EP 1165-2-1
30 Jul 99
the creation and operation of a mitigation bank. Therefore, the Corps
permanent ecosystem restoration authorities under Section 1135 of the
WRDA 1986, as amended; Section 1103 of WRDA 1986; Section 204 of WRDA
1992, as amended; and Section 206 of WRDA 1996, will not be used for
the creation of mitigation banks. Similarly, funding will not be
requested to initiate feasibility studies solely for the creation of
mitigation banks, but may be considered for joint ecosystem
restoration and mitigation banking projects as discussed below.
b. Exceptions to General Policy. The Corps can participate in
implementing joint projects that include both ecosystem restoration
and mitigation banking elements as long as the Corps financial
participation in the project is limited to the ecosystem restoration
element. An exception to the general policy of not budgeting for the
creation of mitigation banks will also be considered where a
mitigation bank is being established primarily to mitigate for Corps
civil works projects. For example, a central mitigation bank could be
proposed for Corps implementation to provide credits for compensatory
mitigation for multiple projects in the same geographic area or for a
large project that is built in stages. Corps implementation of a
mitigation bank could also be considered to compensate for the impacts
of operation and maintenance activities. These exceptions will be
considered on a case-by-case basis. Any Corps bank must be
established in accordance with "Federal Guidance for the Establishment,
Use and Operation of Mitigation Banks".
c. Use of Mitigation Banks in Civil Works Projects. While, as
a general policy, Corps civil works funds will not be used to finance
the creation of mitigation banks, credits from mitigation banks
established by others may be used to compensate for environmental
impacts from construction or operation and maintenance of Corps civil
works projects. The following policies apply to use of credits from
mitigation banks.
(1) Mitigation banks that can be considered for meeting the
mitigation requirements for civil works projects include public and
privately sponsored banks. To be eligible for consideration, a bank
must have been established and approved in accordance with "Federal
Guidance for the Establishment, Use and Operation of Mitigation
Banks".
This guidance provides for a Corps led interagency process
for
review and approval of mitigation banks which addresses all relevant
issues including accounting procedures, the banking instrument,
management, monitoring and contingencies actions in the event of bank
failure and default. Where a mitigation bank was established prior to
the Federal guidelines, the bank can be considered if it meets the
standards established by the Federal guidance.
(2) The use of credits from a mitigation bank to meet the
compensatory mitigation requirements for a civil works project must be
evaluated in accordance with guidance for mitigation planning and
recommendation in paragraph 7-35 of ER 1105-2-100.
(3) Credits from a mitigation bank are a service which is
acquired to meet the compensatory mitigation requirements of a civil
works project. This service includes acquisition of required lands,
easements and rights-of-way; construction and management activities to
produce credits; and operation and maintenance of the bank. However,
there will be no division of costs for credits into its components for
cost sharing purposes. All costs associated with acquisition of
credits from a mitigation bank will be classified as construction
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