SUBJECT: The U.S. Army Corps of Engineers’ (USACE) South Pacific Division, including its Sacramento, San Francisco, and Los Angeles Districts, along with the U.S. Fish and Wildlife Service (USFWS), the California Department of Fish and Wildlife (CDFW), the California Natural Resources Agency (CNRA), the National Marine Fisheries Service (NMFS), the United States Environmental Protection Agency (EPA), the State Water Resources Control Board (State Water Board), and the Natural Resources Conservation Service (NRCS), as potential participants in Interagency Review Teams (IRT), have updated the standard Bank Enabling Instrument (BEI) template for use in the development of mitigation banks that are within, or that propose service areas within the State of California. This notice is to inform interested parties of the availability of the draft updated template and to solicit comments from interested parties. This notice may be viewed at:
AUTHORITY: This template is proposed to supersede the previous version of template, published in September 2017. This template is used in the development of mitigation banks, which provide mitigation for impacts from projects which have which have received authorizations to proceed under the authorities of Section 10 of the Rivers and Harbors Act of 1899 for structures or work in or affecting navigable waters of the United States and/or Section 404 of the Clean Water Act for the discharge of dredged or fill material in waters of the United States. Additionally, this template is to be used when those mitigation banks would also propose to provide mitigation for projects which have been required to provide mitigation by USFWS, CDFW, NMFS, the State Water Board, and/or NRCS.
PROJECT DESCRIPTION: USACE, USFWS, NMFS, NRCS, EPA, CNRA, CDFW, and the State Water Board have jointly updated the attached BEI template. As mitigation banks in California typically provide credits for impacts regulated by multiple agencies, the attached documents integrate the requirements of USACE, USFWS, NMFS, NRCS, EPA, the California Resources Agency, the State Water Board, and CDFW. These agencies have committed through an interagency Memorandum of Understanding to establishing a combined and coordinated approach to mitigation banking which includes development of template documents for use throughout the State of California. These templates reflect existing regulations, policies, and guidance and represent the way in which USACE, USFWS, NMFS, NRCS, EPA, the CNRA, the State Water Board, and CDFW intend to implement and provide consistent approach to mitigation banking proposals. It is expected that, with a finalized templates, agencies and mitigation bankers will be able to proceed with confidence that regulatory needs are met and the information used in the bank review and approval process is adequate, predictable, consistent, and timely.
The primary reason for this update was to incorporate provisions that would allow for the sale of credits in advance of the issuance of a permit or authorization that identifies and requires specific mitigation. To accommodate this change, some definitions have changed and new terms have been introduced. Credits, purchased in advance, would be managed in RIBITS (Regulatory In lieu fee and Bank Information Tracking System), using the subledger function. As a bank would have to be active, in order to meet the requirement from 33 CFR 332.3(l)(3), which holds the permittee responsible for compensatory mitigation, until the district engineer has received documentation that confirms that the bank sponsor has accepted the responsibility for the required compensatory mitigation, optional provisions are included in the attached template credit sale without a transfer agreement, at section H.6.C, to ensure that permittees and bank sponsors are aware of and have agreed upon terms regarding potential credit expiration and refunds. Absent agreement between the bank sponsor and the permittee, utilizing the first optional provision "C", the bank sponsor would be expected to utilize the second provision "C" and keep the bank open until credits, sold in advance, have been utilized.
Other changes include language clarifying the role of IRT agencies, which choose not to sign the BEI; requiring interim management activities to be described in the development plan, rather than in a separate exhibit; changes to the section describing the use of the CPI adjustment to the endowment amount, during years where there is deflation; and various other changes, made to provide clarification, correct typos, fix referencing issues, and fix formatting.
If you have questions or wish to discuss these changes, representatives from each of the above agencies, as members of the Project Delivery Team (PDT) and Banking Agency Management Team (BAMT) will be available on December 16, 2020, from 1:00 to 3:00 PM, via WebEx:
WebEx Address: https://usace1.webex.com/meet/BEI.Discussion
Meeting Number(s): 199 890 2796
No separate access or security code required.
For those unable to use WebEx or who need to call in directly for audio:
The call-in number for telephone participants is: (844) 800-2712, Access Code: 199 890 2796 Security code: 7734
Written comments may also be submitted, by January 4, 2021, to:
Administrative Appeal Review Officer,
U.S. Army Corps of Engineers
South Pacific Division, CESPD-PDO, 4765H
Phillip Burton Federal Building, Post Office Box 36023
450 Golden Gate Avenue, San Francisco, California 94102
If you have questions or need additional information please contact Tom Cavanaugh, 415-503-6574, Thomas.J.Cavanaugh@usace.army.mil.