Improving Consistent Implementation of the 2008 Final Mitigation Rule

As a new year dawns, there has been significant progress for implementation of the 2008 Final Mitigation Rule (The Rule).  Both Houses of Congress and the President have signed the Energy and Water Development Appropriations Act which includes the following:

“Compensatory Mitigation Rule - There is concern that the Corps may not be consistent in its implementation of the 2008 Compensatory Mitigation Rule, based on the Corps’ publicly available data. There are 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 Committees on Appropriations of both Houses of Congress 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 this direction.”

As the 38 Districts of the U.S. Army Corps begin to undertake actions intended to ensure consistency within the federal program, the National Environmental Banking Association offers the following whitepaper in support of the effort >Download Here