kanawha County     http://www.rampp-  August 12, 2013.............       540070
                                  areas of Kanawha    Kent Carper,        Courthouse,        team.com/
                                  County, (13-03-     President,          Planning and       lomrs.htm.
                                  0645P).             Kanawha County      Development
                                                      Commission, 407     Department, 407
                                                      Virginia Street     Virginia Street
                                                      East, Charleston,   East,
                                                      WV 25301.           Charleston, WV
                                                                          25301.
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(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: May 17, 2013.
Roy E. Wright,
Deputy Associate Administrator for Mitigation, Department of Homeland
Security, Federal Emergency Management Agency.
[FR Doc. 2013-13934 Filed 6-11-13; 8:45 am]
BILLING CODE 9110-12-P