In-Lieu Fee Program Work Group
The In-Lieu Fee Program Work Group is a special project supported by the U.S. Army Corps of Engineers. The purpose is to assist interested states and tribes in meeting the requirements for the mitigation rule for In Lieu Fee Programs. This is accomplished through a national workgroup of state and Corps District staff and other interested parties. Work group members share ideas and information about progress and challenges in meeting the requirements of the rule.
In 2008, EPA and the U.S. Army Corps of Engineers (the Corps) issued revised regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under Section 404 of the Clean Water Act commonly referred to as the Final Mitigation Rule. These regulations are designed to improve the effectiveness of compensatory mitigation to replace lost aquatic resource functions and area, expand public participation in compensatory mitigation decision making, and increase the efficiency and predictability of the mitigation project review process.
In-lieu fee (ILF) program means a program involving the restoration, establishment, enhancement, and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for Department of the Army permits. Similar to a mitigation bank, an in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor. However, the rules governing the operation and use of in-lieu fee programs are somewhat different from the rules governing operation and use of mitigation banks. The operation and use of an in-lieu fee program are governed by an in-lieu fee program instrument. According to the 2008 Rule, an in-lieu fee program instrument is “the legal document for the establishment, operation, and use of an in-lieu fee program.”
Useful Links and Publications:
- 2008 Mitigation Rule: Compensatory Mitigatoin for Losses of Aquatic Resources
- Federal Guidance on the Use of In-Lieu-Fee Arrangements for Compensatory Mitigation under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
- U.S. Army Corps of Engineers webpage on ILF Programs
- RIBITS (Regulatory In-lieu fee and Bank Information Tracking System) was developed by the Corps with support from the EPA to provide better information on mitigation banking and in-lieu fee programs across the country. RIBITS allows users to access information on the types and numbers of mitigation bank and in-lieu fee program sites, associated documents, mitigation credit availability, service areas, as well information on national and local policies and procedures that affect mitigation bank and in-lieu fee program development and operation.
- In-Lieu Fee Programs Approved under the 2008 Mitigation Rule
For more information on compensatory mitigation general, please go to ASWM’s Compensatory Mitigation webpage by clicking here.
On March 31, 2008, EPA and the U.S. Army Corps of Engineers (the Corps) issued revised regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under Section 404 of the Clean Water Act. These regulations are designed to improve the effectiveness of compensatory mitigation to replace lost aquatic resource functions and area, expand public participation in compensatory mitigation decision making, and increase the efficiency and predictability of the mitigation project review process. (USEPA). Information on the rule can be found here.
US Army Corps of Engineers & US Environmental Protection Agency (2008). Compensatory Mitigation for Losses of Aquatic Resources; Final Rule (40 CFR Part 230). Federal Register, Vol. 73, No. 70.
The Environmental Law Institute's Compensatory Mitigation Research website: The Environmental Law Institute conducts detailed research to evaluate compensatory mitigation required to offset adverse impacts to wetlands. ELI studies a wide variety of compensatory mitigation programs, with a particular focus on compensatory mitigation carried out under Section 404 of the Clean Water Act. Within the Section 404 Program, ELI has analyzed all three available mechanisms, including mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation.
Wilmington Stream Mitigation Website: This website includes stream mitigation guidelines, an assessment worksheet and other useful information on stream mitigation in the Wilmington District.
Compensatory Mitigation Practices in the U.S. Army Corps of Engineers, Working Paper, March 2006
This paper reports on the current practice and status of compensatory mitigation authorized by the Corps of Engineers regulatory program. There is no existing comprehensive accounting or description of practices. The National Research Council (NRC) report on mitigation success, or lack thereof and described mitigation types several years ago (NRC, 2002). A year earlier, the Draft Report of the Nationwide Permit Programmatic EIS described mitigation decisions as of 2001, but focused primarily on nationwide permits. The Environmental Law Institute (ELI) proved a detailed description and status of two types of compensatory mitigation, mitigation banks and in-lieu fees as of 2001 (ELI 2002), but did not delve into the extent to which those mitigation services were used. This paper is intended to make available more recent data on compensatory mitigation practices authorized by the Corps of Engineers under permits issued under the auspices of Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. This paper summarizes much of the data collected in a Corps of Engineers Institute for Water Resources (IWR) survey, hereafter referred to as the 2005 Corps Survey of District Mitigation Practices.
Coastal Mississippi In Lieu Fee Program Instrument (January 1, 2010)
Northern Kentucky University (February 2012)
Louisiana Coastal In-Lieu Fee Instrument (January 2014)
Maine In Lieu Fee Program Instrument (August 17, 2011)
Susquehanna Basin Headwaters In-Lieu Fee Program (June 2013)
Ohio In-Lieu Fee Program Final Instrument (March 2014)
Vermont In-lieu Fee Program (December 7, 2010)
Virginia Aquatic Resources Trust Fund Program Instrument (July 15, 2011)
For more information, click here.
Quil Ceda Village In Lieu Fee Program (November 2013)
King County, Washington Mitigation Reserves Program (March 2012)