What: The Sacramento, San Francisco, and Los Angeles Districts of the U.S. Army Corps of Engineers (USACE), along with the U.S. Fish and Wildlife Service (USFWS), the California Department of Fish and Wildlife (CDFW), the California Resources Agency, 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 finalized the Model Amendment to Incorporate Advance Mitigation Language for Bank Enabling Instruments (BEIs) that utilized the 2008 or 2017 BEI template, for use with mitigation banks that are established within the State of California. This notice is to inform interested parties of the availability of the completed template.
SUBJECT: The attached model amendment is for use in the modification of approved BEIs for mitigation and conservation banks that are within, or that propose service areas within the State of California, to incorporate advance mitigation language that was included in the 2021 BEI template. The Project Delivery Team (PDT) established by the 2011 interagency Memorandum of Understanding (MOU) concerning Mitigation and Conservation Banking and In-Lieu Fee Programs in California developed this model amendment, following the consideration of comments received in response to the finalization of the 2021 BEI template, and following input from the Bank Agency Management Team (BAMT), also established by the MOU. The attached template becomes effective for use for any currently approved mitigation bank, that was developed based on the 2008 or 2017 BEI templates, immediately upon the date of this public notice. This template will be used jointly by the U.S. Army Corps of Engineers’ (USACE) South Pacific Division's 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). As always, we will continue to discuss the experiences of mitigation bankers and others in using these templates, checklists, and guidance, to inform potential future changes to our templates, checklists, and guidance. This notice may be viewed at: http://www.spd.usace.army.mil/Missions/Regulatory/PublicNoticesandReferences.aspx.
AUTHORITY: The model amendment will be used to modify currently approved 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 would be used when those mitigation banks 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. These agencies have committed through the above-mentioned MOU to establishing a combined and coordinated approach to mitigation and conservation banking which includes the development of template documents for use throughout the State of California. This template reflects 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 a consistent approach to updating the BEI for previously approved mitigation banks to allow the sale of credits to purchasers prior to purchasers obtaining permits.
If you have questions or need additional information please contact Tom Cavanaugh, 415-503-6574, Thomas.J.Cavanaugh@usace.army.mil.