Guidelines on the Establishment & Operation
of Wetland Mitigation Banks in Georgia

Navigation Aid:
I	Purpose & Scope
II	Definitions
III	Mitigation Banking Policy & Guidance
IV	Implementation Procedures
Participants Criteria for the Siting and Design of Mitigation Banks Development of Individual Site Specific Mitigation Banking Instruments Criteria for Operation & Use of Mitigation Banks Dispute Resolution
V	Other Procedures

(Download Original Word Document)

I. PURPOSE AND SCOPE.
This document provides guidance on the development and operation of wetland mitigation banks in the State of Georgia and was developed jointly by the undersigned agencies with an interest in wetlands in Georgia.

This guidance is provided to assist the agencies, bank sponsors and other interested parties in meeting the goals of the Clean Water Act (CWA) to restore and maintain the chemical, physical and biological integrity of the Nation's waters. Fundamental to this guidance is the recognition by all parties that, prior to use of a mitigation bank, bank users will comply with the Section 404(b)(1) Guidelines applying the following mitigation sequence:

A. Avoid wetland impacts through practicable alternatives;


B. Minimize wetland impacts using all reasonable actions to reduce impacts;


C. Compensate by mitigating for unavoidable wetland impacts and loss of aquatic functions. On-site and in-kind mitigation opportunities must be evaluated prior to considering use of a mitigation bank.

This sequence must be followed and documented before the agencies will agree to the use of a mitigation bank.

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Banking Instrument: Document drafted by the bank sponsor to describe, in detail, the physical and legal characteristics of the bank, and how the bank will be established and operated.


Bank Sponsor: Any public or private entity responsible for the successful establishment and, in most circumstances, operation of a mitigation bank.


Compensatory Mitigation: For purposes of Section 10/404, the restoration, enhancement, or in exceptional circumstances, preservation or creation of wetlands and/or aquatic resources expressly for the purpose of compensating for adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.



Compensation Requirement: The type and number of acres/required mitigation credits of wetland impacted by a project for which compensation is required.


Consensus: A process by which a group synthesizes its position to form a general agreement acceptable to all members.


Creation: The establishment of a wetland or other aquatic resources where one did not formerly exist (e.g. convert an upland to wetland).


Credit: A unit measure representing the accrual or attainment of aquatic functions at a mitigation bank. Credit measurements may be in the form of acres of wetlands, habitat units or other functional units.


Debit: A unit measure representing the loss of aquatic functions due to a construction activity at an impact or project site. In a given bank, debit units must be in the same form as credit units and be determined using the same assessment method.


Ecoregion: Physiographic provence, such as Blue Ridge, Ridge and Valley, Piedmont, Coastal Plain, etc.


Enhancement: Activities conducted in existing wetlands or other aquatic resources to achieve specific management objectives or provide conditions which previously did not exist, and which increase one or more aquatic functions. Enhancement may involve trade-offs between aquatic resource, functions and values; a positive change in one function may result in negative effects to other functions.


Function: Any number of physical or biological processes performed by wetlands. Commonly recognized functions are food chain production, provision of fish and wildlife habitat, shoreline protection, storm and floodwater storage, groundwater recharge and discharge, and water quality maintenance.


In­Kind Compensation: The replacement of a specific wetland type with the same wetland type. Type is defined by the U.S. Fish and Wildlife Service's Cowardin et. al. (1979) Wetlands Classification System.


Mitigation: The three step process outlined in the 404(b)(1) Guidelines: first, avoid adverse impacts associated with a proposed project through selection of less damaging practicable on-site or off­site alternatives; then minimize the impact of the selected alternative to the extent appropriate and practicable; and finally, compensate for remaining unavoidable impacts to the extent appropriate and practicable.


Mitigation Bank Review Team (MBRT): The interagency group of Federal, State, tribal, and local regulatory and resource agency representatives that are party to a banking instrument and oversee establishment, use and operation of a mitigation bank. For the purposes of this agreement the MBRT consists of the U.S. Army Corps of Engineers Savannah and Central Districts, the U.S. Environmental Protection Agency Region IV, the U.S. Fish and Wildlife Service Southeast Region, the National Marine Fisheries Service Southeast Region, the Georgia Department of Natural Resources, and the Federal Highway Administration Georgia Division.


Mitigation Bank: A site where wetlands and/or other aquatic resources are restored, enhanced, or in exceptional circumstances, preserved or created expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources.


On-site: For purposes of searching for on-site mitigation, a location adjacent or contiguous to a discharge site.


Operation: The actual conduct of credit withdrawal transactions in a functioning wetland mitigation bank in order to compensate for unavoidable wetland losses. Operation also includes activities such as monitoring, remediation, etc.


Out­of­Kind Compensation: Replacement of a specific wetland type with wetlands of another type.


Practicable: Available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.


Preservation: The protection of ecologically important wetlands or other aquatic resources in perpetuity through appropriate legal and physical mechanisms. A preservation area may contain small upland inclusions and adjacent upland buffers necessary to protect and/or enhance the aquatic resource.


Restoration: Re-establishment of previously existing wetland or other aquatic resource characteristics and function(s) at a site where they have ceased to exist, or exist only in a substantially degraded state.


Service Area: Based on hydrologic, edaphic and biotic criteria, the designated area (e.g. watershed or ecoregion) wherein a bank can reasonably be expected to provide appropriate compensation for adverse impacts to wetlands and/or aquatic resources.


SOP: The Standard Operating Procedure for Determining Wetland Mitigation Credits and Debits; developed as a tool for administration of wetland mitigation sites in current use by the Savannah District of the Army Corps of Engineers.


Success Criteria: The minimum standards required to meet the objectives for which a bank was established. Standards may include hydrologic, soil and vegetative characteristics.


Watershed: The drainage area for each major river system within the State.


Wetlands: Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. For the purposes of this guidance, the U.S. Army Corps of Engineers 1987 "Jurisdictional Wetland Delineation Manual," will be used to identify and/or delineate wetlands.

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III. MITIGATION BANKING POLICY AND GUIDANCE:

A. Applicable Environmental Laws and Regulations. Projects deemed appropriate for off­site compensation in a mitigation bank must demonstrate full compliance with existing Federal statutes and regulations, as well as consistency with applicable policies, including, but not limited to:

1. Clean Water Act, Section 404 (33 USC 1344).


2. Rivers and Harbors Act of 1899, Section 10 (33 USC 403 et seq.)


3. Environmental Protection Agency Section 404(b)(1) Guidelines (40 CFR part 230). Guidelines for Specification of Disposal Sites for Dredged or Fill Material.


4. Department of the Army, Section 404 Permit Regulations (33 CFR parts 320-330). Policies for evaluating permit applications to discharge dredged or fill material.


5. Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army Concerning the Determination of Mitigation under the Clean Water Act Section 404(b)(1) Guidelines. (February 6, 1990).


6. National Environmental Policy Act (42 USC 4321 et seq.); and the Council on Environmental Quality's implementing regulations (40 CFR parts 1500-1508).


7. Fish and Wildlife Coordination Act (16 USC 661 et seq.).


8. Fish and Wildlife Service Mitigation Policy (46 FR 7644-7663, 1981).


9. Magnuson Fishery Conservation and Management Act (16 USC 1801 et seq.).


10. National Marine Fisheries Service Habitat Conservation Policy (48 FR 53142-53147, 1983).


11. Coastal Zone Management Act [16 U.S.C. 1451 et. seq.]

B. In addition to the above laws, regulations and policy, the following agency documents establish criteria for mitigation banking:

1. A Memorandum to the Field signed August 23, 1993, (Regulatory Guidance Letter 93­2) set forth a framework for Corps and EPA policy for the establishment and use of mitigation banks.


2. Final Guidance for the Establishment, Use and Operation of Mitigation Banks (Federal Register, Vol. 60, No. 228, Tuesday, November 28, 1995)


3. Guidelines on the Establishment and Operation of Wetland Mitigation Banks in Georgia.

C. It shall be the policy of the agencies that mitigation banking may be an appropriate form of compensation for the following projects and/or under the following circumstances:

1. Projects that have no feasible on-site mitigation opportunities and off-site mitigation has been determined by the agencies to be appropriate.


2. Projects with minor impacts which may have limited on-site mitigation opportunities, where it can be clearly demonstrated that off-site mitigation would be more environmentally beneficial.


3. Projects with minor impacts, which when considered cumulatively with similar nearby projects, would result in a more than minimal impact, (e.g. non-notification Nationwide Permits, Regional Permits, etc.).


4. Linear projects, such as highways, that generally result in numerous minor impacts, but cumulatively could be considered more than minimal.

5. On a case by case basis, the MBRT will review projects with substantial adverse impacts that cannot be adequately mitigated on-site. These types of projects would only be considered for banking when it is shown to be the most environmentally beneficial method of mitigation.

D. It shall be the policy of the agencies that mitigation banking may generally be an inappropriate form of compensation under the following circumstances:

1. Projects where on-site mitigation is determined to be appropriate, practicable, economical, preferable and the most environmentally beneficial means of meeting project mitigation requirements.


2. Projects that adversely affect important aquatic habitat utilized by Federally listed endangered or threatened species.


3. Projects that adversely affect a rare wetland type and/or functionally unique wetland (e.g. salt marsh, mountain bog, Carolina Bay, migratory and spawning areas for anadromous fish species, etc.).


4. Projects for which valid alternatives analysis has not been performed.


5. Projects for which the adverse impacts are so significant that, even if alternatives are not available, the discharge may not be permitted regardless of the compensation proposed.

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A. Participants. The following participants must be identified prior to developing a specific mitigation bank:

1. Bank sponsor and/or other parties to acquire, develop, manage and monitor the mitigation bank.

2. Agencies, organizations and other parties to this agreement comprise the Mitigation Bank Review Team (MBRT).
   
   

B. Criteria for Mitigation Bank Siting and Design:


1. Selection of a mitigation bank site will generally be based on restoration, enhancement or creation potential (i.e. soil type and water availability).


2. Additional factors that should be considered in selecting a bank site are: existing resource value; size; location; cost; adjacent land uses; absence of contaminants; potential for human intrusion and the ability to protect wetland functions over the long-term; potential for developmental intrusion such as utility rights-of-way.


3. Potential bank sponsors should place a high priority on siting banks in previously drained or degraded forested wetlands that could be restored or enhanced (e.g. bottomland hardwood sites that were converted to agricultural uses or mixed hardwood forest that were drained and converted to pine production, provided such conversion was accomplished prior to the regulation of mechanized landclearing under Section 404 or was exempt from such regulation under Section 404(f)). The agencies recognize that most wetland impacts within the State have been in forested wetland systems and this trend is expected to continue. Due to this trend, banks that focus on the restoration of forested wetlands would be more likely to have in-kind mitigation credits available. Restoration of forested wetlands would have a higher potential for the development of bank credits.

4.To the maximum extent possible, mitigation banks should be located in the same geographic area as anticipated discharge sites.


5. Selection of a former wetland as a mitigation bank site increases the likelihood that a functional wetland will develop. Every effort should be made to establish banks on such sites prior to attempting to establish banks on sites that require wetland creation. Where wetland creation is undertaken, consideration should be given to establishing mitigation banks on sites having minor existing ecological values.


6. Purchase or preservation of wetlands alone does not generally constitute an acceptable mitigation bank. Preservation of existing wetlands and/or upland buffers will be considered when proposed in conjunction with restoration, enhancement and/or creation of wetlands. Wetland preservation will be considered in exceptional circumstances and only on a case by case basis.


7. Mitigation banks should incorporate management strategies that contribute to overall water quality improvements in the ecosystem and that protect the ecological integrity of adjacent habitats (e.g., use of buffers, acquisition of easements). Where practicable, provision should be made for fish and wildlife migrational corridors between mitigation banks and other high quality aquatic and upland habitats.





8. Mitigation banks should be ecologically self-sustaining. Every effort will be made to avoid establishing banks which require regular and intensive maintenance. Exceptions will be made only when the MBRT determines that adequate procedures exist to insure the permanent viability of the bank site.


9. Once a potential bank site has been identified, an appropriate assessment technique will be selected to evaluate baseline site conditions. This information will be used to determine if the site has potential to develop mitigation credit.


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C. Development of Individual Site­Specific Mitigation Banking Instruments. A written site­specific mitigation banking agreement is central to the successful establishment of each individual mitigation bank because it formalizes consensus among parties with respect to site selection, development and operation of the bank. This instrument may be a Memorandum of Understanding (MOU) or other document, as applicable.


1. Individual site­specific banking instruments must, at a minimum, include and/or identify:


a. Ownership of bank lands (i.e. recorded deed, option to purchase agreement, easement, etc);


b. Bank goals and objectives;


c. Geographic service area;


d. Description of baseline conditions;


e. Bank size and classes of wetlands and/or other aquatic resources proposed at the bank site;


f. Types of wetland or other aquatic resource impacts suitable for bank use;


g. Specific success criteria to determine when credits are available.


h. Assessment methodology or procedures for determining credits and debits;


i. Accounting procedures for tracking credits and debits;


j. A monitoring plan, identifying an evaluation schedule and reporting responsibilities;


k. Contingency and remedial actions and responsibilities;


l. Financial assurances if early credit withdrawal is proposed;


m. General method for determining compensation ratios considering qeographic service area, wetland type, distance from bank, etc.


n. Provisions for long-term management and maintenance;


o. Method or instrument for the perpetual legally binding protection and preservation of the bank site.


2. Based on information provided by the bank sponsor, information obtained from site inspections, and/or information from other sources, the MBRT shall have the authority to:


a. Evaluate and approve the mitigation bank site;


b. Evaluate and approve bank development plans;


c. Evaluate and approve success criteria;


d. Determine when the bank is successful and available for use;


e. Determine credits available within the bank;


f. Oversee operation of the bank;


g. Evaluate and approve monitoring plans and reports; and


h. Evaluate and approve remediation plans and efforts.


3. Individual site­specific banking instruments must specify that mitigation bank developers/managers are accountable for all bank­related project costs including acquisition, administration, development, management and maintenance, long­term monitoring, and, proposed remedial measures. Funding sources should be identified in the agreement for undertaking the above activities.


4. Individual site­specific banking instruments must also specify that if the condition of the bank changes and all or part of the bank stops providing the intended functions (i.e., partial or total failure of the bank) following approval of credit withdrawal, the MBRT will suspend further credit withdrawal from the bank. Following remedial action, use of the bank may be resumed, subject to approval of the MBRT.


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D. Criteria for Operation and Use of Mitigation Banks:


1. The MBRT will oversee operation of the bank, but is not responsible for day-to-day operations or for any liabilities associated with such operation.


2. Prior to use of the mitigation bank, the MBRT will determine if the bank is functioning, consistent with the success criteria developed by the bank sponsor and agreed to by the MBRT for that particular bank.


3. Prior to withdrawal of credits from a bank the MBRT will review initial monitoring reports to determine whether the detailed success criteria established for the bank have been met. Mitigation banks generally must be functioning, consistent with the success criteria developed for each particular bank, prior to the withdrawal of credits.


4. In certain instances, limited withdrawal of credits (e.g. 15%, or less, of the total credits projected for the bank at maturity) may be allowed by the MBRT prior to demonstrating functional success. All of the following requirements must be satisfied prior to initial credit withdrawal:


a. With participation of the MBRT, the bank sponsor has performed an assessment of the bank site and demonstrated that the site has a high probability for functional success;


b. The banking instrument and final mitigation plans have been approved;


c. The bank site has been secured by deed, option to purchase agreement, easement or other legal means;


d. And appropriate financial assurances have been established (i.e. bond, letter of credit, etc.).


5. The following guidance will be used for proposals involving a service area that would include out of watershed or out of ecoregion credit use:

a. Use of credit from a bank located in one ecoregion will generally not be considered acceptable as mitigation for an impact in an adjacent ecoregion. In certain instances, the MBRT may determine that out of ecoregion credit use would be the most ecologically/environmentally beneficial method of mitigating a particular impact (e.g. impact site and bank are in different ecoregions but both are very near the ecoregion boundary). Use of credit in an adjacent ecoregion would require an associated increase in the acceptable credit ratio.


b. Use of credit will generally be considered acceptable for the portion of each watershed that is located within a single ecoregion. There will generally be an associated incremental increase in the applicable credit ratio required to mitigate an impact for each watershed boundary that is crossed between the bank and the impact site.


c. In Georgia, metropolitan and/or urban counties (high growth areas designated on attached "Figure 1") are currently losing their remaining wetlands at an accelerated pace due to high development pressures. Remaining wetlands in these areas may have higher functional values due in part to their scarcity relative to larger expanses of similar-type wetlands outside the urban fringe. Assuming all other factors are similar (i.e. same watershed, same ecoregion, same mitigation strategy, etc.), a lower credit ration would generally be required to mitigate an impact if credit is withdrawn from a bank located in a high growth county versus a bank located in a rural county. For these reasons, potential bank sponsors are strongly encouraged to site banks within counties designated as high growth.


6. The bank sponsor may propose the use of an assessment methodology (e.g. Habitat Evaluation Procedures (HEP); Wetland Evaluation Technique (WET); Hydrogeomorphic (HGM) when adopted by the agencies; etc.) to estimate projected available credits for a bank. The MBRT, based on assessment information provided by the bank sponsor, monitoring reports, site inspections and other information, will determine available credits.


7. Based on the bank sponsors method of assessment, the MBRT will establish a process or formula (debiting plan) for translating compensation requirements into debits.


8. During the permit review process the applicant and/or the bank sponsor will assess the project impact site to determine the necessary compensation to achieve no net loss of wetland function. The assessment methodology used must be the same as that used to assign bank credit.


9. The MBRT will use the established process or formula (debiting plan) for translating compensation requirements (the type and number of acres of wetland impacted by a proposed project) into debits on a project by project basis.


10. Each use of the mitigation bank will be listed as a special condition of the 404 Permit for the authorized project. This special condition will specify the amount of credit required for the project.


11. Individual site-specific banking instruments must specify that the bank sponsor is responsible for the long-term success, perpetual protection, and/or passive management of the bank, and for providing alternative compensation if the bank fails. To evaluate the long term success of operational mitigation banks, annual monitoring and reporting will be required for the first five years of bank operation. Thereafter, reporting should be continued at a regular interval, to be determined by the MBRT. Monitoring should provide sufficient written and graphic descriptions of bank conditions for the MBRT to evaluate the effectiveness of bank management and verify the availability of compensation credits. Monitoring may be discontinued after all credits have been withdrawn from the bank, provided a minimum of five years has elapsed since the bank was determined to be functioning successfully.

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G. Dispute Resolution. All decisions made by the MBRT with respect to any aspect of mitigation bank establishment and operation, including bank development, management, operation, evaluation, monitoring, and remediation, as outlined in this or any subsequent mitigation banking agreements, will be reached by consensus. In the event that consensus cannot be reached, the MBRT will follow the dispute resolution process as outlined in the final "Federal Guidance for the Establishment, Use and Operation Mitigation Banks," Federal Register, Volume 60, Number 228, Tuesday, November 28, 1995.

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A. This guidance is subject to change subsequent to the receipt of additional national guidance on this issue.


B. Within one year of issuance, the agencies will review this guidance for adequacy, applicability and/or acceptability. Any proposed modifications, additions or deletions to this guidance will considered by the agencies, and upon consensus, necessary changes will be made.


C. This guidance shall remain in effect until written notification by the party desiring to withdraw, or by mutual consent of all the parties.


D. Nothing in this guidance is intended to diminish, modify, or otherwise affect the statutory or regulatory authorities of the agencies involved.

U.S. Army Corps of EngIneers, Savannah District
U.S. Environmental Protection Agency, Region IV
U.S. Fish & Wildlife Services, Southeast Region
Georgia Department of Natural Resources