Sec. 18. Revision of framework for compensatory mitigation
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Not later than 180 days after the date of enactment of this Act, the Secretary, in coordination with the Administrator of the Environmental Protection Agency, shall publish in the Federal Register a proposed rule, consistent with section 404 of the Federal Water Pollution Control Act ( 33 U.S.C. 1344 ), to revise the regulations issued in the final rule of the Department of Defense and the Environmental Protection Agency titled Compensatory Mitigation for Losses of Aquatic Resources and published in the Federal Register on April 10, 2008 (73 Fed. Reg. 19594).
In carrying out subsection (a), the Secretary shall— incorporate lessons learned since the implementation of the final rule described in subsection
(a)and reflect advances in science, restoration practices, and regulatory efficiency; promote equivalency and flexibility among mitigation options, including mitigation banking, in-lieu fee programs, and permittee-responsible mitigation; expedite the approval of plans that use mitigation banks, in-lieu fee programs, and permittee-responsible mitigation; support regional watershed approaches, including by— encouraging compensatory mitigation credit generation and sales across primary, secondary, and tertiary service areas; and implementing mitigation requirements, policies, and guidance that are consistent, predictable, and transparent; ensure timely coordination between Corps of Engineers district offices and Interagency Review Teams; ensure that, for projects involving temporary impacts to aquatic resources, including mining and other energy or infrastructure projects with approved reclamation plans, the revised regulations— take into account the temporary nature of such impacts; recognize activities carried out under an approved reclamation plan as a form of minimization of such impacts, consistent with the guidelines developed under section 404(b)(1) of the Federal Water Pollution Control Act; consider financial assurances already required under applicable regulatory programs (including instruments such as surety bonds, collateral bonds, letters of credit, insurance, trust funds, and, where permitted, self-bonding) when determining the need for additional financial assurances; and allow the use, transfer, or sale of surplus compensatory mitigation credits generated through activities carried out under an approved reclamation plan, if such credits meet applicable environmental performance standards; encourage the use of off-site and out-of-kind mitigation options where appropriate; and include any other revisions determined appropriate by the Secretary. After issuing a final rule under this section, the Secretary shall issue guidance establishing objective, measurable success criteria for activities carried out under an approved reclamation plan for purposes of generating compensatory mitigation credits, and a phased credit release schedule tied to milestones for such activities. In this section: The term approved reclamation plan — means— a reclamation plan approved pursuant to section 510 of the Surface Mining Control and Reclamation Act of 1977 ( 30 U.S.C. 1260 ); a reclamation plan, plan of operations, or other similar plan approved by the Secretary of Agriculture or the Secretary of the Interior with respect to the mining or related operations of— minerals subject to location under the general mining laws; minerals subject to leasing under the mineral leasing laws; or mineral materials subject to disposition under the Act of July 31, 1947, commonly known as the Materials Act of 1947 ( 30 U.S.C. 601 et seq. ); a surface use plan of operations approved pursuant to subpart 3162 of title 43, Code of Federal Regulations (or a successor regulation); a plan of operations or utilization plan approved pursuant to subpart 3200 of title 43, Code of Federal Regulations (or a successor regulation); and a plan of development approved pursuant to subpart 2805 of title 43, Code of Federal Regulations (or a successor regulation) that includes enforceable reclamation or surface restoration requirements; and includes a plan of operations approved under— subpart 3809 of title 43, Code of Federal Regulations (or a successor regulation); or part 228 of title 36, Code of Federal Regulations (or a successor regulation). The term Secretary means the Secretary of the Army, acting through the Chief of Engineers.
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- 73 FR 19594
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Sec. 18
Revision of framework for compensatory mitigation
Fed. Reg.73 FR 19594
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