Energy & Water Committee Directs Corps to Ensure Proper and Consistent Implementation of the 2008 Rule

The Energy & Water Development Appropriations bill recently passed out of the House requiring strict reporting in one year on efforts taken to make implementation of the 2008 Mitigation Rule consistent across all Corps Districts.

In the July 15, 2020 report comes this directive to the U.S. Army Corps of Engineers specific to Compensatory Mitigation:

"The Committee is concerned that the Corps may not be consistent in its implementation of the 2008 Compensatory Mitigation Rule, based on the Corps’ publicly available data. The Committee has heard concerns that particular districts have failed to adhere to the mitigation hierarchy in the Rule as it pertains to the preference for mitigation bank credits. The Corps is reminded that although the Rule provides some discretion, the Rule is clear that this discretion is limited and deviations from the mitigation hierarchy must be based on scientific and technical analysis. The Corps is directed to properly and consistently implement the Rule, including adherence to its mitigation hierarchy and documentation of decisions by the District Engineer regarding which mitigation mechanism is appropriate to offset impacts under the Rule and which sections of the Rule justify the particular decision. The Corps shall brief the Committee not later than one year after the enactment of this Act on steps taken to ensure proper and consistent application of the Rule across districts, consistent with the Committee’s direction."

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