EIA Technical Review Guidelines:
Tourism-Related Projects
Volume II Appendices
Regional Document prepared under the CAFTA DR Environmental Cooperation
Program to Strengthen Environmental Impact Assessment (EIA) Review
Prepared by CAFTA-DR and U.S. Country EIA and Tourism Experts with support from:
USAID
FROM THE AMIHICA.N PEOPLE
USAID ENVIRONMENT AND LABOR
EXCELLENCE FOR CAFTA-DR PROGRAM
BH CCAD
CBiflBOlMaiCftttA « AMBB-JTl V MSAMOUO
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This document is the result of a regional collaboration under the environmental cooperation
agreements undertaken as part of the Central America and Dominican Republic Free Trade Agreements
with the United States. Regional experts participated in the preparation of this document; however, the
guidelines do not necessarily represent the policies, practices or requirements of their governments or
organizations.
Reproduction of this document in whole or in part and in any form for educational or non-profit
purposes may be made without special permission from the United States Environmental Protection
Agency (U.S. EPA), Agency for International Development (U.S. AID), and/or the Central American
Commission on Environment and Development (CCAD) provided acknowledgement of the source is
included.
EPA/315R11003B August 2011
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EIA Technical Review Guidelines;
Tourism-Related Projects
Volume II Appendices
The EIA Technical Review Guidelines for Tourism-Related Projects were developed as part of a regional
collaboration to better ensure proposed tourism-related projects undergoing review by government
officials, non-governmental organizations and the general public successfully identify, avoid, prevent
and/or mitigate potential adverse impacts and enhance potential beneficial impacts throughout the life
of the projects. The guidelines are part of a broader program to strengthen environmental impact
assessment (EIA) review under environmental cooperation agreements associated with the "CAFTA-DR"
free trade agreement between the United States and five countries in Central America and the
Dominican Republic.
The guidelines and example terms of reference were prepared by regional experts from the CAFTA-DR
countries and the United States in government organizations responsible for the environment and
tourism and leading academic institutions, designated by the respective Ministers, supported by the U.S.
Agency for International Development (USAID) contract for the Environment and Labor Excellence
Program and a grant with the Central America Commission for Environment and Development (CCAD).
The guidelines draw upon existing materials from CAFTA-DR countries, other countries outside the
region, and international organizations. The guidelines do not represent the policies or practices of any
one country or organization.
The guidelines are available in English and Spanish on the international websites of the U.S.
Environmental Protection Agency (U.S. EPA), the International Network for Environmental Compliance
and Enforcement (INECE), and the Central American Commission on Environment and Development
(CCAD): www.epa.gov/oita/ www.inece.org/ www.sica.int/ccad/ Volume 1 contains the guidelines
with a glossary and references which track with internationally recognized elements of environmental
impact assessment; Volume 2 contains Appendices with detailed information on tourism, requirements
and standards, predictive tools, and international codes; and Volume 1, part 2 contains example Terms
of Reference cross-linked to Volumes 1 and 2 for resort/hotel/condo developments, concessions, and
coastal and marine projects respectively for use by the countries as they prepare their own EIA program
requirements.
USAID ENVIRONMENT AND LABOR f
FROM THE AMERICAN PEOPLE
EXCELLENCE FOR CAFTA-DR PROGRAM
x»x
O CCAD
^^^^^^^ COWlSlON CtNTSOAMBOC*/-** OCAMMEMTt YDESMHOUO
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Volume II-EIA Technical Review Guidelines: TABLE OF CONTENTS
Appendices: Tourism
TABLE OF CONTENTS
APPENDIX A. WHAT IS TOURISM?. 1
1 TYPES OF TOURISM 1
1.1 Leisure Tourism 1
1.2 Other Forms of Tourism 1
2 COMPONENTS OF TOURISM 2
APPENDIX B. OVERVIEW OF TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES 3
1 INTRODUCTION 3
2 REGIONAL OVERVIEW 3
2.1 Economic Importance of Tourism 3
2.2 Tourism and the Environment 5
2.3 Regional Institutions 7
3 CAFTA-DR COUNTRY OVERVIEWS 9
3.1 Costa Rica 9
3.2 Dominican Republic 11
3.3 El Salvador 13
3.4 Guatemala 15
3.5 Honduras 17
3.6 Nicaragua 19
APPENDIX C. REQUIREMENTS AND STANDARDS: CAFTA-DR COUNTRIES, OTHER COUNTRIES AND
INTERNATIONAL ORGANIZATIONS 21
1 INTRODUCTION TO ENVIRONMENTAL LAWS, STANDARDS, AND REQUIREMENTS 22
2 AMBIENT STANDARDS FOR AIR AND WATER QUALITY 25
3 HOTEL AND RESORT PERFORMANCE STANDARDS: 39
3.1 Hotel and ResortWater Discharge/ Effluent Limits 39
3.2 Supplemental U.S. Water Discharge/ Effluent Limits 42
3.3 Hotel and Resort Storm Water Discharge Performance Requirements 42
3.4 Hotels and Resorts Air Emission Limits 43
4 MARINE AND OTHER WATER VESSEL PERFORMANCE STANDARS 44
4.1 Water Discharge/ Effluent Limits for Vessels 44
4.2 Marine and Other Water Vessel: Air Emission Limits 46
4.3 Marine and Other Vessel: Solid Waste 57
5 BIODIVERSITY/ECOSYSTEMS 59
5.1 Protection of Coral Reefs 59
5.2 Specially Protected Areas 61
5.3 Aquatic Invasive Species 61
6 INTERNATIONAL TREATIES AND AGREEMENTS 62
7 TOURISM SECTOR WEBSITE REFERENCES 64
APPENDIX D. RULES OF THUMB FOR EROSION AND SEDIMENTATION CONTROL 65
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Volume II-EIA Technical Review Guidelines: TABLE OF CONTENTS
Appendices: Tourism
APPENDIX E. SAMPLING AND ANALYSIS PLAN 79
1 INTRODUCTION 79
1.1 Site Name or Sampling Area 79
1.2 Site or Sampling Area Location 79
1.3 Responsible Organization 79
1.4 Project Organization 79
1.5 Statement of the Specific Problem 80
2 BACKGROUND 80
2.1 Site or Sampling Area Description [Fill in the blanks.] 80
2.2 Operational History 80
2.3 Previous Investigations/Regulatory Involvement 81
2.4 Geological Information 81
2.5 Environmental and/or Human Impact 81
3 PROJECT DATA QUALITY OBJECTIVES 81
3.1 Project Task and Problem Definition 81
3.2 Data Quality Objectives (DQOs) 81
3.3 Data Quality Indicators (DQIs) 81
3.4 Data Review and Validation 82
3.5 Data Management 83
3.6 Assessment Oversight 83
4 SAMPLING RATIONALE 83
4.1 Soil Sampling 83
4.2 Sediment Sampling 83
4.3 Water Sampling 84
4.4 Biological Sampling 84
5 REQUEST FOR ANALYSES 84
5.1 Analyses Narrative 85
5.2 Analytical Laboratory 85
6 FIELD METHODS AND PROCEDURES 85
6.1 Field Equipment 85
6.2 Field Screening 85
6.3 Soil 86
6.4 Sediment Sampling 88
6.5 Water Sampling 88
6.6 Biological Sampling 92
6.7 Decontamination Procedures 92
7 SAMPLE CONTAINERS, PRESERVATION AND STORAGE 93
7.1 Soil Samples 94
7.2 Sediment Samples 94
7.3 Water Samples 95
7.4 Biological Samples 96
8 DISPOSAL OF RESIDUAL MATERIALS 96
9 SAMPLE DOCUMENTATION AND SHIPMENT 98
9.1 Field Notes 98
9.2 Labeling 99
9.3 Sample Chain-Of-Custody Forms and Custody Seals 99
9.4 Packaging and Shipment 100
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Volume II-EIA Technical Review Guidelines: TABLE OF CONTENTS
Appendices: Tourism
10 QUALITY CONTROL 101
10.1 Field Quality Control Samples 101
10.2 Laboratory Quality Control Samples 106
11 FIELD VARIANCES 107
12 FIELD HEALTH AND SAFETY PROCEDURES 108
APPENDIX F. COMPENSATORY MITIGATION FOR LOSSES OF AQUATIC RESOURCES 109
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Volume II-EIA Technical Review Guidelines: TABLE OF CONTENTS
Appendices: Tourism
LIST OF FIGURES
Figure B-1: Travel and tourism total contribution to GDP 4
Figure B- 2: Foreign and domestic travel contribution to GDP 5
Figure B- 3: International visitor arrivals, 2000-2009 6
Figure B- 4: Tourism data for Costa Rica 10
Figure B- 5: Tourism data for Dominican Republic 12
Figure B- 6: Tourism data for El Salvador 14
Figure B- 7: Tourism data for Guatemala 16
Figure B- 8: Tourism data for Honduras 18
Figure B- 9: Tourism data for Nicaragua 20
Figure C-1: Approaches to environmental management 23
Figure C- 2: Examples of environmental requirements 24
LIST OF TABLES
Table B-1: Economic contribution of tourism and travel in CAFTA-DR countries, 2010 3
Table B- 2: Natural resource and cultural attractions in CAFTA-DR countries 6
Table C-l: Freshwater quality guidelines and standards 26
Table C- 2: Drinking water quality guidelines and standards 28
Table C- 3: Salt water quality guidelines and standards 30
Table C- 4: United States water quality benchmarks for aquatic life and sediment 32
Table C- 5: Water quality standards for Puerto Rico 34
Table C- 6: Ambient air quality guidelines and standards 38
Table C- 7: Water discharge/effluent limits 39
Table C- 8: Land based sources protocol timeline for domestic wastewater 41
Table C- 9: Standards for marine sanitation devices (MSDs) 46
Table C-10: MARPOL Annex VI NOx emission limits 47
Table C-11: Emission standards for large, ocean going ship marine diesel engines: MARPOL 47
Table C-12: MARPOLAnnex VI fuel sulfur limits 48
Table C-13: United States air emission standards for marine vessels 49
Table C-14: Marine spark-ignition engines exhaust emission standards 50
Table C-15: Visible emissions limits for marine vessels 52
Table C-16: Marine compression-ignition (Cl) engines exhaust emission standards 53
Table C-17: Summary of garbage discharge restrictions for vessels in the United States 58
Table C-18: Regulations on use of organotin-based anti-foulants 59
Table C-19: Summary of monitoring programs relevant to coral reef ecosystems under U.S. jurisdiction 60
Table C- 20: Multilateral environmental agreements ratified (R) or signed (S) by CAFTA-DR countries 62
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Volume II-Appendices: EIA Technical Review Guidelines: APPENDIX A. WHAT IS TOURISM?
Tourism
APPENDIX A. WHAT IS TOURISM?
1 TYPES OF TOURISM
The World Travel and Tourism Council (WTTC), the World Tourism Organization (WTO), and the Earth
Council agree on the following definition of tourism, which is also widely accepted internationally:
Tourism comprises activities of people who travel or who stay in places far from their
usual environment for no more than one consecutive year, for pleasure, business, or
other purposes.
This definition of tourism can be further divided into four categories: leisure, business, academic and
medical.
1.1 Leisure Tourism
Leisure tourism is elective travel for leisure purposes. It may be done to visit family or friends, to enjoy a
natural or cultural resource, to experience something different or unique, or a combination of all three.
Leisure tourism may be divided into several subcategories:
Coastal and Marine Tourism - all tourism to beaches, islands, estuarine areas, coral reefs, and
oceans, including boating and diving.
Inland Natural Area Tourism - non-coastal, dispersed tourism directed toward enjoying wildlife
or other natural or cultural/archaeological features.
Cultural Heritage Tourism - travel to experience, and learn from a new culture.
Urban Cultural Tourism - travel to cities for sightseeing, museum visiting, and historical touring.
Sports Tourism -travel to play or watch a certain sport (e.g., professional teams, tournaments,
the Olympic Games, World Cup,).
Health Tourism -travel with the purpose of feeling better at the end of the trip (e.g., go to a spa,
practice yoga, and/or simply travel to relax).
Ecotourism can be a subset of the first three categories. The International Ecotourism Society defines
ecotourism as: "responsible travel to natural areas that conserves the environment and improves the
well-being of local people." So ecotourism combines nature tourism with cultural tourism and when
properly executed protects and promotes both natural systems and living cultures.
1.2 Other Forms of Tourism
Business tourism involves travel to do business or attend a business-related convention. Although the
main reason for travel is business, many business tourists also engage in some leisure tourism activities
during their business trip.
Academic Tourism involves travel with the purpose of learning or teaching something. It includes
students, researchers, and teachers. It also includes individuals who travel to a country to learn a
language. As with business tourism, most academic tourists spend at least some time during their trip
to participate in leisure tourism activities.
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Volume II-Appendices: EIA Technical Review Guidelines: APPENDIX A. WHAT IS TOURISM?
Tourism
Medicinal Tourism is travelling for the purpose of receiving medical treatment. It differs from health
tourism in that it involves curing a specific illness or injury, rather than just general improvement of
health.
2 COMPONENTS OF TOURISM
All types of tourism have certain common components. These include transport, accommodation and
activities. Providing these components creates the potential for environmental impacts, and hence the
need for environmental impact assessment.
By definition, tourism requires people to travel to "places far from their usual environment." Therefore,
tourism involves transporting people from their "usual environment" or home to the place where they
will participate in activities. Transport may be needed via air, land or water. It may rely upon existing
routes and means of transport, an expansion of existing routes and means of transport, or the
development of new routes and means of transport.
Tourists of all types require accommodations. Accommodation includes both lodging and food. Lodging
can run the gamut from tents to condominiums and everything in between (e.g., home stays, hostels,
hotels, resorts, apartments). Food is most often provided by restaurants, but may also be provided by
local households, caterers or camping concessionaires. In some cases, the tourists may have access to
cooking facilities and will buy raw food and prepare it themselves. Some of the more common forms of
accommodations are hotels, resorts and mixed development, all of which often offer both lodging and
food.
Hotels always provide basic amenities such as rooms and toilet facilities (either in private rooms
or shared facilities). Often they also have other amenities such as, bars, restaurants, tennis
courts and swimming pools. They may be located in urban areas with existing services such as
water, electricity and sewers or located in a more remote location requiring provision of on-site
services.
Resorts are full-service hotels (i.e., hotels with bars, restaurants and swimming pools) with
additional amenities such as golf facilities, shopping areas, spas, boating, recreational facilities
and developed beaches. Whereas a hotel is be a place where tourists base themselves to
participate in activities outside of the hotel, many tourists visit a resort with the notion of
participating only in activities at the resort. Often Resorts require the provision of at least some
onsite services (water, electricity, sewers, wastewater treatment, etc.).
Mixed Development, which encompasses larger area development including multiple hotels
and/or resorts plus commercial development, such as residences, shopping centers and
recreational facilities (golf facilities, boating, beach access, marinas, etc.).
The heart of the tourist experience is the activities that attract tourists to a location. Activities vary with
each type of tourism. They may be active such as hiking, swimming, snorkeling, diving, competitive
sports and walking tours. Or they may be passive such as "taking the sun", spa treatments, "drinking in
the views" and bus tours. Some activities require the provision of facilities such as golf courses, tennis
courts, convention centers and shopping malls. Others may be based on natural resources, but often
facilities are needed to access and enjoy those resources, such as trails, campgrounds, beaches, and
docks. Some nature based activities can also be enhanced by the provision of services such as guides,
horses, boats and motor vehicles. These facilities and services are often provided by hotels or resorts
located on or near the resources or by concessionaires.
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
1 INTRODUCTION
This appendix presents a brief overview of the tourism sector in CAFTA-DR countries and how trends
and pressures for tourism related development are taking shape. It is divided into two sections. The
first section presents issues relevant to the sector on a regional basis, including regional economic
importance of tourism, regional resources affected by tourism, and regional tourism institutions and
initiatives. The second section is a brief overview of the tourism sector in each of the six CAFTA-DR
countries.
2 REGIONAL OVERVIEW
2.1 Economic Importance of Tourism
The travel and tourism sector contributes strongly to gross domestic product (GDP) of CAFTA-DR
countries. The significance of tourism to the economies of each CAFTA-DR country in 2010 is shown in
the Table B-l.
Table B-1: Economic contribution of tourism and travel in CAFTA-DR countries, 2010
Country
Costa Rica
Dominican Republic
El Salvador
Guatemala
Honduras
Nicaragua
REGION
Tourism and Travel Contribution to
Gross Domestic Product (GDP)
2011 US$ bn
4.522
9.027
1.404
3.369
2.391
0.663
21.376
% of GDP
12.9
17.5
6.3
8.0
14.8
10.2
12.3
Total Tourism and Travel Employment
Employees
(1,000s)
241.4
652.6
137.6
342.1
368.4
195.6
1,937.7
% of Total
Employment
11.9
16.1
5.7
7.1
13.0
8.9
10.6
Source: World Travel & Tourism Council (WTTC),
http://www.wttc.org/eng/Tourism Research/Economic Data Search Tool, accessed on May 12, 2011.
The data in Table B-l was generated by the World Travel and Tourism Council (WTTC). The WTTC uses
the TSA: RMF 20081 framework for estimating the economic contributions of travel and tourism. As
such, it defines travel and tourism as "the activities of persons travelling to and staying in places outside
their usual environment for not more than one consecutive year for leisure, business and other
purposes not remunerated from within the place visited." In estimating the economic contribution of
travel and tourism, it includes all personal consumption before, during and after a trip, which is directly
associated with the trip (e.g., travel, lodging, meals and other purchases made for the trip or during the
trip) as well as expenses incurred by friends, relatives and business associates on the travelers behalf.
1 2008 Tourism Satellite Account: Recommended Methodological Framework (TSA: RMF 2008), a joint publication
of the United Nations Statistics Division (UNSD), the Statistical Office of the European Communities (EUROSTAT),
the Organisation for Economic Co-operation and Development (OECD) and the World Tourism Organization
(UNWTO)
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
In the CAFTA DR region as a whole, travel and tourism accounts for more than 12 percent of GDP and
nearly 11 percent of employment. In four of the six CAFTA-DR countries, travel and tourism accounts for
more than 10 percent of the GDP. Travel and tourism's contribution to GDP has generally grown in all of
the countries over the past 10 years (Figure B-l). All of the countries except the Dominican Republic
and Nicaragua experienced negative economic growth in tourism during 2009 as a result of the
worldwide economic downturn. Guatemala and Honduras returned to positive growth in 2010 and the
WTTC projects that both Costa Rica and El Salvador will see positive growth return in 2011.
Figure B-1: Travel and tourism total contribution to GDP
CO
10
9
8
7 ^
6
5
3
2
1
0
Costa Rica
Dominican Republic
El Salvador
Honduras
Nicaragua
2001 2004 2007
Year
2010
Source: World Travel & Tourism Council (WTTC),
http://www.wttc.org/eng/Tourism Research/Economic Data Search Tool, accessed on May 12, 2011.
Foreign visitors play an important role in travel and tourism in all of the CAFTA-DR countries, accounting
for from 38 to 76 percent of total travel and tourism contribution to GDP (Figure B-2). International
visitor arrivals have generally grown over the past 10 years (Figure B-3), although there was a slowdown
in 2001 associated with a worldwide slowdown in air transportation after the 9/11 incident and a drop
in 2009 in response to the worldwide economic downturn. Tourism in the region recovered from the
2001 slowdown by 2003, at which point the countries again began to see a rather steady annual growth
in international visitor arrivals. International arrivals rebounded for most of the CAFTA-DR in 2010 and
WTTC estimates that all of the countries would have international arrivals above the 2009 levels (WTTC
Travel & Tourism Economic Impact 2011 Country Reports for each of the CAFTA countries).
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
Figure B- 2: Foreign and domestic travel contribution to GDP
10
o
£!. 6
«fl-
V)
4
m
Costa Rica Dominican El Guatemala Honduras Nicaragua
Republic Salvador
a Foreign
Domestic
Source: World Travel & Tourism Council (WTTC),
http://www.wttc.org/eng/Tourism Research/Economic Data Search Tool, accessed on May 12, 2011
Travel & Tourism Economic Impact 2011 Reports for each of the CAFTA countries,
http://www.wttc.org/eng/Tourism Research/Economic Research/Country Reports/
2.2 Tourism and the Environment
According to WTTC, the percentage of the GDP generated by leisure travel and tourism in the CAFTA-DR
countries ranges from 53 to 94 percent (El Salvador 53%, Honduras 54%, Guatemala 67%, Nicaragua
72%, Costa Rica 79% and Dominican Republic 94%). Much of the leisure travel and tourism is associated
with the natural resources in the region (Table B-2), including beaches, mangroves and other wetlands,
lakes and rivers, coral reefs, primary forests (rainforests, cloud forests, and dry forests), and active
volcanoes. Cultural attractions are another draw for tourism in the region, include living cultures such
as traditional communities, indigenous markets and artisanal fishing and farming; archeological sites and
colonial cities.
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
Figure B- 3: International visitor arrivals, 2000-2009
5,000,000
4,000,000
o
+*
> 3,000,000
"5
c
| 2,000,000
= 1,000,000
0
Costa Rica
Guatemala
Year
Dominican Republic El Salvador
Honduras Nicaragua
Source: WTTC, http://www.wttc.org/eng/Tourism Research/Tourism Impact Data and Forecast Tool/
accessed on January 18, 2010
Table B- 2: Natural resource and cultural attractions in CAFTA-DR countries
Costa Rica
Dominican
Republic
El Salvador
Guatemala
Honduras
Nicaragua
Total
Area
(km21
51,100
48,730
21,040
108,890
112,090
123,000
Coast
-line
(km)
2,069
1,612
756
445
1,878
1,915
UNESCO
World
Heritage
Sites
4
2
1
3
2
1
#of
Protected
Areas
127
44
74
157
58
69
Percent of
Total Area
in
Protected
Areas
21
25
1
32
19
16
#of
Flowering
Plant
Species
11,000
5,000
2,500
8,000
5,000
7,000
# of Bird
Species
838
224
434
684
699
632
#of
Mammal
Species
232
36
137
193
201
181
Source: World Resource Institute, EarthTrends, http://earthtrends.wri.org/searchable db/index.php?
action=select theme&theme=l, accessed on June 27, 2011
Although some tourist activities in the region take place in areas of low environmental and social
vulnerability, such as cities, many of the tourist attractions are located in areas that are vulnerable in an
environmental and socio-cultural sense. Many are located in poverty-stricken areas with little or no
development including basic infrastructure such as water and sewer systems and solid waste
management. Some particularly vulnerable natural and cultural resources are:
Coral reefs
Bodies of fresh water
Tropical rainforests
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Volume II-EIA Technical Review Guidelines: APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
Appendices: Tourism
Dry forests
Cloud forests in the highlands
High, treeless plains or paramos on top of hills and volcanoes
Mangroves
Turtle nesting beaches
Natural protected areas
Limited scope ecosystems out of protected areas (e.g., the coastline mountain range in southern
Costa Rica)
Islands, because of their water scarcity and sparse natural habitats
Endemic areas (where species unique to the area are found)
Traditional indigenous communities
Archeological sites
Historic sites - e.g., the colonial cities
2.3 Regional Institutions
The Convention Establishing the Association of Caribbean States (ACS) was signed on 24 July 1994 in
Cartagena de Indias, Colombia, with the aim of promoting consultation, cooperation and concerted
action among all the countries of the Caribbean, comprising 25 Member States and three Associate
Members. Eight other non-independent Caribbean countries are eligible for associate membership. All
CAFTA-DR countries are members of the ACS.
The Convention on the Sustainable Tourism Zone of the Caribbean (STZC) was signed at the 3rd ACS
Summit in December 2001 in Margarita, Venezuela; and the Protocol to the Convention, in February
2004. There are five Special Committees of the ACS, one of which is the Special Committee on
Sustainable Tourism. The Convention is seen as an essential step in the region's efforts to develop
tourism. It covers topics such as cooperation among members and definition of the different types of
tourism products available. It also seeks to establish criteria for sustainable tourism destinations. The
Special Committee on Sustainable Tourism aims to ensure that destinations can attract visitors but, at
the same time, do so in a way that will not harm the physical environment or the communities that
surround them.
At the Fourth Summit of Heads of State and/or Government of the ACS, held in Panama City on July 29,
2005, regional leaders issued the Declaration of Panama where they recognized the tourism sector as
"one of the most important sources of foreign direct investment and foreign exchange earnings, and a
significant provider of employment in the region."
Hosted by the Republic of Cuba, the First Meeting of Ministers of Tourism of the Greater Caribbean
(TMM-1) took place in Havana on October 19, 2006. The mandates of this first forum of regional
tourism leaders were compiled in the Declaration of Havana on Tourism in the Greater Caribbean.
Among the points the Declaration called for are:
Ratification of the Convention Establishing the STZC and its Protocol, as well as active
participation in the STZC
Multi-Destination Tourism as a significant component of stakeholders' marketing strategies
Review of decisions taken on cruise tourism impact on land-based tourism and yacht tourism
Tourism development objectives to focus on increasing tourism earnings and employment and
not only on maximizing visitor arrivals
Support a study to evaluate the economic impact of cruise tourism in the Greater Caribbean
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Consider the possibility of establishing an Association of Caribbean Cruise Ship Destinations
On January 27, 2007, at its 12th Ordinary Meeting held in Guatemala City, the ACS Ministerial Council
approved Agreement No 11/07 "Institutionalizing the Declaration of Havana Emanating from the 1st ACS
Tourism Ministerial Meeting, Havana, Cuba, 19 October 2006." This Agreement established the
Declaration of Havana as the ACS Sustainable Tourism institutional framework and instructed the Special
Committee on Sustainable Tourism to apply the Declaration as the benchmark for the attainment of the
region's sustainable tourism goals, to monitor its implementation, and to keep the ACS Ministerial
Council informed.
In addition to the Special Committee on Sustainable Tourism, the five Central American CAFTA-DR
countries are members of the Central American Tourism Council (Consejo Centroamericano de Turismo
[CCT]), formed in 1965. CCT is an inter-governmental organization with a board of directors composed
of representatives from the ministries of tourism from each member country. Its mission is to facilitate
and encourage the development of tourism throughout Central American and promote integrated and
sustainable tourism. The work of CCT is supported by the Central American Tourism Integration
Secretariat (Secretarfa de Integracion Turfstica Centroamericana [SITCA]) which maintains a permanent
staff and office in San Salvador, El Salvador.
The Caribbean Tourism Organization, to which the Dominican Republic is a member country, is similar in
structure and purpose to the CCT, with a focus on the Caribbean region instead of Central America. Like
the CCT, it has a Secretariat (based in Barbados) that oversees policy and program implementation.
Federation of Chambers of Tourism of Central America (FEDECATUR) was incorporated on February 4,
2004 as a regional non-governmental organization comprised of the national private sector tourism
associations of the member states of CCT. Its mission is to represent the interests of the private tourism
sector in Central America in efforts to achieve regional integration and sustainable development of
tourism. FEDECATUR works closely with CCT.
In the Caribbean region, the CTO has private sector affiliate members from the tourism industry, so that
to some extent it fulfills the functions of FEDECATUR for that region. There is the Caribbean Hotel
Association (CHA), a sister organization to the CTO, which has private sector members from all of the
member countries of CTO. CHA works closely with CTO in policy and program implementation.
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Appendices: Tourism
3 CAFTA-DR COUNTRY OVERVIEWS
3.1 Costa Rica
Economics. Costa Rica has the largest tourism sector in Central America and is second only to the
Dominican Republic among the CAFTA-DR countries. Tourism is one of Costa Rica's most important
economic sectors. Between 2001 and 2010 travel and tourism contributed from 3.4 to 5.6 billion US
dollars per year to the economy, accounting for from 13 to 17 percent of the GDP (Figure B-4).
International arrivals grew from 1.3 million in 2000 to 2.5 million in 2008. Although the number of
international arrivals declined in 2009, the decline was relatively small (approximately 50,000 less
arrivals than in 2008) and it appears that the arrivals in 2010 have exceeded those in 2008.
Tourist Origins. In 2009, 69 percent of the international arrivals arrived via air, 31 percent via land and
less than one percent via sea. Forty-eight percent of the international arrivals came from North
America. The second largest cohort (31 percent) arrived from Central America, some of whom may
have been international tourists from other regions, but arrived to Costa Rica after visiting another
Central American country. Thirteen percent arrived from Europe and six percent from European
countries. Most of the international arrivals (77 percent) stated that the purpose of their trip was
vacations.
Dominant Types of Tourism. Costa Rica has successfully positioned itself as a pre-eminent destination
for nature-based adventure tourism. The country's main tourism attraction is its nature. Costa Rica has
lovely beaches and a well managed national protected area system offering easy access and a very wide
variety of experiences. Twenty-one percent of the country's land mass is in protected areas. Costa
Rica's tourism has also benefited from the country's long-term political and economic stability.
Economic Impacts of Tourism. Costa Rica began promoting ecotourism in the mid-1980s as a way to stop
deforestation and to generate needed foreign exchange. Since that time it has developed one of the
world's most successful ecotourism industries and has been praised for its attention to conservation.
Ecotourism has boosted Costa Rica's overall economic development and has brought employment
opportunities to previously disadvantaged, rural populations. Rural community-based tourism is
another popular tourism sub-segment in Costa Rica. A significant amount of these two sectors is small-
scale projects that can be funded by local residents.
Tourism Institutions. The main Costa Rican institutions involved in tourism development and promotion
are:
The Costa Rican Tourism Board (Institute Costarricense de Turismo [ICT]) was created in 1955 as
an autonomous institution of the State, funded primarily by taxes on tourism. It is responsible
for tourism development and regulation in Costa Rica, including such issues as transportation,
infrastructure, foreign investment, promotion/advertising, and zoning.
The Ministry of the Environment (Ministerio de Ambiente, Energfa y Telecomunicaciones
[MINAET]) is responsible for managing the protected areas system of the country. SINAC
(Servicio Nacional de Areas de Conservacion), a dependency of the MINAET was created to
manage more than one hundred protected areas that are divided into 11 Conservation Areas.
They include all the national territory in addition to the protected areas, so that conservation is
integrated into land use development and planning.
The private sector counterpart to ICT is the National Chamber of Tourism (CANATUR), which
represents the interests of the private tourism sector. Politically, it is the most powerful private
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APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
institution dealing with tourism, and observers claim that it tends to be oriented to the interests
of hoteliers inclined towards mass tourism.
Other private sector institutions include the National Chamber of Tourist Micro-entrepreneurs
(CANAMET), which promotes to small firms in the tourism sector the concept of environmentally
friendly business practices and the Costa Rican Network of Private Preserves.
Figure B- 4: Tourism data for Costa Rica
Tourism Contribution to GDP
20.0
18.0
16.0
0. 14.0
Q
e> 12.0 1
° 10.0
I 8.0
8. 6.0
4.0
2.0 1
0.0
Arrival From, 2009
Othern
South America^
Europe
Central America
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
North America
Means of Arrival, 2009
Land
International Arrivals
2,600
2,400
S 2,200
< 2,000
° 1,800
c
ro 1,600
| 1,400
l-
1,200
1,000
Purpose of Vist, 2009
Family/ _.,
Friend Visit °ther Business
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Vacation
Sources: WTTCandCCT
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Appendices: Tourism
3.2 Dominican Republic
Economics. Dominican Republic has the largest tourism sector in the CAFTA-DR region. Between 2001
and 2010 travel and tourism contributed from 5.4 to 9.0 billion US dollars per year to the economy,
accounting for from 16.9 to 23.5 percent of the GDP (Figure B-5). International arrivals were at 3.2
million in 2000, dropped to 3.1 million by 2002 but grew steadily to 4.3 million by 2008. Although the
number of international arrivals declined in 2009, the decline was relatively small (less than an 8% drop)
and 2008-2010 arrival data reported by CTO indicate that 2010 arrivals exceeded those in 2008.
Tourist Origins. In 2009, 87 percent of the international arrivals arrived via air and 13 percent arrived by
sea, on cruise ships. The Dominican Republic is the only country in the CAFTA-DR region that has a
significant portion of their arrivals coming via cruise ships. Forty-five percent of the international
arrivals came from North America, 31 percent from Europe and 24 percent from other countries.
Almost all of the international arrivals (95 percent) stated that the purpose of their trip was vacations,
with only five percent identifying business or other as their purpose for traveling.
Dominant Types of Tourism. The Dominican Republic promotes six regions for tourism activities:
The Central region is promoted for adventure holidays.
The North Coast is one of the most diverse areas of the country, and is promoted for beach and
coastal activities.
The Northeast Coast, the Samana Bay region, is promoted as an ecotourism destination, famous
for whales, rainforests, mountains, and waterfalls.
The East Coast, Punta Cana/Bavaro, is the fastest growing tourist destination and is the location
of Parque del Este, an important national park.
The South Central region is the location of Santo Domingo and includes cultural and urban
tourism opportunities.
The Southwest region is high in biodiversity, especially of birds and reptiles. This is also the
location of Barahona National Park and Pedernales, a small fishing village.
Tourism Institutions. The main Dominican Republic institutions involved in tourism development and
promotion are:
The Ministry of Tourism is the primary government entity responsible for tourism. Its mission is
to promote sustainable tourism development in the Dominican Republic, through the
development and regulation of policies, strategies and measures to stimulate investment in
tourism, ensure the quality of management and promote community involvement in the actions
of the sector.
The Dominican Republic Tourist Board is responsible for promoting tourism to the DR and has
offices in Miami, New York, and London.
The Dominican Republic Sustainable Tourism Alliance's (DSTA) goal is to better equip and
strengthen local small, medium-sized, and community-based tourism enterprises, and relevant
tourism entities to independently sustain efforts. The DSTA focuses on public-private
collaboration and outreach to new development partners at national, regional, and global levels.
The Development Corporation of the Hotel Industry and Tourism Development (CORPHOTEL)
conduct national activities aimed at developing the hotel industry.
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APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
Figure B- 5: Tourism data for Dominican Republic
25.0
20.0 -
15.0 -
Q 10.0 -\
(D
5
5.0 H
S. o.o
Tourism Contribution to GDP
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
International Arrivals
4,500
« 4,000 -
CO
3,500 -
CO
o
ra 3,000 H
CO
o
2,500 -
2,000
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Arrival From, 2009
Other,
North America
Europe
Means of Arrival, 2009
Sea
Purpose of Visit 2009
Other _, ^Business
Vacation
Sources: WTTCandCCT
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Appendices: Tourism
3.3 El Salvador
Economics. The economic importance of tourism in El Salvador is similar to that of Guatemala and
Nicaragua. Between 2001 and 2010 travel and tourism contributed from 1.2 to 2.3 billion US dollars per
year to the economy, accounting for from 6.3 to 10 percent of the GDP (Figure B-6). International
arrivals fluctuated between 800 thousand and 889 thousand between 2000 and 2003, and then steadily
grew to 1.72 million by 2007. The country experienced declines in international arrivals in 2008 and
again in 2009, but recent data from WTTC indicate that the arrivals in 2010 returned to 2007 levels.
Tourist Origins. In 2009, only 39 percent of the international arrivals came via air, with 61 percent
coming via land. There were no arrivals reported by sea. Sixty-two percent of the international arrivals
came from other Central American Countries, which may explain the relatively high percentage of
overland arrivals. El Salvador is a popular shopping destination for Central Americans. The second
largest cohort of international arrivals came from North America (34 percent), with only four percent
coming from other regions of the world.
Forty-two percent of the international arrivals stated that the purpose of their trip was to visit family
and friends, the highest percentage for this purpose in the CAFTA-DR region. Thirty-eight percent
identified vacations as the purpose of their trip. The remaining 20 percent identified business (15
percent) and other (5 percent) as the purposes of their trips.
Dominant Types of Tourism. El Salvador is promoting tourism in five broad areas:
Sun and Beaches, promoting its 300 kilometers of Pacific coastline, with some areas of world
class surfing.
Archeology, exploring several Mayan and pre-Mayan archeological sites.
Nature and Adventure, taking advantage of the forests, mountains and volcanos.
Colonial History, with the Camino Real and 400 year-old Spanish Colonial architecture.
El Salvador is also a major shopping vacation destination for Central Americans. Many of these tourists
are excursionists (visits that do not include an overnight stay). In 2006 222,000 excursionists visited El
Salvador, a 24 percent increase over the previous year.
Local Tourism Promotion. The main El Salvador institutions involved in tourism development and
promotion are:
The Ministry of Tourism was formed in 2004. Its vision is that by 2014, tourism will be:
o an instrument for revival and social well-being of all Salvadorans,
o a force for conservation of natural resources, and
o a major contributor to the economy and employment possibilities in the country.
The ministry pursues this mission through implementation of the tourism law that includes
incentives for investors.
The Salvadoran Corporation of Tourism (CORSATUR), formed on July 25, 1996, is a government
corporation attached to the Ministry of Tourism that coordinates inter-sector efforts that
contribute to the transformation of the tourism sector into one of the main generating sources
of employment and revenues. CORSATUR supports other institutions, public and private, in the
promotion of the conservation of the natural, cultural, and historical values of the country with
the purpose of transforming them into tourist attractions.
The Salvadoran Chamber of Tourism (CASATUR) was founded in 1978 in support of tourism
development in the country and to encourage and promote tourism to and within El Salvador.
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He vision of the Chamber of Commerce is to make the tourism sector a major contributor to the
national economy and to make El Salvador a world class tourism destination. It is a membership
organization. Its members are private businesses in the tourism sector as well as several small
tourism business associations.
Figure B- 6: Tourism data for El Salvador
Tourism Contribution to GDP
Arrival From, 2009
Europe_, _ South America
12.0
10.0 -
Q 8.0 -
6.0 -
c
4.0 -
2.0 -
0.0
North
America
Central
America
Means of Arrival, 2009
2001 2002 2003 2004 2005 2006 2007 200S 2009 2010
International Arrivals
Land
CO
'I
<
o
OT
T3
C
CO
2,000
1,800
1,600
1,400
1,200
1,000
800
600
400
200
Purpose of Visit, 2009
Other
Family/
Friend Visit
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Vacation
Sources: WTTCandCCT
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Volume II-EIA Technical Review Guidelines: APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
Appendices: Tourism
3.4 Guatemala
Economics. The economic importance of tourism in Guatemala is similar to that in El Salvador and
Nicaragua. Between 2001 and 2010 travel and tourism contributed from 2.1 to 3.9 billion US dollars per
year to the economy, which is more than that generated in El Salvador. But it accounts for a similar
percentage of the GDP as in El Salvador, from 6.6 to 9.8 percent between 2001 and 2010 (Figure B-7).
International arrivals grew steadily from 826 thousand in 2000 to 1.7 million in 2008. Like the other
CAFTA-DR countries, it experienced a decline in 2009, but the decline was less than two percent, and
arrivals appear to have recovered to 2008 levels in 2010.
Tourist Origins. In 2009, most international arrivals in the country came via land (66 percent). Twenty-
nine percent came via air and only four percent via sea. Fifty percent of the international arrivals came
from other Central American Countries, which may explain the relatively high percentage of overland
arrivals, although clearly some overland arrivals are also international tourists that are arriving to
Guatemala via land after visiting other Central American countries. The second largest cohort of
international arrivals came from North America (34 percent), followed by Europe with 10 percent.
Only 37 percent of the international arrivals identified vacations as the purpose of their visit. The next
most frequently stated purpose for travel was to visit family and friends (27 percent). Business was the
stated purpose of 25 percent of the international visitors.
Dominant Types of Tourism. Tourists are attracted to Guatemala by the abundant biodiversity coupled
with historical colonial cities, 28 registered Mayan sites, and 28 ethnic and indigenous communities that
co-exist together. The Republic of Guatemala has a small Caribbean coast and a longer Pacific coast-
both major focal points of the tourism industry. Guatemala promotes itself as a destination for
wildlife/eco-tourism, cultural tourism/archaeology, adventure tourism, health tourism, coffee tours,
religious tourism, beach and coastal activities, and fishing.
Local Tourism Promotion. Institutions involved in the tourism sector include:
The Guatemalan Tourism Institute (INGUAT): A government institution in charge of promoting
the development of the tourist industry in the country. Among its activities are the investigation,
planning, promotion, protection, coordination, and control of tourism.
The Chamber of Tourism (CAMTUR): A non-profit entity dedicated to the formation and training
of human resources for tourism; organizing and furthering promotional activities; providing
information on the industry and its affiliates; providing a network of national and international
contacts; and representing the private tourism sector in national and foreign forums.
Foundation for the Development of Guatemala (FUNDESA): A non-profit, private sector entity.
Its purpose is to generate and implement development programs and projects. The Foundation
created the Tourism Business Center (GETS) network that seeks to strengthen tourism as a
sustainable economic and social development platform for Guatemala. These offices operate as
business centers for small and medium-size tourism businesses and offer human resource
training.
Sustainable Tourism Commission (COMITURS): A commission established within the Guatemalan
Non-Traditional Products Exporters' Association (AGEXPRONT) with the involvement of hotel
entrepreneurs, NGOs managing tourism projects, the protected areas and reserve
administrators, tourism operators, specialized consultants, and others. It facilitates the
development of non-traditional, sustainable tourism projects based on the needs of
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APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
entrepreneurs and other groups. The Commission is in charge of co-managing the national and
international cooperation funds and directing them towards tourism business projects.
Invest in Guatemala: Guatemala's foreign investment promotion agency, which encourages
investment in tourism development projects in Guatemala.
Figure B- 7: Tourism data for Guatemala
Tourism Contribution to GDP
12
10 -
0-
D
O
JO
CO
c
<
s
CO
o
c
(0
CO
o
r-
4 -
2 -
2001 2002 2003 2004 2005 2006 2007 200S 2009 2010
International Arrivals
1,800
1,600 -
1,400 -
1,200 -
1,000 -
800 -
600 -
400 -
200 -
Arrival From, 2009
Other. _ South America
Europe.
North
America
Central
America
Means of Arrival, 2009
Sea
Land
Purpose of Visit, 2009
Other
Family/
Friend Visit
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Business
Vacation
Sources: WTTC and CCT
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Appendices: Tourism
3.5 Honduras
Economics. Tourism is a source of over ten percent of the GDP in Honduras. Between 2001 and 2010
travel and tourism contributed from 1.0 to 2.5 billion US dollars per year to the economy, accounting for
from 8.9 to 15.3 of total GDP (Figure B-8). International arrivals doubled from 690 thousand in 2000 to
1.4 million in 2008. Like the other CAFTA-DR countries, it experienced a decline in 2009. In Honduras
the decline was nearly 10 percent. Indications are that it is rebounding, but it is not clear if it has fully
recovered to 2008 levels.
Tourist Origins. In 2009, international arrivals were relatively evenly distributed between air (45
percent) and land (51 percent with only 4 percent arriving via sea. Forty-six percent of the international
arrivals came from other Central American Countries. The second largest cohort of international arrivals
came from North America (39 percent), followed by Europe with 10 percent. Only 35 percent of the
international arrivals identified vacations as the purpose of their visit, with nearly as many travelers
reporting business as their purpose (32 percent). Twenty-eight percent of international arrivals
reported the purpose of their trip as to visit family and friends.
Dominant Types of Tourism. Honduras attracts tourists with a combination of spectacular nature, living
culture and archaeological sites. Beautiful beaches, protected coral reefs, and a world heritage
biosphere reserve are among the top tourist attractions. Honduras's major tourism activities and
destinations include:
Archaeology - The Mayan ruins of Copan are considered to be among the most impressive
examples of pre-Columbian art in the world. One of the great centers of Mayan civilization,
Copan was named a UNESCO heritage site in 1980.
Beaches and Diving - The Bay Islands (Roatan, Guanaja, and Utila) in the Caribbean share access
to the MBRS, as well as white-sand beaches, jungle canopy tours, pirate cave exploration, nature
hikes, and visits to indigenous communities. Diving and snorkeling are popular tourist activities
in this area.
Nature and Adventure - Honduras has declared 107 nature reserves and these are meant to be
eco-tourism destinations. Major national parks include Celaque National Park, Cuero y Salado
Wildlife Reserve, Pico Bonito Cloud Forest, and La Mosquitia. The Biosphere of the Platano River
is a UNESCO World Heritage Site. Cayos Cochinos Marine Preserve is a network of islands and
small keys in the Caribbean. Activities include white-water rafting (class IV rapids), kayaking,
hiking in rain forests, birding, boat trips through mango swamps, rivers and wetlands.
Colonial Heritage - Honduras's Spanish colonial past can be seen in the churches of Tegucigalpa,
in the historical town center of Comayagua (a former capital) and in the mountain towns of
Gracias and Santa Rosa de Copan.
Living Cultures - The Garifunas, an ethnic group that has preserved its own language and
culture, can be visited in their villages along the Atlantic Coast and the Bay Islands, where
visitors experience their cuisine, dances and music.
Cruise Lines Service - Cruise lines are investing in Honduras. Royal Caribbean spent $20 million
to expand the cruise terminal at Coxen Hole, Roatan's main town, including a shopping mall and
a two-berth Terminal. The terminal opened in 2008. Carnival invested approximately $50
million for a two-berth, mega-ship terminal on Roatan, with a welcome center including retail
shops, restaurants, bars, a lagoon, and nature trails.
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Local Tourism Promotion The institutional framework for tourism includes:
The Secretary of Tourism (SETUR) was created in 1998. SETUR is the official government entity
responsible for establishing and implementing tourism policy at a national level. Outside of the
office of the Secretary, however, SETUR has not staff. It implements its programs through the
Honduran Institute of Tourism (IHT), which was established in 1993 as a public, autonomous
agency to stimulate and promote tourism development. SETUR and IHT formulate, evaluate and
implement policies to promote tourism in the country.
The National Chamber of Tourism in Honduras (Camara Nacional de Turismo de Honduras
[CANATURH]) was established in 1996. It is a private sector association that promotes tourism
development in the private sector and represent private sector tourism operators in national,
regional and international programs to promote tourism. CANATURH serves as a private
counterpart to SETUR and IHT. It is a membership organization and has several departmental
chapters that actively promote tourism at the local level.
Figure B- 8: Tourism data for Honduras
18.0
16.0
14.0
a.
Q12.0
O
510.0
I 8.0
^6.0
o
CL4.0
2.0
0.0
Tourism Contribution to GDP
Arrival From, 2009
Other
Europe
South America
North
America
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Means of Arrival, 2009
Sea
International Arrivals
Land
1,500
1,400
1300 -
1,200
1,100
1,000
900 -
800
700
600
500
Purpose of Vist, 2009
Other
Family/
Friend Visit
Business
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Vaualiun
Sources: WTTC and CCT
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Appendices: Tourism
3.6 Nicaragua
Economics. Nicaragua has the lowest level of income from tourism in the CAFTA-DR region.
Nonetheless, tourism is an important sector in the economy. Between 2001 and 2010 travel and
tourism contributed from 0.3 to 0.7 billion US dollars per year to the economy. Although this income is
less than in other countries, it still accounted for from 6.5 to 10.4 percent of total GDP (Figure B-9),
similar to the levels in El Salvador and Guatemala. International arrivals hovered at around 580
thousand from 2000 through 2002, but then steadily grew to 1 million by 2008. The decline in 2009 was
less than two percent, and it appears that the arrivals have recovered to 2008 levels in 2010.
Tourist Origins. Most international arrivals came overland in 2009 (59 percent). Thirty-eight percent
came via air and only three percent via sea. As in El Salvador, most of the international arrivals in
Nicaragua came from other Central American Countries (61 percent). The second largest cohort of
international arrivals came from North America (27 percent), followed by Europe with 7 percent. Fifty-
two percent of the international arrivals identified vacations as the purpose of their visit. The second
most common purpose was to visit family and friends (28 percent), followed by business travel (15
percent).
Dominant Types of Tourism. Nicaragua has three main eco-regions: Pacific, Central, and Atlantic. The
Pacific region is home to volcanoes, lakes, tropical forests, beaches and mangrove systems. The Central
region is home to mountains, rivers and agricultural areas. The Atlantic region contains rainforests,
marine lagoons, mangrove systems and coral reefs. Nicaragua's main attractions include:
Seventy-one protected areas, including three national parks, sanctuaries for wildlife and
endangered species, and abundant biodiversity resources. Coastal Resorts and Islands-
Masachapa, Pochomil, Montelimar, Bluefields, Corn Islands (Islas del Maiz) El Coco, Marsella,
Ocotal, San Juan del Sur and many others.
Volcanoes and Lakes - Nicaragua is known as "the land of lakes and volcanoes." Many of the
volcanoes are popular tourist destinations and offer hiking, climbing, camping, and swimming.
Watersports -Beaches on the Pacific coast and Caribbean coasts offer, bathing & surfing.
Rural/community-based tourism - offers tourists the opportunity to visit a coffee farm, learn
about coffee making, and to stay overnight on the farm and explore the area with a community
guide.
Other tourism activities - Fishing, Baseball, Hiking in the Mombacho volcano Natural Reserve,
Kayaking in Ometepe Island, andHot air balloon rides over the volcanic craters. Archipelago of
365 islands knows as the Islets of Granada, that were formed when the Mombacho volcano
erupted.
Local Tourism Promotion. The institutional framework for tourism includes:
The Nicaraguan Tourism Institute (Institute Nicaraguense de Turismo [INTUR]) was created in
1998. Its mission is to promote sustainable development in tourism as a priority sector in the
economy of Nicaragua. It does this by balancing the human, environmental and economic
performance; increasing the flow of tourists; increasing the competitiveness of enterprises, with
special emphasis on small and medium enterprises tourism. All of these activities contribute to
reducing poverty and improving the quality of life of Nicaraguans.
The National Nicaraguan Chamber of Tourism (Camara Nacional de Turismo de Nicaragua
[CANATUR]) was established in 1976 to promote tourism as an important source of economic
development. CANATUR is a membership organization representing private companies in all
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APPENDIX B. TOURISM ACTIVITIES IN CAFTA-DR COUNTRIES
facets of the tourism sector in Nicaragua. Its mission is to represent the interests of the private
sector in the promotion of sustainable tourism.
Figure B- 9: Tourism data for Nicaragua
12.0
10:0 -
a.
Q 8.0 -
O
B
-£ 6.0 -
o
o
o 4.0 -
Q.
2.0 -
0.0
en
B
O
SI
1,100
1,000 -
900 -
800 -
700 -
600 -
500
Tourism Contribution to GDP
International Arrivals
Arrival From, 2009
Other South America
Europe
North
America
Central
America
Means of Arrival, 2009
Sea
Land
Purpose of Vist, 2009
Other
Business
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Family/
Friend Visit
Vacation
Sources: WTTCandCCT
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Volume II-EIA Technical Review Guidelines: APPENDIX C. REQUIREMENTS AND STANDARDS
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS: CAFTA-DR
COUNTRIES, OTHER COUNTRIES AND INTERNATIONAL
ORGANIZATIONS
This Appendix summarizes a range of quantitative benchmarks for specific environmental requirements
of new tourism projects beyond the requirement to develop an EIA and mitigate and avoid adverse
environmental impacts. It does not attempt to capture non-quantitative practice standards. The
benchmark standards contained within this Appendix include ambient quality and sector-specific
performance standards from CAFTA-DR countries, the United States, other foreign governments, and
international organizations. CAFTA-DR country EIA reviewers and preparers might use this information
in the absence of such standards or to assess the validity and the significance of impacts described
within ElAs.
The Appendix includes:
1. Introduction to Environmental Laws, Standards, and Requirements
2. Ambient Standards for Air and Water Quality
3. Hotel and Resort Performance Standards
3.1 Water Discharge/Effluent Limits
3.2 Storm Water Runoff
3.3 Air Emission Limits
3.4 Solid and/or Hazardous Waste
4. Marine and Other Vessel Performance Standards
4.1 Water Discharge/Effluent Limits
4.2 Air Emission Limits
4.3 Solid and/or Hazardous Waste
4.4 Ballast Water
5. Biodiversity and Ecosystems
5.1 Coral Reefs
5.2 Specially Protected Areas
5.3 Invasive Species
6. International Treaties and Agreements Ratified/Signed
7. Website References
Section 1 provides a general introduction on the role of environmental regulatory approaches to reduce
or prevent pollution directly or indirectly. Section 2 summarizes ambient freshwater, drinking water, salt
water/marine water quality and air quality standards for the CAFTA-DR countries. Sections 3/4/5
provide an overview of performance standards applicable to tourism-related projects for hotels/resorts,
coastal and marine projects and for related activities and concessions respectively, summarizing in turn,
water discharge/effluent limits; supplemental information about water discharge/effluent limits in the
United States; storm water runoff/ discharge effluent limits; air emission limits; and solid waste and/or
hazardous waste disposal. Section 6 summarizes international treaties and agreements ratified or
signed by CAFTA DR Countries and Section 7 provides links to relevant websites. To the extent possible,
footnotes provide necessary caveats but it is strongly recommended that if this information is used, the
reviewer or preparer confirm it is up to date and appropriate for the circumstances.
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1 INTRODUCTION TO ENVIRONMENTAL LAWS. STANDARDS. AND REQUIREMENTS
There are many approaches to managing environmental problems (see Figure C-l). Some approaches
are purely voluntary - that is, they encourage and assist change but do not require it. Other approaches
are regulatory - that is, they require change or specific performance expectations. At the heart of
regulatory approaches are environmental requirements-specific practices and procedures required by
law to directly or indirectly reduce or prevent pollution. Figure C-2 lists some examples of the types of
requirements and standards typically used for environmental management, including:
Ambient Standards
Performance Standards (Emissions and Effluents).
Technology Standards
Practice Standards
Information Requirements
Product or Use Bans
While wholly regulatory (command-and-control) approaches generally have the most extensive
requirements of all the management options, most of the other options, including market-based
economic incentive, labeling, and liability-based approaches, introduce some form of requirements.
Requirements may be general or facility/activity specific. General requirements are most frequently
implemented in the form of (1) laws, (2) regulations, or (3) general permits or licenses that apply to a
specific class of facilities. General requirements may apply directly to a group of facilities or they may
serve as a basis for developing facility-specific requirements. Facility-specific requirements are usually
implemented in the form of permits or licenses, or, in the case of environmental impact assessment,
may become legally binding commitments if they are a) within the environmental impact assessment
itself, b) within a separate environmental management plan or monitoring/mitigation plan, or c)
incorporated into a separate contract.
Appendix C benchmarks only quantitative limits in a highly summarized format as a useful point of
reference. For additional background on enforceable requirements, see the International Network for
Environmental Compliance and Enforcement Website: http://www.inece.org and specifically the
resource library www.inece.org/library/principles.html. Others references for more details behind the
limits summarized in the Appendix are provided in the last section.
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Volume II-EIA Technical Review Guidelines: APPENDIX C. REQUIREMENTS AND STANDARDS
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Figure C-1: Approaches to environmental management
Voluntary Approaches
Voluntary approaches encourage or assist, but do not require, change. Voluntary approaches include public
education, technical assistance, and the promotion of environmental leadership by industry and nongovernment
organizations. Voluntary approaches may also include some management of natural resources (e.g., lakes, natural areas,
ground water) to maintain environmental quality.
Regulatory (Command-and-Control) Approaches
In command-and-control approaches, the government prescribes the desired changes through detailed
requirements and then promotes and enforces compliance with these requirements. Figure C-2 describes types of
requirements typically used in command-and-control approaches.
Market-based/Economic Incentive Approaches
Market-based/economic incentive approaches use market forces to achieve desired behavior changes. These
approaches can be independent of or build upon and supplement command-and-control approaches. For example,
introducing market forces into a command-and-control approach can encourage greater pollution prevention and more
economic solutions to problems. Market-based/economic incentive approaches include:
Fee systems. In this approach, the government taxes emissions, effluents, and other environmental releases.
Tradeable permits. In this approach,_companies trade permitted emission rights with other companies.
Offset approaches. These approaches allow a facility to propose various approaches to meeting an environmental
goal. For example, a facility may be allowed to emit greater quantities of a substance from one of its operations if
the facility offsets this increase by reducing emissions at another of its operations.
Auctions. In this approach, the government auctions limited rights to produce or release certain environmental
pollutants.
Environmental labeling/public disclosure. In this approach, manufacturers are required to label products so that
consumers can be aware of the environmental impacts of the products. Consumers can then choose which
products to purchase based on the products' environmental performance.
Risk-based Approaches
Risk-based approaches to environmental management are relatively new. These approaches establish priorities
for change based on the potential for reducing the risks posed to public health and/or the environment.
Pollution Prevention
The goal of pollution prevention approaches is to prevent pollution by reducing or eliminating generation of
pollution at the source. The changes needed to prevent pollution can be required, e.g., as part of a command-and-
control approach, or encouraged as voluntary actions.
Liability
Some environmental management approaches are based on laws that make individuals or businesses liable for
the results of certain actions or for damages they cause to another individual or business or to their property. Liability
systems do not have explicit requirements. However, implicit requirements often develop as cases are brought to court
and patterns are established about what activities justify which consequences. To be effective, liability systems generally
need some enforcement by the government, nongovernment organizations, or individuals to gather evidence and
develop legal cases. Examples of liability-based environmental management systems include nuisance laws, laws
requiring compensation for victims of environmental damage, and laws requiring correction of environmental problems
caused by improper disposal of hazardous waste. Liability systems reduce or prevent pollution only to the extent that
individuals or facilities fear the consequences of potential legal action against them.
Source: Wasserman, Cheryl et. al., Principles of Environmental Enforcement, U.S. Environmental Protection Agency,
February 19,1992.
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Volume II-EIA Technical Review Guidelines: APPENDIX C. REQUIREMENTS AND STANDARDS
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Figure C- 2: Examples of environmental requirements
Ambient Standards
Ambient standards (also called media quality standards) are goals for the quality of the ambient environment
(e.g., air, water). Ambient standards are usually written in units of concentration (e.g., the level of nitrogen dioxide in
the air cannot exceed 0.053 parts per million). In the U.S., ambient standards are used as environmental quality goals
and to plan the level of emissions from individual sources that can be accommodated while still meeting the area wide
goal. Ambient standards may also be used as triggers, e.g., when the standard is exceeded, monitoring or enforcement
efforts are increased. Enforcement of ambient standards usually requires relating an ambient measurement to
emissions or activities at a specific facility. This can be difficult.
Performance Standards (Emissions and Effluents)
These standards are widely used for regulations, permits, and monitoring requirements. Performance
standards limit the amount or rate of particular chemicals or discharges that a facility or vessel can release into the
environment in a given period of time. Performance standards provide flexibility because they allow sources to choose
which technologies they will use to meet the standards. Often such standards are based on the output that can be
achieved using the best available control technology. Some requirements introduce additional flexibility by allowing a
source with multiple emissions to vary its emissions from each stack as long as the total sum of the emissions does not
exceed the permitted total. Compliance with emission standards is measured by sampling and monitoring. Depending
on the kind of instruments required, compliance can be difficult and/or expensive to monitor.
Technology Standards
These standards require the regulated community to use a particular type of technology (e.g., the "best
available technology") to control and/or monitor emissions. Technology standards are particularly appropriate when the
equipment is known to perform well under the range of conditions generally experienced by sources in the community.
It is relatively easy for inspectors to determine whether sources are in compliance with technology standards: the
approved equipment must be in place and operating properly. It may be difficult, however, to ensure that the
equipment is operating properly over a long period of time. Technology standards can inhibit technological innovation
and pollution prevention. In the U.S. many air performance standards are based on the performance of a particular
technology or technologies, but sources are not required to actually use that technology to meet the performance
standards.
Practice Standards
These standards require or prohibit certain work activities that have significant environmental impacts. For
example, a standard might prohibit carrying hazardous liquids in uncovered buckets. Like technology standards, it is easy
for program officials to inspect for compliance and take action against noncomplying sources, but difficult to ensure
ongoing compliance.
Information Requirements
These requirements are different from the standards described above in that they require a source of potential
pollution (e.g., a pesticide manufacturer or facilities involved in generating, transporting, storing, treating, and disposing
of hazardous waste) to develop and submit information to the government. Sources generating pollution may be
required to monitor, report on, and maintain records of the level of pollution generated and whether or not it exceeds
performance standards. Information requirements are often used when the potential pollution source is a product such
as a new chemical or pesticide, rather than a waste. For example, a manufacturer may be required to test and report on
a product's potential to cause harm if released into the environment.
Product or Use Bans
A ban may prohibit a product outright (e.g., ban the manufacture, sale, and/or use of a product) or may
prohibit particular uses of a product.
Source: Wasserman, Cheryl et. al., Principles of Environmental Enforcement, U.S. Environmental Protection Agency,
February 19,1992.
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Volume II-EIA Technical Review Guidelines: APPENDIX C. REQUIREMENTS AND STANDARDS
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2 AMBIENT STANDARDS FOR AIR AND WATER QUALITY
The following Tables summarize and compare standards across countries and institutions for:
Freshwater Quality Guidelines and Standards, Table C-l
Drinking Water Quality Guidelines and Standards, Table C-2
Salt Water Quality Guidelines and Standards, Table C-3
Water Quality Benchmarks for Aquatic Life and Sediment, Table C-4
Water Quality Standards for Puerto Rico and Central America, Table C-5
Ambient Air Quality Guidelines and Standards, Table C-6
Ambient standards are limits for concentrations of pollutants in the air, water or land which defined to
protect public and ecosystem health and welfare (i.e. productivity/sustainability). Ambient standards
serve both as goals for managing these resources, but also as requirements for what level of impact may
be allowed or judged to be significant. Usually sources of air pollution cannot exceed ambient standards
at their fence line. In the case of water discharges there is a limited area or volume called a mixing zone
within which water quality standards may be exceeded -so long as acutely toxic conditions are
prevented. These mixing zones define where initial (but rapid and complete) dilution of a discharge may
take place. Water quality criteria must be met at the edge of a mixing zone.
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APPENDIX C. REQUIREMENTS AND STANDARDS
Table C-l: Freshwater quality guidelines and standards
Pollutant
Alachlor
Anthracene
Arsenic
Atrazine
Benzene
Benzo(a)pyrene
Brominated diphenylether
Cadmium
C 10-13 Chloralkanes
Chlordane
Chlorfenvinphos
Chloride
Chromium (III)
Chromium (VI)
Chlorpyrifos (Chlorpyrifos-ethyl)
Cyanide
DDT total
Para-para-DDT
1,2-Dichloroethane
Dichloromethane
Dieldrin
Di(2-ethylexyl)-phthalate
(DEPH)
Diuron
alpha-Endosulfan
beta-Endosulfan
Endrin
Fluoranthene
Heptachlor
United States
National Recommended Water
Quality Criteria2
Maximum
Concentration
(CMC) (ug/l)
340
2
2.4
860,000
570
16
22
0.24
0.22
0.22
0.086
0.52
Continuous
Concentration
(CCC) (ug/l)
150
0.25
0.0043
230,000
74
11
5.2
0.056
0.056
0.056
0.036
0.0038
European Union
Annual Average
Value
(Inland surface
Waters)
(ug/l)
0.3
0.1
0.6
10
0.05
0.0005
< 0.08 (Class I)3
0.08 (Class 2)
0.09 (Class 3)
0.15 (Class 4)
0.25 (Class 5)
0.4
0.1
0.03
0.025
0.01
10
20
1=0.01 4
1.3
0.2
0.005
0.005
I=0.015
20
Max Allowable
Concentration
(Inland surface
Waters) (ug/l)
0.7
0.4
2.0
50
0.1
N/A
< 0.45 (Class 1)
0.45 (Class 2)
0.09 (Class 3)
0.15 (Class 4)
0.25 (Class 5)
1.4
0.3
0.1
N/A
N/A
N/A
N/A
N/A
N/A
1.8
0.01
0.01
N/A
N/A
In the United States, the federal government prepares recommended water quality criteria to provide for the
protection and propagation offish, shellfish, and wildlife and for recreation in and on the water but it is up to the
states, in the first instance, to adopt binding water quality criteria based on use categories.
3 For cadmium and its compounds the EQS values vary depending on the hardness of the water as specified in five
class categories (Class 1: < 40 mg CaCO3/l,Class 2: 40 to < 50 mg CaCO3/l, Class 3: 50 to < 100 mg CaCO3/l, Class 4:
100 to < 200 mg CaCO3/l and Class 5: > 200 mg CaCO3/l).
Sum for cyclodiene pesticides which include: Aldrin, Dieldrin, Endrin, Isodrin
5 Sum for cyclodiene pesticides which include: Aldrin, Dieldrin, Endrin, Isodrin
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Pollutant
Heptachlor Epoxide
Hexachloro-benzene
Hexachloro-butadiene
Hexachloro-cyclohexane
Isoproturon
Lead
Mercury
Naphthalene
Nickel
Nonylphenol (4-Nonylphenol)
Octylphenol
Pentachloro-benzene
Pentachlorophenol
Polychlorinated Biphenyls
(PCBs)
Selenium
Simazine
Silver
Sulphate
Tetrachloroethylene
Trichloroethylene
Toxaphene
Tributyltin compounds
Trichloro-benzenes
Trichloro-methane
Trifluralin
Zinc
United States
National Recommended Water
Quality Criteria2
Maximum
Concentration
(CMC) (ug/l)
0.52
65
1.4
470
19
3.2
0.73
120
Continuous
Concentration
(CCC) (ug/l)
0.0038
2.5
0.77
52
15
0.014
5
0.0002
120
European Union
Annual Average
Value
(Inland surface
Waters)
(ug/l)
0.01
0.1
0.02
0.3
7.2
0.05
2.4
20
0.3
0.1
0.007
0.4
1.0
129.75 mg/l
10.0
10
0.0002
0.4
2.5
0.03
Max Allowable
Concentration
(Inland surface
Waters) (ug/l)
0.05
0.6
0.04
1.0
N/A
0.07
N/A
N/A
2.0
N/A
N/A
1.0
4.0
4,200 mg/l
N/A
N/A
0.0015
N/A
N/A
N/A
Sources: US: http://www.epa.gov/waterscience/criteria/wqctable/index.htmlttcmc
EU: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0084:0097:EN:PDF
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APPENDIX C. REQUIREMENTS AND STANDARDS
Table C- 2: Drinking water quality guidelines and standards
Pollutant
Acrylamide
Ammonium
Aluminum
Antimony
Arsenic
Asbestos
Barium
Benzene
Benzo(a)pyrene
Beryllium
Boron
Bromate
Bromodichloro-
methane (BDCM)
Cadmium
Chlorate
Chloride
Clostridium
perfringens
Conductivity
Chlorite
Chromium (total)
Copper
Cyanide (as free
United States
Maximum
Contaminant
Level Goal
0.006 mg/l
(6 Mg/D
0
7 million
fibers/liter
3 mg/l
(2000 Mg/l)
0.004 mg/l
(4 Mg/D
0
0.005 mg/l
(5 Mg/D
0.8 mg/l
(800 Mg/l)
0.1 mg/l
0.2 (100
Mg/D
1.3 mg/l
0.2 mg/l
Maximum
Contaminant
Level
0.006 mg/l
0.01 mg/l
7 million
fibers/liter
2 mg/l
(2000 Mg/l)
0.004 mg/l
(4 Mg/D
0.010 mg/l
(10 Mg/D
0.005 mg/l
(5 Mg/D
1.0 mg/l
(1000 Mg/l)
0.1 mg/l
(100 Mg/l)
1.3 mg/l
0.2 mg/l
Canada
Maximum
Acceptable
Concentration
0.1/0.2 mg/l
(100-200 Mg/l)
0.006
(6 Mg/D
0.1 mg/l
(10 Mg/D
lmg/1
(1000 Mg/l)
0.005 mg/l
(5 Mg/D
0.00001 mg/l
(0.01 Mg/l)
5 mg/l
(5000 Mg/l)
0.01 mg/l
0.02 (10
Mg/D
0.016 mg/l
(16 Mg/D
0.005 mg/l
(5 Mg/D
lmg/1
(1000 Mg/l)
lmg/1
(1000 Mg/l)
0.05 mg/l
(50 Mg/l)
0.2 mg/l
European
Community
Parametric
Value
0.1 Mg/l
0.50 mg/l
200 Mg/l
5.0 Mg/l
10 Mg/l
1.0 Mg/l
0.010 Mg/l
1.0 mg/l
10 Mg/l
100 Mg/l6
5.0 Mg/l
250 mg/l
0 number/
100ml
2 500 MS cm-
1 at 20 C
50 Mg/l
2.0 mg/l
50 Mg/l
Czech
Republic
Parametric
Value
0.1 Mg/l
0.50 mg/l
200 Mg/l
5.0 Mg/l
10 Mg/l
1.0 Mg/l
0.010 Mg/l
1.0 mg/l
10 Mg/l
5.0 Mg/l
100 mg/l
0 number/
100ml
2 500 MS cm-
1 at 20 C
200 Mg/l
50 Mg/l
1,0 mg/l
50 Mg/l
World Health
Organization
Guideline
Value
10 Mg/l
0.06 mg/l
(60 Mg/D
0.05 mg/l
(50 Mg/l)
2.0 mg/l
Sum of concentrations of specified compounds: chloroform, bromoform, dibromochloromethane,
bromodichloromethane
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Pollutant
cyanide)
Cyanobacterial
toxins --
microcystin-LR
1,2-dichloroethane
Epichlorohydrin
Fluoride
Iron
Lead
Manganese
Mercury (inorganic)
Nickel
Nitrate (measured
as Nitrogen)
Nitrite (measured as
Nitrogen)
Pesticides
Pesticides -Total
Polycyclic aromatic
hydrocarbons
Selenium
Sulfate
Sodium
Tetrachloroethene
and Trichloroethene
Thallium
Trihalomethanes
(total)
Vinyl Chloride
pH
United States
Maximum
Contaminant
Level Goal
(200 Mg/l)
4mg/l
0
0.03 mg/l
0.04 (2 |jg/l)
10 mg/l
lmg/1
0.05 mg/l
(50 Mg/l)
0.0005 mg/l
(0.5 Mg/l)
N/A
Maximum
Contaminant
Level
(200 Mg/D
4 mg/l
0.015 mg/l
(15 Mg/D
0.002 mg/l
(2 Mg/D
10 mg/l
lmg/1
0.05 mg/l
(50 Mg/D
0.002 mg/l
(2 Mg/D
0.080 mg/l
(80 Mg/l)
Canada
Maximum
Acceptable
Concentration
(200 Mg/D
0.0015 mg/l
(1.5 Mg/D
1.5 mg/l
0.01 mg/l
(10 Mg/D
0.01 mg/l
(1 Mg/D
45 mg/l
3.2 mg/l
0.01 mg/l
(10 Mg/D
6.5-8.5
European
Community
Parametric
Value
3.0 Mg/l
0.10 Mg/l
1.5 mg/l
200 Mg/l
10 Mg/l
50 Mg/l
1.0 Mg/l
20 Mg/l
50 mg/l
0.50 mg/l
0.10 Mg/l
0.50 Mg/l
0.10 Mg/l
10 Mg/l
250 mg/l
200 mg/l
10 Mg/l
100 Mg/l
0.50 Mg/l
6.5-9.5
Czech
Republic
Parametric
Value
lMg/1
3.0 Mg/l
0.10 Mg/
1.5 mg/l
200 Mg/l
10 Mg/l
50 Mg/l
1.0 Mg/l
20 Mg/l
50 mg/l
0.50 mg/l
0.10 Mg/l
0.50 Mg/l
0.10 Mg/l
10 Mg/l
250 mg/l
200 mg/l
10 Mg/l
100 Mg/l
0.50 Mg/l
6.5-9.5
World Health
Organization
Guideline
Value
1.5 mg/l
0.07 mg/l
(70 Mg/l)
50 mg/l
0.2 mg/l
0.01 mg/l
(10 Mg/D
0.07 mg/l
(70 Mg/D
Sources: US Drinking Water Standards: http://www.epa.gov/ogwdwOOO/contaminants/index.html
WHO Guidelines for Drinking-Water Quality p.186, http://www.who.int/water sanitation health/dwq/fulltext.pdf
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Table C- 3: Salt water quality guidelines and standards
Pollutant
Alachlor
Aldrin
Anthracene
Arsenic
Atrazine
Benzene
Benzo(a)pyrene
Brominated diphenylether
Cadmium
C 10-13 Chloralkanes
Chlordane
Chlorfenvinphos
Chloride
Chromium (III)
Chromium (VI)
Copper
Cyanide
4, 4- DDT
Para-para-DDT
1,2-Dichloroethane
Dichloromethane
Dieldrin
Di(2-ethylexyl)-phthalate (DEPH)
Diuron
alpha-Endosulfan
beta-Endosulfan
Endrin
Fluoranthene
Gamma-BHC (Lindane)
Heptachlor
Heptachlor Epoxide
Hexachloro-benzene
Hexachloro-butadiene
Hexachloro-cyclohexane
Isoproturon
Lead
Mercury
Naphthalene
Nickel
Nonylphenol (4-Nonylphenol)
Octylphenol
Pentachloro-benzene
Pentachlorophenol
Polychlorinated Biphenyls (PCBs)
United States
Maximum Concentration
(CMC) (ng/l)
1.3
69
40
.09
1100
4.8
1
.13
.71
.034
.034
.037
.16
.053
.053
210
1.8
74
13
Continuous Concentration
(CCC) (u.g/1)
36
8.8
.004
50
3.1
1
.001
.0019
.0087
.0087
.0023
.0036
.0036
8.1
.94
8.2
7.9
.03
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Pollutant
Selenium
Simazine
Silver
Sulphate
Tetrachloroethylene
Trichloroethylene
Toxaphene
Tributyltin compounds
Trichloro-benzenes
Trichloro-methane
Trifluralin
Zinc
United States
Maximum Concentration
(CMC) (ug/l)
290
1.9
.21
90
Continuous Concentration
(CCC) (ug/l)
71
.0002
81
Source: US Salt Water Quality Standards http://water.epa.gov/scitech/swguidance/standards/current/upload/nrwqc-
2009.pdf
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Table C- 4: United States water quality benchmarks for aquatic life and sediment
Chemical
Aquatic Life
Acute
Benchmark
(Mg/U
Chronic
Benchmark(u.g/L)
Sediment
Acute Benchmark (|ig/L)
Chronic Benchmark (u.g/L)
Metals, |ig/L
Nickel
Vanadium
74
8.2
50
51.6
-
20.9
57
Mixtures, ug/L
Total Petroleum
Hydrocarbons GRO
Total Petroleum
Hydrocarbons DRO
Oil Range Organics ORO
None
None
None
None
None
None
None
None
None
None
None
None
PAH Mixtures*41 (Oil-Related Organic Compounds), u,g/L
PAH Mixtures
Benzene
Cyclohexane
Ethylbenzene
Isopropylbenzene
Total xylene
Methylcyclohexane
Toluene
Naphthalene
Cl-Naphthalenes
C2-Naphthalenes
CS-Naphthalenes
C4-Naphthalenes
Acenaphthylene
Acenaphthene
Fluorene
Cl-Fluorenes
C2-Fluorenes
C3-Fluorenes
Phenanthrene
Anthracene
Cl-Phenanthrenes#
C2-Phenanthrenes#
C3-Phenanthrenes#
C4-Phenanthrenes#
Fluoranthene
see NOTE
27,000
1,900
4,020
2,140
3,560
463
8,140
803
340
126
46.1
16.9
1,280
232
164
58.1
22.0
7.99
79.7
86.1
31.0
13.3
5.24
2.33
29.6
see NOTE
5,300
374
790
420
700
91.0
1,600
193
81.7
30.2
11.1
4.05
307
55.8
39.3
14.0
5.30
1.92
19.1
20.7
7.44
3.20
1.26
0.559
7.11
See NOTE
3,360,000
4,000,000
4,930,000
5,750,000
4,980,000
4,960,000
4,120,000
1,600,000
1,850,000
2,120,000
2,420,000
2,730,000
1,880,000
2,040,000
2,240,000
2,540,000
2,850,000
3,200,000
2,480,000
2,470,000
2,790,000
3,100,000
3,450,000
3,790,000
2,940,000
See NOTE
660,000
786,000
970,000
1,130,000
980,000
976,000
810,000
385,000
444,000
510,000
581,000
657,000
452,000
491,000
538,000
611,000
686,000
769,000
596,000
594,000
670,000
746,000
829,000
912,000
707,000
PAH Mixtures*41 (Oil-Related Organic Compounds), u,g/L
Pyrene
Cl-pyrene/fluoran-
thenes
Benz(a)anthracene
42.0
20.3
9.28
10.1
4.89
2.23
2,900,000
3,200,000
3,500,000
697,000
770,000
841,000
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Chemical
Chrysene
Cl-ChrysenesA
C2-ChrysenesA
C3-ChrysenesA
C4-ChrysenesA
Perylene
Benzo(b)fluoranthene
Benzo(k)fluoranthene
Benzo(e)pyrene
Benzo(a)pyrene
lndeno(l,2,3-cd)pyrene
Dibenz(a,h) anthracene
Benzo(g,h,i)perylene
Aquatic Life
Acute
Benchmark
(Mg/U
8.49
3.56
2.01
0.699
0.294
3.75
2.82
2.67
3.75
3.98
1.14
1.17
1.83
Chronic
Benchmark(u.g/L)
2.04
0.856
0.483
0.168
0.0706
0.901
0.677
0.642
0.901
0.957
0.275
0.282
0.439
Sediment
Acute Benchmark (u.g/L)
3,510,000
3,870,000
4,200,000
4,620,000
5,030,000
4,020,000
4,070,000
4,080,000
4,020,000
4,020,000
4,620,000
4,660,000
4,540,000
Chronic Benchmark (u.g/L)
844,000
929,000
1,010,000
1,110,000
1,210,000
967,000
979,000
981,000
967,000
965,000
1,110,000
1,120,000
1,090,000
+ This includes m-, o-, and p-xylenes
# These include phenanthrene/anthracenes
A These include benzanthracene/chrysenes
**NOTE: Oil Related Organic Compounds are assessed jointly through a mixture approach because they
all have the same type of effect on aquatic organisms. Potency divisors are not chemical-specific
benchmarks, but are intermediates used in calculating the aggregate toxicity of the mixture. To assess
the potential hazard to aquatic organisms, the sum of the calculated values is compared to a hazard
index of 1. A value greater than 1 (>1) indicates that the sample has the potential to cause an acute or
chronic effect on aquatic life like fish, crabs, and clams.
Sources: "Water Quality Benchmarks for Aquatic Life," http://www.epa.gov/bpspill/water-benchmarks.html
"Sediment Benchmarks for Aquatic Life," http://www.epa.gov/bpspill/sediment-benchmarks.html
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Table C- 5: Water quality standards for Puerto Rico
Chemical
Coastal and estuarine
waters r(|ig/L)
Surface water (u.g/L)
Ground water a (|ig/L)
Inorganic Substances
Antimony
Arsenic
Cadmium
Cyanide
Copper
Chromium III
Chromium IV
Chromium
Fluoride
Mercury
Nickel
Nitrate + Nitrite
Nitrite
Nitrogen
Silver
Lead
Selenium
Sulfide
Thallium
Zinc
640
36
8.85
1.0
3.73
50.35
0.051
8.28
5,000
2.24
8.52
71.14
2.0
0.47
85.62
5.6
10
Notel
5.2
NoteS
Note 2
11.43
4,000
0.050
Note 4
10,000
NoteS
Note 6
5.0
2.0
0.24
Note 7
5.6
10
5.0
200
1,300
100
4,000
0.050
610
10,000
1,000
15.0
50.0
0.24
Organochlorides and Other Persistent Pesticides
Aldrin
alpha-BHC
beta-BHC
Chlordane
4, 4'- DDT and Metabolites
Dieldrin
Endosulfan
Endosulfan Sulfate
Endrin
Endrin Aldehyde
Heptachlor
Heptachlor Epoxide
Lindane (Gamma BHC)
Methoxychlor
Mirex
Pentachlorophenol
Toxaphene
0.0005
0.049
0.17
0.004
0.001
0.00054
0.0087
89
0.0023
0.30
0.00079
0.0036
0.16
0.03
0.001
7.9
0.0002
0.00049
0.026
0.091
0.0043
0.001
0.00052
0.056
62
0.036
0.29
0.00079
0.0038
0.2
0.03
0.001
1.0
0.0002
0.00049
0.026
0.091
0.0080
0.0022
0.00052
62
62
0.059
0.29
0.00079
0.2
0.2
40.0
1.0
0.0028
Sulfurous Organothiophosphorus and Other Non-Persistent Pesticides
2, 4, S-TP(Silvex)
10.0
10.0
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Chemical
2, 4, - D
Azinphos- Methyl
Chloropyrifos
Coumaphos
Demeton
Fenthion
Malathion
Naled
Parathion
Coastal and estuarine
waters r(|ig/L)
0.01
0.0056
0.010
0.10
0.40
0.10
0.40
Surface water (u.g/L)
70
0.01
0.041
0.010
0.10
0.40
0.10
0.40
0.013
Ground water a (|ig/L)
70
Non-Pesticide Organic Substances and Carbon Tetrachloride
1, 1-Dichloroethylene
1, 1, 1-Trichloroethane
1, 2-Dichlorobenzene
1, 2-Dichloroethane
1, 3-Dichlorobenzene
1, 4-Dichlorobenzene
2, 3, 7, 8-TCDD
2, 4, 6-Trichlorophenol
2, 4-Dichlorophenol
2, 4-Dimethylphenol
2-Chlorophenol
2-Methyl-4, 6-Dinitrophenol
2, 4-Dinitrophenol
Carbon Tetrachloride
Phenol
Polychlorinated Biphenyls
Tetrachloroethylene
Trichloroethylene
Vinyl Chloride
7,100
1,300
370
960
190
S.lxlO"8
24
290
850
150
280
5,300
16
1,700,000
0.00064
33
300
24
7.0
200.0
420
3.8
320
63
5.0 x 10"8
14
77
380
81
13
69
2.3
21,000
0.00064
5.0
5.0
0.25
7.0
200.0
420
3.8
320
63
5.0 x 10"8
14
77
380
81
13
69
2.3
21,000
0.00064
5.0
5.0
0.25
Volatile Organic Substances
1, 1, 2-Trichloroethane
1, 1, 2, 2-Tetrachloroethane
1, 2, 4-Trichlorobenzene
1, 2-Dichloropropane
1, 3-Dichloropropylene
Acrylonitrile
Acrolein
Benzene
Bromoform
Chlorobenzene
Chlorodibromomethane
Chloroform
Dichlorobromomethane
160
40
70
150
210
2.5
290
510
1,400
1,600
130
4,700
170
5.0
1.7
35
5.0
3.4
0.51
190
5.0
43
100
4.0
57
5.5
5.0
1.7
35
5.0
3.4
0.51
190
5.0
43
100
4.0
57
5.5
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Chemical
Ethylbenzene
Methyl Bromide
Methylene Chloride
Coastal and estuarine
waters r(u,g/L)
2,100
1,500
5,900
Surface water (u.g/L)
530
47
46
Ground water a (|ig/L)
530
47
46
Semi-Volatile Organic Substances
1, 2-Diphenylhydrazie
1, 2-Trans-Dichloroethylene
2-Chloronapthalene
2, 4-Dinitrotoluene
3, 3-Dichlorobenzidine
Acenapthene
Anthracene
Benzidine
Benzo(a)Anthracene
Benzo(a)Pyrene
Benzo(b)Fluoranthene
Benzo(k)Fluoranthene
Bis(2-Chloroethyl)Ether
Bis(2-Chloroisopropyl)Ether
Bis(2-Ethylhexyl)Phthalatex
Butylbenzyl Phthalatew
Chrysene
Dibenzo(a, h)Anthracene
Diethyl Phthalatew
Dimethyl Phthalatew
Di-n Buthyl Phthalatew
Fluoranthane
Fluorene
Hexachlorobenzene
Hexachlorobutadiene
Hexachlorocyclopentadiene
Hexachloroethane
ldeno(l, 2, 3-cd)Pyrene
Isophorone
N-Nitrosodimethylamine
N-Nitrosodi-n-Propylamine
N-Nitrosodiphenylamine
Nitrobenzene
Pyrene
Toluene
2.0
10,000
1,600
34
0.28
990
40,000
0.0020
0.18
0.18
0.18
0.18
5.3
65,000
22
1,900
0.18
0.18
44,000
1,100,000
4,500
140
5,300
0.0029
180
1,100
33
0.18
9,600
30
5.1
60
690
4,000
15,000
0.36
100
1,000
1.1
0.21
670
8,300
0.00086
0.038
0.038
0.038
0.038
0.30
1,400
12
1,500
0.038
0.038
17,000
270,000
2,000
130
1,100
0.0028
4.4
40
14
0.038
350
0.0069
0.050
33
17
830
1,000
0.36
100
1,000
1.1
0.21
670
8,300
0.00086
0.038
0.038
0.038
0.038
0.30
1,400
12
1,500
0.038
0.038
17,000
270,000
2,000
130
1,100
0.0028
4.4
40
14
0.038
350
0.0069
0.050
33
17
830
1,000
Notes:
1 Concentration ng/L must not exceed the numerical value given by e(CX74091""0^"
2 Concentration u.g/L must not exceed the numerical value given by e'0'8190'"Hardness + 0-6848i)
3 Concentration ng/L must not exceed the numerical value given by e(CX85451""0^"
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Volume II-EIA Technical Review Guidelines: APPENDIX C. REQUIREMENTS AND STANDARDS
Appendices: Tourism
4 Concentration u.g/L must not exceed the numerical value given by e(CX8460 [nHardness + a°5841)
5 Concentration u.g/L must not exceed the numerical value given by el1-72!""0^"5-6-59"
6 Concentration u.g/L must not exceed the numerical value given by e 3'"Hardness-4-705i)
7 Concentration u.g/L must not exceed the numerical value given by e(CX8473 [nHardness + a8841)
8 Hardness (as CaCOS in mg/L) of the water body.
Source: "Puerto Rico Water Quality Standards Regulation," http://www.gobierno.pr/NR/rdonlyres/B1978466-lAAO-
4E48-899A-48D50311D7DF/0/Water Quality Standards Reg 2010.pdf
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Table C- 6: Ambient air quality guidelines and standards
.>
I
gfl
Ambient Ai
Gu c
g
2
.1 -8
opeanCommi
Quality Stand
i3 ^
-g
fe
%
Jnited States
>ientAir Qual
1
1
^
g.
slth OrganizationfWH
tAirQuality Guideline
11
1
I
§
s
£
B
Maximum
c
f
^
1
£
(5!
1
ti
i
o
en
-o
"S
fe
E
Q_
E
g
-a
-JQ -53
S
& s
15 -^
S _S
i
J|
1 s
I"5
g
Concentrat
U
%,
^
1
g^
i 1
I
^
S
-I
s-
V
Guideline Value tug/
i
> 8
=f
I
-a
.
_£
1
1
r"
E
£
£
U
c
£
i
^
i
125i,interimtarget1)
50(int«rirntarget2)
20 (guideline)
i
r^i
5
3
~B
-a
8 g
II
"1 "1
_
-§ 1
oj
1
J
SB
t
L.
1
>
J
£
Q,
cx
s
0
5
1
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"1
2
g
1
o.
Q_
"1
$.,
S
I
8
S
*~
Q- "5
o ^:
5
1
o.
c^
40 (guideline)
S
«. -a
s s
CL. O-
Q. CL
=E S
^.
1 £
r-J
*~
£
g
i
^
«_
8
1
C
-o
J
|l
"e
i
S
^
I
^
S
*""
1
^
a
o
"E
8
S
S
cT
I
I
ro
O
8
s
'.
_c
c
j
re ro ro -^
£ £ £ =S
s 'S "S 5
ro
Paniculate
i
§,
i
s
;
5i
i
-.
1
^
i
>
;
CT] oi "S
2 S ST;
||||
J
Matter (PM10)
2
*
cs
I
f
%
O
1
35(interimetarget 1)
25(interimtarget2)
15(interirntarget3)
10 (guideline)
S
Paniculate
?
>i
i
1
£
^
1
"1
3.
^
1
TSlmtenmtarget I)
50(interirntarget 2)
37.5 (interim target 3
25 (guideline)
g
Matter (PM2.5)
§
O.
Q_
<
R
Si
s
ll
o C:
*
1
1
1
5
|
t
c
S
|
<
t
|
g
Q.
"1
Si
o
f~4
O)
1
g
OS
J
i
:
C
j
fl
S
£
i
<
_;
100 (guideline)
ZI
I
o
-S
d.
Ci.
"1
^
£
L
a.
i
-i
i
L
t.
5
5
i
3
z
"E
S
""
1
5
^
o
E
1
0
_c
E
g
I
I
^
E
Q.
E
^
£
^
1
i
s
c
5
«
"1
£
"g
ffl
i
^
§
i
E
a
1^
Q.
£
Q.
Q.
_
J
^
1
£
m
Monoxide(CO)
a
I
(5
*
S
1
CO
a
1
S
;
Arsenic(As)
a
~E
"c
8
<
Cadmium (Cd)
S
1
s
*~
1
1
o -5?
lilt
"|> g- | g
S
*
T5 '+5 -£
& g S
standar
:3
J*
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-Q
ndisbeingre
1"
^
g
i
i
o
-I
s i
ue enters intoforoe 1 ,
urU.S, G*one standar
L> : -
BS
^T s
Sources: European Commission Air Quality Standards: http://ec.europa.eu/environment/air/quality/standards.htm
Canadian National Ambient Air Quality Objectives: http://www.hc-sc.ec.ca/ewh-semt/air/out-ext/reg-eng.php
WHO (quoted in International Finance Corporation Environmental, Health, and Safety General Guidelines):
http://www.ifc.org/ifcext/sustainability.nsf/AttachmentsByTitle/gui EHSGuidelines2007 GeneralEHS/$FILE/Final+-
+General+EHS+Guidelines.pdf
US National Ambient Air Quality Standards: http://epa.gov/air/criteria.htm
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
3 HOTEL AND RESORT PERFORMANCE STANDARDS:
3.1 Hotel and Resort Water Discharge/ Effluent Limits
Half of the CAFTA-DR countries are signatories to the Cartagena Convention, which seeks to control
discharges into the Wider Caribbean basin. Below are the standards reflected in the Cartagena
Conventions, as well as country-specific standards. Under the Land Based Sources of pollution (LBS)
protocol to the Cartagena Convention, governments must regulate domestic wastewater that is
discharged from hotels and commercial entities according to the effluent limits in table C-7. Table C-8
shows the timeline for governments to meet the effluent standards for domestic wastewater discharges.
Table C- 7: Water discharge/effluent limits
Pollutant
Aluminum
Arsenic
Barium
Biochemical Oxygen
Demand (BOD5)
(mg/l)
Boron
Cadmium
Carbamates (total)
Chemical Oxygen
Demand-COD (mg/l)
Chlorine (residual)
Chromium-
(total)
Chromium
(hexavalent)
Color (purity)
Copper
Cyanide (total)
Cyanide (free)
Cyanide (free but
outside mixing area)
^.
in
in
U
C
O
*" y,
c as
U
as
01
00
§
30/150
as
'ce.
as
to1
8
50
150
c
.a H
'= a
fc (U
O ^
1 A ~
JS S2 oi
o3 1 - 1
BIS
= < u ~
1/1 ~i.
30, 60, 300 /
60, 100, 200
150, 300, 500/
350, 350, 350
o
as
£
as
to
LLJ
as
as
0)
as
5
c
"c
08 >
OJ «
11
= HJ
l/l
200 / 300
(phased down to
100 in 2024)
To be monitored
but no limit set
in
E
C
o
50
200
as
00
E
as
u
Z
"S
o
« ^-
(J -D
£ C
L. I
3 ~C
75/90
150/180
Q in
01 01
'E "
D 55
0
u
BL
0
t
c
> as
00
S
>
01
X 2
ia
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39
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Pollutant
Cyanide (weak acid
dissociable)
Fluoride
Hydro-carbons
Iron
Lead
Mercury
Nickel
Nitrogen (total)
(mg/l)
Oil and Grease
(mg/l)
Organo-
phosphorus
Compounds (total)
(mg/l)
Organo-
chlorine Compounds
(total)
Radium 226
Selenium
Settleable Solids
Silver
Sulfites
Sulphides
Tin
Total coliform
bacteria
(MPN/100 ml)
Total Metals
Total Suspended
Solids (TSS) (mg/l)
Zinc
Temperature
pH
invention
Class II
Cartagena C
Class I/
15/50
30 /
150
5-10
S
'ce.
as
tt
8
50
30
1,000
50
5-9
g .a
ll
1 «
& *
c U- ₯ 1 V
g rf « 8 "-;
= < s 8 H
20, 30, 50 /
40, 40, 40
0.2, 1,20 /
15, 15, 25
5,5,5/
8, 8, 10
2500, 2500,
10,000
75, 150, 200 /
75, 150, 200
6-9
El Salvador
_ro
ra
01
4-»
as
(5
oa ^ >.
a> _ c
S = 3
||l
£ - m
100 phased
down to 20 in
2024
100 phased
down to 10 in
2024
75 phased down
to 10 in 2024
1,000,000
phased down to
10,000 in 2024
600 phased
down to 100 in
2024
6-9
Honduras
30
10
5
5,000
100
6-9
Nicaragua
Surfaces
Inland/
Coastal
30/30
10/20
8/10
1,000 /
10,000
75/75
6-9
~a v>
01 01
- m
c 2
D (0
o
u
'<£.
0
&_
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APPENDIX C. REQUIREMENTS AND STANDARDS
Notes to "Table C- 7: Water Discharge/Effluent Limits":
1 Under the Cartagena Convention, "Class I waters" means waters in the Convention area that, due to
inherent or unique environmental characteristics or fragile biological or ecological characteristics or
human use, are particularly sensitive to the impacts of domestic wastewater. Class I waters include,
but are not limited to:
(a) waters containing coral reefs, seagrass beds, or mangroves;
(b) critical breeding, nursery or forage areas for aquatic and terrestrial life;
(c) areas that provide habitat for species protected under the Protocol Concerning Specially
Protected Areas and Wildlife to the Convention (the SPAW Protocol);
(d) protected areas listed in the SPAW Protocol; and
(e) waters used for recreation.
2 Under the Cartagena Convention, "Class II waters" means waters in the Convention area that due to
oceanographic, hydrologic, climatic or other factors are less sensitive to the impacts of domestic
wastewater and where humans or living resources that are likely to be adversely affected by the
discharges are not exposed to such discharges.
3 Costa Rica: A Wastewater Discharge Committee is drafting limits for discharges to the marine
environment through submarine outfalls.
4 Dominican Republic: Class A, B and C waters are surface inland bodies of water ranging from those
with drinking water intakes with no treatment except disinfection to those with navigational and
cooling uses. Class E, F and G waters are coastal/marine waters ranging from those designated for
natural resource conservation and aquatic sports with direct contact to those for industrial,
navigational and port activities. There are also Class D-l and D-2 waters (limits need to mirror
natural conditions), for inland/surface and coastal respectively, designated to preserve natural
conditions for their exceptional quality and ecological value.
5 Nicaragua: surface/inland discharge limits include receiving waters with drinking water intakes
Table C- 8: Land based sources protocol timeline for domestic wastewater
Category
1
2
3
4
5
6
Effective Date of Obligation
(in years after entry into force
for the
Contracting Party)
0
10
10*
15
20
20
Effluent Sources
All new domestic wastewater systems
Existing domestic wastewater systems other
than community wastewater systems
Communities with 10,000 - 50,000
inhabitants
Communities with more than 50,000
inhabitants already possessing wastewater
collection systems
Communities with more than 50,000
inhabitants not possessing wastewater
collection systems
All other communities except those relying
exclusively on household systems
D Countries which decide to give higher priority to categories 4 and 5 may extend their obligations pursuant
to category 3 to twenty years (category 6).
Source: "Convention for the Protection and Development of the Marine Environment of the Wider Caribbean
Region," http://www.cep.unep.org/cartagena-convention/cartagena-convention.pdf
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3.2 Supplemental U.S. Water Discharge/ Effluent Limits
Discharges of pollutants from any point source into the waters of the U.S. are prohibited except as in
compliance with the Clean Water Act. 33 U.S.C. § 1311. Usually this means that for discharges to be
lawful they must be authorized by permit (the Clean Water Act Section 301). Discharge permits are
issued either by EPA or states with programs approved by EPA administering what is called the National
Pollutant Discharge Elimination System (NPDES), or in the case of dredged or fill material the U.S. Army
Corps of Engineers or a state authorized to administer a permit program for such discharges with EPA
objection rights. 33 U.S.C. §§ 1342, 1344. NPDES permits must contain conditions that, among other
things, meet water quality-based and technology-based effluent limits. EPA takes into account both
technological availability and economic achievability when it promulgates nationwide effluent limitation
guidelines and an explanation of the basis for the standards is accessible via the EPA website
(http://water.epa.gov/scitech/wastetech/guide/). The limits listed for reference here are current as of
2011.
3.3 Hotel and Resort Storm Water Discharge Performance Requirements
In the United States, the Environmental Protection Agency (USEPA) issued in 2008 an updated Multi-
Sector General Permit (MSGP) for storm water discharges associated with industrial sources. The MSGP
identifies specific actions facility operators must take to qualify for a permit, including the submission of
a Notice of Intent (NOI), the installation of storm water control measures aimed at minimizing pollutants
in storm water discharges, and the formulation of a storm water pollution prevention plan (SWPPP).
Although the MSGP only applies in states to which EPA has not authorized state permitting authority (3
states, Puerto Rico, the District of Columbia, and other U.S. territories at the time of this writing), it
provides a useful standard for determining allowable pollutant levels in storm water runoff. For more
information on where MSGP requirements apply, see Appendix C of the 2008 MSGP (available at
http://www.epa.gov/npdes/pubs/msgp2008 appendixc.pdf).
The US MSGP includes several types of required analytical monitoring, one or more of which may apply
to a given facility. These monitoring types include: quarterly benchmark monitoring, annual effluent
limitations guidelines monitoring, State- or Tribal-specific monitoring, impaired waters monitoring, and
other monitoring as required by EPA. EPA has issued several documents to assists industry in complying
with the MSGP monitoring requirements, including the Industrial Storm Water Monitoring and Sampling
Guide (available at http://www.epa.gov/npdes/pubs/msgp monitoring guide.pdf).
Under US requirements, benchmark monitoring must be conducted once every three months for the
first year of operation under a new permit. Benchmark concentrations are not strict effluent limitations,
and they are intended primarily to assist permittees in evaluating the effectiveness of their pollution
prevention measures. Consequently, failure to meet a benchmark standard does not result in a permit
violation. However, where the average monitoring value for four consecutive quarters exceeds the
benchmark, a permittee must undertake a review of the facility's control measures to determine if they
are adequate to meet the permit's effluent limits.
3.3.1 Stormwater Discharge Effluent Limit Monitoring Requirements
In addition to quarterly benchmark monitoring, US permitting standards require permittees to engage in
annual monitoring for effluent limits based on sector-specific guidelines. Monitoring must be conducted
on storm water waste streams resulting from the exposure of the particular industrial activity or
materials in question to storm water prior to commingling with other waste streams, even those
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covered under other areas of the permit. In addition to numerical effluent limits, the MSGP also
includes technology-based effluent limits.
3.4 Hotels and Resorts Air Emission Limits
3.4.1 Cartagena Convention for the Wider Caribbean
The Cartagena Convention addresses the regulation of air emissions in Article 9. By ratifying the
Cartagena Convention governments agree to take all appropriate measures to prevent, reduce, and
control pollution of the Convention area resulting from discharges into the atmosphere from activities
under their jurisdiction. The Cartagena Convention does not provide specific benchmarks for air
emissions, but some governments have developed country-specific standards.
3.4.2 Emissions from Stationary Energy Sources
The primary stationary source air emissions from hotels and resorts (other than any open burning of
debris and fugitive emissions from disturbed areas where vegetation is removed) would be from energy
generation. Information on air emission limits from engines and boilers are included in Appendix C for
the EIA Technical Review Guidelines for the Energy Sector including information from the International
Finance Corporation Emission Guidelines and the U.S. Environmental Protection Agency. The
International Finance Corporation's (IFC) Environmental, Health, and Safety (EHS) Guidelines offer both
sector-specific and general requirements for projects and industries. IFC general emission guidelines
apply to any facility or project that produces air emissions during any period of its lifecycle. The
emission limits for stationary sources of air pollution are complex in that they are pollutant specific, fuel
specific, and vary for different size of operations.
3.4.3 United States - Ozone Depleting Substances (ODS)
EPA regulations issued under Sections 601-607 of the Clean Air Act phase out the production and import
of ozone-depleting substances (ODS), consistent with the schedules developed under the Montreal
Protocol. The U.S. phaseout has operated by reducing in stages the amount of ODS that may be legally
produced or imported into the U.S. In the United States, ozone-depleting substances are regulated as
Class I or Class II controlled substances. Class I substances have a higher ozone-depleting potential and
have been completely phased out in the U.S., except for exemptions allowed under the Montreal
Protocol. Class II substances are hydrochlorofluorocarbons (HCFCs), which are transitional substitutes
for many Class I substances and are being phased out now.
Compliance with the Montreal protocol and the U.S. Clean Air Act affects tourist-related activities
where the following services are provided:
Commercial Refrigeration
Commercial Air Conditioning
Vending Machines
Commercial Ice Machines
US EPA has established rules for phasing out the production and consumption of Class II substances
(HCFCs) in accordance with the terms of the Protocol. See "The Phaseout of Ozone Depleting
Substances," available at http://www.epa.gov/ozone/title6/phaseout/index.html.
US EPA also regulates the use of HCFCs under sections 605, 608, and 615 of the Clean Air Act. Under
section 605, EPA has restricted the use of certain HCFC refrigerants to the servicing of existing
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appliances. Under section 608, EPA has issued regulations to reduce the use and emissions of HCFCs
during the maintenance, servicing, and disposal of appliances to the lowest achievable level, and to
maximize the recycling of such substances. Further, under section 615 of the Clean Air Act, EPA has
issued regulations restricting the sale and distribution of HCFC-containing appliances.
In addition, the Significant New Alternatives Policy (SNAP) Program is EPA's program to evaluate
substitutes for the ozone-depleting chemicals that are being phased out under the stratospheric ozone
protection provisions of the Clean Air Act (CAA). In Section 612(c) of the Clean Air Act, the EPA is
authorized to identify and publish lists of acceptable and unacceptable substitutes for class I or class II
ozone-depleting substances as used in specific end uses. Substitutes are reviewed on the basis of,
among other things, ozone depletion potential, global warming potential, toxicity, flammability, and
exposure potential. US EPA has listed a number of acceptable substitutes for ozone depleting
substances being phased out or banned in the refrigeration end use. See:
"Acceptable Substitutes in Retail Food Refrigeration,"
http://www.epa.gov/ozone/snap/refrigerants/lists/foodref.html;
"Acceptable Substitutes in Vending Machines"
http://www.epa.gov/ozone/snap/refrigerants/lists/vending.html
"Acceptable Substitutes in Commercial Ice Machines,"
http://www.epa.gov/ozone/snap/refrigerants/lists/icemach.html
4 MARINE AND OTHER WATER VESSEL PERFORMANCE STANDARS
4.1 Water Discharge / Effluent Limits for Vessels
Water discharge from marine and other water vessels is regulated through numerous international and
domestic laws. These regulations govern water discharges such as ballast water, incidental discharges,
and human sewage discharges.
Discharges from vessels are regulated by a variety of international treaties and conventions, such as the
International Convention for the Control and Management of Ships' Ballast Water and Sediments, the
International Convention on the Control of Harmful Anti-fouling Systems on Ships, and the International
Convention for the Prevention of Pollution from Ships (MARPOL). See Table C-20 for a more complete
list of applicable treaties. While most of these international agreements do not contain specific
benchmark guidelines, they contain general guidelines that may be informative in the development of
country-specific standards.
Countries also regulate water discharges from marine and other water vessels through domestic laws.
In the United States, discharges are regulated by a number of domestic laws, including (but not limited
to) Title XIV of the Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, which covers sewage and graywater discharges from cruise ships
operating in Alaska, and the Clean Boating Act, which covers incidental discharges from recreational
vessels.
4.1.1 Ballast Water and Other Discharges Incidental to Vessel Operation
For the regulation of ballast water, the International Marine Organization's (IMO's) Marine Environment
Protection Committee is currently developing a global treaty for the Control and Management of Ships'
Ballast Water and Sediments that is intended to reduce the introduction of harmful aquatic species
through the management of ballast water. See also section 5.3 on invasive species.
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In the United States, ballast water discharges are regulated by the EPA under the Vessel General Permit
and also separately regulated by the U.S. Coast Guard under the National Invasive Species Act of 1996
(NISA) and Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA).
The EPA's vessel permitting program(NPDES) also regulates incidental discharges from the normal
operation of vessels, including ballast water, bilgewater, graywater (e.g., water from sinks, showers),
and gradual release of anti-foulant paints (i.e., their leachate). The NPDES vessels permitting program
does not regulate discharges from military vessels or recreational vessels. Instead, those are regulated
by other EPA programs under section 312 of the Clean Water Act.
The centerpiece of the NPDES vessels program is the Vessel General Permit (VGP). The 2008 VGP
regulates discharges incidental to the normal operation of vessels operating in a capacity as a means of
transportation. The VGP includes general effluent limits applicable to all discharges; general effluent
limits applicable to 26 specific discharge streams; narrative water-quality based effluent limits;
inspection, monitoring, recordkeeping, and reporting requirements; and additional requirements
applicable to certain vessel types. Recreational vessels as defined in section 502(25) of the Clean Water
Act are not subject to this permit. In addition, with the exception of ballast water discharges, non-
recreational vessels less than 79 feet (24.08 meters) in length, and all commercial fishing vessels,
regardless of length, are not subject to this permit. For more information on the VGP, visit the EPA
website at http://cfpub.epa.gov/npdes/vessels/vgpermit.cfm.
4.1.2 Vessel-Based Human Sewage Discharges
The Clean Water Act (CWA) is the centerpiece of federal legislation addressing vessel-based human
sewage pollution in U.S. waters. Under section 312 of the CWA, discharges of sewage from vessels are
controlled in part by regulating the equipment that treats or holds the sewage: marine sanitation
devices (MSDs). Section 312 of the CWA requires the use of operable, U.S. Coast Guard-certified MSDs
onboard vessels that are 1) equipped with installed toilets and 2) operating on U.S. navigable waters
(which include the three mile territorial seas). 33 U.S.C. 1322(h) (4). The Coast Guard categorizes MSDs
into three types, as shown in table C-9.
Additionally, the Clean Water Act provides for the establishment of no discharge zones. No discharge
zones are areas where the discharge of sewage from vessels, whether treated by a marine sanitation
device or not, are not allowed. For more information about the no discharge zone program, see
http://water.epa.gov/polwaste/vwd/ndz.cfm.
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APPENDIX C. REQUIREMENTS AND STANDARDS
Table C- 9: Standards for marine sanitation devices (MSDs)
US: Type 1
(Flow-through treatment
devices that commonly use
maceration and disinfection
for the treatment of sewage)
US: Type 2 (Flow-through
treatment devices that may
employ biological treatment
and disinfection (some Type II
MSDs may use maceration
and disinfection)
US: Type 3 (Typically a holding
tank where sewage is stored
until it can be disposed of
shore-side or at sea (beyond
three miles from shore))
Vessel Size
<_65 feet in
length
Any Length
Any Length
Floating Solids
No Discharge
Fecal Coliform
Bacterial Count
< 1000 per 100 ml
< 200 per
100ml
Total Suspended Solids
< 150 ml per L
No performance standard, but pursuant to Coast Guard regulations,
a Type III MSD must "be designed to prevent the overboard
discharge of treated or untreated sewage or any waste derived from
sewage". 33 CFR 159.53(c).
Source: "Marine Sanitation Devices," http://water.epa.gov/polwaste/vwd/vsdmsd.cfm
4.2 Marine and Other Water Vessel: Air Emission Limits
Diesel boats and ships include vessels that use marine diesel engines. These vessels range in size and
application from large ocean-going vessels to small recreational runabouts. The following tables
summarize the emission standards for marine diesel engines as reflected in the MARPOL Convention
and USEPA regulations.
For purposes of air emission regulations, vessels are categorized into three distinct groups based on
their size, engine type, and purpose:
Large ships and ocean vessels
Diesel powered boats and ships
Personal watercraft
Additional regulations have been developed in the United States for marine loading docks. This section
includes the applicable air emission standards for the three categories of vessels, as well as a summary
of the standards regarding marine loading docks.
4.2.1 MARPOL Convention Air Emission Limits from Ships: Ocean Vessels and Large Ships
The International Convention on the Prevention of Pollution from Ships, known as MARPOL 73/78
contains rules regarding ship pollution. On 27 September 1997, the MARPOL Convention has been
amended by the "1997 Protocol", which includes Annex VI titled "Regulations for the Prevention of Air
Pollution from Ships". MARPOL Annex VI sets limits on NOX and SOX emissions from ship exhausts and
prohibits deliberate emissions of ozone depleting substances.
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Large ships, such as container ships, tankers, bulk carriers, cruise ships, and lakers are significant
contributors to air pollution in many cities and ports. There are two types of diesel engines used on
large ships: main propulsion and auxiliary engines. The main propulsion engines on most large ships are
"Category 3" marine diesel engines, which can stand over three stories tall and run the length of two
school buses. Auxiliary engines on large ships typically range in size from small portable generators to
locomotive-size engines.
4.2.1.1 MARPOL Emissions Limits for NOx
MARPOL NOX emission limits are set for diesel engines and cruise ships depending on the engine
maximum operating speed (n, rpm).
Tier I standards become applicable to existing engines installed on ships built between January 1, 1990
to December 31, 1999, with a displacement > 90 liters per cylinder and rated output > 5000 kW, subject
to availability of approved engine upgrade kit.
Tier II standards are expected to be met by combustion process optimization. The parameters examined
by engine manufacturers include fuel injection timing, pressure, and rate (rate shaping), fuel nozzle flow
area, exhaust valve timing, and cylinder compression volume.
Tier III standards are expected to require dedicated NOX emission control technologies such as various
forms of water induction into the combustion process (with fuel, scavenging air, or in-cylinder), exhaust
gas recirculation, or selective catalytic reduction. See table C-10 for a summary of these standards.
Table C-10: MARPOL Annex VI NOx emission limits
Tier
Tierl
Tier II
Tier III
Date
2000
2011
2016*
Nox Limit, G/kWh
N<130
17.0
14.4
3.4
130 < n < 2000
45 x n-°'2
44xn-°'23
9 x n-°'2
N > 2000
9.8
7.7
1.96
* In Nox Emission Control Areas (EGAs). Tier II standards apply outside EGAs.
Source: "International: IMO Marine Engine Regulations," http://www.dieselnet.com/standards/inter/imo.php
Table C-11: Emission standards for large, ocean going ship marine diesel engines: MARPOL
Standard
MARPOL-
Annex VI
Engine
rated power (kW)
>130 kW
Speed (RPM)
N<130
130 < N < 2000
N > 2000
Emissions (g/kW-hr)
NOX
17.0
45.0 xN-0'20
9.8
NOX+THC
Year in
Effect
May 19,
2005*
(January 1,
2000)
N = rated engine speed (crankshaft revolutions per minute)
*MARPOL VI enters into force May 19, 2005, yet applies to diesel engines installed on a ship constructed
on or after January 1, 2000 or a diesel engine which undergoes a major conversion on or after January 1,
2000.
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4.2.1.2 MARPOL Emissions Limits for SOx
Annex VI regulations include caps on sulfur content of fuel oil as a measure to control SOX emissions and,
indirectly, particulate matter emissions (there are no explicit particulate matter emission limits). Special
fuel quality provisions exist for SOX Emission Control Areas (SOX EGA or SECA). See table C-12 for a
summary of these standards.
Table C-12: MARPOL Annex VI fuel sulfur limits
Date
2000
2010.07
2012
2015
2020*
SOX Limit in Fuel (% m/m)
SOXECA
1.5 %
1.0%
0.1%
Global
4.5%
3.5%
0.5%
*Alternative date is 2025, to be decided by a review in 2018
Source: "International: IMO Marine Engine Regulations," http://www.dieselnet.com/standards/inter/imo.php
4.2.2 Supplemental Information on United States Emission Limits for Diesel Marine Vessels
The US EPA addresses emissions from marine engines in two ways, through regulation of fuel and
through regulation of emission limits. In May 2004, as part of the Clean Air Nonroad Diesel Rule, EPA
finalized new requirements for nonroad diesel fuel that decrease the allowable levels of sulfur in fuel
used in vessels by 99 percent. In March 2008, EPA finalized a three part program that will dramatically
reduce emissions from marine diesel engines below 30 liters per cylinder displacement. These include
marine propulsion engines used on vessels from recreational and small fishing boats to towboats,
tugboats and Great Lake freighters, and marine auxiliary engines ranging from small generator sets to
large generator sets on ocean-going vessels. The rule will cut particulate matter emissions from these
engines by as much as 90 percent and NOX emissions by as much as 80 percent when fully implemented.
The 2008 final rule includes the first-ever national emission standards for existing marine diesel engines,
applying to engines larger than 600kW when they are remanufactured. The rule also sets Tier 3
emissions standards for newly-built engines that are phasing in from 2009. Finally, the rule establishes
Tier 4 standards for newly-built commercial marine diesel engines above 600kW, based on the
application of high-efficiency catalytic after-treatment technology, phasing in beginning in 2014.
4.2.2.1 Ocean Vessel Emission Limits in United States Waters
EPA's most recent regulatory action for large ships, published on April 30, 2010, includes standards that
apply to Category 3 (C3) engines installed on U.S. vessels and to marine diesel fuels produced and
distributed in the United States. This action also includes a regulatory program to implement Annex VI
to the International Convention for the Prevention of Pollution from Ships in the United States, including
extending the Emission Control Area (EGA) requirements to U.S. internal waters. These regulations are
adopted under EPA's authority in the Act to Prevent Pollution from Ships (APPS).
EPA's 2010 CAA rule added two new tiers of C3 marine diesel engine emission standards: The Tier 2
standards apply to new engines beginning in 2011; the Tier 3 standards begin in 2016. EPA's 2010 rule
also revised our CAA diesel fuel program allowing for the production and sale of diesel fuel with up to
1,000 ppm sulfur for use in C3 marine vessels, phasing in by 2015. See tables C-13 and C-14.
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Table C-13: United States air emission standards for marine vessels
Stan-
dard
2 -
LU ,_
l/l 2.5
<0.9
0.9-1.2
1.2-2.5
2.5-5.0
5.0-15.0
15.0-20.0
15.0-20.0
20.0-25.0
25.0-30.0
>30.0
<0.9
0.9-1.2
1.2-2.5
>2.5
<0.9
0.9-1.2
1.2-2.5
2.5-5.0
5.0-15.0
15.0-20.0
15.0-20.0
20.0-25.0
25.0-30.0
Speed
(RPM)
>37kW
all
all
all
all
< 3300 kW
> 3300 kW
all
all
all
>37kW
all
all
all
>37kW
all
all
all
all
< 3300 kW
> 3300 kW
all
all
Emissions (g/kW-hr)
NOx
N<130
130 < N < 2000
N > 2000
NOx +
THC
17.0
45. Ox
N-0.20
9.8
7.5
7.2
7.2
7.2
7.8
8.7
9.8
9.8
11.0
PM
0.40
0.30
0.20
0.20
0.27
0.50
0.50
0.50
0.50
CO
5.0
5.0
5.0
5.0
5.0
5.0
5.0
5.0
5.0
Model
Year
2004-
2006
2005
2004
2004
2007
2007
2007
2007
2007
2007
Final Tier 3 standards will be promulgated by April
27, 2007
7.5
7.2
7.2
7.2
4.0
4.0
4.0
5.0
5.0
5.2
5.9
5.9
6.6
0.40
0.30
0.20
0.20
0.24
0.18
0.12
0.12
0.16
0.30
0.30
0.30
0.30
5.0
5.0
5.0
5.0
2007
2006
2006
2009
Source: "Diesel Boats and Ships" http://www.epa.gov/otaq/marine.htm
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4.2.2.2 Emission Standards for Marine Tank Vessel Loading Operations-United States
US EPA regulations for emissions standards for marine tank vessel loading operations are currently in
development. For additional information, see
http://water.epa.gov/lawsregs/lawsguidance/cwa/vessel/CBA/ and
http://www.epa.gov/ttn/atw/marine/marinepg.html.
4.2.2.3 Personal Watercraft Vessels
Personal watercraft vessels encompass any vessel that uses gasoline engines or other spark-ignition
engines. EPA emission standards for hydrocarbon, nitrogen oxides, and carbon monoxide reduce the
environmental impact from personal watercraft vessels. The emission standards require manufacturers
to control exhaust emissions from the engines and evaporative emissions from fuel tanks and fuel lines.
The US EPA has issued exhaust emission standards for marine spark-ignition engines and compression-
ignition engines, as shown in tables C-14 and C-15, respectively.
Table C-14: Marine spark-ignition engines -- exhaust emission standards
Engine
Type
Personal Watercraft & Outboard Marine Engines
Model
Year
00
tn
tn
4.3 kW
(0.917 x (151 + 557/P0'9 + 2.44)
[ABT]
(0.833 x (151 + 557/P0'9 + 2.89)
[ABT]
(0.750 x (151 + 557/P0'9) + 3.33
[ABT]
(0.667 x (151 + 557/P0'9) + 3.78
[ABT]
(0.583 x (151 + 557/P0'9) + 4.22
[ABT]
(0.500 x (151 + 557/P0'9) + 4.67
[ABT]
(0.417 x (151 + 557/P0'9) + 5.11
[ABT]
(0.333 x (151 + 557/P0'9) + 5.56
[ABT]
CO
(g/KW-hr)
P<4.3
kW
-
-
-
-
-
-
-
P>
4.3
kW
-
-
-
-
-
-
-
-
Useful Life
(hours/years)
350/5
Warranty
Period
(hours/years)
All Emission-
related
Components:
1 year
All Emission-
related
Components:
lyear
Specified
Major
Emission
Control
Components:
200/3
All Emission-
related
Components:
200/2
Specified
Major
Emission
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APPENDIX C. REQUIREMENTS AND STANDARDS
Engine
Type
LO
i_
T3
C
i_
ni
4-»
(D
0
'c ">
£ pi
> .E
C QO
O C
U LLJ
4.3 kW
(0.250 x (151 + 557/P0'9) + 6.00
[ABT]
2.1 + 0.09 x (151 + 557/P0'9)
[ABT]
5.0
[ABT]
P < kW
20.0
16.0
P>485
kW
25.0
22.0
CO
(g/KW-hr)
P<4.3
kW
-
500-
5.0 xP
P>
4.3
kW
-
300
75.0
[ABT]
350
Useful Life
(hours/years)
Personal
Watercraft:
350/5
Outboard:
350 / 10
480 / 10
P < 485 kW:
150/3
P>485kW:
50/1
Warranty
Period
(hours/years)
Control
Components:
200/3
Personal
Watercraft:
175 hours or
30 months
Outboard
Engines: 175 /
5
Electrical &
Mechanical
Components:
480/3
Electrical
Components:
480/3
Mechanical
Components:
P < 485 kW:
150/3
P > 485 kW:
50/1
Sources: "Gasoline Boats and Personal Watercraft" http://www.epa.gov/otaq/marinesi.htm
40 CFR 91.104 = Outboard and personal watercraft (PWC) exhaust emission standards (1998-2009)
40 CFR 91.105 = Outboard and PWC useful life (1998-2009)
40 CFR 91.1203 = Warranty period (1998-2009)
40 CFR 1045.103 = Outboard and PWC exhaust emission standards (2010+)
40 CFR 1045.105 = Sterndrive/lnboard exhaust emission standards
40 CFR 1045.107 = Not-to-exceed exhaust emission standards
40 CFR 1045.120 = Warranty period (2010+)
Notes:
1 The numerical emission standards for hydrocarbons (HC) must be met based on the following
types of HC emissions for engines powered by the following fuels: (1) total hydrocarbon equivalent
for alcohol; (2) non-methane hydrocarbon for natural gas; and (3) total hydrocarbons for other
fuels.
2 P stands for the maximum engine power in kilowatts.
3 Manufacturers may generate or use emission credits for averaging, but not for banking or trading.
4 Useful life and warranty period are expressed hours or years of operation (unless otherwise
indicated), whichever comes first.
5 The test procedure for federal standards uses the International Organization for Standardization
(ISO) 8178 E4 5-Mode Steady-State Test Cycle.
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APPENDIX C. REQUIREMENTS AND STANDARDS
6 Also applies to model year (MY) 1997 engine families certified pursuant to 40 Code of Federal
Regulations (CFR) 91.205.
7 Not-to-exceed emission standards specified in 40 CFR 1045.107 also apply.
8 A longer useful life in terms of hours must be specified for the engine family if the average service
life is longer than the minimum value as described in 40 CFR 1045.103(e)(3).
9 The useful life may not be shorter than: (1) 150 hours of operation; (2) the recommended overhaul
interval; or (3) the engine's mechanical warranty. A longer useful life must be specified in terms of
hours if the average service life is longer than the minimum value as described in 40 CFR
1045.105(e)(3).
4.2.2.4 Other Emission Limits for Marine Vessels
Table C-15: Visible emissions limits for marine vessels
Opacity Standard (6 mins)
Opacity Maximum
United States/ Puerto Rico
20%
60 % for up to 4 mins in 30 min
interval
Source: "Environmental Quality Board Regulation for the Control of Atmospheric Pollution,"
http://www.ica.gobierno.pr/
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APPENDIX C. REQUIREMENTS AND STANDARDS
Table C-16: Marine compression-ignition (Cl) engines -- exhaust emission standards
Category
Cl Commercia
& Recreational
Cl Commercia
Cl Commercial & Recreational < 75 kW
8 S _
"ro .E Vl ^
" ££ 3
m g
1_
01
i-
1
2
1
2
3
3
Displaceme
nt
(L/cylinder)
>2.5
disp. <0.9
0.9 < disp <
1.2
1.2 < disp <
2.5
2.5 < disp <
5.0
>2.5
disp < 0.9
0.9 < disp <
1.2
1.2 < disp <
2.5
2.5 37
>37
all
>37
>37
all
<8
8<
kW<
19
19 <
kW<
37
37 <
kW<
75
-
All
«?
al
&
rpm < 130
1302000
-
-
-
-
rpm < 130
130 < rpm <
2000
rpm > 2000
-
-
-
-
-
-
-
-
-
-
-
-
i_
as
01
"oi
D
0
2004
2005
2004
2004
2007
2004
2007
2006
2006
2009
2009
+
2009
+
2009
2013
2014
+
2009
2013
2014
+
2012
+
2013
+
i_
si
zi
17.0
45.0
xN"
0.201
9.8
-
-
-
-
17
45.0
xN"
0.20
9.8
-
-
-
-
-
-
-
-
-
-
-
-
i^
si
u
X
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
5tf ^-
0 -=
SI
i 3s
-
-
-
7.5 (ABT)
7.2 (ABT)
7.2 (ABT)
7.2 (ABT)
-
-
-
7.5 (ABT)
7.2 (ABT)
7.2 (ABT)
7.2 (ABT)
7.5 (ABT)
7.5 (ABT)
7.5
(ABT)
4.7 (ABT)
7.5 (ABT)
4.7 (ABT)
5.4 (ABT)
5.4 (ABT)
i
si
Q.
-
-
-
0.40 (ABT)
0.30 (ABT)
0.20 (ABT)
0.20 (ABT)
-
-
-
0.40 (ABT)
0.30 (ABT)
0.20 (ABT)
0.20 (ABT)
0.40 (ABT)
0.40 (ABT)
0.30 (ABT)
0.20 (ABT)
0.30 (ABT)
0.14 (ABT)
0.12 (ABT)
i
si
8
-
-
-
5.0
5.0
5.0
5.0
-
-
-
5.0
5.0
5.0
5.0
8.0
6.6
5.5
5.0
5.0
5.0
8.0 for
<8kW
6.6 for
8
5 °- £
5 / 5,000
5 / 5,000
5/500
5/500
2.5 /
1,500
3.5 /
2,500
5/
5,000
10 / 500 for Cl Recreational
2.5/1,500
for
commercial
engines < 19
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Category
_l *"
=r|
-* li
m
ro ro
A o
-c '.P
±1 ro
s y.
I/I "
0) d>
r Q-
Cl Commercial engir
power density & All
o
s
A
"ro
'u
01
E
0
u
*H
U
1_
01
i-
3
4
Displaceme
nt
(L/cylinder)
1.2 < disp <
2.5
2.5 < disp <
3.5
3.5 600
<600
>600
<600
>600
>75
All
600 <
kW<
1,400
1,400
g?
al
&
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
i_
ra
01
"3
D
o
2014
2017
2018
+
2014
+
2013
2017
2018
+
2013
+
2012
2017
2018
+
2012
+
2012
+
2013
+
2014
+
2013
+
2012
+
2017
+
2016
+
2014
+
2014
al
*i
-
-
-
-
-
-
-
-
-
-
-
-
-
-
1.8
(ABT)
1.8
(ABT)
1.8
(ABT)
1.8
i^
si
u
i
-
-
-
-
-
-
-
-
-
-
-
-
"X. ^-
o -=
SI
i 3s
5.6 (ABT)
5.6 (ABT)
5.6 (ABT)
5.6 (ABT)
5.8 (ABT)
5.8 (ABT)
5.8 (ABT)
5.8 (ABT)
5.8 (ABT)
5.8 (ABT)
5.8 (ABT)
0.19 HC
0.19 HC
0.19 HC
0.19 HC
i
si
Q.
0.11 (ABT)
0.10 (ABT)
0.11 (ABT)
0.11 (ABT)
0.10 (ABT)
0.11 (ABT)
0.11 (ABT)
0.10 (ABT)
0.11 (ABT)
0.15 (ABT)
0.14 (ABT)
0.14 (ABT)
0.12 (ABT)
0.11 (ABT)
0.04 (ABT)
0.04 (ABT)
0.04 (ABT)
0.12 (ABT)
i
si
o
u
<19
5. 5 for
1937kW
5.0
Useful Life
(yrs/hrs)
7 / 5,000 for
commercial
engines 19 <
kW<37
10 / 10,000
forCl
Commercial
< 37 kW
5 / 3,000 for
engines < 19
kW
7 / 5,000 for
commercial
engines 19 <
kW<37
10 / 10,000
forCl
Commercial
>37kW
10 / 1,000
forCl
Recreational
10 / 10,000
£" -D "?
l!£
i-I
kW
3.5/2,500
for
commercial
engines 19 <
kW<37
5 / 5,000 for
Cl
Commercial
<37kW
2.5/1,500
for
commercial
engines < 19
kW
3.5/2,500
Tor
commercial
kW<37
5 / 5,000 for
Cl
Commercial
>37kW
5 / 500 for Cl
Recreational
5 / 5,000
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Category
(N
U
1_
01
i-
1
2
3
4
Displaceme
nt
(L/cylinder)
>2.5
5.037
All
<
3,300
>
3,300
All
All
<
2,000
2,000
3,700
g?
al
&
-
rpm < 130
130 < rpm <
2,000
rpm > 2,000
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
i_
ra
01
"3
D
o
2015
2016
+
2004
2007
2013
+
2014
+
2017
+
2016
+
2014
+
2014
2015
2014
2015
2016
+
al
*i
(ABT)
1.8
(ABT)
17.0
45.0
xN"
0.20
9.8
-
-
-
-
-
-
-
-
-
-
1.8
(ABT)
1.8
(ABT)
1.8
(ABT)
1.8
(ABT)
1.8
(ABT)
1.8
(ABT)
i^
^i
u
i
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
"X. ^-
o -=
SI
i 3s
0.19 HC
-
-
-
7.8 (ABT)
8.7 (ABT)
9.8 (ABT)
9.8 (ABT)
11.0
(ABT)
6.2 (ABT)
7.8 (ABT)
7.0 (ABT)
9.8 (ABT)
11.0
(ABT)
0.19 HC
0.19 HC
0.19 HC
0.19 HC
0.19 HC
0.19 HC
i
si
Q.
0.06 (ABT)
-
-
-
0.27 (ABT)
0.50 (ABT)
0.50 (ABT)
0.50 (ABT)
0.50 (ABT)
0.14 (ABT)
0.14 (ABT)
0.34 (ABT)
0.27 (ABT)
0.27 (ABT)
0.04 (ABT)
0.04 (ABT)
0.04 (ABT)
0.12 (ABT)
0.25 (ABT)
0.06 (ABT)
i
si
o
u
-
-
-
5.0
5.0
5.0
5.0
5.0
5.0
5.0
5.0
5.0
5.0
5.0
Useful Life
(yrs/hrs)
10 / 20,000
10 / 20,000
10 / 20,000
10 / 20,000
£" -D "?
l!£
i-I
5 / 10,000
5 / 10,000
5 / 10,000
5 / 10,000
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Volume II -EIA Technical Review Guidelines:
Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
Category
m
u
01
i-
1
2
3
Displaceme
nt
(L/cylinder)
>30.0
>30.0
>30.0
01 C"
II
All
All
All
11
rpm < 130
130 < rpm <
2,000
rpm > 2,000
rpm < 130
130 < rpm <
2,000
rpm > 2,000
rpm < 130
130 < rpm <
2,000
rpm > 2,000
(0
01
"3
o
2004
2011
2016
= J
17.0
450
xN"
0.20
9.8
14.4
440
xN"
0.23
7.7
3.4
90x
N-
0.20
2.0
Si
-
-
-
2.0
2.0
0 -=
||
-
-
-
-
-
-
-
-
-
!=
Q.
-
-
-
-
-
-
-
-
-
!=
o
u
-
-
-
5.0
5.0
Useful Life
(yrs/hrs)
3 / 10,000
3 / 10,000
3 / 10,000
I'll
3 / 10,000
3 / 10,000
3 / 10,000
Notes:
1
4
5
Sources:
40 CFR 89.104 = Tiers 1 and 2 useful life and warranty period for marine Cl engines less than 37 kW
40 CFR 89.112 = Tiers 1 and 2 emission standards for marine Cl engines less than 37 kW
40 CFR 89 Subpart E = Tiers 1 and 2 test procedures for marine Cl engines less than 37 kW
40 CFR 94.8 = Tiers 1 and 2 emission standards for Cl (both commercial & recreational), C2 and C3 engines
40 CFR 94.9 = Tiers 1 and 2 useful life for Cl (both commercial & recreational), C2 and C3 engines
40 CFR 94.10 = Tiers 1 and 2 warranty period for Cl (both commercial & recreational), C2 and C3 engines
40 CFR 94 Subpart B = Tiers 1 and 2 test procedures for Cl (both commercial & recreational), C2 and C3 engines
40 CFR 1042.101 = Tiers 3 and 4 exhaust emission standards and useful life
40 CFR 1042.107 = Tiers 3 and 4 evaporative emission standards engines using a volatile liquid fuel (e.g., methanol)
40 CFR 1042.120 = Tiers 3 and 4 warranty period
40 CFR 1042 Subpart F = Tiers 3 and 4 test procedures
For Tiers 1 and 2, Category 1 marine engines are greater than or equal to 37 kilowatts (kW)
and have a displacement less than 5.0 liters per cylinder (L/cylinder); Category 2 marine
engines have a displacement greater than or equal to 5.0 L/cylinder and less than 30
L/cylinder; and Category 3 marine engines have a displacement greater than or equal to 30.0
L/cylinder. For Tiers 3 and 4, Category 1 represents engines up to 7 L/cylinder displacement;
and Category 2 includes engines from 7 to 30 L/cylinder. The definition of Category 3 marine
engines remains the same.
Tiers 1 and 2 for marine engines less than 37 kW are subject to the same emission standards
as for land-based engines. See Table 1 in 40 Code of Federal Regulations (CFR) Part 89.112
and 40 CFR Part 89.104.
For Tiers 1 and 2, this refers to the rated power; for Tiers 3 and 4, this refers to the maximum
engine power.
Total hydrocarbon (THC) plus nitrogen oxides (NOx) for Tier 2 standards.
Useful life is expressed in hours or years, whichever comes first. For Tiers 3 and 4, a longer
useful life in hours for an engine family must be specified if either: 1) the engine is designed,
advertised, or marketed to operate longer than the minimum useful life; or 2) the basic
mechanical warranty is longer than the minimum useful life.
Warranty period is expressed in years and hours, whichever comes first.
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Volume II-EIA Technical Review Guidelines: APPENDIX C. REQUIREMENTS AND STANDARDS
Appendices: Tourism
7 For Tiers 3 and 4, there are no evaporative emission standards for diesel-fueled engines, or
engines using other nonvolatile or nonliquid fuels (e.g., natural gas). If an engine uses a
volatile liquid fuel, such as methanol, the engine's fuel system and the vessel in which the
engine is installed must meet the evaporative emission requirements of 40 Code of Federal
Regulations (CFR) Part 1045 that apply with respect to spark-ignition engines. Manufacturers
subject to evaporative emission standards must meet the requirements of 40 CFR 1045.112 as
described in 40 CFR 1060.l(a) (2).
8 Indicates the model years for which the specified standards start.
9 N is the maximum test speed of the engine in revolutions per minute (rpm).
10 Manufacturers of Tier 3 engines greater than or equal to 19 kW and less than 75 kW with
displacement below 0.9 L/cylinder may alternatively certify some or all of their engine families
to a particulate matter (PM) emission standard of 0.20 grams per kilowatt-hour (g/kW-hr) and
a NOx+HC emission standard fo 5.8 g/kW-hr for 2014 and later model years.
11 The applicable Tier 2 NOx+HC standards continue to apply instead of the Tier 3 values for
engines at or above 2000 kW.
12 These Tier 3 standards apply to Category 1 engines below 3700 kW except for recreational
marine engines at or above 3700 kW (with any displacement), which must meet the Tier 3
standards specified for recreational marine engines with a displacement of 3.5 to 7.0
L/cylinder.
13 The following provisions are optional: l)Manufacturers may use NOx credits to certify Tier 4
engines to a NOX+HC emission standard of 1.9 g/kW-hr instead of the NOX and HC standards.
See 40 CFR 1042.101(a) (8) (i) for more details. 2) For engines below 1000 kW, manufacturers
may delay complying with the Tier 4 standards until October 1, 2017. 3) For engines at or
above 3700 kW, manufacturers may delay complying with the Tier 4 standards until December
31, 2016.
14 The Tier 4 standard is for HC (not HC+NOx) in g/kW-hr.
15 These Tier 3 standards apply to Category 2 engines below 3700 kW; no Tier 3 standards apply
for Category 2 engines at or above 3700 kW, although there are Tier 4 standards that apply.
16 An alternative set of Tier 3 and Tier 4 standards for PM, NOx, and HC are available for
Category 2 engines at or above 1400 kW, but must be applied to all of a manufacturer's
engines in a given displacement category in model years 2012 through 2015.
4.3 Marine and Other Vessel: Solid Waste
The disposal of solid wastes from ships can be regulated under a number of international conventions,
including (but not limited to):
London Convention/London Protocol (ocean dumping)
MARPOL Annex V (garbage from vessels)
Several CAFTA-DR countries and the United States are parties to MARPOL Annex V and the London
Convention. The United States is a signatory to the London Protocol (but has not ratified the
convention).
The London Convention governs the deliberate disposal of wastes or other matter from vessels, aircraft,
platforms, and other man-made structures at sea. The London Convention prohibits the disposal at sea
of radioactive wastes and other radioactive matter. For additional information about the London
Convention, see
http://water.epa.gov/tvpe/oceb/oceandumping/dredgedmaterial/londonconvention.cfm.
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Appendices: Tourism
APPENDIX C. REQUIREMENTS AND STANDARDS
In the United States the disposal of dredged material into ocean waters is governed by the Marine
Protection, Research and Sanctuaries Act, which implements the requirements of the London
Convention. The ocean dumping regulations are found at 40 CFR Parts 220-229.
Annex V of MARPOL prohibits ocean dumping of all ship-generated plastics and regulates the dumping
of other garbage. The U.S. implements Annex V pursuant to APPS (the Act to Prevent Pollution from
Ships). Table C-17 shows United States's regulations that implement the requirements of MARPOL.
Table C-17: Summary of garbage discharge restrictions for vessels in the United States
Garbage Type
Plastics, including synthetic
ropes and fishing nets and
plastic bags
Dunnage, lining, and packaging
materials that float
Paper, rags, glass, metal
bottles, crockery and similar
refuse
Paper, rags, glass, etc. --
comminuted or ground1
Victual waste4 not comminuted
or ground
Victual waste comminuted or
ground1
All Vessels Except Fixed or Floating Platforms and Associated Vessels
Outside special areas
(33 CFR 151.69)
Disposal prohibited (33 CFR
151.67)
Disposal prohibited less than 25
miles from nearest land and in the
navigable waters of the U.S.
Disposal prohibited less than 12
miles from nearest land and in the
navigable waters of the U.S.
Disposal prohibited less than 3
miles from nearest land and in the
navigable waters of the U.S.
Disposal prohibited less than 12
miles from nearest land and in the
navigable waters of the U.S.
Disposal prohibited less than 3
miles from nearest land and in the
navigable waters of the U.S.
In special areas2
(33 CFR 151.71)
Disposal prohibited (33 CFR
151.67)
Disposal prohibited (33 CFR
151.71)
Disposal prohibited (33 CFR
151.71)
Disposal prohibited (33 CFR
151.71)
Disposal prohibited less than 12
miles from nearest land
Disposal prohibited less than 12
miles from nearest land
Source: "Cruise Ship Discharge Assessment Report," page 5-5,
http://water.epa.gov/polwaste/vwd/upload/2009 01 28 oceans cruise ships sections solidwaste.pdf
Notes to "Summary of Garbage Discharge Restrictions for Vessels":
1 Comminuted or ground garbage must be able to pass through a screen with a mesh size no larger
than 25 mm (linch) (33 CFR 151.75).
2 Special areas under Annex V are the Mediterranean, Baltic, Black, Red, and North Seas areas, the
Gulfs area, the Antarctic area, and the Wider Caribbean region, including the Gulf of Mexico and the
Caribbean Sea (33 CFR 151.53).
3 When garbage is mixed with other substances having different disposal or discharge requirements,
the more stringent disposal restrictions shall apply.
4 Victual waste is any spoiled or unspoiled food waste.
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APPENDIX C. REQUIREMENTS AND STANDARDS
4.3.1 Toxic Chemicals: Paints and Anti-Fouling Systems
The International Convention on the Control of Harmful Anti-Fouling Systems on Ships prohibits the use
of harmful organotins in anti-fouling paints used on ships and seeks to prevent the future use of other
harmful substances in anti-fouling systems. See table C-18 for an overview of regulations concerning
anti-fouling systems in various countries.
Table C-18: Regulations on use of organotin-based anti-foulants
Regulations
Vessels <25m: all organotin-based antifouling
coatings prohibited; exemptions for aluminum
structures.
Vessels <25m: all organotin-based antifouling
coatings prohibited; no exemptions for aluminum
structures.
Vessels <25m:TBT -based antifouling coatings
prohibited; no exemptions foraluminum structures.
All antifouling products containing triorganotins
banned on vessels <25m,and on fish-farming
equipment.
Vessels >25m: TBT antifouling available only in 201
containers.
Vessels >25m: low release rate(<4u.g TBT/cm2/day)
permitted.
Vessels >25m: low release rate(<5ug TBT/cm2/day)
permitted.
All antifoulants must be registered.
TBT paints can only be applied by certified operator.
All antifoulants registered as pesticides, sale and use
must be approved by Advisory Committee on
pesticides.
Triorganotin paints only sold In drums of 201 or more;
must contain <7.5% total tin in copolymers or 2.5%
total tin as free tin.
United
States/Puert
o Rico
X
X
X
X
Canada
X
X
X
Australia
X
X
X
United
Kingdom
X
X
X
X
EU Countries
X
X
X
X
Source: "Anti-Fouling Systems," IMP, http://www.imo.org/OurWork/Environment/Anti-
foulingSvstems/Documents/FOULI NG2003.pdf
5 BIODIVERSITY/ECOSYSTEMS
5.1 Protection of Coral Reefs
There have been increasing efforts to establish better management and conservation measures to
protect the diversity of these biologically rich coral reefs on both the national and international levels.
Current management efforts recognize the importance of including reefs as part of a larger system,
where integrated coastal zone management tools and watershed concepts can be used in the
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development of comprehensive management and conservation plans. Important efforts in coral reef
conservation and management include the U.S. Coral Reef Task Force and the International and the U.S.
Coral Reef Initiatives. For more information on these initiatives, see
http://water.epa.gov/type/oceb/habitat/initiative.cfmtf3.
Table C- 19: Summary of monitoring programs relevant to coral reef ecosystems under U.S. jurisdiction
Program
Flower Gardens
National Marine
Sanctuary
Monitoring
Program
Virgin Islands
National Park
CARICOMP
NOAA Mussel Watch
Program
NOAAStatus&
Trends- Benthic
Surveillance
Dry Tortugas
National Park Coral
Reef
Monitoring
Harbor Branch -
Carysfort Reef
Florida 1974 -1982
The History of A.
palmata
University of
Georgia - Institute of
Ecology
Kaneohe Bay
University of Guam
technical reports,
theses, publications
Location
Gulf of Mexico
U.S. Virgin Islands -
St. John
Puetro Rico
Florida Keys (6
sites), Hawaii (4
sites)
Florida Keys &
vicinity -some
cruises with
EPA/EMAP
Florida - Dry
Tortugas (3 sites) 1
Florida
Florida - Dry
Tortugas
Florida - Looe Key (2
sites), Key Largo (2
sites), Biscayne
National Park (2
sites)
Hawaii - Kaneohe
Bay
Marianas Islands -
various locations
Period
1972 - present
1989 -present
1993-present
1986-present
1984-1994
1989-1995
1974-1982
1881-1993
1984-1991
1970 - 1990
Starting in late
1960's
Status
Ongoing
Ongoing
Ongoing
Ongoing
Stopped
Stopped
Intermittent
Intermittent
Intermittent
Intermittent
Intermittent
Parameters
Photo techniques
and direct
measurements of
coral cover,
population levels,
diversity, evenness,
accretionary
encrusting growth
Coral and
macroalgae cover.
CARICOMP Level 1
Trace metals and
organiccompounds
Sediment samples,
fish, chemistry, fish
biology
Quadrate sampling
of stony & soft coral
spp. abundance,
diversity & evenness
Coral cover,
diversity,
recruitment, &
mortality
Distribution &
abundance
Photo stations
monitoring species
number, % cover, &
species diversity for
scleractinia &
hydrozoan corals
Changes in coral &
algal cover, changes
in coral spp.
diversity
Coral cover &
recruitment,
sedimentation, fish
catch
Source: Stephen Jameson, et. al, "Development of Biological Criteria for Coral Reef Ecosystem Assessment Citation,"
http://water.epa.gov/type/oceb/habitat/biocrit.cfm
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Appendices: Tourism
5.2 Specially Protected Areas
Article 10 of the Cartagena Convention provides that parties should establish specially protected areas
to protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened or
endangered species, in the Convention area. In the United States, these specially protected areas
are called Marine Protection Areas.
5.3 Aquatic Invasive Species
The issue of invasive species is recognized by a number of treaties such as the Convention on Biological
Diversity (CBD). Article 12 of the Specially Protected Areas and Wildlife (SPAW) Protocol provides that
each Party "shall take all appropriate measures to regulate or prohibit intentional or accidental
introduction of non-indigenous or genetically altered species to the wild that may cause harmful impacts
to the natural flora, fauna or other features."
The US EPA is a member of the United States delegation to the Marine Environment Protection
Committee. Aquatic invasive species are regulated domestically in the United States under the National
Invasive Species Act and the Nonindigenous Aquatic Nuisance Prevention and Control Act. For
additional information on the US EPA's work on combating aquatic invasive species, see
http://water.epa.gov/polwaste/vwd/ballastwater/invasive species index.cfm. Additionally, the US EPA
is working to develop national numerical standards for ballast water. For more information, see
http://cfpub.epa.gov/npdes/home.cfm?program_id=350.
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APPENDIX C. REQUIREMENTS AND STANDARDS
6 INTERNATIONAL TREATIES AND AGREEMENTS
CAFTA-DR countries have ratified and/or signed a number of international treaties and agreements
which provide commitments to adopting and implementing a range of environmental protection
regimes. Most do not confer specific quantitative benchmarks for performance and therefore are not
summarized in this Appendix. However, for convenience they are listed below by the date of
publication.
Table C- 20: Multilateral environmental agreements ratified (R), signed (S) or member (M) by CAFTA-
DR countries
Multilateral Environmental Agreement
S
'ce.
ra
tt
8
Dominican Republic
El Salvador
Guatemala
Honduras
Nicaragua
Air Pollution
Kyoto Protocol to the United Nations Framework Convention on Climate Change
entered into force - 23 February 2005
Montreal Protocol on Substances That Deplete the Ozone Layer entered into force - 1
January 1989
Protocol of 1978 Relating to the International Convention for the Prevention of Pollution
From Ships, 1973 (MARPOL) entered into force - 2 October 1983
Annex VI to MARPOL- Regulations for the Prevention of Air Pollution from Ships
entered into force - 19 May 2005
United Nations Framework Convention on Climate Change entered into force - 21
March 1994
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
Biodiversity/Ecosystems
Protocol Concerning Specially Protected Areas and Wildlife (1990 SPAW Protocol)
entered into force 18 June 2000
Convention on Biological Diversity - abbreviated as Biodiversity entered into force - 29
December 1993
Convention on the International Trade in Endangered Species of Wild Flora and Fauna
(CITES) entered into force - 1 July 1975
Convention on Wetlands of International Importance Especially as Waterfowl Habitat
(Ramsar) entered into force - 21 December 1975
United Nations Convention to Combat Desertification in Those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa entered into force - 26
December 1996
International Tropical Timber Agreement, 1994 entered into force - 1 January 1997
International Convention for the Control and Management of Ships' Ballast Water and
Sediments, 2004 - Not yet in force for control of invasive species
R
R
R
R
R
R
R
R
R
*
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
R
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APPENDIX C. REQUIREMENTS AND STANDARDS
Multilateral Environmental Agreement
International Convention for the Regulation of Whaling entered into force - 10
November 1948
ra
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APPENDIX C. REQUIREMENTS AND STANDARDS
Multilateral Environmental Agreement
Region (1983 Oil Spill Protocol) entered into force - 11 October 1986
International Convention for the Control and Management of Ships' Ballast Water and
Sediments, 2004 - Not yet in force
International Convention on the Control of Harmful Anti-fouling Systems on Ships,
2001 entered into force - September 17, 2008
International Convention on Oil Pollution Preparedness, Response and Co-operation,
1990 entered into force 13 May 1995
Protocol of 1978 Relating to the International Convention for the Prevention of
Pollution From Ships, 1973 (MARPOL) entered into force - 2 October 1983
Protocol of 1997 to amend the International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto
(MARPOL PROT 1997) entered into force 19 May 2005
Annex 1 to MARPOL - Regulations for the Prevention of Pollution by Oil entered
into force - 2 October 1983
Hong Kong International Convention for the Safe and Environmentally Sound Recycling
of Ships, 2009 - Not yet in force
Nairobi International Convention on the Removal of Wrecks, 2007 - Not yet in force
as
~
ra
to
8
R
R
R
u
.Q
Q.
01
cc
£
£
o
Q
R
K
R
,_
o
as
LLJ
R
R
R
R
OS
01
as
13
R
K
R
U)
E
3
c
o
R
R
R
as
3,
l°
as
Z
R
R
R
Source: https://www.cia.gov/librarv/publications/the-world-factbook/appendix/appendix-c.html
*Not included in the convention area
7 TOURISM SECTOR WEBSITE REFERENCES
More information on environmental impacts, mitigation measures, industry best practices, and
quantitative standards for the tourism sector can be found at the following websites:
BLUE COMMUNITY PROGRAM
http://www.bluecommunity.info/
INTERNATIONAL MARITIME ORGANIZATION
http://www.imo.org/Pages/home.aspx
UNITED NATIONS ENVIRONMENTAL PROGRAMME
Integrating Biodiversity into the Tourism Sector: Best Practices
http://www.unep.org/bpsp/tourism/tourism%20synthesis%20report.pdf
Caribbean Environmental Programme-Tourism
http://www.cep.unep.org/issues/tourism.htm
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APPENDIX D. EROSION AND SEDIMENTATION
APPENDIX D.
RULES OF THUMB FOR EROSION AND SEDIMENTATION
CONTROL
RULES OF THUMB FOR EROSION AND SEDIMENT CONTROL
(Excerpted from Kentucky Erosion Prevention and Sediment Control Field Guide)
TETRA TECH funded by
Kentucky Division of Water (KDOW), Nonpoint Source Section
and the Kentucky Division of Conservation (KDOC) through a grant from USEPA
http://www.epa.gov/region8/water/stormwater/pdf/Kentuckv%20Erosion%20prevention%20field%20g
uide.pdf
This Appendix presents illustrations and photographs of Best Management Practices for Erosion and
Sediment Control. This information was excerpted from the US EPA funded Kentucky Erosion
Prevention and Sediment Control Field Guide.
BASIC RULES
Preserve existing Vegetation
Divert upland runoff around exposed soil
Seed/mulch/ cover bare soil immediately
Use sediment barriers to trap soil in runoff
Protect slopes and channels from gullying
Install sediment traps and settling basins
Preserve vegetation near all waterways
NEED FOR EROSION AND SEDIMENT CONTROL MEASURES
Slope Angle
Very Steep (2:1 or more)
Steep (2:1-4:1)
Moderate (5:1-10:1)
Slight (10:1-20:1
Soil Type
Silty
Very high
Very High
High
Moderate
Clays
High
High
Moderate
Moderate
Sandy
High
Moderate
Moderate
Low
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APPENDIX D. EROSION AND SEDIMENTATION
PRIORIZATION OF EROSION AND SEDIMENT CONTROL MEASURES
PRACTICE
Limiting disturbed area through phasing
Protecting disturbed areas with mulch and
revegetation
Installing diversions around disturbed areas
Sediment removal through detention of all site
drainage
Other structural controls to contain sediment laden
drainage
COST
$
$$
$$$
$$$$
$$$$$
EFFECTIVENESS
*****
****
***
**
*
PLAN AHEAD
Identify drainage areas and plan for drainage
ditches and channels, diversions, grassed channels,
sediment traps/basins, down slope sediment
barriers, and rock construction and install before
beginning excavation.
DIVERT RUNOFF AROUND EXCAVATION AND
DISTURBANCE
Berms and ditches diverting clean upland runoff
around construction sites reduce erosion and
sedimentation problems. Seed berms and
ditches after construction.
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APPENDIX D. EROSION AND SEDIMENTATION
Diversion ditches should be lined with grass at
a minimum, and blankets if slopes exceed 10:1
VEGETATIVE BUFFERS
Vegetated buffers above or below your work site are
always a plus.
They trap sediment before it can wash into waterways,
and prevent bank erosion.
Vegetated waterways help move upland water
through or past your site while keeping it clear
of mud. Do not disturb existing vegetation
along banks, and leave a buffer of tall grass
and shrubs between stream bank trees and
disturbed areas.
Good construction, seeding, and stabilization of
diversion berm. Note that diversion ditch is lined with
grass on flatter part of slope, and with rock on steeper
part.
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APPENDIX D. EROSION AND SEDIMENTATION
SOIL COVER VS EROSION PROTECTION
SOIL COVERING
Mulch (hay or straw)
1.2 ton per 0.4 hectare
1 ton per 0.4 hectare
2 tons per 0.4 hectare
Grass (seed or sod)
40 percent cover
60 percent cover
90 percent cover
Bushes and shrubs
25 percent cover
75 percent cover
Trees
25 percent cover
75 percent cover
Erosion control blankets
EROSION REDUCTION
75 percent
87 percent
98 percent
90 percent
96 percent
99 percent
60 percent
72 percent
58 percent
64 percent
95-99 percent
Prepare bare soil for planting by disking across slopes, scarifying, or tilling if soil has been sealed or
crusted over by rain. Seedbed must be dry with loose soil to a depth of 3 to 6 inches.
For slopes steeper than 4:1, walk bulldozer or other tracked vehicle up and down slopes before seeding
to create tread-track depressions for catching and holding seed. Mulch slopes after seeding if possible.
Cover seed with erosion control blankets or turf mats if slopes are 2:1 or greater. Apply more seed to
ditches and berms.
Erosion and sediment loss is virtually eliminated on seeded areas (left side). Rills and small gullies form
quickly on unseeded slopes (right).
BLANKET INSTALLATION (GEOFABRIC)
Install blankets and mats vertically on long
slopes. Unroll from top of hill, staple as you
unroll it. Do not stretch blankets.
Erosion control blankets are thinner and
usually degrade quicker than turf reinforced
mats. Check manufacturer's product
information for degradation rate (life span),
slope limitations, and installation.
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Remember to apply seed,
fertilizer, and lime before
covering with blankets or
mats!
Blankets installed along stream banks or other
short slopes can be laid horizontally. Install
blankets vertically on longer slopes. Ensure 15
cm minimum overlap.
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APPENDIX D. EROSION AND SEDIMENTATION
BLANKET INSTALLATION
SITE CONDITIONS
BLANKET INSTALLATION NOTES
Ditches and
channels
(from high flow
line to ditch
bottom)
Grade, disk, and prepare seedbed.
Seed, lime, and fertilize the area first
Install horizontally (across slope).
Start at ditch bottom.
Staple down blanket center line first.
Staple & bury top in 8" deep trench.
Top staples should be 12" apart.
Uphill layers overlap bottom layers.
Side overlap should be 6"-8".
Side & middle staples = 24" apart.
Staple below the flow level every 12".
Staple thru both blankets at overlaps.
Long slopes,
including
areas above
ditch flow
levels
Grade, disk, and prepare seedbed.
Seed, lime, and fertilize first.
Install vertically (up & down hill).
Unroll from top of hill if possible.
Staple down center line of blanket first.
Staple & bury top in 8" deep trench.
Top staples should be 12" apart.
Side & middle staples = 24" apart.
Uphill layers overlap downhill layers.
Overlaps should be 6"-8".
Staple thru both blankets at overlap.
SEDIMENT BARRIERS (Silt fences and others)
Silt fences should be installed on the contour
below bare soil areas.
Use multiple fences on long slopes 20 to 26
meters a part. Remove accumulated sediment
before it reaches halfway up the fence.
Each 33-meter section of silt fence can filter
runoff from about 0.6 hectare (about 35
meters uphill). To install a silt fence correctly,
follow these steps:
Note the location & extent of the bare
soil area.
Mark silt fence location just below
bare soil area.
Make sure fence will catch all flows
from area.
Dig trench 15 centimeters deep across
slope.
Unroll silt fence along trench.
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Join fencing by rolling the end stakes together.
Make sure stakes are on downhill side of fence.
Drive stakes in against downhill side of trench.
Drive stakes until 20 to 25 centimeters of fabric is in
trench.
Push fabric into trench; spread along bottom.
Fill trench with soil and tamp down.
Stakes go on the downhill side. Dig trench first, install fence
in downhill side of trench, and tuck fabric into trench, then
backfill on the uphill side (the side toward the bare soil
area).
Use J-hooks to trap and pond muddy runoff flowing along uphill side of silt fence. Turn ends of silt fence
toward the uphill side to prevent bypassing. Use multiple J-hooks every 17 to 50 meters for heavier
flows.
Fiber rolls can be used to break up runoff
flows on long slopes. Install on the contour
and trench in slightly. Press rolls firmly into
trench and stake down securely. Consult
manufacturer's instructions for expected
lifespan of product, slope limits, etc. As
always, seed and mulch long slopes as soon as
possible.
insial fiber rcl
/ along itie oontwir
Very good installation of multiple silt fences on long slope. Turn ends of
fencing uphill to prevent bypass. Leave silt fences up until grass is well
established on all areas of the slope. Re-seed bare areas as soon as
possible. Remove or spread accumulated sediment and remove silt
fence after all grass is up.
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APPENDIX D. EROSION AND SEDIMENTATION
SLOPE PROTECTION TO PREVENT GULLIES
If soil is:
Compacted and smooth
Tracks across slopes
Tracks up & down slopes
Rough and irregular
Rough & loose to 12" deep
Erosion will be:
30 percent more
20 percent more
10 percent less
10 percent less
20 percent less
Tread-track slopes up and down hill to improve
stability.
Temporary down drain using plastic pipe. Stake
down securely, and install where heavy flows need
to be transported down highly erodible slopes. Note
silt check dam in front of inlet.
, *,-
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Temporary or permanent down drain using
geotextile underliner and riprap. All slope
drains must have flow dissipaters at the outlet
to absorb high energy discharges, and silt
checks at the inlet until grass is established.
Steep, long slopes need blankets or mats.
Install blankets and mats up and down long
slopes. For channels below slopes, install
horizontally. Don't forget to apply seed, lime,
and fertilizer (if used) before installing blanket.
Other methods that could be considered are
breaking up steep slopes with terraces,
ditches along contours, straw bales and other
methods.
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APPENDIX D. EROSION AND SEDIMENTATION
PROTECTING DITCHS AND CULVERTS INLETS/OUTLETS
Low-flow energy dissipaters (above) are
shorter than those for high-flow outlets
(below).
Very good application of mixed rock for culvert inlet
ponding dam. Mixing rock promotes better ponding,
drainage, and settling of sediment.
Excellent placement and construction of rock apron to
dissipate flows from culvert outlet. Area needs seeding
and mulching.
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APPENDIX D. EROSION AND SEDIMENTATION
STABILIZING DRAINAGE DITCHES
Stabilization approaches for drainage ditches
Ditch Slope
Steep >10%
Moderate 10%
Slight 5%
Mostly Flat <3%
Soil Type in Ditch
Sandy
Concrete or riprap
Riprap with filter fabric
Riprap or turf mats
&seeding
Seeding &blankets
Silty
Concrete or riprap
Riprap or turf mats
&seeding
Seeding &turf mats
Seeding &mulching
Clays
Riprap
Riprap or turf mats&
seeding
Seeding &turf mats
Seeding &mulching
Lay in ditch blankets similar to roof shingles;
start at the lowest part of the ditch, then work
your way up. Uphill pieces lap over downhill
sections. Staple through both layers around
edges. Trench, tuck, and tamp down ends at
the top of the slope. Do not stretch blankets
or mats.
Check Dams
Silt check dams of rock, stone-filled bags, or commercial
products must be installed before uphill excavation or fill
activities begin. See table below for correct silt check
spacing for various channel slopes. Tied end of bag goes
on downstream side.
Spacing of Check Dams in Ditches
Ditch Slope
30%
20%
15%
10%
5%
3%
2%
1%
0.5%
Check Dam Spacing
(meters)
3.2
5
7
12
17
33
50
100
200
Additional Information
Calculated for 1 meter high check dam
Center of the dam should be 150 centimeters
lower than the sides
Use 15 to 25 cm rock, stone bags, or
commercial products
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Good installation of temporary rock silt
checks. Remember to tie sides of silt check to
upper banks. Middle section should be lower.
Clean out sediment as it accumulates.
Remove silt checks after site and channel are
stabilized with vegetation.
Good placement and spacing of fiber-roll silt
checks. Coconut fiber rolls and other
commercial products can be used where ditch
slopes do not exceed three percent.
DITCH LINING
Ditch lined with rock.
Rock Sizing for ditch liners
Flow Velocity
2 m/sec
2.5 m/sec
3.3 m/sec
4 m/sec
Average rock diameter
12.5 cm
25.0 cm
35.0cm
50.0 cm
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APPENDIX D. EROSION AND SEDIMENTATION
SEDIMENT TRAPS AND BASINS
In general, sediment traps are designed to treat runoff from about 1 to 5 acres. Sediment basins are
larger, and serve areas of about 5 to 10 acres. Basins draining areas larger than 10 acres require an
engineered design, and often function as permanent storm water treatment ponds after construction is
complete.
Sediment traps
Any depression, swale, or low-
lying place that receives muddy
flows from exposed soil areas can
serve as a sediment trap.
Installing several small traps at
strategic locations is often better
than building one large basin. The
simplest approach is to dig a hole
or build a dike (berm) of earth or
stone where concentrated flows
are present. This will help to
detain runoff so sediment can
settle out. The outlet can be a
rock lined depression in the
containment berm.
seeded
stable outlet
main tared
Sediment basins
Sediment basins are somewhat larger than traps, but the construction approach is the same. Sediment
basins usually have more spillway protection due to their larger flows. Most have risers and outlet pipes
rather than rock spillways to handle the larger flows. Sediment basins are often designed to serve later
as storm water treatment ponds. If this is the case, agreements are required for long-term sediment
removal and general maintenance. Construction of a permanent, stable outlet is key to long-term
performance.
Sizing and design considerations
A minimum storage volume of 130 cubic meters per 0.4 hectare of exposed soil drained is required for
basins and traps. Traps and basins are designed so that flow paths through the trap or basin are as long
as possible, to promote greater settling of soil particles. Sediment basin length must be twice the width
or more if possiblethe longer the flow path through the basin, the better.
Side slopes for the excavation or earthen containment berms are 2:1 or flatter. Berms are made of well-
compacted clayey soil, with a height of 1.5 meters or less. Well mixed rock can also be used as a
containment berm for traps. Place soil fill for the berm or dam in 15 cm layers and compact. The entire
trap or basin, including the ponding area, berms, outlet, and discharge area, must be seeded and
mulched immediately after construction. An overflow outlet can be made by making a notch in the
containment berm and lining it with rock. Rock in the notch must be large enough to handle over-flows,
and the downhill outlet should be stabilized with rock or other flow dissipaters similar to a culvert
outlet. Overflow should be at an elevation so dam will not overtop. Allow at least 0.33 meter of
freeboard. Outlets must be designed to promote sheet flow of discharges onto vegetated areas if
possible. If the discharge will enter a ditch or channel, make sure it is stabilized with vegetation or lined.
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APPENDIX D. EROSION AND SEDIMENTATION
PROTECTING STREAMS AND STREAM BANKS
Recommended Setbacks of Activities from Streams
Bank Slope
Very Steep (2:1 or more)
Steep (4:1 or more)
Moderate (6:1 or more)
Mostly flat (< 10:1)
Soil Type Along Banks
Sandy
33m
27m
20m
13m
Silty
27m
20m
13m
10m
Clays
20m
13m
10m
6.5m
Vegetated buffers
Preserve existing vegetation near waterways wherever possible. This vegetation is the last chance
barrier to capture sediment runoff before it enters the lake, river, stream, or wetland. Where
vegetation has been removed or where it is absent, plant native species of trees, shrubs, and grasses.
Live hardwood stakes driven through live
wattles or rolls and trenched into slope provide
excellent stream bank protection. Protect toe of
slope with rock or additional rolls or rocks.
STREAM CROSSINGS
Keep equipment away from and out of streams.
If a temporary crossing is needed, put it where
the least stream or bank damage will occur.
Look for:
Hard stream bottom areas
Low or gently sloping banks
Heavy, stable vegetation on both sides
Use one or more culverts, as needed, sized to
carry the two-year 24-hour rain storm. Cover
culverts with at least 27 cm of soil and at least
15 cm inches of mixed rock. An 8.5 meter long,
15 cm thick pad of rock should extend down the
haul road on each side of the crossing.
Good use of silt fence, straw, rock and other
practices for temporary stream crossing. Any
work in stream channelssuch as installation of
culverts
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APPENDIX E. SAMPLING AND ANALYSIS PLAN
GUIDANCE AND TEMPLATE
VERSION 2, PRIVATE ANALYTICAL SERVICES USED
R9QA/002.1
April, 2000
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 9
This Sampling and Analysis Plan (SAP) guidance and template is based USEPA guidance as presented at
http://ndep.nv.gov/BCA/file/reid sap.pdf. It is intended assist organization in documenting the
procedural and analytical requirements for baseline and routine monitoring of surface water ground
water, soils, and biological samples. It has originally developed to characterize contaminated land but
has been modified here to address sampling, laboratory analysis, and quality control/quality assurance
for evaluation pre-mining, mining, and post mining hydrologic and biologic conditions. This guide is to
be used as a template. It provides item-by-item instructions for creating a SAP and includes example
language which can be used with or without modification.
1 INTRODUCTION
[This section should include a brief description of the project, including the history, problem to be
investigated, scope of sampling effort, and types of analyses that will be required. These topics will
be covered in depth later so do not include a detailed discussion here.]
1.1 Site Name or Sampling Area
[Provide the most commonly used name of the site or sampling area.]
1.2 Site or Sampling Area Location
[Provide a general description of the region, or district in which the site or sampling area is located.
Detailed sampling location information should be provided later in Section 2.]
1.3 Responsible Organization
[Provide a description of the organization conducting the sampling.]
1.4 Project Organization
[Provide the name and phone number(s) of the person(s) and/or contractor working on the sampling
project as listed in the table. The table can be modified to include titles or positions appropriate to
the specific project. Delete personnel or titles not appropriate to the project.]
Title/Responsibility Name Phone Number
Project Manager
Staff
Quality Assurance Manager
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Contractor (Company Name)
Contractor Staff
1.5 Statement of the Specific Problem
[In describing the problem, include historical, as well as recent, information and data that may be
relevant. List and briefly outline citizens' complaints, public agency inspections, and existing data.
Include sources of information if possible.]
2 BACKGROUND
This section provides an overview of the location of, previous investigations of, and the apparent
problem(s) associated with the site or sampling area. [Provide a brief description of the site or sampling
area, including chemicals used on the site, site history, past and present operations or activities that
may have contributed to the suspected contamination, etc.]
2.1 Site or Sampling Area Description [Fill in the blanks.]
[Two maps of the area should be provided: the first (Figure 2.1), on a larger scale, should place the
area within its geographic region; the second (Figure 2.2), on a smaller scale, should mark the
sampling site or sampling areas within the local area. Additional maps may be provided, as necessary,
for clarity. Maps should include a North arrow, groundwater flow arrow (if appropriate), buildings or
former buildings, project area, area to be disturbed, etc. If longitude or latitude information is
available, such as from a Global Positioning System (GPS), provide it. Sampling locations can be
shown in Figure 2.2.]. Example language is as follows:
The site or sampling area occupies
[e.g., hectares or square meters] in a
[e.g., urban, commercial, industrial, residential, agricultural, or undeveloped] area. The site or sampling
area is bordered on the north by , on the west by , on the south by
area is shown in Figure 2.2.
_, and on the east by
_. The specific location of the site or sampling
The second paragraph (or set of paragraphs) should describe historic and current on-site structures
and should be consistent with what is presented in Figure 2.2.
2.2 Operational History
[As applicable, describe in as much detail possible (i.e., use several paragraphs) the past and present
activities at the site or sampling area. The discussion might include the following information:
A description of the owner(s) and/or operator(s) of the site or areas near the site, the
watershed of interest, the sampling area, etc. (present this information chronologically);
A description of past and current operations or activities that may have contributed to
suspected contamination of the sit;
A description of the processes involved in the operation(s) and the environmentally
detrimental substances, if any, used in the processes;
A description of any past and present waste management practices.
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If a waste site, were/are hazardous wastes generated by one or more of the processes
described earlier? If so, what were/are they, how and where were/are they stored on the site
or sampling area, and where were/are they ultimately disposed of? If an ecosystem, what
point and non-point sources which may have affected the river, stream, lake or watershed?]
2.3 Previous Investigations/Regulatory Involvement
[If applicable] [Summarize all previous sampling efforts at the site or sampling area. Include the
sampling date(s); name of the party(ies) that conducted the sampling; local, regional, or federal
government agency for which the sampling was conducted; a rationale for the sampling; the type of
media sampled (e.g., soil, sediment, water); laboratory methods that were used; and a discussion of
what is known about data quality and usability. The summaries should be presented in subsections
according to the media that were sampled (e.g., soil, water, etc.) and chronologically within each
medium. Attach reports or summary tables of results or include in appendices if necessary.]
2.4 Geological Information
[Groundwater sampling only][Provide a description of the hydrogeology of the area. Indicate the
direction of groundwater flow, if known.]
2.5 Environmental and/or Human Impact
[Discuss what is known about the possible and actual impacts of the possible environmental problem
on human health or the environment.]
3 PROJECT DATA QUALITY OBJECTIVES
Data Quality Objectives (DQOs) are qualitative and quantitative statements for establishing criteria for
data quality and for developing data collection designs.
3.1 Project Task and Problem Definition
[Describe the purpose of the environmental investigation in qualitative terms and how the data will
be used. Generally, this discussion will be brief and generic. Include all measurements to be made on
an analyte specific basis in whatever medium (soil, sediment, water, etc.) is to be sampled. This
discussion should relate to how this sampling effort will support the specific decisions described in
Section 3.2.]
3.2 Data Quality Objectives (DQOs)
Data quality objectives (DQOs) are quantitative and qualitative criteria that establish the level of
uncertainty associated with a set of data. This section should describe decisions to be made based on
the data and provide criteria on which these decisions will be made.
[Discuss Data Quality Objectives, action levels, and decisions to be made based on the data here.]
3.3 Data Quality Indicators (DQIs)
Data quality indicators (accuracy, precision, completeness, representativeness, comparability, and
method detection limits) refer to quality control criteria established for various aspects of data
gathering, sampling, or analysis activity. In defining DQIs specifically for the project, the level of
uncertainty associated with each measurement is defined. Definition of the different terms are provided
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below:
Accuracy is the degree of agreement of a measurement with a known or true value. To
determine accuracy, a laboratory or field value is compared to a known or true concentration.
Accuracy is determined by such QC indicators as: matrix spikes, surrogate spikes, laboratory
control samples (blind spikes) and performance samples.
Precision is the degree of mutual agreement between or among independent measurements of a
similar property (usually reported as a standard deviation [SD] or relative percent difference
[RPD]). This indicator relates to the analysis of duplicate laboratory or field samples. An RPD of
<20%for water and <35%for soil, depending upon the chemical being analyzed, is generally
acceptable. Typically field precision is assessed by co-located samples, field duplicates, or field
splits and laboratory precision is assessed using laboratory duplicates, matrix spike duplicates, or
laboratory control sample duplicates).
Completeness is expressed as percent of valid usable data actually obtained compared to the
amount that was expected. Due to a variety of circumstances, sometimes either not all samples
scheduled to be collected can be collected or else the data from samples cannot be used (for
example, samples lost, bottles broken, instrument failures, laboratory mistakes, etc.). The
minimum percent of completed analyses defined in this section depends on how much
information is needed for decision making. Generally, completeness goals rise the fewer the
number of samples taken per event or the more critical the data are for decision making. Goals
in the 75-95% range are typical.
Representativeness is the expression of the degree to which data accurately and precisely
represent a characteristic of an environmental condition or a population. It relates both to the
area of interest and to the method of taking the individual sample. The idea of
representativeness should be incorporated into discussions of sampling design.
Representativeness is best assured by a comprehensive statistical sampling design, but it is
recognized that is usually outside the scope of most one-time events. Most one time SAPs should
focus on issues related to judgmental sampling and why certain areas are included or not
included and the steps being taken to avoid either false positives or false negatives.
Comparability expresses the confidence with which one data set can be compared to another.
The use of methods from EPA or "Standard Methods" or from some other recognized sources
allows the data to be compared facilitating evaluation of trends or changes in a site, a river,
groundwater, etc. Comparability also refers to the reporting of data in comparable units so
direct comparisons are simplified (e.g., this avoids comparison ofmg/Lfor nitrate reported as
nitrogen to mg/L of nitrate reported as nitrate, or ppm vs. mg/L discussions).
Detection Limit(s) (usually expressed as method detection limits for all analytes or compounds of
interest for all analyses requested must be included in this section. These limits should be related
to any decisions that will be made as a result of the data collection effort. A critical element to
be addressed is how these limits relate to any regulatory or action levels that may apply.
DQI tables are available from the QA Office for most routinely ordered methods. These tables can be
attached to the SAP and referenced in this section. If an organization, its contractor, or its laboratory
wish to use different limits or acceptance criteria, the table should be modified accordingly. SOPs should
be included for methods not covered by the DQI tables or they can be submitted in lieu of the tables. Due
to resource constraints, generally only the DQI aspects of these SOPs will be evaluated.
[Provide or reference DQI tables here.]
3.4 Data Review and Validation
This section should discuss data review, including what organizations or individuals will be responsible
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for what aspects of data review and what the review will include.
[Discuss data review and data validation here including what organizations or individuals will be
responsible for what aspects of data review and what the review will include. This section should also
discuss how data that do not meet data quality objectives will be designated, flagged, or otherwise
handled. Possible corrective actions associated with the rejection of data, such as reanalysis,
resampling, no action but monitor the data more closely next quarter, etc., also need to be
addressed.]
3.5 Data Management
[Provide a list of the steps that will be taken to ensure that data are transferred accurately from
collection to analysis to reporting. Discuss the measures that will be taken to review the data
collection processes, including field notes or field data sheets; to obtain and review complete
laboratory reports; and to review the data entry system, including its use in reports. A checklist is
acceptable.]
3.6 Assessment Oversight
[Describe the procedures which will be used to implement the QA Program. This would include
oversight by the Quality Assurance Manager or the person assigned QA responsibilities. Indicate how
often a QA review of the different aspects of the project, including audits of field and laboratory
procedures, use of performance samples, review of laboratory and field data, etc., will take place.
Describe what authority the QA Manager or designated QA person has to ensure that identified field
and analytical problems will be corrected and the mechanism by which this will be accomplished.]
4 SAMPLING RATIONALE
For each sampling event, the SAP must describe the sampling locations, the media to be sampled, and
the analytes of concern at each location. A rationale should then be provided justifying these choices.
The following sections are subdivided on a media specific basis among soil, sediment, water, and
biological media. Other media should be added as needed. This section is crucial to plan approval and
should be closely related to previously discussed DQOs.
4.1 Soil Sampling
[Provide a general overview of the soil sampling event. Present a rationale for choosing each
sampling location at the site or sampling area and the depths at which the samples are to be taken, if
relevant. If decisions will be made in the field, provide details concerning the criteria that will be used
to make these decisions (i.e., the decision tree to be followed). List the analytes of concern at each
location and provide a rationale for why the specific chemical or group of chemicals (e.g., trace metals
etc.) were chosen. Include sampling locations in Figure 2.2 or equivalent.]
4.2 Sediment Sampling
[Provide a general overview of the sediment sampling event. Present a rationale for choosing each
sampling location at the site or sampling area and the depths or area of the river, stream or lake at
which the samples are to be taken, if relevant. If decisions will be made in the field, provide details
concerning the criteria that will be used to make these decisions (i.e., the decision tree to be
followed). List the analytes of concern at each location and provide a rationale for why the specific
chemical or group of chemicals (e.g., trace metals) were chosen. Include sampling locations in Figure
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2.2 or equivalent.]
4.3 Water Sampling
[Provide a general overview of the water sampling event. For groundwater, describe the wells to be
sampled or how the samples will be collected (e.g., hydro punch), including the depths at which the
samples are to be taken. For surface water, describe the depth and nature of the samples to be
collected (fast or slow moving water, stream traverse, etc.). Present a rationale for choosing each
sampling location or sampling area. If decisions will be made in the field, provide details concerning
the criteria that will be used to make these decisions (i.e., the decision tree to be followed). List the
analytes of concern at each location and provide a rationale for why the specific chemical or group of
chemicals (e.g., trace metals) were chosen. For microbiological samples, discuss the types of bacterial
samples being collected. Include sampling locations in Figure 2.2 or equivalent.]
4.4 Biological Sampling
[For each of the two types of events identified, provide a general overview of the biological sampling
event. Present a rationale for choosing each sampling location at the site or sampling area, including
the parameters of interest at each location. If decisions will be made in the field, provide details
concerning the criteria that will be used to make these decisions (i.e., the decision tree to be
followed).
4.4.1 Biological Samples for Chemical Analysis
[For sampling where flora or fauna will be analyzed for the presence of a chemical (e.g. fish collected
for tissue analysis), explain why the specific chemical or group of chemicals (e.g., metals,
organochlorine pesticides, etc.) is included. List the types of samples to be collected (e.g., fish, by
species or size, etc.) and explain how these will be representative. Include sampling locations in
Figure 2.2 or equivalent]
4.4.2 Biological Sample for Species Identification and Habitat Assessment
[If the purpose of the sampling is to collect insects or other invertebrates or to make a habitat
assessment, a rationale for the sampling to take place should be provided. For example: what species
are of interest and why?]
5 REQUEST FOR ANALYSES
This section should discuss analytical support for the project depending on several factors including the
analyses requested, analytes of concern, turnaround times, available resources, available laboratories,
etc. If samples will be sent to more than one organization it should be clear which samples go to which
laboratory. Field analyses for pH, conductivity, turbidity, or other field tests should be discussed in the
sampling section. Field measurements in a mobile laboratory should be discussed here and
differentiated from samples to be sent to a fixed laboratory. Field screening tests (for example,
immunoassay tests) should be discussed in the sampling section, but the confirmation tests should be
discussed here and the totals included in the tables.
[Complete the following narrative subsection concerning the analyses for each matrix. In addition, fill
in Tables 5-1 through 5-5, as appropriate. Each table must be completed to list analytical parameters
for each type of sample. Include information on container types, sample volumes, preservatives,
special handling and analytical holding times for each parameter. Quality Control (QC) samples
(blanks, duplicates, splits, and laboratory QC samples, see Section 10 for description) should be
indicated in the column titled "Special Designation." The extra volume needed for laboratory QC
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samples (for water samples only) should be noted on the table. The tables provided do not have to be
used, but the critical information concerning the number of samples, matrix, analyses requested and
QC sample identification should be provided in some form. The selected analyses must be consistent
with earlier discussion concerning DQOs and analytes of concern. DQI information for the methods
should be discussed in Section 8 on quality control requirements.]
5.1 Analyses Narrative
[Fill in the blanks. Provide information for each analysis requested. Delete the information below as
appropriate. Include any special requests, such as fast turn-around time (2 weeks or less), specific QC
requirements, or modified sample preparation techniques in this section.]
5.2 Analytical Laboratory
[A QA Plan from the laboratory or SOPs for the methods to be performed must accompany the SAP.]
6 FIELD METHODS AND PROCEDURES
In the general introductory paragraph to this section, there should be a description of the methods and
procedures that will be used to accomplish the sampling goals, e.g., "...collect soil, sediment and water
samples." It should be noted that personnel involved in sampling must wear clean, disposable gloves of
the appropriate type. The sampling discussion should track the samples identified in Section 4.0 and
Table(s) 5-1, 5-2, 5-3, or 5-4. A general statement should be made that refers to the sections containing
information about sample tracking and shipping (Section 7). Provide a description of sampling
procedures. Example procedures are provided below, but the organization's own procedures can be used
instead. In that case, attach a copy of the applicable SOP.
6.1 Field Equipment
6.1.1 List of Equipment Needed
[List all the equipment that will be used in the field to collect samples, including decontamination
equipment, if required. Discuss the availability of back-up equipment and spare parts.]
6.1.2 Calibration of Field Equipment
[Describe the procedures by which field equipment is prepared for sampling, including calibration
standards used, frequency of calibration and maintenance routines. Indicate where the equipment
maintenance and calibration record(s) for the project will be kept.]
6.2 Field Screening
In some projects a combination of field screening using a less accurate or sensitive method may be used
in conjunction with confirmation samples analyzed in a fixed laboratory. This section should describe
these methods or reference attached SOPs. Analyses such as soil gas or immunoassay kits are two
examples.
[Describe any field screening methods to be used on the project here including how samples will be
collected, prepared, and analyzed in the field. Include in an appendix, as appropriate, SOPs covering
these methods. Confirmation of screening results should also be described. The role of the field
screening in decision making for the site should also be discussed here if it has not been covered
previously.]
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6.3 Soil
6.3.1 Surface Soil Sampling
[Use this subsection to describe the collection of surface soil samples that are to be collected within
15-30 centimeters of the ground surface. Specify the method (e.g., hand trowels) that will be used to
collect the samples and use the language below or reference the appropriate sections of a Soil
Sampling SOP.]
[If exact soil sampling locations will be determined in the field, this should be stated. The criteria that
will be used to determine sampling locations, such as accessibility, visible signs of potential
contamination (e.g., stained soils, location of former fuel storage tank, etc.), and topographical
features which may indicate the location of hazardous substance disposal (e.g., depressions that may
indicate a historic excavation) should be provided.]
Exact soil sampling locations will be determined in the field based on accessibility, visible signs of
potential contamination (e.g., stained soils), and topographical features which may indicate location of
hazardous substance disposal (e.g., depressions that may indicate a historic excavation). Soil sample
locations will be recorded in the field logbook as sampling is completed. A sketch of the sample location
will be entered into the logbook and any physical reference points will be labeled. If possible, distances
to the reference points will be given.
[If surface soil samples are to be analyzed for organic (non volatile compounds and other analytes, use
this paragraph; otherwise delete.]
Surface soil samples will be collected as grab samples (independent, discrete samples) from a depth of 0
to centimeters below ground surface (bgs). Surface soil samples will be collected using a stainless
steel hand trowel. Samples to be analyzed for volatile organic compounds will be collected first (see
below). Samples to be analyzed for [List all analytical methods for soil samples except for
volatile organic compounds] will be placed in a sample-dedicated disposable pail and homogenized with
a trowel. Material in the pail will be transferred with a trowel from the pail to the appropriate sample
containers. Sample containers will be filled to the top, taking care to prevent soil from remaining in the
lid threads prior to being closed to prevent potential contaminant migration to or from the sample.
Sample containers will be closed as soon as they are filled, chilled to 4°C if appropriate, and processed
for shipment to the laboratory.
[If surface soil samples are to be analyzed for volatile organic compounds (VOCs), use this paragraph;
otherwise delete.]
Surface soil samples for VOC analyses will be collected as grab samples (independent, discrete samples)
from a depth of 0 to [centimeters or meters] below ground surface (bgs). Surface soil samples will
be collected using a 5 gram Encore sampling device, and will be collected in triplicate. Samples will be
sealed using the Encore sampler and a zip lock bag or else transferred directly from the sampler into a
VOA vial containing either 10 mLs of methanol or sodium bisulfate solution. Sample containers will be
closed as soon as they are filled, chilled immediately to 4°C before wrapping them in bubble wrap, and
processed them for shipment to the laboratory.
[For surface soil samples which are not to be analyzed for volatile compounds, use this paragraph;
otherwise delete.]
Surface soil samples will be collected as grab samples (independent, discrete samples) from a depth of 0
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to [centimeters or meters] below ground surface (bgs). Surface soil samples will be collected using a
stainless steel hand trowel. Samples will be placed in a sample-dedicated disposable pail and
homogenized with a trowel. Material in the pail will be transferred with a trowel from the pail to the
appropriate sample containers. Sample containers will be filled to the top, taking care to prevent soil
from remaining in the lid threads prior to being closed to prevent potential contaminant migration to or
from the sample. Sample containers will be closed as soon as they are filled, chilled if appropriate, and
processed for shipment to the laboratory.
6.3.2 Subsurface Soil Sampling
[Use this subsection for subsurface soil samples that are to be collected 30 cm or more below the
surface. Specify the method (e.g., hand augers) that will be used to access the appropriate depth and
then state the depth at which samples will be collected and the method to be used to collect and then
transfer samples to the appropriate containers or reference the appropriate sections of a Soil
Sampling SOP. If SOPs are referenced, they should be included in an Appendix.]
[If exact soil sampling locations will be determined in the field, this should be stated. The criteria that
will be used to determine sampling locations, such as accessibility, visible signs of potential
contamination (e.g., stained soils), and topographical features which may indicate the location of
hazardous substance disposal (e.g., depressions that may indicate a historic excavation) should be
provided. There should also be a discussion concerning possible problems, such as subsurface refusal]
[Include this paragraph first if exact sampling locations are to be determined in the field; otherwise
delete.]
Exact soil sampling locations will be determined in the field based on accessibility, visible signs of
potential contamination (e.g., stained soils), and topographical features which may indicate location of
hazardous substance disposal (e.g., depressions that may indicate a historic excavation). Soil sample
locations will be recorded in the field logbook as sampling is completed. A sketch of the sample location
will be entered into the logbook and any physical reference points will be labeled. If possible, distances
to the reference points will be given.
[If subsurface soil samples are to be analyzed for volatile compounds, use this paragraph; otherwise
delete.]
Samples to be analyzed for volatile organic compounds will be collected first. Subsurface samples will
be collected by boring to the desired sample depth using
[whatever method is appropriate or available]. Once the desired sample depth is
reached, soil samples for VOC analyses will be collected as independent, discrete samples. Surface soil
samples will be collected using a 5 gram Encore sampling device, and will be collected in triplicate.
Samples will be sealed using the Encore sampler and a zip lock bag or else transferred directly from the
sampler into a VOA vial containing either 10 mLs of methanol or sodium bisulfate solution. Sample
containers will be closed as soon as they are filled, chilled immediately to 4°C before wrapping them in
bubble wrap, and processed for shipment to the laboratory. [If subsurface soil samples are being
collected for other than volatile organic compounds, use these paragraphs; otherwise delete.]
Subsurface samples will be collected by boring to the desired sample depth using
[whatever method is appropriate or available]. Once the desired
sample depth is reached, the [hand- or power-operated device,
such as a shovel, hand auger, trier, hollow-stem auger or split-spoon sampler] will be inserted into the
hole and used to collect the sample. Samples will be transferred from the
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[sampling device] to a sample-dedicated disposable pail and homogenized with a trowel.
Material in the pail will be transferred with a trowel from the pail to the appropriate sample containers.
Sample containers will be filled to the top taking care to prevent soil from remaining in the lid threads
prior to being sealed to prevent potential contaminant migration to or from the sample. After sample
containers are filled, they will be immediately sealed, chilled if appropriate, and processed for shipment
to the laboratory. [Include this as the final paragraph regardless of the analyses for subsurface soil
samples.] Excess set-aside soil from the above the sampled interval will then be repacked into the hole.
6.4 Sediment Sampling
[Use this subsection if sediment samples are to be collected. Specify the method (e.g., dredges) that
will be used to collect the samples and at what depth samples will be collected. Describe how
samples will be homogenized and the method to be used to transfer samples to the appropriate
containers. If a SOP will be followed rather than the language provided, the SOP should be referenced
and included in the appendix.]
[If exact sediment sampling locations will be determined in the field, this should be stated. Describe
where sediment samples will be collected, e.g., slow moving portions of streams, lake bottoms,
washes, etc.]
Exact sediment sampling locations will be determined in the field, based on
[Describe the criteria to be used to determine sampling
locations]. Care will be taken to obtain as representative a sample as possible. The sample will be taken
from areas likely to collect sediment deposits, such as slow moving portions of streams or from the
bottom of the lake at a minimum depth of .6 meters. Sediment samples will be collected from the well
bottom at a depth of inches using a pre-cleaned sampler.
[The final paragraph describes sample homogenization, especially important if the sample is to be
separated into solid and liquid phases, and container filling. Include this paragraph, or a modified form
of it, for all sediment sampling. It is assumed that sediment samples will not be analyzed for volatile
compounds. If sediment is to be analyzed for volatile organic compounds, the samples to be analyzed
for volatile compounds should not be homogenized, but rather transferred directly from the sampler
into the sample container. If feasible, an Encore sampling device should be used.]
Material in the sampler will be transferred to a sample-dedicated disposable pail and homogenized with
a trowel. Material from the pail will be transferred with a trowel from the bucket to the appropriate
sample containers. Sample containers will be filled to the top taking care to prevent soil from remaining
in the lid groves prior to being sealed in order to prevent potential contamination migration to or from
the sample containers. After sample containers are filled, they will be immediately sealed, chilled if
appropriate, and processed for shipment to the laboratory.
6.5 Water Sampling
6.5.1 Surface Water Sampling
[Use this subsection if samples are to be collected in rivers, streams, lakes and reservoirs, or from
standing water in runoff collection ponds, gullies, drainage ditches, etc. Describe the sampling
procedure, including the type of sample (grab or composite - see definitions below), sample bottle
preparation, and project-specific directions for taking the sample. State whether samples will be
collected for chemical and/or microbiological analyses. Alternatively, reference the appropriate
sections of attached SOPs.]
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Grab: Samples will be collected at one time from one location. The sample should be taken from
flowing, not stagnant water, and the sampler should be facing upstream in the middle of the stream.
Samples will be collected by hand or with a sample bottle holder. For samples taken at a single depth,
the bottle should be uncapped and the cap protected from contamination. The bottle should be
plunged into the water mouth down and filled 15 to 30 centimeters below the surface of the water. If it
is important to take samples at depths, special samplers (e.g., Niskin or Kemmerer Depth Samplers) may
be required. After filling the bottle(s), pour out some sample leaving a headspace of 2.5-5cm. For
microbiological samples, bottles and caps must be sterile. If sampling of chlorinated water is
anticipated, sodium thiosulfate at a concentration of 0.1 mL of a 10% solution for each 125 mL (4 oz) of
sample volume must be put into the bottle before it is sterilized. Time Composite: Samples are collected
over a period of time, usually 24 hours. If a composite sample is required, a flow- and time-proportional
automatic sampler should be positioned to take samples at the appropriate location in a manner such
that the sample can be held at 4oC for the duration of the sampling.
Spatial Composite: Samples are collected from different representative positions in the water body and
combined in equal amounts. A Churn Splitter or equivalent device will be used to ensure that the
sample is homogeneously mixed before the sample bottles are filled. Volatile organic compound
samples will be collected as discrete samples and not composited. [If exact surface water sample
locations will be determined in the field, this should be stated. Describe the criteria that will be used to
determine where surface water samples will be collected.]
6.5.2 Groundwater Sampling
[This subsection contains procedures for water level measurements, well purging, and well sampling.
Relevant procedures should be described under this heading with any necessary site-specific
modifications. Alternatively, reference appropriate SOP(s).]
6.5.2.1 Water-Level Measurements
[The following language may be used as is or modified to meet project needs.]
All field meters will be calibrated according to manufacturer's guidelines and specifications before and
after every day of field use. Field meter probes will be decontaminated before and after use at each
well. If well heads are accessible, all wells will be sounded for depth to water from top of casing and
total well depth prior to purging. An electronic sounder, accurate to the nearest +/- cm, will be used to
measure depth to water in each well. When using an electronic sounder, the probe is lowered down the
casing to the top of the water column; the graduated markings on the probe wire or tape are used to
measure the depth to water from the surveyed point on the rim of the well casing. Typically, the
measuring device emits a constant tone when the probe is submerged in standing water and most
electronic water level sounders have a visual indicator consisting of a small light bulb or diode that turns
on when the probe encounters water. Total well depth will be sounded from the surveyed top of casing
by lowering the weighted probe to the bottom of the well. The weighted probe will sink into silt, if
present, at the bottom of the well screen. Total well depths will be measured by lowering the weighted
probe to the bottom of the well and recording the depth to the nearest centimeter. Water-level
sounding equipment will be decontaminated before and after use in each well. Water levels will be
measured in wells which have the least amount of known contamination first. Wells with known or
suspected contamination will be measured last.
6.5.2.2 Purging
[Describe the method that will be used for well purging (e.g., dedicated well pump, bailer, hand
pump). Reference the appropriate sections in the Ground Water SOP and state in which Appendix the
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SOP is located.]
[VERSION A]
All wells will be purged prior to sampling. If the well casing volume is known, a minimum of three casing
volumes of water will be purged using the dedicated well pump.
[VERSION B]
All wells will be purged prior to sampling. If the well casing volume is known, a minimum of three casing
volumes of water will be purged using a hand pump, submersible pump, or bailer, depending on the
diameter and configuration of the well. When a submersible pump is used for purging, clean flexible
Teflon tubes will be used for groundwater extraction. All tubes will be decontaminated before use in
each well. Pumps will be placed 0.66 to 1 meter from the bottom of the well to permit reasonable
drawdown while preventing cascading conditions.
[VERSION C]
All wells will be purged prior to sampling. If the well casing volume is known, a minimum of three casing
volumes of water will be purged using the dedicated well pump, if present, or a bailer, hand pump, or
submersible pump depending on the diameter and configuration of the well. When a submersible pump
is used for purging, clean flexible Teflon tubes will be used for groundwater extraction. All tubes will be
decontaminated before use in each well. Pumps will be placed 0.66 to 1 meter from the bottom of the
well to permit reasonable draw down while preventing cascading conditions.
[ALL VERSIONS - to be included in all sample plans]
Water will be collected into a measured bucket to record the purge volume. Casing volumes will be
calculated based on total well depth, standing water level, and casing diameter.
It is most important to obtain a representative sample from the well. Stable water quality parameter
(temperature, pH and specific conductance) measurements indicate representative sampling is
obtainable. Water quality is considered stable if for three consecutive readings:
Temperature range is no more than +1/C;
pH varies by no more than 0.2 pH units;
Specific conductance readings are within 10% of the average.
The water in which measurements were taken will not be used to fill sample bottles. If the well casing
volume is known, measurements will be taken before the start of purging, in the middle of purging, and
at the end of purging each casing volume. If the well casing volume is NOT known, measurements will
be taken every 2.5 minutes after flow starts. If water quality parameters are not stable after 5 casing
volumes or 30 minutes, purging will cease, which will be noted in the logbook, and ground water
samples will be taken. The depth to water, water quality measurements and purge volumes will be
entered in the logbook. If a well dewaters during purging and three casing volumes are not purged, that
well will be allowed to recharge up to 80% of the static water column and dewatered once more. After
water levels have recharged to 80% of the static water column, groundwater samples will be collected.
6.5.2.3 Well Sampling
[Describe the method that will be used to collect samples from wells. (This will probably be the same
method as was used to purge the wells.) Specify the sequence for sample collection (e.g., bottles for
volatile analysis will be filled first, followed by semi-volatiles, etc.). State whether samples for metals
analysis will be filtered or unfiltered. Include the specific conditions, such as turbidity, that will
require samples to be filtered. Alternatively, reference the appropriate sections in the Ground Water
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SOP and state in which Appendix the SOP is located.]
ALL VERSIONS - to be included in all sample plans]
At each sampling location, all bottles designated for a particular analysis (e.g., trace metals) will be filled
sequentially before bottles designated for the next analysis are filled. If a duplicate sample is to be
collected at this location, all bottles designated for a particular analysis for both sample designations will
be filled sequentially before bottles for another analysis are filled. Groundwater samples will be
transferred from the tap directly into the appropriate sample containers with preservative, if required,
chilled if appropriate, and processed for shipment to the laboratory. When transferring samples, care
will be taken not to touch the tap to the sample container. [If samples are to be collected for volatiles
analysis, the following paragraph should be added; otherwise delete.]
Samples for volatile organic compound analyses will be collected using a low flow sampling device. A
[specify type of pump] pump will be used at a flow rate of . Vials for volatile organic compound
analysis will be filled first to minimize the effect of aeration on the water sample. A test vial will be filled
with sample, preserved with hydrochloric acid (HCI) and tested with pH paper to determine the amount
of preservative needed to lower the pH to less than 2. The appropriate amount of HCI will then be
added to the sample vials prior to the addition of the sample. The vials will be filled directly from the
tap and capped. The vial will be inverted and checked for air bubbles to ensure zero headspace. If a
bubble appears, the vial will be discarded and a new sample will be collected. [If some samples for
metals (or other) analysis are to be filtered, depending upon sample turbidity, the following paragraph
should be added; otherwise delete.]
After well purging and prior to collecting groundwater samples for metals analyses, the turbidity of the
groundwater extracted from each well will be measured using a portable turbidity meter. A small
quantity of groundwater will be collected from the well using the tap and a small amount of water will
be transferred to a disposable vial and a turbidity measurement will be taken. The results of the
turbidity measurement will be recorded in the field logbook. The water used to measure turbidity will
be discarded after use. If the turbidity of the groundwater from a well is above 5 Nephelometric
Turbidity Units (NTUs), both a filtered and unfiltered sample will be collected. A [specify size]-micron
filter will be used to remove larger particles that have been entrained in the water sample. A sample-
dedicated Teflon tube will be attached to the tap closest to the well head. The filter will be attached to
the outlet of the Teflon tube. A clean, unused filter will be used for each filtered sample collected.
Groundwater samples will be transferred from the filter directly into the appropriate sample containers
with a preservative and processed for shipment to the laboratory. When transferring samples, care will
be taken not to touch the filter to the sample container. After the filtered sample has been collected,
the Teflon tube and filter will be removed and an unfiltered sample will be collected. A sample number
appended with an "Fl" will represent a sample filtered with a 5-micron filter.
[If samples are to be filtered for metals (or other) analysis regardless of sample turbidity, the
following paragraph should be added; otherwise delete.]
Samples designated for metals analysis will be filtered. A 5-micron filter will be used to remove larger
particles that have been entrained in the water sample. A sample-dedicated Teflon tube will be
attached to the tap closest to the well head. The filter will be attached to the outlet of the Teflon tube.
A clean, unused filter will be used for each filtered sample collected. Groundwater samples will be
transferred from the filter directly into the appropriate sample containers to which preservative has
been added and processed for shipment to the laboratory. When transferring samples, care will be
taken not to touch the filter to the sample container. After the filtered sample has been collected, the
Teflon tube and filter will be removed and an unfiltered sample will be collected. A sample number
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appended with an "Fl" will represent a sample filtered with a 5-micron filter.
6.6 Biological Sampling
For the purpose of this guidance, biological sampling falls into two categories. Other types of biological
sampling events should be discussed with the QA Office to determine what type of planning document is
needed. The two types addressed in this guidance are biological samples being collected for chemical
analysis and biological samples for the purpose of assessing species diversity. If the latter type of
sampling is planned, a quality assurance project plan may be a more appropriate document. Samples
collected for microbiological analyses should be discussed under water sampling.
6.6.1 Biological Sampling for Chemical Analysis
[The two most common types of biological samples being collected for chemical analysis are fish and
foliage samples. The following paragraphs are suggested, but field circumstances may dictate
alternative collection procedures; if no biological samples will be collected, put "not applicable" by
these sections. If a SOP will be followed, include it in the appendix.]
6.6.1.1 Fish Samples
[Use if collecting fish, otherwise delete. Alternatively, reference appropriate SOPs.] Fish will be collected
using [name method; nets, electro-shocking, lines, etc.]. Three fish of each
type or species [indicate type of fish, e. g., trout, catfish, etc.] will be
collected. Efforts will be made to collect fish of approximately the same size and maturity by checking
to make sure that lengths and weights do not differ by more than 20%. Once collected the
[indicate whether whole fish or filets] will be frozen, wrapped in
aluminum foil and plastic bags and sent to a laboratory.]
[If samples are to be composited by the laboratory, also indicate that in this section.]
6.6.1.2 Foliage Samples
[Use if collecting foliage samples, otherwise delete. This section may require considerable
modification because of the potential diversity of projects involving plants sampling.]
A representative foliage sample will be collected from the target area. It is recommended that a
statistical approach be used, if possible. The following plants will be collected: ,
, and . These plants are being collected because they are most likely
affected by chemicals used in the area. Only foliage showing visible signs of stress or damage will be
collected. Stems and twigs will be discarded; leaves only will be collected. The same type of leaf
material [Describe material, mature leaves, young shoots, etc.] will be obtained from each plant type.
Provided contamination is uniform, material will be composited from several plants to yield a total of
about [specify quantity] pound(s) of material. Control samples will also be collected from a nearby
unaffected area [Describe area], if available. Latex gloves will be worn during the collection of all
samples. Samples will be stored in [describe container, plastic bags, bottles, etc.] and brought to the
laboratory as soon as possible to prevent sample deterioration.
6.6.2 Biological Sampling for Species Assessment
[Describe the collection of insects, other invertebrates, or other types of biological samples here.
Reference or attach appropriate protocols to support the sampling effort.]
6.7 Decontamination Procedures
[Specify the decontamination procedures that will be followed if non-dedicated sampling equipment
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is used. Alternatively, reference the appropriate sections in the organization's Decontamination
Standard Operating Procedure.]
The decontamination procedures that will be followed are in accordance with approved procedures.
Decontamination of sampling equipment must be conducted consistently as to assure the quality of
samples collected. All equipment that comes into contact with potentially contaminated soil or water
will be decontaminated. Disposable equipment intended for one-time use will not be decontaminated,
but will be packaged for appropriate disposal. Decontamination will occur prior to and after each use of
a piece of equipment. All sampling devices used, including trowels and augers, will be steam-cleaned or
decontaminated according to the following decontamination procedures:
[Use the following decontamination procedures, if samples are collected for organic analyses only;
otherwise delete.]
Non-phosphate detergent and tap water wash, using a brush if necessary.
Tap-water rinse.
Deionized/distilled water rinse.
Pesticide-grade solvent (reagent grade hexane) rinse in a decontamination bucket.
Deionized/distilled water rinse (twice).
[Use the following decontamination procedures if samples are collected for inorganic (metals)
analyses only, otherwise delete.]
Non-phosphate detergent and tap water wash, using a brush if necessary.
Tap-water rinse.
0.1 N nitric acid rinse.
Deionized/distilled water rinse (twice).
[Use the following decontamination procedures if samples are collected for both organic and
inorganic analyses, otherwise delete.]
Non-phosphate detergent and tap water wash, using a brush if necessary.
Tap-water rinse.
0.1 N nitric acid rinse.
Deionized/distilled water rinse.
Pesticide-grade solvent (reagent grade hexane) rinse in a decontamination bucket.
Deionized/distilled water rinse (twice).
Equipment will be decontaminated in a predesignated area on pallets or plastic sheeting, and clean
bulky equipment will be stored on plastic sheeting in uncontaminated areas. Cleaned small equipment
will be stored in plastic bags. Materials to be stored more than a few hours will also be covered.
[NOTE: A different decontamination procedure may be used; but if so, a rationale for using the
different approach should be provided.]
7 SAMPLE CONTAINERS. PRESERVATION AND STORAGE
[This section requires a reference to the types of bottles to be used, preparation and preservatives to
be added. The organization responsible for adding preservatives should be named. If the information
is provided in the request for analyses tables, reference them in the appropriate section below.]
The number of sample containers, volumes, and materials are listed in Section 5.0. The containers are
pre-cleaned and will not be rinsed prior to sample collection. Preservatives, if required, will be added by
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[name of agency/organization doing the sampling] to the containers prior to shipment of the
samples to the laboratory.
7.1 Soil Samples
[If soil samples are to be collected, specify the analyses that will be performed. Use the language
below or reference the appropriate sections in the Preservation SOP and state in which Appendix the
SOP is located.]
[Include this subsection if collecting soil samples; otherwise delete.]
[If requested analyses include analyses other than volatile organic compounds or metals, include this
paragraph; otherwise delete.]
Soil samples for [Include all requested analysis(es), e.g., Pesticides, Semi-volatile
Organic Compounds] will be homogenized and transferred from the sample-dedicated homogenization
pail into 8-ounce (oz), wide-mouth glass jars using a trowel. For each sample, one 8-oz wide-mouth
glass jar will be collected for each laboratory. Alternatively, sample will be retained in the brass sleeve
in which collected until sample preparation begins. The samples will be chilled to 4/C immediately upon
collection.
[If requested analyses include volatile organic compounds, include this paragraph; otherwise delete.]
VOLATILE ORGANIC COMPOUNDS. Soil samples to be analyzed for volatile organic compounds will be
stored in their sealed Encore samplers for no more than two days prior to analysis. Frozen Encore
sampler samples will be stored for no more than 4 days prior to analysis. If samples are preserved by
ejecting into either methanol or sodium bisulfate solution the holding time is two weeks. Preserved
samples will be chilled to 4/C immediately upon collection.
[If requested analyses include metals, include this paragraph; otherwise delete.]
METALS. Surface soil samples to be analyzed for metals will be homogenized and transferred from the
sample-dedicated homogenization pail into 8-oz, wide-mouth glass jars. For each sample, one 8-oz glass
jar will be collected for each laboratory. Samples will not be chilled. Subsurface samples will be
retained in their original brass sleeves or other container unless transferred to bottles.
7.2 Sediment Samples
[If sediment samples are to be collected, specify the analyses that will be performed. Use the
language below or reference the appropriate sections in a Preservation SOP and state in which
Appendix the SOP is located.]
[If requested analyses include analyses other than volatile organic compounds or metals, include this
paragraph; otherwise delete.]
[Include all requested analysis(es), e.g., Pesticides, Semi-volatile Organic Compounds].
Sediment samples will be homogenized and transferred from the sample-dedicated homogenization pail
into 8-oz wide-mouth glass jars. For each sample, one 8-oz glass jar will be collected for each
laboratory.
The samples will be chilled to 4/C immediately upon collection.
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[If requested analyses include volatile organic compounds, include this paragraph; otherwise delete.]
VOLATILE ORGANIC COMPOUNDS. Sediment samples to be analyzed for volatile organic compounds
will be stored in their sealed Encore samplers for no more than two days prior to analysis. Frozen
Encore sampler samples will be stored for no more than 4 days prior to analysis. If samples are
preserved by ejecting into either methanol or sodium bisulfate solution the holding time is two weeks.
Preserved samples will be chilled to 4/C immediately upon collection.
[If requested analyses include metals, include this paragraph; otherwise delete.]
METALS. Sediment samples, with rocks and debris removed, which are to be analyzed for metals will be
homogenized and transferred from the sample-dedicated homogenization pail into 8-oz, wide-mouth
glass jars. For each sample, one 8-oz glass jar will be collected for each laboratory. Samples will not be
chilled.
7.3 Water Samples
[If water samples are to be collected, specify the analyses that will be performed. Use the language
below or else reference the appropriate sections in a Preservation SOP and state in which Appendix
the SOP is located.]
[Include this subsection if collecting water samples; otherwise delete.]
Depending on the type of analysis (organic or inorganic) requested, and any other project-specific
analytical requirements, sample bottles should be plastic (inorganics) or glass (organics), pre-cleaned
(general decontamination procedures) or low-detection level pre-cleaned (extensive decontamination
procedures).
[Describe the type of bottles that will be used for the project, including the cleaning procedures that
will be followed to prepare the bottles for sampling.]
[If requested analyses do not require preservation, include this paragraph; otherwise delete. A
separate paragraph should be included for each bottle type.]
[Include all requested analysis(es), e.g., Anions, Pesticides, Semi-volatile Organic
Compounds]. Low concentration water samples to be analyzed for [Specify
analysis(es), e.g., Semi-volatile Organic Compounds] will be collected in [Specify bottle
type, e. g., 1-liter (L) amber glass bottles]. No preservative is required for these samples. The samples
will be chilled to 4/C immediately upon collection. Two bottles of each water sample are required for
each laboratory.
[If requested analyses include volatile organic compounds, include this paragraph; otherwise delete.]
VOLATILE ORGANIC COMPOUNDS. Low concentration water samples to be analyzed for volatile organic
compounds will be collected in 40-mL glass vials. 1:1 hydrochloric acid (HCI) will be added to the vial
prior to sample collection. During purging, the pH will be measured using a pH meter to test at least one
vial at each sample location to ensure sufficient acid is present to result in a pH of less than 2. The
tested vial will be discarded. If the pH is greater than 2, additional HCI will be added to the sample vials.
Another vial will be pH tested to ensure the pH is less than 2. The tested vial will be discarded. The vials
will be filled so that there is no headspace. The samples will be chilled to 4/C immediately upon
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collection. Three vials of each water sample are required for each laboratory.
[If requested analyses include metals, include this paragraph; otherwise delete.]
METALS. Water samples collected for metals analysis will be collected in 1L polyethylene bottles. The
samples will be preserved by adding nitric acid (HNO3) to the sample bottle. The bottle will be capped
and lightly shaken to mix in the acid. A small quantity of sample will be poured into the bottle cap
where the pH will be measured using pH paper. The pH must be <2. The sample in the cap will be
discarded, and the pH of the sample will be adjusted further if necessary. The samples will be chilled to
4/C immediately upon collection. One bottle of each water sample is required for each laboratory.
GENERAL CHEMISTRY (WATER QUALITY) PARAMETERS. Water samples collected for water quality
analysis [Specify what parameters are included. Examples include (but are not limited to) anions
(nitrate-N, nitrite-N, sulfate, phosphate), total phosphorus, ammonia-N, total dissolved solids, total
suspended solids, alkalinity (may include carbonate, and/or bicarbonate), hardness, cyanide, MBAS
(methylene blue active substances), etc.], will be collected in [Specify size of container] polyethylene
bottles. The [Specify analysis] samples will be preserved by adding [Describe preservative appropriate
to each sample type] to the sample bottle. The [Specify analysis] samples will not be preserved. If
preservative is added, the bottle will be capped and lightly shaken to mix in the preservative. Where the
preservative affects the pH, a small quantity of sample will be poured into the bottle cap where the pH
will be measured using pH paper. The pH must be within the appropriate range. The sample in the cap
will be discarded, and the pH of the sample will be adjusted further if necessary. Samples will be chilled
to 4/C immediately upon collection. Samples from each location that require the same preservative will
be placed in the same bottle if being analyzed by the same laboratory.
7.4 Biological Samples
[If biological samples are to be collected, specify the analyses that will be performed. Use the
language below or reference the appropriate sections in a Preservation SOP and state in which
Appendix the SOP is located.]
7.4.1 Fish Samples
Fish (whole or fillets) will be wrapped in aluminum foil, labeled, and placed in individual zip lock bags.
The samples will be frozen as quickly as possible and shipped using dry ice to maintain the frozen state.
7.4.2 Foliage Samples
[Describe the containers that will be used for the project. Usually foliage samples are collected in
clean zip lock bags, but bottles or other containers can be used. Paper bags are not recommended.]
For foliage samples, samples will be collected in a large zip Lock bag. A self adhesive label will be placed
on each bag and the top sealed with a custody seal
7.4.3 Biological Sampling for Species Assessment
[Describe the containers in which macroinvertebrates, insects and other biological samples will be
stored. If a fixation liquid will be used, it should be described as well. This section should also discuss
any special handling procedures which must be followed to minimize damage to the specimens.]
8 DISPOSAL OF RESIDUAL MATERIALS
[This section should describe the type(s) of investigation- derived wastes (IDW) that will be generated
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during this sampling event. IDW may not be generated in all sampling events, in which case this
section would not apply. Use the language below or reference the appropriate sections in a Disposal
of Residual Materials SOP and state in which Appendix the SOP is located. Depending upon site-
specific conditions and applicable federal, state, and local regulations, other provisions for IDW
disposal may be required. If any analyses of IDW are required, these should be discussed. If IDW are
to be placed in drums, labeling for the drums should be discussed in this section.]
In the process of collecting environmental samples at the [site or sampling area name]
during the site investigation (SI) [or name of other investigation]; the [name of your
organization/agency] sampling team will generate different types of potentially contaminated IDW that
include the following:
Used personal protective equipment (PPE).
Disposable sampling equipment.
Decontamination fluids [Include this bullet when sampling soils; otherwise delete.]
Soil cuttings from soil borings [Include this bullet when sampling groundwater; otherwise
delete.]
Purged groundwater and excess groundwater collected for sample container filling.
[The following bullet is generally appropriate for site or sampling areas with low levels of
contamination or for routine monitoring. If higher levels of contamination exist at the site or
sampling area, other disposal methods (such as the drumming of wastes) should be used to dispose of
used PPE and disposable sampling equipment.]
Used PPE and disposable equipment will be double bagged and placed in a municipal refuse
dumpster. These wastes are not considered hazardous and can be sent to a municipal landfill.
Any PPE and disposable equipment that is to be disposed of which can still be reused will be
rendered inoperable before disposal in the refuse dumpster. [Include this bullet if sampling for
both metals and organics; otherwise delete.]
Decontamination fluids that will be generated in the sampling event will consist of dilute nitric
acid, pesticide-grade solvent, deionized water, residual contaminants, and water with non-
phosphate detergent. The volume and concentration of the decontamination fluid will be
sufficiently low to allow disposal at the site or sampling area. The water (and water with
detergent) will be poured onto the ground or into a storm drain. Pesticide-grade solvents will
be allowed to evaporate from the decontamination bucket. The nitric acid will be diluted
and/or neutralized with sodium hydroxide and tested with pH paper before pouring onto the
ground or into a storm drain. [Include this bullet if sampling for metals but not organics;
otherwise delete.]
Decontamination fluids that will be generated in the sampling event will consist of nitric acid,
deionized water, residual contaminants, and water with non-phosphate detergent. The volume
and concentration of the decontamination fluid will be sufficiently low to allow disposal at the
site or sampling area. The water (and water with detergent) will be poured onto the ground or
into a storm drain. The nitric acid will be diluted and/or neutralized with sodium hydroxide and
tested with pH paper before pouring onto the ground or into a storm drain. [Include this bullet
if sampling for organics but not metals; otherwise delete.]
Decontamination fluids that will be generated in the sampling event will consist of pesticide-
grade solvent, deionized water, residual contaminants, and water with non-phosphate
detergent. The volume and concentration of the decontamination fluid will be sufficiently low
to allow disposal at the site or sampling area. The water (and water with detergent) will be
poured onto the ground or into a storm drain. Pesticide-grade solvents will be allowed to
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evaporate from the decontamination bucket. [Include this bullet if sampling soils; otherwise
delete.]
Soil cuttings generated during the subsurface sampling will be disposed of in an appropriate
manner. [Include this bullet if sampling groundwater; otherwise delete.]
Purged groundwater will be [depending upon the degree of groundwater
contamination, site-specific conditions, and applicable federal, state, and local regulations,
disposal methods will vary. Disposal methods can also vary for purge water from different wells
sampled during the same sampling event.]
9 SAMPLE DOCUMENTATION AND SHIPMENT
9.1 Field Notes
This section should discuss record keeping in the field. This may be through a combination of logbooks,
preprinted forms, photographs, or other documentation. Information to be maintained is provided
below.
9.1.1 Field Logbooks
[Describe how field logbooks will be used and maintained.]
Use field logbooks to document where, when, how, and from whom any vital project information was
obtained. Logbook entries should be complete and accurate enough to permit reconstruction of field
activities. Maintain a separate logbook for each sampling event or project. Logbooks should have
consecutively numbered pages. All entries should be legible, written in black ink, and signed by the
individual making the entries. Use factual, objective language.
At a minimum, the following information will be recorded during the collection of each sample:
[Edit this list as relevant]
Sample location and description;
Site or sampling area sketch showing sample location and measured distances;
Sampler's name(s);
Date and time of sample collection;
Designation of sample as composite or grab;
Type of sample (soil, sediment or water);
Type of sampling equipment used;
Field instrument readings and calibration;
Field observations and details related to analysis or integrity of samples (e.g., weather
conditions, noticeable odors, colors, etc.);
Preliminary sample descriptions (e.g., for soils: clay loam, very wet; for water: clear water with
strong ammonia-like odor);
Sample preservation;
Lot numbers of the sample containers, sample identification numbers and any explanatory
codes, and chain-of-custody form numbers;
Shipping arrangements (overnight air bill number);
Name(s) of recipient laboratory(ies).
In addition to the sampling information, the following specific information will also be recorded in the
field logbook for each day of sampling: [Edit this list as relevant.]
1. Team members and their responsibilities;
2. Time of arrival/entry on site and time of site departure;
3. Other personnel on site;
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4. Summary of any meetings or discussions with contractor, or federal agency personnel;
5. Deviations from sampling plans, site safety plans, and QAPP procedures;
6. Changes in personnel and responsibilities with reasons for the changes;
7. Levels of safety protection;
8. Calibration readings for any equipment used and equipment model and serial number.
[A checklist of the field notes, following the suggestions above, using only those that are appropriate,
should be developed and included in project field notes.]
9.1.2 Photographs
[If photographs will be taken, the following language may be used as is or modified as appropriate.]
Photographs will be taken at the sampling locations and at other areas of interest on site or sampling
area. They will serve to verify information entered in the field logbook. For each photograph taken, the
following information will be written in the logbook or recorded in a separate field photography log:
Time, date, location, and weather conditions;
Description of the subject photographed;
Name of person taking the photograph.
9.2 Labeling
[The following paragraph provides a generic explanation and description of the use of labels. It may
be incorporated as is, if appropriate, or modified to meet any project-specific conditions.]
All samples collected will be labeled in a clear and precise way for proper identification in the field and
for tracking in the laboratory. A copy of the sample label is included in Appendix . The samples will
have preassigned, identifiable, and unique numbers. At a minimum, the sample labels will contain the
following information: station location, date of collection, analytical parameter(s), and method of
preservation. Every sample, including samples collected from a single location but going to separate
laboratories, will be assigned a unique sample number.
9.3 Sample Chain-Of-Custody Forms and Custody Seals
[The following paragraphs provide a generic explanation and description of the use of chain-of-
custody forms and custody seals. They may be incorporated as is, if they are appropriate, or modified
to meet any project-specific conditions.]
Organic and inorganic chain-of-custody record/traffic report forms are used to document sample
collection and shipment to laboratories for analysis. All sample shipments for analyses will be
accompanied by a chain-of-custody record. A copy of the form is found in Appendix. Form(s) will be
completed and sent with the samples for each laboratory and each shipment (i.e., each day). If multiple
coolers are sent to a single laboratory on a single day, form(s) will be completed and sent with the
samples for each cooler.
The chain-of-custody form will identify the contents of each shipment and maintain the custodial
integrity of the samples. Generally, a sample is considered to be in someone's custody if it is either in
someone's physical possession, in someone's view, locked up, or kept in a secured area that is restricted
to authorized personnel. Until the samples are shipped, the custody of the samples will be the
responsibility of [name of agency/ organization conducting sampling]. The sampling team leader
or designee will sign the chain-of-custody form in the "relinquished by" box and note date, time, and air
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bill number. The sample numbers for all reference samples, laboratory QC samples, and duplicates will
be documented on this form (see Section 10.0). A photocopy will be made for the 's [name of
agency/ organization conducting sampling] master files.
A self-adhesive custody seal will be placed across the lid of each sample. A copy of the seal is found in
Appendix _. For VOC samples, the seal will be wrapped around the cap. The shipping containers in
which samples are stored (usually a sturdy picnic cooler or ice chest) will be sealed with self-adhesive
custody seals any time they are not in someone's possession or view before shipping. All custody seals
will be signed and dated.
9.4 Packaging and Shipment
[The following paragraphs provide a generic explanation and description of how to pack and ship
samples. They may be incorporated as is, if appropriate, or modified to meet any project-specific
conditions.]
All sample containers will be placed in a strong-outside shipping container (a steel-belted cooler). The
following outlines the packaging procedures that will be followed for low concentration samples.
1. When ice is used, pack it in zip-locked, double plastic bags. Seal the drain plug of the cooler with
fiberglass tape to prevent melting ice from leaking out of the cooler.
2. The bottom of the cooler should be lined with bubble wrap to prevent breakage during
shipment.
3. Check screw caps for tightness and, if not full, mark the sample volume level of liquid samples
on the outside of the sample bottles with indelible ink.
4. Secure bottle/container tops with clear tape and custody seal all container tops.
5. Affix sample labels onto the containers with clear tape.
6. Wrap all glass sample containers in bubble wrap to prevent breakage.
7. Seal all sample containers in heavy duty plastic zip-lock bags. Write the sample numbers on the
outside of the plastic bags with indelible ink.
8. Place samples in a sturdy cooler(s) lined with a large plastic trash bag. Enclose the appropriate
COC(s) in a zip-lock plastic bag affixed to the underside of the cooler lid.
9. Fill empty space in the cooler with bubble wrap or Styrofoam peanuts to prevent movement and
breakage during shipment.
10. Ice used to cool samples will be double sealed in two zip lock plastic bags and placed on top and
around the samples to chill them to the correct temperature.
11. Each ice chest will be securely taped shut with fiberglass strapping tape, and custody seals will
be affixed to the front, right and back of each cooler.
Records will be maintained by the [organization]^ sample custodian of the following information:
Sampling contractor's name (if not the organization itself);
Name and location of the site or sampling area;
Case or Regional Analytical Program (RAP) number;
Total number(s) by estimated concentration and matrix of samples shipped to each laboratory;
Carrier, air bill number(s), method of shipment (priority next day);
Shipment date and when it should be received by lab;
Irregularities or anticipated problems associated with the samples;
Whether additional samples will be shipped or if this is the last shipment.
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10 QUALITY CONTROL
This section should discuss the quality control samples that are being collected to support the sampling
activity. This includes field QC samples, confirmation samples, background samples, laboratory QC
samples, and split samples. Wherever possible, the locations at which the samples will be collected
should be identified and a rationale provided for the choice of location. Frequency of collection should be
discussed. All samples, except laboratory QC samples, should be sent to the laboratory blind, wherever
possible. Laboratory QC samples should be identified and additional sample (e.g., a double volume)
collected for that purpose.
10.1 Field Quality Control Samples
Field quality control samples are intended to help evaluate conditions resulting from field activities and
are intended to accomplish two primary goals, assessment of field contamination and assessment of
sampling variability. The former looks for substances introduced in the field due to environmental or
sampling equipment and is assessed using blanks of different types. The latter includes variability due to
sampling technique and instrument performance as well as variability possibly caused by the
heterogeneity of the matrix being sampled and is assessed using replicate sample collection. The
following sections cover field QC.
10.1.1 Assessment of Field Contamination (Blanks)
Field contamination is usually assessed through the collection of different types of blanks. Equipment
blanks are obtained by passing distilled or deionized water, as appropriate, over or through the
decontaminated equipment used for sampling. They provide the best overall means of assessing
contamination arising from the equipment, ambient conditions, sample containers, transit, and the
laboratory. Field blanks are sample containers filled in the field. They help assess contamination from
ambient conditions, sample containers, transit, and the laboratory. Trip blanks are prepared by the
laboratory and shipped to and from the field. They help assess contamination from shipping and the
laboratory and are for volatile organic compounds only. Equipment blanks should be collected, where
appropriate (e.g., where neither disposable nor dedicated equipment is used). Field blanks are next in
priority, and trip blanks next. Only one type of blank must be collected per event, not all three.
10.1.1.1 Equipment Blanks
In general, equipment (rinsate) blanks should be collected when reusable, non-disposable sampling
equipment (e.g., trowels, hand augers, and non-dedicated groundwater sampling pumps) are being used
for the sampling event. Only one blank sample per matrix per day should be collected. If equipment
blanks are collected, field blanks and trip blanks are not required under normal circumstances.
Equipment blanks can be collected for soil, sediment, and ground water samples. A minimum of one
equipment blank is prepared each day for each matrix when equipment is decontaminated in the field.
These blanks are submitted "blind" to the laboratory, packaged like other samples and each with its own
unique identification number. Note that for samples which may contain VOCs, water for blanks should
be purged prior to use to ensure that it is organic free. HPLC water, which is often used for equipment
and field blanks, can contain VOCs if it is not purged.
[If equipment blanks are to be collected describe how they are to be collected and the analyses that
will be performed. A maximum of one blank sample per matrix per day should be collected, but at a
rate to not exceed one blank per 10 samples. The 1:10 ratio overrides the one per day requirement.
If equipment rinsate blanks are collected, field blanks and trip blanks are not required under normal
circumstances. Use the language below or reference the appropriate sections in a Quality Control SOP
and state in which Appendix the SOP is located.]
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[Include this subsection if equipment blanks are to be collected, otherwise, delete.]
[Include this paragraph if blanks will be analyzed for both metals and organic compounds; otherwise
delete.]
Equipment rinsate blanks will be collected to evaluate field sampling and decontamination procedures
by pouring High Performance Liquid Chromatography (HPLC) organic-free (for organics) or deionized
water (for inorganics) over the decontaminated sampling equipment. One equipment rinsate blank will
be collected per matrix each day that sampling equipment is decontaminated in the field. Equipment
rinsate blanks will be obtained by passing water through or over the decontaminated sampling devices
used that day. The rinsate blanks that are collected will be analyzed for [Include names of
target analytes, e.g., metals, total petroleum hydrocarbons, volatile organic compounds, etc.].
[Include this paragraph if blanks will be analyzed only for organic compounds; otherwise delete.]
Equipment rinsate blanks will be collected to evaluate field sampling and decontamination procedures
by pouring High Performance Liquid Chromatography (HPLC) organic-free water over the
decontaminated sampling equipment. One equipment rinsate blank will be collected per matrix each
day that sampling equipment is decontaminated in the field. Equipment rinsate blanks will be obtained
by passing water through or over the decontaminated sampling devices used that day. The rinsate
blanks that are collected will be analyzed for [Include names of target analytes, e.g., volatile
organic compounds, total petroleum hydrocarbons, etc.] [Include this paragraph if blanks will be
analyzed only for metals; otherwise delete.]
Equipment rinsate blanks will be collected to evaluate field sampling and decontamination procedures
by pouring deionized water over the decontaminated sampling equipment. One equipment rinsate
blank will be collected per matrix each day that sampling equipment is decontaminated in the field.
Equipment rinsate blanks will be obtained by passing deionized water through or over the
decontaminated sampling devices used that day. The insate blanks that are collected will be analyzed
for metals.
[Always include this paragraph.]The equipment rinsate blanks will be preserved, packaged, and sealed
in the manner described for the environmental samples. A separate sample number and station
number will be assigned to each sample, and it will be submitted blind to the laboratory.
10.1.2 Field Blanks
Field blanks are collected when sampling water or air and equipment decontamination is not necessary
or sample collection equipment is not used (e.g., dedicated pumps). A minimum of one field blank is
prepared each day sampling occurs in the field, but equipment is not decontaminated. These blanks are
submitted "blind" to the laboratory, packaged like other samples and each with its own unique
identification number. Note that for samples which may contain VOCs, water for blanks should be
purged prior to use to ensure that it is organic free. HPLC water, which is often used for equipment and
field blanks, can contain VOCs if it is not purged.
[Include this subsection if field blanks will be collected; otherwise delete. Only one blank sample per
matrix per day should be collected. If field blanks are prepared, equipment rinsate blanks and trip
blanks are not required under normal circumstances.]
[Include this paragraph if blanks will be analyzed for both metals and organic compounds; otherwise
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delete.]
Field blanks will be collected to evaluate whether contaminants have been introduced into the samples
during the sampling due to ambient conditions or from sample containers. Field blank samples will be
obtained by pouring High Performance Liquid Chromatography (HPLC) organic-free water (for organics)
and/or deionized water (for inorganics) into a sampling container at the sampling point. The field blanks
that are collected will be analyzed for [Include names of target analytes, e.g., metals, volatile
organic compounds, etc.].
[Include this paragraph if blanks will be analyzed only for organic compounds; otherwise delete.]
Field blanks will be collected to evaluate whether contaminants have been introduced into the samples
during the sampling due to ambient conditions or from sample containers. Field blank samples will be
obtained by pouring High Performance Liquid Chromatography (HPLC) organic-free water into a
sampling container at the sampling point. The field blanks that are collected will be analyzed for
[Include names of target analytes, e.g., volatile organic compounds, total petroleum
hydrocarbons, etc.].
[Include this paragraph if blanks will be analyzed only for metals; otherwise delete.]
Field blanks will be collected to evaluate whether contaminants have been introduced into the samples
during the sampling due to contamination from sample containers. Field blank samples will be obtained
by pouring deionized water into a sampling container at the sampling point. The field blanks that are
collected will be analyzed for metals.
[Always include this paragraph.]
The field blanks will be preserved, packaged, and sealed in the manner described for the environmental
samples. A separate sample number and station number will be assigned to each sample, and it will be
submitted blind to the laboratory.
10.1.3 Trip Blanks
Trip blanks are required only if no other type of blank will be collected for volatile organic compound
analysis and when air and/or water samples are being collected. If trip blanks are required, one is
submitted to the laboratory for analysis with every shipment of samples for VOC analysis. These blanks
are submitted "blind" to the laboratory, packaged like other samples and each with its own unique
identification number. Note that for samples which may contain VOCs, water for blanks should be
purged prior to use to ensure that it is organic free. Laboratory water, which is used for trip blanks, can
contain VOCs if it is not purged.
[Include this subsection if trip blanks will be collected; otherwise delete. Only one blank sample per
matrix per day should be collected. Trip blanks are only relevant to volatile organic compound (VOC)
sampling efforts.]
Trip blanks will be prepared to evaluate if the shipping and handling procedures are introducing
contaminants into the samples, and if cross contamination in the form of VOC migration has occurred
between the collected samples. A minimum of one trip blank will be submitted to the laboratory for
analysis with every shipment of samples for VOC analysis. Trip blanks are 40 mL vials that have been
filled with HPLC-grade water that has been purged so it is VOC free and shipped with the empty
sampling containers to the site or sampling area prior to sampling. The sealed trip blanks are not
opened in the field and are shipped to the laboratory in the same cooler with the samples collected for
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volatile analyses. The trip blanks will be preserved, packaged, and sealed in the manner described for
the environmental samples. A separate sample number and station number will be assigned to each trip
sample and it will be submitted blind to the laboratory.
10.1.4 Temperature Blanks
[Include this paragraph with all plans.] For each cooler that is shipped or transported to an analytical
laboratory a 40 ml VOA vial will be included that is marked "temperature blank." This blank will be
used by the sample custodian to check the temperature of samples upon receipt.
10.1.5 Assessment of Field Variability (Field Duplicate or Co-located Samples)
Duplicate samples are collected simultaneously with a standard sample from the same source under
identical conditions into separate sample containers. Field duplicates will consist of a homogenized
sample divided in two or else a co-located sample. Each duplicate portion should be assigned its own
sample number so that it will be blind to the laboratory. A duplicate sample is treated independently of
its counterpart in order to assess laboratory performance through comparison of the results. At least
10% of samples collected per event should be field duplicates. At least one duplicate should be
collected for each sample matrix, but their collection can be stretched out over more than one day (e.g.,
if it takes more than one day to reach 10 samples). Every group of analytes for which a standard sample
is analyzed will also be tested for in one or more duplicate samples. Duplicate samples should be
collected from areas of known or suspected contamination. Since the objective is to assess variability
due to sampling technique and possible sample heterogeneity, source variability is a good reason to
collect co-located samples, not to avoid their collection.
Duplicate soils samples will be collected at sample locations [identify soil sample locations from which
samples will be collected for duplicate analysis].
Duplicate samples will be collected from these locations because [Add sentence(s) here explaining a
rationale for collecting duplicate samples from these locations; e.g., samples from these locations are
suspected to exhibit moderate concentrations of contaminants or previous sampling events have
detected moderate levels of contamination at the site or sampling area at these locations.]
[Include this paragraph if collecting soil samples and analyzing for compounds other than volatiles;
otherwise delete.]
Soil samples to be analyzed for [List all analytical methods for this sample event
except for volatiles.] will be homogenized with a trowel in a sample-dedicated disposable pail.
Homogenized material from the bucket will then be transferred to the appropriate wide-mouth glass
jars for both the regular and duplicate samples. All jars designated for a particular analysis (e.g., semi-
volatile organic compounds) will be filled sequentially before jars designated for another analysis are
filled (e.g., metals).
[Include this paragraph if collecting soil samples and analyzing for volatiles; otherwise delete.]
Soil samples for volatile organic compound analyses will not be homogenized. Equivalent Encore
samples from a colocated location will be collected identically to the original samples, assigned unique
sample numbers and sent blind to the laboratory.
[Include these paragraphs if collecting sediment samples. If volatile organic compound analysis will
be performed on sediment samples, modify the above paragraph for soil sample volatile analyses by
changing "soil" to "sediment."]
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Duplicate sediment samples will be collected at sample locations [Identify sediment
sample locations from which duplicate or colocated samples for duplicate analysis will be obtained].
Duplicate samples will be collected from these locations because [Add sentence(s)
here explaining a rationale for collecting duplicate samples from these locations; e.g., samples from
these locations are suspected to exhibit moderate concentrations of contaminants or previous sampling
events have detected moderate levels of contamination at the site or sampling area at these locations.]
Sediment samples will be homogenized with a trowel in a sample-dedicated 1-gallon disposable pail.
Homogenized material from the bucket will then be transferred to the appropriate wide-mouth glass
jars for both the regular and duplicate samples. All jars designated for a particular analysis (e.g., semi-
volatile organic compounds) will be filled sequentially before jars designated for another analysis are
filled (e.g., metals).
[Include this paragraph if collecting water samples.]
Duplicate water samples will be collected for water sample numbers [water sample
numbers which will be split for duplicate analysis]. Duplicate samples will be collected from these
locations because [Add sentence(s) here explaining a rationale for collecting
duplicate samples from these locations; e.g. samples from these locations are suspected to exhibit
moderate concentrations of contaminants or previous sampling events have detected moderate levels
of contamination at the site or sampling area at these locations.] When collecting duplicate water
samples, bottles with the two different sample identification numbers will alternate in the filling
sequence (e.g., a typical filling sequence might be, VOCs designation GW-2, VOCs designation GW-4
(duplicate of GW-2); metals, designation GW-2, metals, designation GW-4, (duplicate of GW-2) etc.).
Note that bottles for one type of analysis will be filled before bottles for the next analysis are filled.
Volatiles will always be filled first.
[Always include this paragraph.]
Duplicate samples will be preserved, packaged, and sealed in then same manner as other samples of the
same matrix. A separate sample number and station number will be assigned to each duplicate, and it
will be submitted blind to the laboratory.
10.1.6 Background Samples
Background samples are collected in situations where the possibility exists that there are native or
ambient levels of one or more target analytes present or where one aim of the sampling event is to
differentiate between on-site and off-site contributions to contamination. One or more locations are
chosen which should be free of contamination from the site or sampling location itself, but have similar
geology, hydrogeology, or other characteristics to the proposed sampling locations that may have been
impacted by site activities. For example, an area adjacent to but removed from the site, upstream from
the sampling points, or up gradient or cross gradient from the groundwater under the site. Not all
sampling events require background samples.
[Specify the sample locations that have been designated as background. Include a rationale for
collecting background samples from these locations and describe or reference the sampling and
analytical procedures which will be followed to collect these samples.]
10.1.7 Field Screening and Confirmation Samples
For projects where field screening methods are used (typically defined as testing using field test kits,
immunoassay kits, or soil gas measurements or equivalent, but not usually defined as the use of a
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mobile laboratory which generates data equivalent to a fixed laboratory), two aspects of the tests
should be described. First, the QC which will be run in conjunction with the field screening method
itself, and, second, any fixed laboratory confirmation tests which will be conducted. QC acceptance
criteria for these tests should be defined in these sections rather than in the DQO section.
10.1.8 Field Screening Samples
[For projects where field screening methods are used describe the QC, samples which will be run in
the field to ensure that the screening method is working properly. This usually consists of a
combination of field duplicates and background (clean) samples). The discussion should specify
acceptance criteria and corrective action to be taken if results are not within defined limits. Discuss
confirmation tests below.]
10.1.9 Confirmation Samples
// the planned sampling event includes a combination of field screening and fixed laboratory
confirmation, this section should describe the frequency with which the confirmation samples will be
collected and the criteria which will be used to select confirmation locations. These will both be
dependent on the use of the data in decision making. It is recommended that the selection process be at
a minimum of 10% and that a selection criteria include checks for both false positives (i.e., the field
detections are invalid or the concentrations are not accurate) and false negatives (i.e., the analyte was
not detected in the field). Because many field screening techniques are less sensitive than laboratory
methods false negative screening is especially important unless the field method is below the action level
for any decision making. It is recommended that some "hits" be chosen and that other locations be
chosen randomly.
[Describe confirmation sampling. Discuss the frequency with which samples will be confirmed and
how location will be chosen. Define acceptance criteria for the confirmation results (e.g., RPD#25%)
and corrective actions to be taken if samples are not confirmed.]
10.1.10 Split Samples
Split Samples are defined differently by different organizations, but for the purpose of this guidance, s
split samples are samples that are divided among two or more laboratory for the purpose of providing an
inter-laboratory or inter-organization comparison. Usually one organization (for example, a responsible
party) collects the samples and provides sufficient material to the other organization (for example, EPA)
to enable it to perform independent analyses. It is expected that the sampling party will have prepared a
sampling plan which the QA Office has reviewed and approved that describes the sampling locations and
a rationale for their choice, sampling methods, and analyses.
[Describe the purpose of the split sampling. Include references to the approved sampling plan of the
party collecting the samples. Provide a rationale for the sample locations at which split samples will
be obtained and how these locations are representative of the sampling event as a whole. Describe
how results are to be compared and define criteria by which agreement will be measured. Discuss
corrective action to be taken if results are found to not be in agreement.]
10.2 Laboratory Quality Control Samples
Laboratory quality control (QC) samples are analyzed as part of standard laboratory practice. The
laboratory monitors the precision and accuracy of the results of its analytical procedures through
analysis of QC samples. In part, laboratory QC samples consist of matrix spike/matrix spike duplicate
samples for organic analyses, and matrix spike and duplicate samples for inorganic analyses. The term
"matrix" refers to use of the actual media collected in the field (e.g., routine soil and water samples).
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Laboratory QC samples are an aliquot (subset) of the field sample. They are not a separate sample, but a
special designation of an existing sample.
[Include the following language if soil samples are to be collected for other than VOCs. Otherwise
delete.]
A routinely collected soil sample (a full 8-oz sample jar or two 120-mL sample vials) contains sufficient
volume for both routine sample analysis and additional laboratory QC analyses. Therefore, a separate
soil sample for laboratory QC purposes will not be collected. [Include the following language if soil
samples are to be collected for other than VOCs. Otherwise delete.] Soil samples for volatile organic
compound analyses for laboratory QC purposes will be obtained by collecting double the number of
equivalent Encore samples from a colocated location in the same way as the original samples, assigned a
unique sample numbers and sent blind to the laboratory.
[Include the following language if water samples are to be collected. Otherwise delete.]
For water samples, double volumes of samples are supplied to the laboratory for its use for QC
purposes. Two sets of water sample containers are filled and all containers are labeled with a single
sample number.
For VOC samples this would result in 6 vials being collected instead of 3, for pesticides and semi-volatile
samples this would be 4 liters instead of 2, etc.
The laboratory should be alerted as to which sample is to be used for QC analysis by a notation on the
sample container label and the chain-of-custody record or packing list. At a minimum, one laboratory
QC sample is required per 14 days or one per 20 samples (including blanks and duplicates), whichever is
greater. If the sample event lasts longer than 14 days or involves collection of more than 20 samples per
matrix, additional QC samples will be designated.
For this sampling event, samples collected at the following locations will be the designated laboratory
QC samples: [If a matrix is not being sampled, delete the reference to that matrix.]
For soil, samples [List soil sample locations and numbers designated for QA/QC]
For sediment, samples [List sediment sample locations and numbers designated
for QA/QC.]
For water, samples [List water sample locations and numbers designated for
QA/QC.]
[Add a paragraph explaining why these sample locations were chosen for QA/QC samples. QA/QC
samples should be samples expected to contain moderate levels of contamination. A rationale should
justify the selection of QA/QC samples based on previously-detected contamination at the site or
sampling area, historic site or sampling area operations, expected contaminant deposition/migration,
etc.]
11 FIELD VARIANCES
[It is not uncommon to find that, on the actual sampling date, conditions are different from
expectations such that changes must be made to the SAP once the samplers are in the field. The
following paragraph provides a means for documenting those deviations, or variances. Adopt the
paragraph as is, or modify it to project-specific conditions.]
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As conditions in the field may vary, it may become necessary to implement minor modifications to
sampling as presented in this plan. When appropriate, the QA Office will be notified and a verbal
approval will be obtained before implementing the changes. Modifications to the approved plan will be
documented in the sampling project report.
12 FIELD HEALTH AND SAFETY PROCEDURES
[Describe any agency-, program- or project-specific health and safety procedures that must be
followed in the field, including safety equipment and clothing that may be required, explanation of
potential hazards that may be encountered, and location and route to the nearest hospital or medical
treatment facility. A copy of the organization health and safety plan may be included in the Appendix
and referenced in this section.]
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APPENDIX F. COMPENSATORY MITIGATION FOR LOSSES OF
AQUATIC RESOURCES
APPENDIX F. COMPENSATORY MITIGATION FOR LOSSES OF AQUATIC
RESOURCES
Thursday, April
10, 2008
Part II
Department of
Defense
Department of the Army, Corps of Engineers
33 CFR Parts 325 and 332
Environmental
Protection Agency
40 CFR Part 230 Compensatory Mitigation for
Losses of Aquatic Resources; Final Rule
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19670
PART 332COMPENSATORY
MITIGATION FOR LOSSES
OF AQUATIC RESOURCES
Sec.
332.1 Purpose and general considerations.
332.2 Definitions.
332.3 General compensatory mitigation
requirements.
332.4 Planning and documentation.
332.5 Ecological performance standards.
332.6 Monitoring.
332.7 Management.
332.8 Mitigation banks and in-lieu fee
programs.
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C.
1344; and Pub. L. 108-136.
§332.1 Purpose and
general considerations.
(a) Purpose. (1) The purpose of this
part is to establish standards and criteria
for the use of all types of compensatory
mitigation, including on-site and off-site
permittee-responsible mitigation,
mitigation banks, and in-lieu fee
mitigation to offset unavoidable impacts
to waters of the United States
authorized through the issuance of
Department of the Army (DA) permits
pursuant to section 404 of the Clean
Water Act (33 U.S.C. 1344) and/or
sections 9 or 10 of the Rivers and
Harbors Act of 1899 (33 U.S.C. 401,
403). This part implements section
314(b) of the 2004 National Defense
Authorization Act (Pub. L. 108-136),
which directs that the standards and
criteria shall, to the maximum extent
practicable, maximize available credits
and opportunities for mitigation, provide
for regional variations in wetland
conditions, functions, and values, and
apply equivalent standards and criteria to
each type of compensatory mitigation.
This part is intended to further clarify
mitigation requirements established under
U.S. Army Corps of Engineers (Corps)
and U.S. Environmental Protection
Agency (U.S. EPA) regulations at 33 CFR
part
320 and 40 CFR part 230, respectively. (2)
This part has been jointly
developed by the Secretary of the Army,
acting through the Chief of Engineers, and
the Administrator of the Environmental
Protection Agency. From time to time
guidance on interpreting and implementing
this part may be prepared jointly by U.S.
EPA and the Corps at the national or
regional level. No modifications to the
basic application, meaning, or intent of
this part will be made without further joint
rulemaking by the Secretary of the
Army, acting through the Chief of
Engineers and the Administrator of the
Environmental Protection Agency,
pursuant to the Administrative Procedure
Act (5 U.S.C. 551 et seq.).
(b) Applicability. This part does not
alter the regulations at § 320.4(r) of this
title, which address the general mitigation
requirements for DA permits. In particular,
it does not alter the circumstances under
which compensatory mitigation is
required or the definitions of "waters of
the United States" or "navigable waters
of the United States," which are provided
at
parts 328 and 329 of this chapter,
respectively. Use of resources as
compensatory mitigation that are not
otherwise subject to regulation under
section 404 of the Clean Water Act and/
or sections 9 or 10 of the Rivers and
Harbors Act of 1899 does not in and of
itself make them subject to such
regulation.
(c) Sequencing. (1) Nothing in this
section affects the requirement that all
DA permits subject to section 404 of the
Clean Water Act comply with applicable
provisions of the Section 404(b)(l)
Guidelines at 40 CFR part 230.
(2) Pursuant to these requirements,
the district engineer will issue an
individual section 404 permit only upon
a determination that the proposed
discharge complies with applicable
provisions of 40 CFR part 230, including
those which require the permit
applicant to take all appropriate and
practicable steps to avoid and minimize
adverse impacts to waters of the United
States. Practicable means available and
capable of being done after taking into
consideration cost, existing technology,
and logistics in light of overall project
purposes. Compensatory mitigation for
unavoidable impacts may be required
to ensure that an activity requiring a
section 404 permit complies with the
Section 404(b)(l) Guidelines.
(3) Compensatory mitigation for
unavoidable impacts may be required
to ensure that an activity requiring a
section 404 permit complies with the
Section 404(b)(l) Guidelines. During
the
404(b)(l) Guidelines compliance
analysis, the district engineer may
determine that a DA permit for the
proposed activity cannot be issued
because of the lack of appropriate
and practicable compensatory
mitigation options.
(d) Public interest. Compensatory
mitigation may also be required to
ensure that an activity requiring
authorization under section 404 of the
Clean Water Act and/or sections 9 or
10 of the Rivers and Harbors Act of
1899
is not contrary to the public interest.
(e) Accounting for regional variations.
Where appropriate, district engineers
shall account for regional
characteristics of aquatic resource
types, functions and services when
determining performance standards and
monitoring requirements for
compensatory mitigation projects.
(f) Relationship to other guidance
documents. (1) This part applies instead
of the "Federal Guidance for the
Establishment, Use, and Operation of
Mitigation Banks," which was issued on
November 28, 1995, the "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," which was
issued on November 7, 2000, and
Regulatory Guidance Letter 02-02,
"Guidance on Compensatory Mitigation
Projects for Aquatic Resource Impacts
Under the Corps Regulatory Program
Pursuant to Section 404 of the Clean
Water Act and Section 10 of the Rivers
and Harbors Act of 1899" which was
issued on December 24, 2002. These
guidance documents are no longer to be
used as compensatory mitigation policy
in the Corps Regulatory Program.
(2) In addition, this part also applies
instead of the provisions relating to the
amount, type, and location of
compensatory mitigation projects,
including the use of preservation, in the
February 6, 1990, Memorandum of
Agreement (MOA) between the
Department of the Army and the
Environmental Protection Agency on
the Determination of Mitigation Under
the Clean Water Act Section 404(b)(l)
Guidelines. All other provisions of this
MOA remain in effect.
§332.2 Definitions.
For the purposes of this part, the
following terms are defined:
Adaptive management means the
development of a management strategy
that anticipates likely challenges
associated with compensatory
mitigation projects and provides for the
implementation of actions to address
those challenges, as well as unforeseen
changes to those projects. It requires
consideration of the risk, uncertainty,
and dynamic nature of compensatory
mitigation projects and guides
modification of those projects to
optimize performance. It includes the
selection of appropriate measures that
will ensure that the aquatic resource
functions are provided and involves
analysis of monitoring results to identify
potential problems of a compensatory
mitigation project and the identification
and implementation of measures to
rectify those problems.
Advance credits means any credits of
an approved in-lieu fee program that are
available for sale prior to being fulfilled
in accordance with an approved
mitigation project plan. Advance credit
sales require an approved in-lieu fee
program instrument that meets all
applicable requirements including a
specific allocation of advance credits, by
service area where applicable. The
instrument must also contain a schedule
for fulfillment of advance credit sales.
Buffer means an upland, wetland,
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19671
and/or riparian area that protects and/or
enhances aquatic resource functions
associated with wetlands, rivers,
streams, lakes, marine, and estuarine
systems from disturbances associated
with adjacent land uses.
Compensatory mitigation means the
restoration (re-establishment or
rehabilitation), establishment (creation),
enhancement, and/or in certain
circumstances preservation of aquatic
resources for the purposes of offsetting
unavoidable adverse impacts which
remain after all appropriate and
practicable avoidance and minimization
has been achieved.
Compensatory mitigation project
means compensatory mitigation
implemented by the permittee as a
requirement of a DA permit (i.e.,
permittee-responsible mitigation), or by
a mitigation bank or an in-lieu fee
program.
Condition means the relative ability of
an aquatic resource to support and
maintain a community of organisms
having a species composition, diversity,
and functional organization comparable
to reference aquatic resources in the
region.
Credit means a unit of measure (e.g., a
functional or areal measure or other
suitable metric) representing the accrual
or attainment of aquatic functions at a
compensatory mitigation site. The
measure of aquatic functions is based on
the resources restored, established,
enhanced, or preserved.
DA means Department of the Army.
Days means calendar days.
Debit means a unit of measure (e.g., a
functional or areal measure or other
suitable metric) representing the loss of
aquatic functions at an impact or project
site. The measure of aquatic functions is
based on the resources impacted by the
authorized activity.
Enhancement means the
manipulation of the physical, chemical,
or biological characteristics of an
aquatic resource to heighten, intensify,
or improve a specific aquatic resource
function(s). Enhancement results in the
gain of selected aquatic resource
function(s), but may also lead to a
decline in other aquatic resource
function(s). Enhancement does not
result in a gain in aquatic resource area.
Establishment (creation) means the
manipulation of the physical, chemical,
or biological characteristics present to
develop an aquatic resource that did not
previously exist at an upland site.
Establishment results in a gain in
aquatic resource area and functions.
Fulfillment of advance credit sales of
an in-lieu fee program means
application of credits released in
accordance with a credit release
schedule in an approved mitigation
project plan to satisfy the mitigation
requirements represented by the
advance credits. Only after any advance
credit sales within a service area have
been fulfilled through the application of
released credits from an in-lieu fee
project (in accordance with the credit
release schedule for an approved
mitigation project plan), may additional
released credits from that project be sold
or transferred to permittees. When
advance credits are fulfilled, an equal
number of new advance credits is
restored to the program sponsor for sale
or transfer to permit applicants.
Functional capacity means the degree
to which an area of aquatic resource
performs a specific function.
Functions means the physical,
chemical, and biological processes that
occur in ecosystems.
Impact means adverse effect.
In-kind means a resource of a similar
structural and functional type to the
impacted resource.
In-lieu fee 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 DA 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.
In-lieu fee program instrument means
the legal document for the
establishment, operation, and use of an
in-lieu fee program.
Instrument means mitigation banking
instrument or in-lieu fee program
instrument.
Interagency Review Team (IRT) means
an interagency group of federal, tribal,
state, and/or local regulatory and
resource agency representatives that
reviews documentation for, and advises
the district engineer on, the
establishment and management of a
mitigation bank or an in-lieu fee
program.
Mitigation bank means a site, or suite
of sites, where resources (e.g., wetlands,
streams, riparian areas) are restored,
established, enhanced, and/or preserved
for the purpose of providing
compensatory mitigation for impacts
authorized by DA permits. In general, a
mitigation bank sells compensatory
mitigation credits to permittees whose
obligation to provide compensatory
mitigation is then transferred to the
mitigation bank sponsor. The operation
and use of a mitigation bank are
governed by a mitigation banking
instrument.
Mitigation banking instrument means
the legal document for the
establishment, operation, and use of a
mitigation bank.
Off-site means an area that is neither
located on the same parcel of land as the
impact site, nor on a parcel of land
contiguous to the parcel containing the
impact site.
On-site means an area located on the
same parcel of land as the impact site,
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19672
or on a parcel of land contiguous to the
impact site.
Out-of-kind means a resource of a
different structural and functional type
from the impacted resource.
Performance standards are observable
or measurable physical (including
hydrological), chemical and/or
biological attributes that are used to
determine if a compensatory mitigation
project meets its objectives.
Permittee-responsible mitigation
means an aquatic resource restoration,
establishment, enhancement, and/or
preservation activity undertaken by the
permittee (or an authorized agent or
contractor) to provide compensatory
mitigation for which the permittee
retains full responsibility.
Preservation means the removal of a
threat to, or preventing the decline of,
aquatic resources by an action in or near
those aquatic resources. This term
includes activities commonly associated
with the protection and maintenance of
aquatic resources through the
implementation of appropriate legal and
physical mechanisms. Preservation does
not result in a gain of aquatic resource
area or functions.
Re-establishment means the
manipulation of the physical, chemical,
or biological characteristics of a site
with the goal of returning natural/
historic functions to a former aquatic
resource. Re-establishment results in
rebuilding a former aquatic resource and
results in a gain in aquatic resource area
and functions.
Reference aquatic resources are a set
of aquatic resources that represent the
full range of variability exhibited by a
regional class of aquatic resources as a
result of natural processes and
anthropogenic disturbances.
Rehabilitation means the
manipulation of the physical, chemical,
or biological characteristics of a site
with the goal of repairing natural/
historic functions to a degraded aquatic
resource. Rehabilitation results in a gain
in aquatic resource function, but does
not result in a gain in aquatic resource
area.
Release of credits means a
determination by the district engineer,
in consultation with the IRT, that
credits associated with an approved
mitigation plan are available for sale or
transfer, or in the case of an in-lieu fee
program, for fulfillment of advance
credit sales. A proportion of projected
credits for a specific mitigation bank or
in-lieu fee project may be released upon
approval of the mitigation plan, with
additional credits released as milestones
specified in the credit release schedule
are achieved.
Restoration means the manipulation of
the physical, chemical, or biological
characteristics of a site with the goal of
returning natural/historic functions to a
former or degraded aquatic resource. For
the purpose of tracking net gains in
aquatic resource area, restoration is
divided into two categories: re-
establishment and rehabilitation.
Riparian areas are lands adjacent to
streams, rivers, lakes, and estuarine-
marine shorelines. Riparian areas
provide a variety of ecological functions
and services and help improve or
maintain local water quality.
Service area means the geographic
area within which impacts can be
mitigated at a specific mitigation bank
or an in-lieu fee program, as designated
in its instrument.
Services mean the benefits that
human populations receive from
functions that occur in ecosystems.
Sponsor means any public or private
entity responsible for establishing, and
in most circumstances, operating a
mitigation bank or in-lieu fee program.
Standard permit means a standard,
individual permit issued under the
authority of section 404 of the Clean
Water Act and/or sections 9 or 10 of the
Rivers and Harbors Act of 1899.
Temporal loss is the time lag between
the loss of aquatic resource functions
caused by the permitted impacts and the
replacement of aquatic resource
functions at the compensatory
mitigation site. Higher compensation
ratios may be required to compensate
for temporal loss. When the
compensatory mitigation project is
initiated prior to, or concurrent with,
the permitted impacts, the district
engineer may determine that
compensation for temporal loss is not
necessary, unless the resource has a
long development time.
Watershed means a land area that
drains to a common waterway, such as
a stream, lake, estuary, wetland, or
ultimately the ocean.
Watershed approach means an
analytical process for making
compensatory mitigation decisions that
support the sustainability or
improvement of aquatic resources in a
watershed. It involves consideration of
watershed needs, and how locations and
types of compensatory mitigation
projects address those needs. A
landscape perspective is used to
identify the types and locations of
compensatory mitigation projects that
will benefit the watershed and offset
losses of aquatic resource functions and
services caused by activities authorized
by DA permits. The watershed approach
may involve consideration of landscape
scale, historic and potential aquatic
resource conditions, past and projected
aquatic resource impacts in the
watershed, and terrestrial connections
between aquatic resources when
determining compensatory mitigation
requirements for DA permits.
Watershed plan means a plan
developed by federal, tribal, state, and/
or local government agencies or
appropriate non-governmental
organizations, in consultation with
relevant stakeholders, for the specific
goal of aquatic resource restoration,
establishment, enhancement, and
preservation. A watershed plan
addresses aquatic resource conditions in
the watershed, multiple stakeholder
interests, and land uses. Watershed
plans may also identify priority sites for
aquatic resource restoration and
protection. Examples of watershed plans
include special area management plans,
advance identification programs, and
wetland management plans.
§332.3 General compensatory mitigation
requirements.
(a) General considerations. (1) The
fundamental objective of compensatory
mitigation is to offset environmental
losses resulting from unavoidable
impacts to waters of the United States
authorized by DA permits. The district
engineer must determine the
compensatory mitigation to be required
in a DA permit, based on what is
practicable and capable of compensating
for the aquatic resource functions that
will be lost as a result of the permitted
activity. When evaluating compensatory
mitigation options, the district engineer
will consider what would be
environmentally preferable. In making
this determination, the district engineer
must assess the likelihood for ecological
success and sustainability, the location
of the compensation site relative to the
impact site and their significance within
the watershed, and the costs of the
compensatory mitigation project. In
many cases, the environmentally
preferable compensatory mitigation may
be provided through mitigation banks or
in-lieu fee programs because they
usually involve consolidating
compensatory mitigation projects where
ecologically appropriate, consolidating
resources, providing financial planning
and scientific expertise (which often is
not practical for permittee-responsible
compensatory mitigation projects),
reducing temporal losses of functions,
and reducing uncertainty over project
success. Compensatory mitigation
requirements must be commensurate
with the amount and type of impact that
is associated with a particular DA
permit. Permit applicants are
responsible for proposing an
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19673
appropriate compensatory mitigation
option to offset unavoidable impacts.
(2) Compensatory mitigation may be
performed using the methods of
restoration, enhancement,
establishment, and in certain
circumstances preservation. Restoration
should generally be the first option
considered because the likelihood of
success is greater and the impacts to
potentially ecologically important
uplands are reduced compared to
establishment, and the potential gains in
terms of aquatic resource functions are
greater, compared to enhancement and
preservation.
(3) Compensatory mitigation projects
may be sited on public or private lands.
Credits for compensatory mitigation
projects on public land must be based
solely on aquatic resource functions
provided by the compensatory
mitigation project, over and above those
provided by public programs already
planned or in place. All compensatory
mitigation projects must comply with
the standards in this part, if they are to
be used to provide compensatory
mitigation for activities authorized by
DA permits, regardless of whether they
are sited on public or private lands and
whether the sponsor is a governmental
or private entity.
(b) Type and location of
compensatory mitigation. (l)When
considering options for successfully
providing the required compensatory
mitigation, the district engineer shall
consider the type and location options
in the order presented in paragraphs
(b)(2) through (b)(6) of this section. In
general, the required compensatory
mitigation should be located within the
same watershed as the impact site, and
should be located where it is most likely
to successfully replace lost functions
and services, taking into account such
watershed scale features as aquatic
habitat diversity, habitat connectivity,
relationships to hydrologic sources
(including the availability of water
rights), trends in land use, ecological
benefits, and compatibility with
adjacent land uses. When compensating
for impacts to marine resources, the
location of the compensatory mitigation
site should be chosen to replace lost
functions and services within the same
marine ecological system (e.g., reef
complex, littoral drift cell).
Compensation for impacts to aquatic
resources in coastal watersheds
(watersheds that include a tidal water
body) should also be located in a coastal
watershed where practicable.
Compensatory mitigation projects
should not be located where they will
increase risks to aviation by attracting
wildlife to areas where aircraft-wildlife
strikes may occur (e.g., near airports).
(I) Mitigation bank credits. When
permitted impacts are located within
the service area of an approved
mitigation bank, and the bank has the
appropriate number and resource type
of credits available, the permittee's
compensatory mitigation requirements
may be met by securing those credits
from the sponsor. Since an approved
instrument (including an approved
mitigation plan and appropriate real
estate and financial assurances) for a
mitigation bank is required to be in
place before its credits can begin to be
used to compensate for authorized
impacts, use of a mitigation bank can
help reduce risk and uncertainty, as
well as temporal loss of resource
functions and services. Mitigation bank
credits are not released for debiting
until specific milestones associated with
the mitigation bank site's protection and
development are achieved, thus use of
mitigation bank credits can also help
reduce risk that mitigation will not be
fully successful. Mitigation banks
typically involve larger, more
ecologically valuable parcels, and more
rigorous scientific and technical
analysis, planning and implementation
than permittee-responsible mitigation.
Also, development of a mitigation bank
requires site identification in advance,
project-specific planning, and
significant investment of financial
resources that is often not practicable
for many in-lieu fee programs. For these
reasons, the district engineer should
give preference to the use of mitigation
bank credits when these considerations
are applicable. However, these same
considerations may also be used to
override this preference, where
appropriate, as, for example, where an
in-lieu fee program has released credits
available from a specific approved in-
lieu fee project, or a permittee-
responsible project will restore an
outstanding resource based on rigorous
scientific and technical analysis.
(3) In-lieu fee program credits. Where
permitted impacts are located within
the service area of an approved in-lieu
fee program, and the sponsor has the
appropriate number and resource type
of credits available, the permittee's
compensatory mitigation requirements
may be met by securing those credits
from the sponsor. Where permitted
impacts are not located in the service
area of an approved mitigation bank, or
the approved mitigation bank does not
have the appropriate number and
resource type of credits available to
offset those impacts, in-lieu fee
mitigation, if available, is generally
preferable to permittee-responsible
mitigation. In-lieu fee projects typically
involve larger, more ecologically
valuable parcels, and more rigorous
scientific and technical analysis,
planning and implementation than
permittee-responsible mitigation. They
also devote significant resources to
identifying and addressing high-priority
resource needs on a watershed scale, as
reflected in their compensation
planning framework. For these reasons,
the district engineer should give
preference to in-lieu fee program credits
over permittee-responsible mitigation,
where these considerations are
applicable. However, as with the
preference for mitigation bank credits,
these same considerations may be used
to override this preference where
appropriate. Additionally, in cases
where permittee-responsible mitigation
is likely to successfully meet
performance standards before advance
credits secured from an in-lieu fee
program are fulfilled, the district
engineer should also give consideration
to this factor in deciding between in-
lieu fee mitigation and permittee-
responsible mitigation.
(4) Permittee-responsible mitigation
under a -watershed approach. Where
permitted impacts are not in the service
area of an approved mitigation bank or
in-lieu fee program that has the
appropriate number and resource type
of credits available, permittee-
responsible mitigation is the only
option. Where practicable and likely to
be successful and sustainable, the
resource type and location for the
required permittee-responsible
compensatory mitigation should be
determined using the principles of a
watershed approach as outlined in
paragraph (c) of this section.
(5) Permittee-responsible mitigation
through on-site and in-kind mitigation.
In cases where a watershed approach is
not practicable, the district engineer
should consider opportunities to offset
anticipated aquatic resource impacts by
requiring on-site and in-kind
compensatory mitigation. The district
engineer must also consider the
practicability of on-site compensatory
mitigation and its compatibility with the
proposed project.
(6) Permittee-responsible mitigation
through off-site and/or out-of-kind
mitigation. If, after considering
opportunities for on-site, in-kind
compensatory mitigation as provided in
paragraph (b)(5) of this section, the
district engineer determines that these
compensatory mitigation opportunities
are not practicable, are unlikely to
compensate for the permitted impacts,
or will be incompatible with the
proposed project, and an alternative,
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practicable off-site and/or out-of-kind
mitigation opportunity is identified that
has a greater likelihood of offsetting the
permitted impacts or is environmentally
preferable to on-site or in-kind
mitigation, the district engineer should
require that this alternative
compensatory mitigation be provided.
(c) Watershed approach to
compensatory mitigation. (1) The
district engineer must use a watershed
approach to establish compensatory
mitigation requirements in DA permits
to the extent appropriate and
practicable. Where a watershed plan is
available, the district engineer will
determine whether the plan is
appropriate for use in the watershed
approach for compensatory mitigation.
In cases where the district engineer
determines that an appropriate
watershed plan is available, the
watershed approach should be based on
that plan. Where no such plan is
available, the watershed approach
should be based on information
provided by the project sponsor or
available from other sources. The
ultimate goal of a watershed approach is
to maintain and improve the quality and
quantity of aquatic resources within
watersheds through strategic selection
of compensatory mitigation sites.
(2) Considerations, (i) A watershed
approach to compensatory mitigation
considers the importance of landscape
position and resource type of
compensatory mitigation projects for the
sustainability of aquatic resource
functions within the watershed. Such an
approach considers how the types and
locations of compensatory mitigation
projects will provide the desired aquatic
resource functions, and will continue to
function over time in a changing
landscape. It also considers the habitat
requirements of important species,
habitat loss or conversion trends,
sources of watershed impairment, and
current development trends, as well as
the requirements of other regulatory and
non-regulatory programs that affect the
watershed, such as storm water
management or habitat conservation
programs. It includes the protection and
maintenance of terrestrial resources,
such as non-wetland riparian areas and
uplands, when those resources
contribute to or improve the overall
ecological functioning of aquatic
resources in the watershed.
Compensatory mitigation requirements
determined through the watershed
approach should not focus exclusively
on specific functions (e.g., water quality
or habitat for certain species), but
should provide, where practicable, the
suite of functions typically provided by
the affected aquatic resource.
(ii) Locational factors (e.g., hydrology,
surrounding land use) are important to
the success of compensatory mitigation
for impacted habitat functions and may
lead to siting of such mitigation away
from the project area. However,
consideration should also be given to
functions and services (e.g., water
quality, flood control, shoreline
protection) that will likely need to be
addressed at or near the areas impacted
by the permitted impacts.
(iii) A watershed approach may
include on-site compensatory
mitigation, off-site compensatory
mitigation (including mitigation banks
or in-lieu fee programs), or a
combination of on-site and off-site
compensatory mitigation.
(iv) A watershed approach to
compensatory mitigation should
include, to the extent practicable,
inventories of historic and existing
aquatic resources, including
identification of degraded aquatic
resources, and identification of
immediate and long-term aquatic
resource needs within watersheds that
can be met through permittee-
responsible mitigation projects,
mitigation banks, or in-lieu fee
programs. Planning efforts should
identify and prioritize aquatic resource
restoration, establishment, and
enhancement activities, and
preservation of existing aquatic
resources that are important for
maintaining or improving ecological
functions of the watershed. The
identification and prioritization of
resource needs should be as specific as
possible, to enhance the usefulness of
the approach in determining
compensatory mitigation requirements.
(v) A watershed approach is not
appropriate in areas where watershed
boundaries do not exist, such as marine
areas. In such cases, an appropriate
spatial scale should be used to replace
lost functions and services within the
same ecological system (e.g., reef
complex, littoral drift cell).
(3) Information Needs, (i) In the
absence of a watershed plan determined
by the district engineer under paragraph
(c)(l) of this section to be appropriate
for use in the watershed approach, the
district engineer will use a watershed
approach based on analysis of
information regarding watershed
conditions and needs, including
potential sites for aquatic resource
restoration activities and priorities for
aquatic resource restoration and
preservation. Such information
includes: current trends in habitat loss
or conversion; cumulative impacts of
past development activities, current
development trends, the presence and
needs of sensitive species; site
conditions that favor or hinder the
success of compensatory mitigation
projects; and chronic environmental
problems such as flooding or poor water
quality.
(ii) This information may be available
from sources such as wetland maps; soil
surveys; U.S. Geological Survey
topographic and hydrologic maps; aerial
photographs; information on rare,
endangered and threatened species and
critical habitat; local ecological reports
or studies; and other information
sources that could be used to identify
locations for suitable compensatory
mitigation projects in the watershed.
(iii) The level of information and
analysis needed to support a watershed
approach must be commensurate with
the scope and scale of the proposed
impacts requiring a DA permit, as well
as the functions lost as a result of those
impacts.
(4) Watershed scale. The size of
watershed addressed using a watershed
approach should not be larger than is
appropriate to ensure that the aquatic
resources provided through
compensation activities will effectively
compensate for adverse environmental
impacts resulting from activities
authorized by DA permits. The district
engineer should consider relevant
environmental factors and appropriate
locally developed standards and criteria
when determining the appropriate
watershed scale in guiding
compensation activities.
(A) Site selection. (1) The
compensatory mitigation project site
must be ecologically suitable for
providing the desired aquatic resource
functions. In determining the ecological
suitability of the compensatory
mitigation project site, the district
engineer must consider, to the extent
practicable, the following factors:
(i) Hydrological conditions, soil
characteristics, and other physical and
chemical characteristics;
(ii) Watershed-scale features, such as
aquatic habitat diversity, habitat
connectivity, and other landscape scale
functions;
(iii) The size and location of the
compensatory mitigation site relative to
hydrologic sources (including the
availability of water rights) and other
ecological features;
(iv) Compatibility with adjacent land
uses and watershed management plans;
(v) Reasonably foreseeable effects the
compensatory mitigation project will
have on ecologically important aquatic
or terrestrial resources (e.g., shallow sub-
tidal habitat, mature forests),
cultural sites, or habitat for federally- or
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state-listed threatened and endangered
species; and
(vi) Other relevant factors including,
but not limited to, development trends,
anticipated land use changes, habitat
status and trends, the relative locations
of the impact and mitigation sites in the
stream network, local or regional goals
for the restoration or protection of
particular habitat types or functions
(e.g., re-establishment of habitat
corridors or habitat for species of
concern), water quality goals, floodplain
management goals, and the relative
potential for chemical contamination of
the aquatic resources.
(2) District engineers may require on-
site, off-site, or a combination of on-site
and off-site compensatory mitigation to
replace permitted losses of aquatic
resource functions and services.
(3) Applicants should propose
compensation sites adjacent to existing
aquatic resources or where aquatic
resources previously existed.
(e) Mitigation type. (1) In general, in-
kind mitigation is preferable to out-of-
kind mitigation because it is most likely
to compensate for the functions and
services lost at the impact site. For
example, tidal wetland compensatory
mitigation projects are most likely to
compensate for unavoidable impacts to
tidal wetlands, while perennial stream
compensatory mitigation projects are
most likely to compensate for
unavoidable impacts to perennial
streams. Thus, except as provided in
paragraph (e)(2) of this section, the
required compensatory mitigation shall
be of a similar type to the affected
aquatic resource.
(2) If the district engineer determines,
using the watershed approach in
accordance with paragraph (c) of this
section that out-of-kind compensatory
mitigation will serve the aquatic
resource needs of the watershed, the
district engineer may authorize the use
of such out-of-kind compensatory
mitigation. The basis for authorization
of out-of-kind compensatory mitigation
must be documented in the
administrative record for the permit
action.
(3) For difficult-to-replace resources
(e.g., bogs, fens, springs, streams,
Atlantic white cedar swamps) if further
avoidance and minimization is not
practicable, the required compensation
should be provided, if practicable,
through in-kind rehabilitation,
enhancement, or preservation since
there is greater certainty that these
methods of compensation will
successfully offset permitted impacts.
(f) Amount of compensatory
mitigation. (1) If the district engineer
determines that compensatory
mitigation is necessary to offset
unavoidable impacts to aquatic
resources, the amount of required
compensatory mitigation must be, to the
extent practicable, sufficient to replace
lost aquatic resource functions. In cases
where appropriate functional or
condition assessment methods or other
suitable metrics are available, these
methods should be used where
practicable to determine how much
compensatory mitigation is required. If
a functional or condition assessment or
other suitable metric is not used, a
minimum one-to-one acreage or linear
foot compensation ratio must be used.
(2) The district engineer must require
a mitigation ratio greater than one-to-
one where necessary to account for the
method of compensatory mitigation
(e.g., preservation), the likelihood of
success, differences between the
functions lost at the impact site and the
functions expected to be produced by
the compensatory mitigation project,
temporal losses of aquatic resource
functions, the difficulty of restoring or
establishing the desired aquatic resource
type and functions, and/or the distance
between the affected aquatic resource
and the compensation site. The
rationale for the required replacement
ratio must be documented in the
administrative record for the permit
action.
(3) If an in-lieu fee program will be
used to provide the required
compensatory mitigation, and the
appropriate number and resource type
of released credits are not available, the
district engineer must require sufficient
compensation to account for the risk
and uncertainty associated with in-lieu
fee projects that have not been
implemented before the permitted
impacts have occurred.
(g) Use of mitigation banks and in-lieu
fee programs. Mitigation banks and in-
lieu fee programs may be used to
compensate for impacts to aquatic
resources authorized by general permits
and individual permits, including after-
the-fact permits, in accordance with the
preference hierarchy in paragraph (b) of
this section.
(h) Preservation. (1) Preservation may
be used to provide compensatory
mitigation for activities authorized by
DA permits when all the following
criteria are met:
(i) The resources to be preserved
provide important physical, chemical,
or biological functions for the
watershed;
(ii) The resources to be preserved
contribute significantly to the ecological
sustainability of the watershed. In
determining the contribution of those
resources to the ecological sustainability
of the watershed, the district engineer
must use appropriate quantitative
assessment tools, where available;
(iii) Preservation is determined by the
district engineer to be appropriate and
practicable;
(iv) The resources are under threat of
destruction or adverse modifications;
and
(v) The preserved site will be
permanently protected through an
appropriate real estate or other legal
instrument (e.g., easement, title transfer
to state resource agency or land trust).
(2) Where preservation is used to
provide compensatory mitigation, to the
extent appropriate and practicable the
preservation shall be done in
conjunction with aquatic resource
restoration, establishment, and/or
enhancement activities. This
requirement may be waived by the
district engineer where preservation has
been identified as a high priority using
a watershed approach described in
paragraph (c) of this section, but
compensation ratios shall be higher.
(i) Buffers. District engineers may
require the restoration, establishment,
enhancement, and preservation, as well
as the maintenance, of riparian areas
and/or buffers around aquatic resources
where necessary to ensure the long-term
viability of those resources. Buffers may
also provide habitat or corridors
necessary for the ecological functioning
of aquatic resources. If buffers are
required by the district engineer as part
of the compensatory mitigation project,
compensatory mitigation credit will be
provided for those buffers.
(^Relationship to other federal, tribal,
state, and local programs. (1)
Compensatory mitigation projects for
DA permits may also be used to satisfy
the environmental requirements of other
programs, such as tribal, state, or local
wetlands regulatory programs, other
federal programs such as the Surface
Mining Control and Reclamation Act,
Corps civil works projects, and
Department of Defense military
construction projects, consistent with
the terms and requirements of these
programs and subject to the following
considerations:
(i) The compensatory mitigation
project must include appropriate
compensation required by the DA
permit for unavoidable impacts to
aquatic resources authorized by that
permit.
(ii) Under no circumstances may the
same credits be used to provide
mitigation for more than one permitted
activity. However, where appropriate,
compensatory mitigation projects,
including mitigation banks and in-lieu
fee projects, may be designed to
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19676
holistically address requirements under
multiple programs and authorities for
the same activity.
(2) Except for projects undertaken by
federal agencies, or where federal
funding is specifically authorized to
provide compensatory mitigation,
federally-funded aquatic resource
restoration or conservation projects
undertaken for purposes other than
compensatory mitigation, such as the
Wetlands Reserve Program,
Conservation Reserve Program, and
Partners for Wildlife Program activities,
cannot be used for the purpose of
generating compensatory mitigation
credits for activities authorized by DA
permits. However, compensatory
mitigation credits may be generated by
activities undertaken in conjunction
with, but supplemental to, such
program sin order to maximize the
overall ecological benefits of the
restoration or conservation project.
(3) Compensatory mitigation projects
may also be used to provide
compensatory mitigation under the
Endangered Species Act or for Habitat
Conservation Plans, as long as they
comply with the requirements of
paragraph (j)(l) of this section.
(k) Permit conditions. (1) The
compensatory mitigation requirements
for a DA permit, including the amount
and type of compensatory mitigation,
must be clearly stated in the special
conditions of the individual permit or
general permit verification (see 33 CFR
325.4 and 330.6(a)). The special
conditions must be enforceable.
(2) For an individual permit that
requires permittee-responsible
mitigation, the special conditions must:
(i) Identify the party responsible for
providing the compensatory mitigation;
(ii) Incorporate, by reference, the final
mitigation plan approved by the district
engineer;
(iii) State the objectives, performance
standards, and monitoring required for
the compensatory mitigation project,
unless they are provided in the
approved final mitigation plan; and
(iv) Describe any required financial
assurances or long-term management
provisions for the compensatory
mitigation project, unless they are
specified in the approved final
mitigation plan.
(3) For a general permit activity that
requires permittee-responsible
compensatory mitigation, the special
conditions must describe the
compensatory mitigation proposal,
which may be either conceptual or
detailed. The general permit verification
must also include a special condition
that states that the permittee cannot
commence work in waters of the United
States until the district engineer
approves the final mitigation plan,
unless the district engineer determines
that such a special condition is not
practicable and not necessary to ensure
timely completion of the required
compensatory mitigation. To the extent
appropriate and practicable, special
conditions of the general permit
verification should also address the
requirements of paragraph (k)(2) of this
section.
(4) If a mitigation bank or in-lieu fee
program is used to provide the required
compensatory mitigation, the special
conditions must indicate whether a
mitigation bank or in-lieu fee program
will be used, and specify the number
and resource type of credits the
permittee is required to secure. In the
case of an individual permit, the special
condition must also identify the specific
mitigation bank or in-lieu fee program
that will be used. For general permit
verifications, the special conditions may
either identify the specific mitigation
bank or in-lieu fee program, or state that
the specific mitigation bank or in-lieu
fee program used to provide the
required compensatory mitigation must
be approved by the district engineer
before the credits are secured.
(1) Party responsible for compensatory
mitigation. (1) For permittee-responsible
mitigation, the special conditions of the
DA permit must clearly indicate the
party or parties responsible for the
implementation, performance, and long-
term management of the compensatory
mitigation project.
(2) For mitigation banks and in-lieu
fee programs, the instrument must
clearly indicate the party or parties
responsible for the implementation,
performance, and long-term
management of the compensatory
mitigation projects). The instrument
must also contain a provision
expressing the sponsor's agreement to
assume responsibility for a permittee's
compensatory mitigation requirements,
once that permittee has secured the
appropriate number and resource type
of credits from the sponsor and the
district engineer has received the
documentation described in paragraph
(1)(3) of this section.
(3) If use of a mitigation bank or in-
lieu fee program is approved by the
district engineer to provide part or all of
the required compensatory mitigation
for a DA permit, the permittee retains
responsibility for providing the
compensatory mitigation until the
appropriate number and resource type
of credits have been secured from a
sponsor and the district engineer has
received documentation that confirms
that the sponsor has accepted the
responsibility for providing the required
compensatory mitigation. This
documentation may consist of a letter or
form signed by the sponsor, with the
permit number and a statement
indicating the number and resource type
of credits that have been secured from
the sponsor. Copies of this
documentation will be retained in the
administrative records for both the
permit and the instrument. If the
sponsor fails to provide the required
compensatory mitigation, the district
engineer may pursue measures against
the sponsor to ensure compliance.
(m) Timing. Implementation of the
compensatory mitigation project shall
be, to the maximum extent practicable,
in advance of or concurrent with the
activity causing the authorized impacts.
The district engineer shall require, to
the extent appropriate and practicable,
additional compensatory mitigation to
offset temporal losses of aquatic
functions that will result from the
permitted activity.
(n) Financial assurances. (1) The
district engineer shall require sufficient
financial assurances to ensure a high
level of confidence that the
compensatory mitigation project will be
successfully completed, in accordance
with applicable performance standards.
In cases where an alternate mechanism
is available to ensure a high level of
confidence that the compensatory
mitigation will be provided and
maintained (e.g., a formal, documented
commitment from a government agency
or public authority) the district engineer
may determine that financial assurances
are not necessary for that compensatory
mitigation project.
(2) The amount of the required
financial assurances must be determined
by the district engineer, in consultation
with the project sponsor, and must be
based on the size and complexity of the
compensatory mitigation project, the
degree of completion of the project at the
time of project approval, the likelihood
of success, the past performance of the
project sponsor, and any other factors
the district engineer deems appropriate.
Financial assurances may be in the form
of performance bonds, escrow accounts,
casualty insurance, letters of credit,
legislative appropriations for government
sponsored projects, or other
appropriate instruments, subject to the
approval of the district engineer. The
rationale for determining the amount of
the required financial assurances must
be documented in the administrative
record for either the DA permit or the
instrument. In determining the
assurance amount, the district engineer
shall consider the cost of providing
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replacement mitigation, including costs
for land acquisition, planning and
engineering, legal fees, mobilization,
construction, and monitoring.
(3) If financial assurances are
required, the DA permit must include a
special condition requiring the financial
assurances to be in place prior to
commencing the permitted activity.
(4) Financial assurances shall be
phased out once the compensatory
mitigation project has been determined
by the district engineer to be successful
in accordance with its performance
standards. The DA permit or instrument
must clearly specify the conditions
under which the financial assurances
are to be released to the permittee,
sponsor, and/or other financial
assurance provider, including, as
appropriate, linkage to achievement of
performance standards, adaptive
management, or compliance with
special conditions.
(5) A financial assurance must be in
a form that ensures that the district
engineer will receive notification at
least 120 days in advance of any
termination or revocation. For third-
party assurance providers, this may take
the form of a contractual requirement
for the assurance provider to notify the
district engineer at least 120 days before
the assurance is revoked or terminated.
(6) Financial assurances shall be
payable at the direction of the district
engineer to his designee or to a standby
trust agreement. When a standby trust is
used (e.g., with performance bonds or
letters of credit) all amounts paid by the
financial assurance provider shall be
deposited directly into the standby trust
fund for distribution by the trustee in
accordance with the district engineer's
instructions.
(o) Compliance -with applicable law.
The compensatory mitigation project
must comply with all applicable federal,
state, and local laws. The DA permit,
mitigation banking instrument, or in-
lieu fee program instrument must not
require participation by the Corps or
any other federal agency in project
management, including receipt or
management of financial assurances or
long-term financing mechanisms, except
as determined by the Corps or other
agency to be consistent with its
statutory authority, mission, and
priorities.
§332.4 Planning and documentation.
(a) Pre-application consultations.
Potential applicants for standard
permits are encouraged to participate in
pre-application meetings with the Corps
and appropriate agencies to discuss
potential mitigation requirements and
information needs.
(b) Public review and comment. (1)
For an activity that requires a standard
DA permit pursuant to section 404 of
the Clean Water Act, the public notice
for the proposed activity must contain a
statement explaining how impacts
associated with the proposed activity
are to be avoided, minimized, and
compensated for. This explanation shall
address, to the extent that such
information is provided in the
mitigation statement required by
§325.1(d)(7) of this chapter, the
proposed avoidance and minimization
and the amount, type, and location of
any proposed compensatory mitigation,
including any out-of-kind
compensation, or indicate an intention
to use an approved mitigation bank or
in-lieu fee program. The level of detail
provided in the public notice must be
commensurate with the scope and scale
of the impacts. The notice shall not
include information that the district
engineer and the permittee believe
should be kept confidential for business
purposes, such as the exact location of
a proposed mitigation site that has not
yet been secured. The permittee must
clearly identify any information being
claimed as confidential in the mitigation
statement when submitted. In such
cases, the notice must still provide
enough information to enable the public
to provide meaningful comment on the
proposed mitigation.
(2) For individual permits, district
engineers must consider any timely
comments and recommendations from
other federal agencies; tribal, state, or
local governments; and the public.
(3) For activities authorized by letters
of permission or general permits, the
review and approval process for
compensatory mitigation proposals and
plans must be conducted in accordance
with the terms and conditions of those
permits and applicable regulations
including the applicable provisions of
this part.
(c) Mitigation plan. (1) Preparation
and Approval, (i) For individual
permits, the permittee must prepare a
draft mitigation plan and submit it to
the district engineer for review. After
addressing any comments provided by
the district engineer, the permittee must
prepare a final mitigation plan, which
must be approved by the district
engineer prior to issuing the individual
permit. The approved final mitigation
plan must be incorporated into the
individual permit by reference. The
final mitigation plan must include the
items described in paragraphs (c)(2)
through (c)(14) of this section, but the
level of detail of the mitigation plan
should be commensurate with the scale
and scope of the impacts. As an
alternative, the district engineer may
determine that it would be more
appropriate to address any of the items
described in paragraphs (c)(2) through
(c)(14) of this section as permit
conditions, instead of components of a
compensatory mitigation plan. For
permittees who intend to fulfill their
compensatory mitigation obligations by
securing credits from approved
mitigation banks or in-lieu fee programs,
their mitigation plans need include only
the items described in paragraphs (c)(5)
and (c)(6) of this section, and the name
of the specific mitigation bank or in-lieu
fee program to be used.
(ii) For general permits, if
compensatory mitigation is required, the
district engineer may approve a
conceptual or detailed compensatory
mitigation plan to meet required time
frames for general permit verifications,
but a final mitigation plan incorporating
the elements in paragraphs (c)(2)
through (c)(14) of this section, at a level
of detail commensurate with the scale
and scope of the impacts, must be
approved by the district engineer before
the permittee commences work in
waters of the United States. As an
alternative, the district engineer may
determine that it would be more
appropriate to address any of the items
described in paragraphs (c)(2) through
(c)(14) of this section as permit
conditions, instead of components of a
compensatory mitigation plan. For
permittees who intend to fulfill their
compensatory mitigation obligations by
securing credits from approved
mitigation banks or in-lieu fee programs,
their mitigation plans need include only
the items described in paragraphs (c)(5)
and (c)(6) of this section, and either the
name of the specific mitigation bank or
in-lieu fee program to be used or a
statement indicating that a mitigation
bank or in-lieu fee program will be used
(contingent upon approval by the
district engineer).
(iii) Mitigation banks and in-lieu fee
programs must prepare a mitigation
plan including the items in paragraphs
(c)(2) through (c)(14) of this section for
each separate compensatory mitigation
project site. For mitigation banks and in-
lieu fee programs, the preparation and
approval process for mitigation plans is
described in § 332.8.
(2) Objectives. A description of the
resource type(s) and amount(s) that will
be provided, the method of
compensation (i.e., restoration,
establishment, enhancement, and/or
preservation), and the manner in which
the resource functions of the
compensatory mitigation project will
address the needs of the watershed,
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ecoregion, physiographic province, or
other geographic area of interest.
(3) Site selection. A description of the
factors considered during the site
selection process. This should include
consideration of watershed needs, on-
site alternatives where applicable, and
the practicability of accomplishing
ecologically self-sustaining aquatic
resource restoration, establishment,
enhancement, and/or preservation at the
compensatory mitigation project site.
(See § 332.3(d).)
(4) Site protection instrument. A
description of the legal arrangements
and instrument, including site
ownership, that will be used to ensure
the long-term protection of the
compensatory mitigation project site
(see § 332.7(a)).
(5) Baseline information. A
description of the ecological
characteristics of the proposed
compensatory mitigation project site
and, in the case of an application for a
DA permit, the impact site. This may
include descriptions of historic and
existing plant communities, historic and
existing hydrology, soil conditions, a
map showing the locations of the impact
and mitigation site(s) or the geographic
coordinates for those site(s), and other
site characteristics appropriate to the
type of resource proposed as
compensation. The baseline information
should also include a delineation of
waters of the United States on the
proposed compensatory mitigation
project site. A prospective permittee
planning to secure credits from an
approved mitigation bank or in-lieu fee
program only needs to provide baseline
information about the impact site, not
the mitigation bank or in-lieu fee project
site.
(6) Determination of credits. A
description of the number of credits to
be provided, including a brief
explanation of the rationale for this
determination. (See § 332.3(f).)
(i) For permittee-responsible
mitigation, this should include an
explanation of how the compensatory
mitigation project will provide the
required compensation for unavoidable
impacts to aquatic resources resulting
from the permitted activity.
(ii) For permittees intending to secure
credits from an approved mitigation
bank or in-lieu fee program, it should
include the number and resource type of
credits to be secured and how these
were determined.
(7) Mitigation work plan. Detailed
written specifications and work
descriptions for the compensatory
mitigation project, including, but not
limited to, the geographic boundaries of
the project; construction methods,
timing, and sequence; source(s) of
water, including connections to existing
waters and uplands; methods for
establishing the desired plant
community; plans to control invasive
plant species; the proposed grading
plan, including elevations and slopes of
the substrate; soil management; and
erosion control measures. For stream
compensatory mitigation projects, the
mitigation work plan may also include
other relevant information, such as
planform geometry, channel form (e.g.,
typical channel cross-sections),
watershed size, design discharge, and
riparian area plantings.
(8) Maintenance plan. A description
and schedule of maintenance
requirements to ensure the continued
viability of the resource once initial
construction is completed.
(9) Performance standards.
Ecologically-based standards that will
be used to determine whether the
compensatory mitigation project is
achieving its objectives. (See § 332.5.)
(10) Monitoring requirements. A
description of parameters to be
monitored in order to determine if the
compensatory mitigation project is on
track to meet performance standards
and if adaptive management is needed.
A schedule for monitoring and reporting
on monitoring results to the district
engineer must be included. (See
§332.6.)
(11) Long-term management plan. A
description of how the compensatory
mitigation project will be managed after
performance standards have been
achieved to ensure the long-term
sustainability of the resource, including
long-term financing mechanisms and
the party responsible for long-term
management. (See § 332.7(d).)
(12) Adaptive management plan. A
management strategy to address
unforeseen changes in site conditions or
other components of the compensatory
mitigation project, including the party
or parties responsible for implementing
adaptive management measures. The
adaptive management plan will guide
decisions for revising compensatory
mitigation plans and implementing
measures to address both foreseeable
and unforeseen circumstances that
adversely affect compensatory
mitigation success. (See § 332.7(c).)
(13) Financial assurances. A
description of financial assurances that
will be provided and how they are
sufficient to ensure a high level of
confidence that the compensatory
mitigation project will be successfully
completed, in accordance with its
performance standards (see § 332.3(n)).
(14) Other information. The district
engineer may require additional
information as necessary to determine
the appropriateness, feasibility, and
practicability of the compensatory
mitigation project.
§332.5 Ecological performance standards.
(a) The approved mitigation plan
must contain performance standards
that will be used to assess whether the
project is achieving its objectives.
Performance standards should relate to
the objectives of the compensatory
mitigation project, so that the project
can be objectively evaluated to
determine if it is developing into the
desired resource type, providing the
expected functions, and attaining any
other applicable metrics (e.g., acres).
(b) Performance standards must be
based on attributes that are objective
and verifiable. Ecological performance
standards must be based on the best
available science that can be measured
or assessed in a practicable manner.
Performance standards may be based on
variables or measures of functional
capacity described in functional
assessment methodologies,
measurements of hydrology or other
aquatic resource characteristics, and/or
comparisons to reference aquatic
resources of similar type and landscape
position. The use of reference aquatic
resources to establish performance
standards will help ensure that those
performance standards are reasonably
achievable, by reflecting the range of
variability exhibited by the regional
class of aquatic resources as a result of
natural processes and anthropogenic
disturbances. Performance standards
based on measurements of hydrology
should take into consideration the
hydrologic variability exhibited by
reference aquatic resources, especially
wetlands. Where practicable,
performance standards should take into
account the expected stages of the
aquatic resource development process,
in order to allow early identification of
potential problems and appropriate
adaptive management.
§332.6 Monitoring.
(a) General. (1) Monitoring the
compensatory mitigation project site is
necessary to determine if the project is
meeting its performance standards, and
to determine if measures are necessary
to ensure that the compensatory
mitigation project is accomplishing its
objectives. The submission of
monitoring reports to assess the
development and condition of the
compensatory mitigation project is
required, but the content and level of
detail for those monitoring reports must
be commensurate with the scale and
scope of the compensatory mitigation
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project, as well as the compensatory
mitigation project type. The mitigation
plan must address the monitoring
requirements for the compensatory
mitigation project, including the
parameters to be monitored, the length
of the monitoring period, the party
responsible for conducting the
monitoring, the frequency for
submitting monitoring reports to the
district engineer, and the party
responsible for submitting those
monitoring reports to the district
engineer.
(2) The district engineer may conduct
site inspections on a regular basis (e.g.,
annually) during the monitoring period
to evaluate mitigation site performance.
(b) Monitoring period. The mitigation
plan must provide for a monitoring
period that is sufficient to demonstrate
that the compensatory mitigation project
has met performance standards, but not
less than five years. A longer monitoring
period must be required for aquatic
resources with slow development rates
(e.g., forested wetlands, bogs).
Following project implementation, the
district engineer may reduce or waive
the remaining monitoring requirements
upon a determination that the
compensatory mitigation project has
achieved its performance standards.
Conversely the district engineer may
extend the original monitoring period
upon a determination that performance
standards have not been met or the
compensatory mitigation project is not
on track to meet them. The district
engineer may also revise monitoring
requirements when remediation and/or
adaptive management is required.
(c) Monitoring reports. (1) The district
engineer must determine the
information to be included in
monitoring reports. This information
must be sufficient for the district
engineer to determine how the
compensatory mitigation project is
progressing towards meeting its
performance standards, and may
include plans (such as as-built plans),
maps, and photographs to illustrate site
conditions. Monitoring reports may also
include the results of functional,
condition, or other assessments used to
provide quantitative or qualitative
measures of the functions provided by
the compensatory mitigation project
site.
(2) The permittee or sponsor is
responsible for submitting monitoring
reports in accordance with the special
conditions of the DA permit or the terms
of the instrument. Failure to submit
monitoring reports in a timely manner
may result in compliance action by the
district engineer.
(3) Monitoring reports must be
provided by the district engineer to
interested federal, tribal, state, and local
resource agencies, and the public, upon
request.
§332.7 Management.
(a.) Site protection. (1) The aquatic
habitats, riparian areas, buffers, and
uplands that comprise the overall
compensatory mitigation project must
be provided long-term protection
through real estate instruments or other
available mechanisms, as appropriate.
Long-term protection may be provided
through real estate instruments such as
conservation easements held by entities
such as federal, tribal, state, or local
resource agencies, non-profit
conservation organizations, or private
land managers; the transfer of title to
such entities; or by restrictive
covenants. For government property,
long-term protection may be provided
through federal facility management
plans or integrated natural resources
management plans. When approving a
method for long-term protection of non-
government property other than transfer
of title, the district engineer shall
consider relevant legal constraints on
the use of conservation easements and/
or restrictive covenants in determining
whether such mechanisms provide
sufficient site protection. To provide
sufficient site protection, a conservation
easement or restrictive covenant should,
where practicable, establish in an
appropriate third party (e.g.,
governmental or non-profit resource
management agency) the right to enforce
site protections and provide the third
party the resources necessary to monitor
and enforce these site protections.
(2) The real estate instrument,
management plan, or other mechanism
providing long-term protection of the
compensatory mitigation site must, to
the extent appropriate and practicable,
prohibit incompatible uses (e.g., clear
cutting or mineral extraction) that might
otherwise jeopardize the objectives of
the compensatory mitigation project.
Where appropriate, multiple
instruments recognizing compatible
uses (e.g., fishing or grazing rights) may
be used.
(3) The real estate instrument,
management plan, or other long-term
protection mechanism must contain a
provision requiring 60-day advance
notification to the district engineer
before any action is taken to void or
modify the instrument, management
plan, or long-term protection
mechanism, including transfer of title
to, or establishment of any other legal
claims over, the compensatory
mitigation site.
(4) For compensatory mitigation
projects on public lands, where federal
facility management plans or integrated
natural resources management plans are
used to provide long-term protection,
and changes in statute, regulation, or
agency needs or mission results in an
incompatible use on public lands
originally set aside for compensatory
mitigation, the public agency
authorizing the incompatible use is
responsible for providing alternative
compensatory mitigation that is
acceptable to the district engineer for
any loss in functions resulting from the
incompatible use.
(5) A real estate instrument,
management plan, or other long-term
protection mechanism used for site
protection of permittee-responsible
mitigation must be approved by the
district engineer in advance of, or
concurrent with, the activity causing the
authorized impacts.
(b) Sustainability. Compensatory
mitigation projects shall be designed, to
the maximum extent practicable, to be
self-sustaining once performance
standards have been achieved. This
includes minimization of active
engineering features (e.g., pumps) and
appropriate siting to ensure that natural
hydrology and landscape context will
support long-term sustainability. Where
active long-term management and
maintenance are necessary to ensure long-
term sustainability (e.g., prescribed
burning, invasive species control,
maintenance of water control structures,
easement enforcement), the responsible
party must provide for such
management and maintenance. This
includes the provision of long-term
financing mechanisms where necessary.
Where needed, the acquisition and
protection of water rights must be
secured and documented in the permit
conditions or instrument.
(c) A daptive management. (1) If the
compensatory mitigation project cannot
be constructed in accordance with the
approved mitigation plans, the
permittee or sponsor must notify the
district engineer. A significant
modification of the compensatory
mitigation project requires approval
from the district engineer.
(2) If monitoring or other information
indicates that the compensatory
mitigation project is not progressing
towards meeting its performance
standards as anticipated, the responsible
party must notify the district engineer as
soon as possible. The district engineer
will evaluate and pursue measures to
address deficiencies in the
compensatory mitigation project. The
district engineer will consider whether
the compensatory mitigation project is
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providing ecological benefits
comparable to the original objectives of
the compensatory mitigation project.
(3) The district engineer, in
consultation with the responsible party
(and other federal, tribal, state, and local
agencies, as appropriate), will determine
the appropriate measures. The measures
may include site modifications, design
changes, revisions to maintenance
requirements, and revised monitoring
requirements. The measures must be
designed to ensure that the modified
compensatory mitigation project
provides aquatic resource functions
comparable to those described in the
mitigation plan objectives.
(4) Performance standards may be
revised in accordance with adaptive
management to account for measures
taken to address deficiencies in the
compensatory mitigation project.
Performance standards may also be
revised to reflect changes in
management strategies and objectives if
the new standards provide for ecological
benefits that are comparable or superior
to the approved compensatory
mitigation project. No other revisions to
performance standards will be allowed
except in the case of natural disasters.
(d) Long-term management. (1) The
permit conditions or instrument must
identify the party responsible for
ownership and all long-term
management of the compensatory
mitigation project. The permit
conditions or instrument may contain
provisions allowing the permittee or
sponsor to transfer the long-term
management responsibilities of the
compensatory mitigation project site to
a land stewardship entity, such as a
public agency, non-governmental
organization, or private land manager,
after review and approval by the district
engineer. The land stewardship entity
need not be identified in the original
permit or instrument, as long as the
future transfer of long-term management
responsibility is approved by the district
engineer.
(2) A long-term management plan
should include a description of long-
term management needs, annual cost
estimates for these needs, and identify
the funding mechanism that will be
used to meet those needs.
(3) Any provisions necessary for long-
term financing must be addressed in the
original permit or instrument. The
district engineer may require provisions
to address inflationary adjustments and
other contingencies, as appropriate.
Appropriate long-term financing
mechanisms include non-wasting
endowments, trusts, contractual
arrangements with future responsible
parties, and other appropriate financial
instruments. In cases where the long-
term management entity is a public
authority or government agency, that
entity must provide a plan for the long-
term financing of the site.
(4) For permittee-responsible
mitigation, any long-term financing
mechanisms must be approved in
advance of the activity causing the
authorized impacts.
§332.8 Mitigation banks and in-lieu fee
programs.
(a) General considerations. (1) All
mitigation banks and in-lieu fee
programs must have an approved
instrument signed by the sponsor and
the district engineer prior to being used
to provide compensatory mitigation for
DA permits.
(2) To the maximum extent
practicable, mitigation banks and in-lieu
fee project sites must be planned and
designed to be self-sustaining over time,
but some active management and
maintenance may be required to ensure
their long-term viability and
sustainability. Examples of acceptable
management activities include
maintaining fire-dependent habitat
communities in the absence of natural
fire and controlling invasive exotic
plant species.
(3) All mitigation banks and in-lieu
fee programs must comply with the
standards in this part, if they are to be
used to provide compensatory
mitigation for activities authorized by
DA permits, regardless of whether they
are sited on public or private lands and
whether the sponsor is a governmental
or private entity.
(b) Interagency Review Team. (1) The
district engineer will establish an
Interagency Review Team (IRT) to
review documentation for the
establishment and management of
mitigation banks and in-lieu fee
programs. The district engineer or his
designated representative serves as
Chair of the IRT. In cases where a
mitigation bank or in-lieu fee program is
proposed to satisfy the requirements of
another federal, tribal, state, or local
program, in addition to compensatory
mitigation requirements of DA permits,
it may be appropriate for the
administering agency to serve as co-
Chair of the IRT.
(2) In addition to the Corps,
representatives from the U.S.
Environmental Protection Agency, U.S.
Fish and Wildlife Service, NOAA
Fisheries, the Natural Resources
Conservation Service, and other federal
agencies, as appropriate, may
participate in the IRT. The IRT may also
include representatives from tribal,
state, and local regulatory and resource
agencies, where such agencies have
authorities and/or mandates directly
affecting, or affected by, the
establishment, operation, or use of the
mitigation bank or in-lieu fee program.
The district engineer will seek to
include all public agencies with a
substantive interest in the establishment
of the mitigation bank or in-lieu fee
program on the IRT, but retains final
authority over its composition.
(3) The primary role of the IRT is to
facilitate the establishment of mitigation
banks or in-lieu fee programs through
the development of mitigation banking
or in-lieu fee program instruments. The
IRT will review the prospectus,
instrument, and other appropriate
documents and provide comments to
the district engineer. The district
engineer and the IRT should use a
watershed approach to the extent
practicable in reviewing proposed
mitigation banks and in-lieu fee
programs. Members of the IRT may also
sign the instrument, if they so choose.
By signing the instrument, the IRT
members indicate their agreement with
the terms of the instrument. As an
alternative, a member of the IRT may
submit a letter expressing concurrence
with the instrument. The IRT will also
advise the district engineer in assessing
monitoring reports, recommending
remedial or adaptive management
measures, approving credit releases, and
approving modifications to an
instrument. In order to ensure timely
processing of instruments and other
documentation, comments from IRT
members must be received by the
district engineer within the time limits
specified in this section. Comments
received after these deadlines will only
be considered at the discretion of the
district engineer to the extent that doing
so does not jeopardize the deadlines for
district engineer action.
(4) The district engineer will give full
consideration to any timely comments
and advice of the IRT. The district
engineer alone retains final authority for
approval of the instrument in cases
where the mitigation bank or in-lieu fee
program is used to satisfy compensatory
mitigation requirements of DA permits.
(5) MOAs with other agencies. The
district engineer and members of the
IRT may enter into a memorandum of
agreement (MOA) with any other
federal, state or local government
agency to perform all or some of the IRT
review functions described in this
section. Such MOAs must include
provisions for appropriate federal
oversight of the review process. The
district engineer retains sole authority
for final approval of instruments and
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other documentation required under
this section.
(c) Compensation planning
framework for in-lieu fee programs. (1)
The approved instrument for an in-lieu
fee program must include a
compensation planning framework that
will be used to select, secure, and
implement aquatic resource restoration,
establishment, enhancement, and/or
preservation activities. The
compensation planning framework must
support a watershed approach to
compensatory mitigation. All specific
projects used to provide compensation
for DA permits must be consistent with
the approved compensation planning
framework. Modifications to the
framework must be approved as a
significant modification to the
instrument by the district engineer, after
consultation with the IRT.
(2) The compensation planning
framework must contain the following
elements:
(i) The geographic service area(s),
including a watershed-based rationale
for the delineation of each service area;
(ii) A description of the threats to
aquatic resources in the service area(s),
including how the in-lieu fee program
will help offset impacts resulting from
those threats;
(iii) An analysis of historic aquatic
resource loss in the service area(s);
(iv) An analysis of current aquatic
resource conditions in the service
area(s), supported by an appropriate
level of field documentation;
(v) A statement of aquatic resource
goals and objectives for each service
area, including a description of the
general amounts, types and locations of
aquatic resources the program will seek
to provide;
(vi) A prioritization strategy for
selecting and implementing
compensatory mitigation activities;
(vii) An explanation of how any
preservation objectives identified in
paragraph (c)(2)(v) of this section and
addressed in the prioritization strategy
in paragraph (c)(2)(vi) satisfy the criteria
for use of preservation in § 332.3(h);
(viii) A description of any public and
private stakeholder involvement in plan
development and implementation,
including, where appropriate,
coordination with federal, state, tribal
and local aquatic resource management
and regulatory authorities;
(ix) A description of the long-term
protection and management strategies
for activities conducted by the in-lieu
fee program sponsor;
(x) A strategy for periodic evaluation
and reporting on the progress of the
program in achieving the goals and
objectives in paragraph (c)(2)(v) of this
section, including a process for revising
the planning framework as necessary;
and
(xi) Any other information deemed
necessary for effective compensation
planning by the district engineer.
(3) The level of detail necessary for
the compensation planning framework
is at the discretion of the district
engineer, and will take into account the
characteristics of the service area(s) and
the scope of the program. As part of the
in-lieu fee program instrument, the
compensation planning framework will
be reviewed by the IRT, and will be a
major factor in the district engineer's
decision on whether to approve the
instrument.
(d) Review process. (1) The sponsor is
responsible for preparing all
documentation associated with
establishment of the mitigation bank or
in-lieu fee program, including the
prospectus, instrument, and other
appropriate documents, such as
mitigation plans for a mitigation bank.
The prospectus provides an overview of
the proposed mitigation bank or in-lieu
fee program and serves as the basis for
public and initial IRT comment. For a
mitigation bank, the mitigation plan, as
described in § 332.4(c), provides
detailed plans and specifications for the
mitigation bank site. For in-lieu fee
programs, mitigation plans will be
prepared as in-lieu fee project sites are
identified after the instrument has been
approved and the in-lieu fee program
becomes operational. The instrument
provides the authorization for the
mitigation bank or in-lieu fee program to
provide credits to be used as
compensatory mitigation for DA
permits.
(2) Prospectus. The prospectus must
provide a summary of the information
regarding the proposed mitigation bank
or in-lieu fee program, at a sufficient
level of detail to support informed
public and IRT comment. The review
process begins when the sponsor
submits a complete prospectus to the
district engineer. For modifications of
approved instruments, submittal of a
new prospectus is not required; instead,
the sponsor must submit a written
request for an instrument modification
accompanied by appropriate
documentation. The district engineer
must notify the sponsor within 30 days
whether or not a submitted prospectus
is complete. A complete prospectus
includes the following information:
(i) The objectives of the proposed
mitigation bank or in-lieu fee program.
(ii) How the mitigation bank or in-lieu
fee program will be established and
operated.
(iii) The proposed service area.
(iv) The general need for and
technical feasibility of the proposed
mitigation bank or in-lieu fee program.
(v) The proposed ownership
arrangements and long-term
management strategy for the mitigation
bank or in-lieu fee project sites.
(vi) The qualifications of the sponsor
to successfully complete the type(s) of
mitigation projects) proposed,
including information describing any
past such activities by the sponsor.
(vii) For a proposed mitigation bank,
the prospectus must also address:
(A) The ecological suitability of the
site to achieve the objectives of the
proposed mitigation bank, including the
physical, chemical, and biological
characteristics of the bank site and how
that site will support the planned types
of aquatic resources and functions; and
(B) Assurance of sufficient water
rights to support the long-term
sustainability of the mitigation bank.
(viii) For a proposed in-lieu fee
program, the prospectus must also
include:
(A) The compensation planning
framework (see paragraph (c) of this
section); and
(B) A description of the in-lieu fee
program account required by paragraph
(i) of this section.
(3) Preliminary review of prospectus.
Prior to submitting a prospectus, the
sponsor may elect to submit a draft
prospectus to the district engineer for
comment and consultation. The district
engineer will provide copies of the draft
prospectus to the IRT and will provide
comments back to the sponsor within 30
days. Any comments from IRT members
will also be forwarded to the sponsor.
This preliminary review is optional but
is strongly recommended. It is intended
to identify potential issues early so that
the sponsor may attempt to address
those issues prior to the start of the
formal review process.
(4) Public review and comment.
Within 30 days of receipt of a complete
prospectus or an instrument
modification request that will be
processed in accordance with paragraph
(g)(l) of this section, the district
engineer will provide public notice of
the proposed mitigation bank or in-lieu
fee program, in accordance with the
public notice procedures at 33 CFR
325.3. The public notice must, at a
minimum, include a summary of the
prospectus and indicate that the full
prospectus is available to the public for
review upon request. For modifications
of approved instruments, the public
notice must instead summarize, and
make available to the public upon
request, whatever documentation is
appropriate for the modification (e.g., a
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new or revised mitigation plan). The
comment period for public notice will
be 30 days, unless the district engineer
determines that a longer comment
period is appropriate. The district
engineer will notify the sponsor if the
comment period is extended beyond 30
days, including an explanation of why
the longer comment period is necessary.
Copies of all comments received in
response to the public notice must be
distributed to the other IRT members
and to the sponsor within 15 days of the
close of the public comment period. The
district engineer and IRT members may
also provide comments to the sponsor at
this time, and copies of any such
comments will also be distributed to all
IRT members. If the construction of a
mitigation bank or an in-lieu fee
program project requires a DA permit,
the public notice requirement may be
satisfied through the public notice
provisions of the permit processing
procedures, provided all of the relevant
information is provided.
(5) Initial evaluation, (i) After the end
of the comment period, the district
engineer will review the comments
received in response to the public
notice, and make a written initial
evaluation as to the potential of the
proposed mitigation bank or in-lieu fee
program to provide compensatory
mitigation for activities authorized by
DA permits. This initial evaluation
letter must be provided to the sponsor
within 30 days of the end of the public
notice comment period.
(ii) If the district engineer determines
that the proposed mitigation bank or in-
lieu fee program has potential for
providing appropriate compensatory
mitigation for activities authorized by
DA permits, the initial evaluation letter
will inform the sponsor that he/she may
proceed with preparation of the draft
instrument (see paragraph (d)(6) of this
section).
(iii) If the district engineer determines
that the proposed mitigation bank or in-
lieu fee program does not have potential
for providing appropriate compensatory
mitigation for DA permits, the initial
evaluation letter must discuss the
reasons for that determination. The
sponsor may revise the prospectus to
address the district engineer's concerns,
and submit the revised prospectus to the
district engineer. If the sponsor submits
a revised prospectus, a revised public
notice will be issued in accordance with
paragraph (d)(4) of this section.
(iv) This initial evaluation procedure
does not apply to proposed
modifications of approved instruments.
(6) Draft instrument, (i) After
considering comments from the district
engineer, the IRT, and the public, if the
sponsor chooses to proceed with
establishment of the mitigation bank or
in-lieu fee program, he must prepare a
draft instrument and submit it to the
district engineer. In the case of an
instrument modification, the sponsor
must prepare a draft amendment (e.g., a
specific instrument provision, a new or
modified mitigation plan), and submit it
to the district engineer. The district
engineer must notify the sponsor within
30 days of receipt, whether the draft
instrument or amendment is complete.
If the draft instrument or amendment is
incomplete, the district engineer will
request from the sponsor the
information necessary to make the draft
instrument or amendment complete.
Once any additional information is
submitted, the district engineer must
notify the sponsor as soon as he
determines that the draft instrument or
amendment is complete. The draft
instrument must be based on the
prospectus and must describe in detail
the physical and legal characteristics of
the mitigation bank or in-lieu fee
program and how it will be established
and operated.
(ii) For mitigation banks and in-lieu
fee programs, the draft instrument must
include the following information:
(A) A description of the proposed
geographic service area of the mitigation
bank or in-lieu fee program. The service
area is the watershed, ecoregion,
physiographic province, and/or other
geographic area within which the
mitigation bank or in-lieu fee program is
authorized to provide compensatory
mitigation required by DA permits. The
service area must be appropriately sized
to ensure that the aquatic resources
provided will effectively compensate for
adverse environmental impacts across
the entire service area. For example, in
urban areas, a U.S. Geological Survey 8-
digit hydrologic unit code (HUC)
watershed or a smaller watershed may
be an appropriate service area. In rural
areas, several contiguous 8-digit HUCs
or a 6-digit HUC watershed may be an
appropriate service area. Delineation of
the service area must also consider any
locally-developed standards and criteria
that may be applicable. The economic
viability of the mitigation bank or in-
lieu fee program may also be considered
in determining the size of the service
area. The basis for the proposed service
area must be documented in the
instrument. An in-lieu fee program or
umbrella mitigation banking instrument
may have multiple service areas
governed by its instrument (e.g., each
watershed within a state or Corps
district may be a separate service area
under the instrument); however, all
impacts and compensatory mitigation
must be accounted for by service area;
(B) Accounting procedures;
(C) A provision stating that legal
responsibility for providing the
compensatory mitigation lies with the
sponsor once a permittee secures credits
from the sponsor;
(D) Default and closure provisions;
(E) Reporting protocols; and
(F) Any other information deemed
necessary by the district engineer.
(iii) For a mitigation bank, a complete
draft instrument must include the
following additional information:
(A) Mitigation plans that include all
applicable items listed in § 332.4(c)(2)
through (14); and
(B) A credit release schedule, which
is tied to achievement of specific
milestones. All credit releases must be
approved by the district engineer, in
consultation with the IRT, based on a
determination that required milestones
have been achieved. The district
engineer, in consultation with the IRT,
may modify the credit release schedule,
including reducing the number of
available credits or suspending credit
sales or transfers altogether, where
necessary to ensure that all credit sales
or transfers remain tied to compensatory
mitigation projects with a high
likelihood of meeting performance
standards;
(iv) For an in-lieu fee program, a
complete draft instrument must include
the following additional information:
(A) The compensation planning
framework (see paragraph (c) of this
section);
(B) Specification of the initial
allocation of advance credits (see
paragraph (n) of this section) and a draft
fee schedule for these credits, by service
area, including an explanation of the
basis for the allocation and draft fee
schedule;
(C) A methodology for determining
future project-specific credits and fees;
and
(D) A description of the in-lieu fee
program account required by paragraph
(i) of this section.
(7) IRT review. Upon receipt of
notification by the district engineer that
the draft instrument or amendment is
complete, the sponsor must provide the
district engineer with a sufficient
number of copies of the draft instrument
or amendment to distribute to the IRT
members. The district engineer will
promptly distribute copies of the draft
instrument or amendment to the IRT
members for a 30-day comment period.
The 30-day comment period begins 5
days after the district engineer
distributes the copies of the draft
instrument or amendment to the IRT.
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19683
Following the comment period, the
district engineer will discuss any
comments with the appropriate agencies
and with the sponsor. The district
engineer will seek to resolve issues
using a consensus based approach, to
the extent practicable, while still
meeting the decision-making time
frames specified in this section. Within
90 days of receipt of the complete draft
instrument or amendment by the IRT
members, the district engineer must
notify the sponsor of the status of the
IRT review. Specifically, the district
engineer must indicate to the sponsor if
the draft instrument or amendment is
generally acceptable and what changes,
if any, are needed. If there are
significant unresolved concerns that
may lead to a formal objection from one
or more IRT members to the final
instrument or amendment, the district
engineer will indicate the nature of
those concerns.
(8) Final instrument. The sponsor
must submit a final instrument to the
district engineer for approval, with
supporting documentation that explains
how the final instrument addresses the
comments provided by the IRT. For
modifications of approved instruments,
the sponsor must submit a final
amendment to the district engineer for
approval, with supporting
documentation that explains how the
final amendment addresses the
comments provided by the IRT. The
final instrument or amendment must be
provided directly by the sponsor to all
members of the IRT. Within 30 days of
receipt of the final instrument or
amendment, the district engineer will
notify the IRT members whether or not
he intends to approve the instrument or
amendment. If no IRT member objects,
by initiating the dispute resolution
process in paragraph (e) of this section
within 45 days of receipt of the final
instrument or amendment, the district
engineer will notify the sponsor of his
final decision and, if the instrument or
amendment is approved, arrange for it
to be signed by the appropriate parties. If
any IRT member initiates the dispute
resolution process, the district engineer
will notify the sponsor. Following
conclusion of the dispute resolution
process, the district engineer will notify
the sponsor of his final decision, and if
the instrument or amendment is
approved, arrange for it to be signed by
the appropriate parties. For mitigation
banks, the final instrument must contain
the information items listed in
paragraphs (d)(6)(ii), and (iii) of this
section. For in-lieu fee programs, the
final instrument must contain the
information items listed in paragraphs
(d)(6)(ii) and (iv) of this section. For the
modification of an approved instrument,
the amendment must contain
appropriate information, as determined
by the district engineer. The final
instrument or amendment must be made
available to the public upon request.
(e) Dispute resolution process. (1)
Within 15 days of receipt of the district
engineer's notification of intent to
approve an instrument or amendment,
the Regional Administrator of the U.S.
EPA, the Regional Director of the U.S.
Fish and Wildlife Service, the Regional
Director of the National Marine
Fisheries Service, and/or other senior
officials of agencies represented on the
IRT may notify the district engineer and
other IRT members by letter if they
object to the approval of the proposed
final instrument or amendment. This
letter must include an explanation of
the basis for the objection and, where
feasible, offer recommendations for
resolving the objections. If the district
engineer does not receive any objections
within this time period, he may proceed
to final action on the instrument or
amendment.
(2) The district engineer must respond
to the objection within 30 days of
receipt of the letter. The district
engineer's response may indicate an
intent to disapprove the instrument or
amendment as a result of the objection,
an intent to approve the instrument or
amendment despite the objection, or
may provide a modified instrument or
amendment that attempts to address the
objection. The district engineer's
response must be provided to all IRT
members.
(3) Within 15 days of receipt of the
district engineer's response, if the
Regional Administrator or Regional
Director is not satisfied with the
response he may forward the issue to
the Assistant Administrator for Water of
the U.S. EPA, the Assistant Secretary for
Fish and Wildlife and Parks of the U.S.
FWS, or the Undersecretary for Oceans
and Atmosphere ofNOAA, as
appropriate, for review and must notify
the district engineer by letter via
electronic mail or facsimile machine
(with copies to all IRT members) that
the issue has been forwarded for
Headquarters review. This step is
available only to the IRT members
representing these three federal
agencies, however other IRT members
who do not agree with the district
engineer's final decision do not have to
sign the instrument or amendment or
recognize the mitigation bank or in-lieu
fee program for purposes of their own
programs and authorities. If an IRT
member other than the one filing the
original objection has a new objection
based on the district engineer's
response, he may use the first step in
this procedure (paragraph (e)(l)ofthis
section) to provide that objection to the
district engineer.
(4) If the issue has not been forwarded
to the objecting agency's Headquarters,
then the district engineer may proceed
with final action on the instrument or
amendment. If the issue has been
forwarded to the objecting agency's
Headquarters, the district engineer must
hold in abeyance the final action on the
instrument or amendment, pending
Headquarters level review described
below.
(5) Within 20 days from the date of the
letter requesting Headquarters level
review, the Assistant Administrator for
Water, the Assistant Secretary for Fish
and Wildlife and Parks, or the
Undersecretary for Oceans and
Atmosphere must either notify the
Assistant Secretary of the Army (Civil
Works) (ASA(CW)) that further review
will not be requested, or request that the
ASA(CW) review the final instrument or
amendment.
(6) Within 30 days of receipt of the
letter from the objecting agency's
Headquarters request for ASA(CW)'s
review of the final instrument, the
ASA(CW), through the Director of Civil
Works, must review the draft instrument
or amendment and advise the district
engineer on how to proceed with final
action on that instrument or
amendment. The ASA(CW) must
immediately notify the Assistant
Administrator for Water, the Assistant
Secretary for Fish and Wildlife and
Parks, and/or the Undersecretary for
Oceans and Atmosphere of the final
decision.
(7) In cases where the dispute
resolution procedure is used, the district
engineer must notify the sponsor of his
final decision within 150 days of receipt
of the final instrument or amendment.
(f) Extension of deadlines. (1) The
deadlines in paragraphs (d) and (e) of
this section may be extended by the
district engineer at his sole discretion in
cases where:
(i) Compliance with other applicable
laws, such as consultation under section
7 of the Endangered Species Act or
section 106 of the National Historic
Preservation Act, is required;
(ii) It is necessary to conduct
government-to-govemment consultation
with Indian tribes;
(iii) Timely submittal of information
necessary for the review of the proposed
mitigation bank or in-lieu fee program
or the proposed modification of an
approved instrument is not
accomplished by the sponsor; or
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19684
(iv) Information that is essential to the
district engineer's decision cannot be
reasonably obtained within the
specified time frame.
(2) In such cases, the district engineer
must promptly notify the sponsor in
writing of the extension and the reason
for it. Such extensions shall be for the
minimum time necessary to resolve the
issue necessitating the extension.
(g) Modification of instruments. (1)
Approval of an amendment to an
approved instrument. Modification of
an approved instrument, including the
addition and approval of umbrella
mitigation bank sites or in-lieu fee
project sites or expansions of previously
approved mitigation bank or in-lieu fee
project sites, must follow the
appropriate procedures in paragraph (d)
of this section, unless the district
engineer determines that the
streamlined review process described in
paragraph (g)(2) of this section is
warranted.
(2) Streamlined review process. The
streamlined modification review
process may be used for the following
modifications of instruments: changes
reflecting adaptive management of the
mitigation bank or in-lieu fee program,
credit releases, changes in credit
releases and credit release schedules,
and changes that the district engineer
determines are not significant. If the
district engineer determines that the
streamlined review process is
warranted, he must notify the IRT
members and the sponsor of this
determination and provide them with
copies of the proposed modification.
IRT members and the sponsor have 30
days to notify the district engineer if
they have concerns with the proposed
modification. If IRT members or the
sponsor notify the district engineer of
such concerns, the district engineer
shall attempt to resolve those concerns.
Within 60 days of providing the
proposed modification to the IRT, the
district engineer must notify the IRT
members of his intent to approve or
disapprove the proposed modification.
If no IRT member objects, by initiating
the dispute resolution process in
paragraph (e) of this section, within 15
days of receipt of this notification, the
district engineer will notify the sponsor
of his final decision and, if the
modification is approved, arrange for it
to be signed by the appropriate parties.
If any IRT member initiates the dispute
resolution process, the district engineer
will so notify the sponsor. Following
conclusion of the dispute resolution
process, the district engineer will notify
the sponsor of his final decision, and if
the modification is approved, arrange
for it to be signed by the appropriate
parties.
(h) Umbrella mitigation banking
instruments. A single mitigation banking
instrument may provide for future
authorization of additional mitigation
bank sites. As additional sites are
selected, they must be included in the
mitigation banking instrument as
modifications, using the procedures in
paragraph (g)(l) of this section. Credit
withdrawal from the additional bank
sites shall be consistent with paragraph
(m) of this section.
(i) In-lieu fee program account. (1)
The in-lieu fee program sponsor must
establish a program account after the
instrument is approved by the district
engineer, prior to accepting any fees
from permittees. If the sponsor accepts
funds from entities other than
permittees, those funds must be kept in
separate accounts. The program account
must be established at a financial
institution that is a member of the
Federal Deposit Insurance Corporation.
All interests and earnings accruing to
the program account must remain in
that account for use by the in-lieu fee
program for the purposes of providing
compensatory mitigation for DA
permits. The program account may only
be used for the selection, design,
acquisition, implementation, and
management of in-lieu fee compensatory
mitigation projects, except for a small
percentage (as determined by the
district engineer in consultation with
the IRT and specified in the instrument)
that can be used for administrative
costs.
(2) The sponsor must submit
proposed in-lieu fee projects to the
district engineer for funding approval.
Disbursements from the program
account may only be made upon receipt
of written authorization from the district
engineer, after the district engineer has
consulted with the IRT. The terms of the
program account must specify that the
district engineer has the authority to
direct those funds to alternative
compensatory mitigation projects in
cases where the sponsor does not
provide compensatory mitigation in
accordance with the time frame
specified in paragraph (n)(4) of this
section.
(3) The sponsor must provide annual
reports to the district engineer and the
IRT. The annual reports must include
the following information:
(i) All income received,
disbursements, and interest earned by
the program account;
(ii) A list of all permits for which in-
lieu fee program funds were accepted.
This list shall include: The Corps permit
number (or the state permit number if
there is no corresponding Corps permit
number, in cases of state programmatic
general permits or other regional general
permits), the service area in which the
authorized impacts are located, the
amount of authorized impacts, the
amount of required compensatory
mitigation, the amount paid to the in-
lieu fee program, and the date the funds
were received from the permittee;
(iii) A description of in-lieu fee
program expenditures from the account,
such as the costs of land acquisition,
planning, construction, monitoring,
maintenance, contingencies, adaptive
management, and administration;
(iv) The balance of advance credits
and released credits at the end of the
report period for each service area; and
(v) Any other information required by
the district engineer.
(4) The district engineer may audit the
records pertaining to the program
account. All books, accounts, reports,
files, and other records relating to the
in-lieu fee program account shall be
available at reasonable times for
inspection and audit by the district
engineer.
(]) In-lieu fee project approval. (l)As
in-lieu fee project sites are identified
and secured, the sponsor must submit
mitigation plans to the district engineer
that include all applicable items listed
in § 332.4(c)(2) through (14). The
mitigation plan must also include a
credit release schedule consistent with
paragraph (o)(8) of this section that is
tied to achievement of specific
performance standards. The review and
approval of in-lieu fee projects will be
conducted in accordance with the
procedures in paragraph (g)(l)ofthis
section, as modifications of the in-lieu
fee program instrument. This includes
compensatory mitigation projects
conducted by another party on behalf of
the sponsor through requests for
proposals and awarding of contracts.
(2) If a DA permit is required for an
in-lieu fee project, the permit should not
be issued until all relevant provisions of
the mitigation plan have been
substantively determined, to ensure that
the DA permit accurately reflects all
relevant provisions of the approved
mitigation plan, such as performance
standards.
(k) Coordination of mitigation
banking instruments and DA permit
issuance. In cases where initial
establishment of the mitigation bank, or
the development of a new project site
under an umbrella banking instrument,
involves activities requiring DA
authorization, the permit should not be
issued until all relevant provisions of
the mitigation plan have been
substantively determined. This is to
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19685
ensure that the DA permit accurately
reflects all relevant provisions of the
final instrument, such as performance
standards.
(1) Project implementation. (1) The
sponsor must have an approved
instrument prior to collecting funds
from permittees to satisfy compensatory
mitigation requirements for DA permits.
(2) Authorization to sell credits to
satisfy compensatory mitigation
requirements in DA permits is
contingent on compliance with all of the
terms of the instrument. This includes
constructing a mitigation bank or in-lieu
fee project in accordance with the
mitigation plan approved by the district
engineer and incorporated by reference
in the instrument. If the aquatic
resource restoration, establishment,
enhancement, and/or preservation
activities cannot be implemented in
accordance with the approved
mitigation plan, the district engineer
must consult with the sponsor and the
IRT to consider modifications to the
instrument, including adaptive
management, revisions to the credit
release schedule, and alternatives for
providing compensatory mitigation to
satisfy any credits that have already
been sold.
(3) An in-lieu fee program sponsor is
responsible for the implementation, long-
term management, and any required
remediation of the restoration,
establishment, enhancement, and/or
preservation activities, even though
those activities may be conducted by
other parties through requests for
proposals or other contracting
mechanisms.
(m) Credit withdrawal from mitigation
banks. The mitigation banking
instrument may allow for an initial
debiting of a percentage of the total
credits projected at mitigation bank
maturity, provided the following
conditions are satisfied: the mitigation
banking instrument and mitigation plan
have been approved, the mitigation
bank site has been secured, appropriate
financial assurances have been
established, and any other requirements
determined to be necessary by the
district engineer have been fulfilled.
The mitigation banking instrument must
provide a schedule for additional credit
releases as appropriate milestones are
achieved (see paragraph (o)(8) of this
section). Implementation of the
approved mitigation plan shall be
initiated no later than the first full
growing season after the date of the first
credit transaction.
(n) Advance credits for in-lieu fee
programs. (1) The in-lieu fee program
instrument may make a limited number
of advance credits available to
permittees when the instrument is
approved. The number of advance
credits will be determined by the
district engineer, in consultation with
the IRT, and will be specified for each
service area in the instrument. The
number of advance credits will be based
on the following considerations:
(i) The compensation planning
framework;
(ii) The sponsor's past performance
for implementing aquatic resource
restoration, establishment,
enhancement, and/or preservation
activities in the proposed service area or
other areas; and
(iii) The projected financing necessary
to begin planning and implementation
of in-lieu fee projects.
(2) To determine the appropriate
number of advance credits for a
particular service area, the district
engineer may require the sponsor to
provide confidential supporting
information that will not be made
available to the general public.
Examples of confidential supporting
information may include prospective in-
lieu fee project sites.
(3) As released credits are produced
by in-lieu fee projects, they must be
used to fulfill any advance credits that
have already been provided within the
project service area before any
remaining released credits can be sold
or transferred to permittees. Once
previously provided advance credits
have been fulfilled, an equal number of
advance credits is re-allocated to the
sponsor for sale or transfer to fulfill new
mitigation requirements, consistent with
the terms of the instrument. The number
of advance credits available to the
sponsor at any given time to sell or
transfer to permittees in a given service
area is equal to the number of advance
credits specified in the instrument,
minus any that have already been
provided but not yet fulfilled.
(4) Land acquisition and initial
physical and biological improvements
must be completed by the third full
growing season after the first advance
credit in that service area is secured by
a permittee, unless the district engineer
determines that more or less time is
needed to plan and implement an in-
lieu fee project. If the district engineer
determines that there is a compensatory
mitigation deficit in a specific service
area by the third growing season after
the first advance credit in that service
area is sold, and determines that it
would not be in the public interest to
allow the sponsor additional time to
plan and implement an in-lieu fee
project, the district engineer must direct
the sponsor to disburse funds from the
in-lieu fee program account to provide
alternative compensatory mitigation to
fulfill those compensation obligations.
(5) The sponsor is responsible for
complying with the terms of the in-lieu
fee program instrument. If the district
engineer determines, as a result of
review of annual reports on the
operation of the in-lieu fee program (see
paragraphs (p)(2) and (q)(l) of this
section), that it is not performing in
compliance with its instrument, the
district engineer will take appropriate
action, which may include suspension
of credit sales, to ensure compliance
with the in-lieu fee program instrument
(see paragraph (o)(10) of this section).
Permittees that secured credits from the
in-lieu fee program are not responsible
for in-lieu fee program compliance.
(o) Determining credits. (1) Units of
measure. The principal units for credits
and debits are acres, linear feet,
functional assessment units, or other
suitable metrics of particular resource
types. Functional assessment units or
other suitable metrics may be linked to
acres or linear feet.
(2) Assessment. Where practicable, an
appropriate assessment method (e.g.,
hydrogeomorphic approach to wetlands
functional assessment, index of
biological integrity) or other suitable
metric must be used to assess and
describe the aquatic resource types that
will be restored, established, enhanced
and/or preserved by the mitigation bank
or in-lieu fee project.
(3) Credit production. The number of
credits must reflect the difference
between pre- and post-compensatory
mitigation project site conditions, as
determined by a functional or condition
assessment or other suitable metric.
(4) Credit value. Once a credit is
debited (sold or transferred to a
permittee), its value cannot change.
(5) Credit costs, (i) The cost of
compensatory mitigation credits
provided by a mitigation bank or in-lieu
fee program is determined by the
sponsor.
(ii) For in-lieu fee programs, the cost
per unit of credit must include the
expected costs associated with the
restoration, establishment,
enhancement, and/or preservation of
aquatic resources in that service area.
These costs must be based on full cost
accounting, and include, as appropriate,
expenses such as land acquisition,
project planning and design,
construction, plant materials, labor,
legal fees, monitoring, and remediation
or adaptive management activities, as
well as administration of the in-lieu fee
program. The cost per unit credit must
also take into account contingency costs
appropriate to the stage of project
planning, including uncertainties in
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19686
construction and real estate expenses.
The cost per unit of credit must also
take into account the resources
necessary for the long-term management
and protection of the in-lieu fee project.
In addition, the cost per unit credit must
include financial assurances that are
necessary to ensure successful
completion of in-lieu fee projects.
(6) Credits provided by preservation.
These credits should be specified as
acres, linear feet, or other suitable
metrics of preservation of a particular
resource type. In determining the
compensatory mitigation requirements
for DA permits using mitigation banks
or in-lieu fee programs, the district
engineer should apply a higher
mitigation ratio if the requirements are
to be met through the use of
preservation credits. In determining this
higher ratio, the district engineer must
consider the relative importance of both
the impacted and the preserved aquatic
resources in sustaining watershed
functions.
(7) Credits provided by riparian areas,
buffers, and uplands. These credits
should be specified as acres, linear feet,
or other suitable metrics of riparian
area, buffer, and uplands, respectively.
Non-aquatic resources can only be used
as compensatory mitigation for impacts
to aquatic resources authorized by DA
permits when those resources are
essential to maintaining the ecological
viability of adjoining aquatic resources.
In determining the compensatory
mitigation requirements for DA permits
using mitigation banks and in-lieu fee
programs, the district engineer may
authorize the use of riparian area,
buffer, and/or upland credits if he
determines that these areas are essential
to sustaining aquatic resource functions
in the watershed and are the most
appropriate compensation for the
authorized impacts.
(8) Credit release schedule, (i) General
considerations. Release of credits must
be tied to performance-based milestones
(e.g., construction, planting,
establishment of specified plant and
animal communities). The credit release
schedule should reserve a significant
share of the total credits for release only
after full achievement of ecological
performance standards. When
determining the credit release schedule,
factors to be considered may include,
but are not limited to: The method of
providing compensatory mitigation
credits (e.g., restoration), the likelihood
of success, the nature and amount of
work needed to generate the credits, and
the aquatic resource type(s) and
function(s) to be provided by the
mitigation bank or in-lieu fee project.
The district engineer will determine the
credit release schedule, including the
share to be released only after full
achievement of performance standards,
after consulting with the IRT. Once
released, credits may only be used to
satisfy compensatory mitigation
requirements of a DA permit if the use
of credits for a specific permit has been
approved by the district engineer.
(ii) For single-site mitigation banks,
the terms of the credit release schedule
must be specified in the mitigation
banking instrument. The credit release
schedule may provide for an initial
debiting of a limited number of credits
once the instrument is approved and
other appropriate milestones are
achieved (see paragraph (m) of this
section).
(iii) For in-lieu fee projects and
umbrella mitigation bank sites, the
terms of the credit release schedule
must be specified in the approved
mitigation plan. When an in-lieu fee
project or umbrella mitigation bank site
is implemented and is achieving the
performance-based milestones specified
in the credit release schedule, credits
are generated in accordance with the
credit release schedule for the approved
mitigation plan. If the in-lieu fee project
or umbrella mitigation bank site does
not achieve those performance-based
milestones, the district engineer may
modify the credit release schedule,
including reducing the number of
credits.
(9) Credit release approval. Credit
releases for mitigation banks and in-lieu
fee projects must be approved by the
district engineer. In order for credits to
be released, the sponsor must submit
documentation to the district engineer
demonstrating that the appropriate
milestones for credit release have been
achieved and requesting the release. The
district engineer will provide copies of
this documentation to the IRT members
for review. IRT members must provide
any comments to the district engineer
within 15 days of receiving this
documentation. However, if the district
engineer determines that a site visit is
necessary, IRT members must provide
any comments to the district engineer
within 15 days of the site visit. The
district engineer must schedule the site
visit so that it occurs as soon as it is
practicable, but the site visit may be
delayed by seasonal considerations that
affect the ability of the district engineer
and the IRT to assess whether the
applicable credit release milestones
have been achieved. After full
consideration of any comments
received, the district engineer will
determine whether the milestones have
been achieved and the credits can be
released. The district engineer shall
make a decision within 30 days of the
end of that comment period, and notify
the sponsor and the IRT.
(10) Suspension and termination. If
the district engineer determines that the
mitigation bank or in-lieu fee program is
not meeting performance standards or
complying with the terms of the
instrument, appropriate action will be
taken. Such actions may include, but are
not limited to, suspending credit sales,
adaptive management, decreasing
available credits, utilizing financial
assurances, and terminating the
instrument.
(p) Accounting procedures. (l)For
mitigation banks, the instrument must
contain a provision requiring the
sponsor to establish and maintain a
ledger to account for all credit
transactions. Each time an approved
credit transaction occurs, the sponsor
must notify the district engineer.
(2) For in-lieu fee programs, the
instrument must contain a provision
requiring the sponsor to establish and
maintain an annual report ledger in
accordance with paragraph (i)(3) of this
section, as well as individual ledgers
that track the production of released
credits for each in-lieu fee project.
(q) Reporting. (I) Ledger account. The
sponsor must compile an annual ledger
report showing the beginning and
ending balance of available credits and
permitted impacts for each resource
type, all additions and subtractions of
credits, and any other changes in credit
availability (e.g., additional credits
released, credit sales suspended). The
ledger report must be submitted to the
district engineer, who will distribute
copies to the IRT members. The ledger
report is part of the administrative
record for the mitigation bank or in-lieu
fee program. The district engineer will
make the ledger report available to the
public upon request.
(2) Monitoring reports. The sponsor is
responsible for monitoring the
mitigation bank site or the in-lieu fee
project site in accordance with the
approved monitoring requirements to
determine the level of success and
identify problems requiring remedial
action or adaptive management
measures. Monitoring must be
conducted in accordance with the
requirements in § 332.6, and at time
intervals appropriate for the particular
project type and until such time that the
district engineer, in consultation with
the IRT, has determined that the
performance standards have been
attained. The instrument must include
requirements for periodic monitoring
reports to be submitted to the district
engineer, who will provide copies to
other IRT members.
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19687
(3) Financial assurance and long-term
management funding report. The
district engineer may require the sponsor
to provide an annual report showing
beginning and ending balances, including
deposits into and any withdrawals from,
the accounts providing funds for financial
assurances and long-term management
activities. The report should also include
information on the amount of required
financial assurances and the status of
those assurances, including their
potential expiration.
(r) Use of credits. Except as provided
below, all activities authorized by DA
permits are eligible, at the discretion of
the district engineer, to use mitigation
banks or in-lieu fee programs to fulfill
compensatory mitigation requirements
for DA permits. The district engineer
will determine the number and type(s)
of credits required to compensate for the
authorized impacts. Permit applicants
may propose to use a particular
mitigation bank or in-lieu fee program to
provide the required compensatory
mitigation. In such cases, the sponsor
must provide the permit applicant with
a statement of credit availability. The
district engineer must review the permit
applicant's compensatory mitigation
proposal, and notify the applicant of his
determination regarding the
acceptability of using that mitigation
bank or in-lieu fee program.
(s) IRT concerns -with use of credits.
If, in the view of a member of the IRT, an
issued permit or series of issued permits
raises concerns about how credits from a
particular mitigation bank or in-lieu fee
program are being used to satisfy
compensatory mitigation requirements
(including concerns about whether
credit use is consistent with the terms of
the instrument), the IRT
member may notify the district engineer
in writing of the concern. The district
engineer shall promptly consult with
the IRT to address the concern.
Resolution of the concern is at the
discretion of the district engineer,
consistent with applicable statutes,
regulations, and policies regarding
compensatory mitigation requirements
for DA permits. Nothing in this section
limits the authorities designated to IRT
agencies under existing statutes or
regulations.
(t) Site protection. (l)For mitigation
bank sites, real estate instruments,
management plans, or other long-term
mechanisms used for site protection
must be finalized before any credits can
be released.
(2) For in-lieu fee project sites, real
estate instruments, management plans,
or other long-term protection
mechanisms used for site protection
must be finalized before advance credits
can become released credits.
(u) Long-term management. (1) The
legal mechanisms and the party
responsible for the long-term
management and the protection of the
mitigation bank site must be
documented in the instrument or, in the
case of umbrella mitigation banking
instruments and in-lieu fee programs,
the approved mitigation plans. The
responsible party should make adequate
provisions for the operation,
maintenance, and long-term
management of the compensatory
mitigation project site. The long-term
management plan should include a
description of long-term management
needs and identify the funding
mechanism that will be used to meet
those needs.
(2) The instrument may contain
provisions for the sponsor to transfer
long-term management responsibilities
to a land stewardship entity, such as a
public agency, non-governmental
organization, or private land manager.
(3) The instrument or approved
mitigation plan must address the
financial arrangements and timing of
any necessary transfer of long-term
management funds to the steward.
(4) Where needed, the acquisition and
protection of water rights should be
secured and documented in the
instrument or, in the case of umbrella
mitigation banking instruments and in-
lieu fee programs, the approved
mitigation site plan.
(v) Grandfathering of existing
instruments. (1) Mitigation banking
instruments. All mitigation banking
instruments approved on or after July 9,
2008 must meet the requirements of this
part. Mitigation banks approved prior to
July 9, 2008 may continue to operate
under the terms of their existing
instruments. However, any modification
to such a mitigation banking instrument
on or after July 9, 2008, including
authorization of additional sites under
an umbrella mitigation banking
instrument, expansion of an existing
site, or addition of a different type of
resource credits (e.g., stream credits to
a wetland bank) must be consistent with
the terms of this part.
(2) In-lieu fee program instruments.
All in-lieu fee program instruments
approved on or after July 9, 2008 must
meet the requirements of this part. In-
lieu fee programs operating under
instruments approved prior to July 9,
2008 may continue to operate under
those instruments for two years after the
effective date of this rule, after which
time they must meet the requirements of
this part, unless the district engineer
determines that circumstances warrant
an extension of up to three additional
years. The district engineer must
consult with the IRT before approving
such extensions. Any revisions made to
the in-lieu fee program instrument on or
after July 9, 2008 must be consistent
with the terms of this part. Any
approved project for which construction
was completed under the terms of a
previously approved instrument may
continue to operate indefinitely under
those terms if the district engineer
determines that the project is providing
appropriate mitigation substantially
consistent with the terms of this part.
Dated: March 28, 2008.
John Paul Woodley, Jr.,
Assistant Secretary of the Army, (Civil Works),
Department of the Army.
Environmental Protection Agency
40 CFR Chapter I
For the reasons stated in the preamble,
the Environmental Protection Agency
amends 40 CFR part 230 as set forth
below:
PART 230SECTION 404(b)(1)
GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR
FILL MATERIAL
1. The authority citation for part 230
continues to read as follows:
Authority: Sees. 404(b) and 501(a) of the
Clean Water Act of 1977 (33 U.S.C. 1344(b)
and 136 l(a)).
§230.12 [Amended]
2. In §230.12(a)(2) remove the
reference "subpart H" and add in its
place the reference "subparts H and J".
Subpart H[Amended]
3. In subpart H the Note following the
subpart heading is amended by adding
a sentence to the end to read as follows:
Subpart HActions To Minimize
Adverse Effects
Note: * * * Additional criteria for
compensation measures are provided in
subpart J of this part.
4. In § 230.75 add a new sentence after
the second sentence in paragraph (d) to
read as follows:
§230.75 Actions affecting plant and
animal populations.
* * * * *
(d) * * * Additional criteria for
compensation measures are provided in
subpart J of this part. * * *
*****
5. Add Subpart Jto part 230 to read
as follows:
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Subpart JCompensatory Mitigation for
Losses of Aquatic Resources
Sec.
230.91 Purpose and general considerations.
230.92 Definitions.
230.93 General compensatory mitigation
requirements.
230.94 Planning and documentation.
230.95 Ecological performance standards.
230.96 Monitoring.
230.97 Management.
230.98 Mitigation banks and in-lieu fee
programs.
Subpart JCompensatory Mitigation
for Losses of Aquatic Resources
§230.91 Purpose and general
considerations.
(a) Purpose. (1) The purpose of this
subpart is to establish standards and
criteria for the use of all types of
compensatory mitigation, including on-
site and off-site permittee-responsible
mitigation, mitigation banks, and in-lieu
fee mitigation to offset unavoidable
impacts to waters of the United States
authorized through the issuance of
permits by the U.S. Army Corps of
Engineers (Corps) pursuant to section
404 of the Clean Water Act (33 U.S.C.
1344). This subpart implements section
314(b) of the 2004 National Defense
Authorization Act (Pub. L. 108-136),
which directs that the standards and
criteria shall, to the maximum extent
practicable, maximize available credits
and opportunities for mitigation,
provide for regional variations in
wetland conditions, functions, and
values, and apply equivalent standards
and criteria to each type of
compensatory mitigation. This subpart
is intended to further clarify mitigation
requirements established under the
Corps and EPA regulations at 33 CFR
part 320 and this part, respectively.
(2) This subpart has been jointly
developed by the Secretary of the Army,
acting through the Chief of Engineers,
and the Administrator of the
Environmental Protection Agency. From
time to time guidance on interpreting
and implementing this subpart may be
prepared jointly by EPA and the Corps
at the national or regional level. No
modifications to the basic application,
meaning, or intent of this subpart will
be made without further joint
rulemaking by the Secretary of the
Army, acting through the Chief of
Engineers and the Administrator of the
Environmental Protection Agency,
pursuant to the Administrative
Procedure Act (5 U.S.C. 551 et seq.).
(b) Applicability. This subpart does
not alter the circumstances under which
compensatory mitigation is required or
the definition of "waters of the United
States," which is provided at § 230.3(s).
Use of resources as compensatory
mitigation that are not otherwise subject
to regulation under section 404 of the
Clean Water Act does not in and of itself
make them subject to such regulation.
(c) Sequencing. (1) Nothing in this
section affects the requirement that all
DA permits subject to section 404 of the
Clean Water Act comply with applicable
provisions of this part.
(2) Pursuant to these requirements,
the district engineer will issue an
individual section 404 permit only upon
a determination that the proposed
discharge complies with applicable
provisions of 40 CFR part 230, including
those which require the permit
applicant to take all appropriate and
practicable steps to avoid and minimize
adverse impacts to waters of the United
States. Practicable means available and
capable of being done after taking into
consideration cost, existing technology,
and logistics in light of overall project
purposes. Compensatory mitigation for
unavoidable impacts may be required to
ensure that an activity requiring a
section 404 permit complies with the
Section 404(b)(l) Guidelines.
(3) Compensatory mitigation for
unavoidable impacts may be required to
ensure that an activity requiring a
section 404 permit complies with the
Section 404(b)(l) Guidelines. During the
404(b)(l) Guidelines compliance
analysis, the district engineer may
determine that a DA permit for the
proposed activity cannot be issued
because of the lack of appropriate and
practicable compensatory mitigation
options.
(d) Accounting for regional variations.
Where appropriate, district engineers
shall account for regional characteristics
of aquatic resource types, functions and
services when determining performance
standards and monitoring requirements
for compensatory mitigation projects.
(e) Relationship to other guidance
documents. (1) This subpart applies
instead of the "Federal Guidance for the
Establishment, Use, and Operation of
Mitigation Banks," which was issued on
November 28, 1995, the "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," which was
issued on November 7, 2000, and
Regulatory Guidance Letter 02-02,
"Guidance on Compensatory Mitigation
Projects for Aquatic Resource Impacts
Under the Corps Regulatory Program
Pursuant to Section 404 of the Clean
Water Act and Section 10 of the Rivers
and Harbors Act of 1899" which was
issued on December 24, 2002. These
guidance documents are no longer to be
used as compensatory mitigation policy
in the Corps Regulatory Program.
(2) In addition, this subpart also
applies instead of the provisions
relating to the amount, type, and
location of compensatory mitigation
projects, including the use of
preservation, in the February 6, 1990,
Memorandum of Agreement (MOA)
between the Department of the Army
and the Environmental Protection
Agency on the Determination of
Mitigation Under the Clean Water Act
Section 404(b)(l) Guidelines. All other
provisions of this MOA remain in effect.
§230.92 Definitions.
For the purposes of this subpart, the
following terms are defined:
Adaptive management means the
development of a management strategy
that anticipates likely challenges
associated with compensatory
mitigation projects and provides for the
implementation of actions to address
those challenges, as well as unforeseen
changes to those projects. It requires
consideration of the risk, uncertainty,
and dynamic nature of compensatory
mitigation projects and guides
modification of those projects to
optimize performance. It includes the
selection of appropriate measures that
will ensure that the aquatic resource
functions are provided and involves
analysis of monitoring results to identify
potential problems of a compensatory
mitigation project and the identification
and implementation of measures to
rectiiy those problems.
Advance credits means any credits of
an approved in-lieu fee program that are
available for sale prior to being fulfilled
in accordance with an approved
mitigation project plan. Advance credit
sales require an approved in-lieu fee
program instrument that meets all
applicable requirements including a
specific allocation of advance credits, by
service area where applicable. The
instrument must also contain a schedule
for fulfillment of advance credit sales.
Buffer means an upland, wetland,
and/or riparian area that protects and/or
enhances aquatic resource functions
associated with wetlands, rivers,
streams, lakes, marine, and estuarine
systems from disturbances associated
with adjacent land uses.
Compensatory mitigation means the
restoration (re-establishment or
rehabilitation), establishment (creation),
enhancement, and/or in certain
circumstances preservation of aquatic
resources for the purposes of offsetting
unavoidable adverse impacts which
remain after all appropriate and
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19689
practicable avoidance and minimization
has been achieved.
Compensatory mitigation project
means compensatory mitigation
implemented by the permittee as a
requirement of a DA permit (i.e.,
permittee-responsible mitigation), or by
a mitigation bank or an in-lieu fee
program.
Condition means the relative ability of
an aquatic resource to support and
maintain a community of organisms
having a species composition, diversity,
and functional organization comparable
to reference aquatic resources in the
region.
Credit means a unit of measure (e.g.,
a functional or areal measure or other
suitable metric) representing the accrual
or attainment of aquatic functions at a
compensatory mitigation site. The
measure of aquatic functions is based on
the resources restored, established,
enhanced, or preserved.
DA means Department of the Army.
Days means calendar days.
Debit means a unit of measure (e.g., a
functional or areal measure or other
suitable metric) representing the loss of
aquatic functions at an impact or project
site. The measure of aquatic functions is
based on the resources impacted by the
authorized activity.
Enhancement means the
manipulation of the physical, chemical,
or biological characteristics of an
aquatic resource to heighten, intensify,
or improve a specific aquatic resource
functions). Enhancement results in the
gain of selected aquatic resource
function(s), but may also lead to a
decline in other aquatic resource
function(s). Enhancement does not
result in a gain in aquatic resource area.
Establishment (creation) means the
manipulation of the physical, chemical,
or biological characteristics present to
develop an aquatic resource that did not
previously exist at an upland site.
Establishment results in a gain in
aquatic resource area and functions.
Fulfillment of advance credit sales of
an in-lieu fee program means
application of credits released in
accordance with a credit release
schedule in an approved mitigation
project plan to satisfy the mitigation
requirements represented by the
advance credits. Only after any advance
credit sales within a service area have
been fulfilled through the application of
released credits from an in-lieu fee
project (in accordance with the credit
release schedule for an approved
mitigation project plan), may additional
released credits from that project be sold
or transferred to permittees. When
advance credits are fulfilled, an equal
number of new advance credits is
restored to the program sponsor for sale
or transfer to permit applicants.
Functional capacity means the degree
to which an area of aquatic resource
performs a specific function.
Functions means the physical,
chemical, and biological processes that
occur in ecosystems.
Impact means adverse effect.
In-kind means a resource of a similar
structural and functional type to the
impacted resource.
In-lieu fee 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 DA 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.
In-lieu fee program instrument means
the legal document for the
establishment, operation, and use of an
in-lieu fee program.
Instrument means mitigation banking
instrument or in-lieu fee program
instrument.
Interagency Review Team (IRT) means
an interagency group of federal, tribal,
state, and/or local regulatory and
resource agency representatives that
reviews documentation for, and advises
the district engineer on, the
establishment and management of a
mitigation bank or an in-lieu fee
program.
Mitigation bank means a site, or suite
of sites, where resources (e.g., wetlands,
streams, riparian areas) are restored,
established, enhanced, and/or preserved
for the purpose of providing
compensatory mitigation for impacts
authorized by DA permits. In general, a
mitigation bank sells compensatory
mitigation credits to permittees whose
obligation to provide compensatory
mitigation is then transferred to the
mitigation bank sponsor. The operation
and use of a mitigation bank are
governed by a mitigation banking
instrument.
Mitigation banking instrument means
the legal document for the
establishment, operation, and use of a
mitigation bank.
Off-site means an area that is neither
located on the same parcel of land as the
impact site, nor on a parcel of land
contiguous to the parcel containing the
impact site.
On-site means an area located on the
same parcel of land as the impact site,
or on a parcel of land contiguous to the
impact site.
Out-of-kind means a resource of a
different structural and functional type
from the impacted resource.
Performance standards are observable
or measurable physical (including
hydrological), chemical and/or
biological attributes that are used to
determine if a compensatory mitigation
project meets its objectives.
Permittee-responsible mitigation
means an aquatic resource restoration,
establishment, enhancement, and/or
preservation activity undertaken by the
permittee (or an authorized agent or
contractor) to provide compensatory
mitigation for which the permittee
retains full responsibility.
Preservation means the removal of a
threat to, or preventing the decline of,
aquatic resources by an action in or near
those aquatic resources. This term
includes activities commonly associated
with the protection and maintenance of
aquatic resources through the
implementation of appropriate legal and
physical mechanisms. Preservation does
not result in a gain of aquatic resource
area or functions.
Re-establishment means the
manipulation of the physical, chemical,
or biological characteristics of a site
with the goal of returning natural/
historic functions to a former aquatic
resource. Re-establishment results in
rebuilding a former aquatic resource and
results in a gain in aquatic resource area
and functions.
Reference aquatic resources are a set
of aquatic resources that represent the
full range of variability exhibited by a
regional class of aquatic resources as a
result of natural processes and
anthropogenic disturbances.
Rehabilitation means the
manipulation of the physical, chemical,
or biological characteristics of a site
with the goal of repairing natural/
historic functions to a degraded aquatic
resource. Rehabilitation results in a gain
in aquatic resource function, but does
not result in a gain in aquatic resource
area.
Release of credits means a
determination by the district engineer,
in consultation with the IRT, that
credits associated with an approved
mitigation plan are available for sale or
transfer, or in the case of an in-lieu fee
program, for fulfillment of advance
credit sales. A proportion of projected
credits for a specific mitigation bank or
in-lieu fee project may be released upon
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19690
approval of the mitigation plan, with
additional credits released as milestones
specified in the credit release schedule
are achieved.
Restoration means the manipulation
of the physical, chemical, or biological
characteristics of a site with the goal of
returning natural/historic functions to a
former or degraded aquatic resource. For
the purpose of tracking net gains in
aquatic resource area, restoration is
divided into two categories: re-
establishment and rehabilitation.
Riparian areas are lands adjacent to
streams, rivers, lakes, and estuarine-
marine shorelines. Riparian areas
provide a variety of ecological functions
and services and help improve or
maintain local water quality.
Service area means the geographic
area within which impacts can be
mitigated at a specific mitigation bank
or an in-lieu fee program, as designated
in its instrument.
Services mean the benefits that
human populations receive from
functions that occur in ecosystems.
Sponsor means any public or private
entity responsible for establishing, and
in most circumstances, operating a
mitigation bank or in-lieu fee program.
Standard permit means a standard,
individual permit issued under the
authority of section 404 of the Clean
Water Act.
Temporal loss is the time lag between
the loss of aquatic resource functions
caused by the permitted impacts and the
replacement of aquatic resource
functions at the compensatory
mitigation site. Higher compensation
ratios may be required to compensate
for temporal loss. When the
compensatory mitigation project is
initiated prior to, or concurrent with,
the permitted impacts, the district
engineer may determine that
compensation for temporal loss is not
necessary, unless the resource has a
long development time.
Watershed means a land area that
drains to a common waterway, such as
a stream, lake, estuary, wetland, or
ultimately the ocean.
Watershed approach means an
analytical process for making
compensatory mitigation decisions that
support the sustainability or
improvement of aquatic resources in a
watershed. It involves consideration of
watershed needs, and how locations and
types of compensatory mitigation
projects address those needs. A
landscape perspective is used to
identify the types and locations of
compensatory mitigation projects that
will benefit the watershed and offset
losses of aquatic resource functions and
services caused by activities authorized
by DA permits. The watershed approach
may involve consideration of landscape
scale, historic and potential aquatic
resource conditions, past and projected
aquatic resource impacts in the
watershed, and terrestrial connections
between aquatic resources when
determining compensatory mitigation
requirements for DA permits.
Watershed plan means a plan
developed by federal, tribal, state, and/
or local government agencies or
appropriate non-governmental
organizations, in consultation with
relevant stakeholders, for the specific
goal of aquatic resource restoration,
establishment, enhancement, and
preservation. A watershed plan
addresses aquatic resource conditions in
the watershed, multiple stakeholder
interests, and land uses. Watershed
plans may also identify priority sites for
aquatic resource restoration and
protection. Examples of watershed plans
include special area management plans,
advance identification programs, and
wetland management plans.
§230.93 General compensatory mitigation
requirements.
(a) General considerations. (1) The
fundamental objective of compensatory
mitigation is to offset environmental
losses resulting from unavoidable
impacts to waters of the United States
authorized by DA permits. The district
engineer must determine the
compensatory mitigation to be required
in a DA permit, based on what is
practicable and capable of compensating
for the aquatic resource functions that
will be lost as a result of the permitted
activity. When evaluating compensatory
mitigation options, the district engineer
will consider what would be
environmentally preferable. In making
this determination, the district engineer
must assess the likelihood for ecological
success and sustainability, the location
of the compensation site relative to the
impact site and their significance within
the watershed, and the costs of the
compensatory mitigation project. In
many cases, the environmentally
preferable compensatory mitigation may
be provided through mitigation banks or
in-lieu fee programs because they
usually involve consolidating
compensatory mitigation projects where
ecologically appropriate, consolidating
resources, providing financial planning
and scientific expertise (which often is
not practical for permittee-responsible
compensatory mitigation projects),
reducing temporal losses of functions,
and reducing uncertainty over project
success. Compensatory mitigation
requirements must be commensurate
with the amount and type of impact that
is associated with a particular DA
permit. Permit applicants are
responsible for proposing an
appropriate compensatory mitigation
option to offset unavoidable impacts.
(2) Compensatory mitigation may be
performed using the methods of
restoration, enhancement,
establishment, and in certain
circumstances preservation. Restoration
should generally be the first option
considered because the likelihood of
success is greater and the impacts to
potentially ecologically important
uplands are reduced compared to
establishment, and the potential gains in
terms of aquatic resource functions are
greater, compared to enhancement and
preservation.
(3) Compensatory mitigation projects
may be sited on public or private lands.
Credits for compensatory mitigation
projects on public land must be based
solely on aquatic resource functions
provided by the compensatory
mitigation project, over and above those
provided by public programs already
planned or in place. All compensatory
mitigation projects must comply with
the standards in this part, if they are to
be used to provide compensatory
mitigation for activities authorized by
DA permits, regardless of whether they
are sited on public or private lands and
whether the sponsor is a governmental
or private entity.
(b) Type and location of
compensatory mitigation. (l)When
considering options for successfully
providing the required compensatory
mitigation, the district engineer shall
consider the type and location options
in the order presented in paragraphs
(b)(2) through (b)(6) of this section. In
general, the required compensatory
mitigation should be located within the
same watershed as the impact site, and
should be located where it is most likely
to successfully replace lost functions
and services, taking into account such
watershed scale features as aquatic
habitat diversity, habitat connectivity,
relationships to hydrologic sources
(including the availability of water
rights), trends in land use, ecological
benefits, and compatibility with
adjacent land uses. When compensating
for impacts to marine resources, the
location of the compensatory mitigation
site should be chosen to replace lost
functions and services within the same
marine ecological system (e.g., reef
complex, littoral drift cell).
Compensation for impacts to aquatic
resources in coastal watersheds
(watersheds that include a tidal water
body) should also be located in a coastal
watershed where practicable.
Compensatory mitigation projects
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19691
should not be located where they will
increase risks to aviation by attracting
wildlife to areas where aircraft-wildlife
strikes may occur (e.g., near airports).
(2) Mitigation bank credits. When
permitted impacts are located within
the service area of an approved
mitigation bank, and the bank has the
appropriate number and resource type
of credits available, the permittee's
compensatory mitigation requirements
may be met by securing those credits
from the sponsor. Since an approved
instrument (including an approved
mitigation plan and appropriate real
estate and financial assurances) for a
mitigation bank is required to be in
place before its credits can begin to be
used to compensate for authorized
impacts, use of a mitigation bank can
help reduce risk and uncertainty, as
well as temporal loss of resource
functions and services. Mitigation bank
credits are not released for debiting
until specific milestones associated with
the mitigation bank site's protection and
development are achieved, thus use of
mitigation bank credits can also help
reduce risk that mitigation will not be
fully successful. Mitigation banks
typically involve larger, more
ecologically valuable parcels, and more
rigorous scientific and technical
analysis, planning and implementation
than permittee-responsible mitigation.
Also, development of a mitigation bank
requires site identification in advance,
project-specific planning, and
significant investment of financial
resources that is often not practicable
for many in-lieu fee programs. For these
reasons, the district engineer should
give preference to the use of mitigation
bank credits when these considerations
are applicable. However, these same
considerations may also be used to
override this preference, where
appropriate, as, for example, where an
in-lieu fee program has released credits
available from a specific approved in-
lieu fee project, or a permittee-
responsible project will restore an
outstanding resource based on rigorous
scientific and technical analysis.
(3) In-lieu fee program credits. Where
permitted impacts are located within
the service area of an approved in-lieu
fee program, and the sponsor has the
appropriate number and resource type
of credits available, the permittee's
compensatory mitigation requirements
may be met by securing those credits
from the sponsor. Where permitted
impacts are not located in the service
area of an approved mitigation bank, or
the approved mitigation bank does not
have the appropriate number and
resource type of credits available to
offset those impacts, in-lieu fee
mitigation, if available, is generally
preferable to permittee-responsible
mitigation. In-lieu fee projects typically
involve larger, more ecologically
valuable parcels, and more rigorous
scientific and technical analysis,
planning and implementation than
permittee-responsible mitigation. They
also devote significant resources to
identifying and addressing high-priority
resource needs on a watershed scale, as
reflected in their compensation
planning framework. For these reasons,
the district engineer should give
preference to in-lieu fee program credits
over permittee-responsible mitigation,
where these considerations are
applicable. However, as with the
preference for mitigation bank credits,
these same considerations may be used
to override this preference where
appropriate. Additionally, in cases
where permittee-responsible mitigation
is likely to successfully meet
performance standards before advance
credits secured from an in-lieu fee
program are fulfilled, the district
engineer should also give consideration
to this factor in deciding between in-
lieu fee mitigation and permittee-
responsible mitigation.
(4) Permittee-responsible mitigation
under a -watershed approach. Where
permitted impacts are not in the service
area of an approved mitigation bank or
in-lieu fee program that has the
appropriate number and resource type
of credits available, permittee-
responsible mitigation is the only
option. Where practicable and likely to
be successful and sustainable, the
resource type and location for the
required permittee-responsible
compensatory mitigation should be
determined using the principles of a
watershed approach as outlined in
paragraph (c) of this section.
(5) Permittee-responsible mitigation
through on-site and in-kind mitigation.
In cases where a watershed approach is
not practicable, the district engineer
should consider opportunities to offset
anticipated aquatic resource impacts by
requiring on-site and in-kind
compensatory mitigation. The district
engineer must also consider the
practicability of on-site compensatory
mitigation and its compatibility with the
proposed project.
(6) Permittee-responsible mitigation
through off-site and/or out-of-kind
mitigation. If, after considering
opportunities for on-site, in-kind
compensatory mitigation as provided in
paragraph (b)(5) of this section, the
district engineer determines that these
compensatory mitigation opportunities
are not practicable, are unlikely to
compensate for the permitted impacts,
or will be incompatible with the
proposed project, and an alternative,
practicable off-site and/or out-of-kind
mitigation opportunity is identified that
has a greater likelihood of offsetting the
permitted impacts or is environmentally
preferable to on-site or in-kind
mitigation, the district engineer should
require that this alternative
compensatory mitigation be provided.
(c) Watershed approach to
compensatory mitigation. (1) The
district engineer must use a watershed
approach to establish compensatory
mitigation requirements in DA permits
to the extent appropriate and
practicable. Where a watershed plan is
available, the district engineer will
determine whether the plan is
appropriate for use in the watershed
approach for compensatory mitigation.
In cases where the district engineer
determines that an appropriate
watershed plan is available, the
watershed approach should be based on
that plan. Where no such plan is
available, the watershed approach
should be based on information
provided by the project sponsor or
available from other sources. The
ultimate goal of a watershed approach is
to maintain and improve the quality and
quantity of aquatic resources within
watersheds through strategic selection
of compensatory mitigation sites.
(2) Considerations, (i) A watershed
approach to compensatory mitigation
considers the importance of landscape
position and resource type of
compensatory mitigation projects for the
sustainability of aquatic resource
functions within the watershed. Such an
approach considers how the types and
locations of compensatory mitigation
projects will provide the desired aquatic
resource functions, and will continue to
function over time in a changing
landscape. It also considers the habitat
requirements of important species,
habitat loss or conversion trends,
sources of watershed impairment, and
current development trends, as well as
the requirements of other regulatory and
non-regulatory programs that affect the
watershed, such as storm water
management or habitat conservation
programs. It includes the protection and
maintenance of terrestrial resources,
such as non-wetland riparian areas and
uplands, when those resources
contribute to or improve the overall
ecological functioning of aquatic
resources in the watershed.
Compensatory mitigation requirements
determined through the watershed
approach should not focus exclusively
on specific functions (e.g., water quality
or habitat for certain species), but
should provide, where practicable, the
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19692
suite of functions typically provided by
the affected aquatic resource.
(ii) Locational factors (e.g., hydrology,
surrounding land use) are important to
the success of compensatory mitigation
for impacted habitat functions and may
lead to siting of such mitigation away
from the project area. However,
consideration should also be given to
functions and services (e.g., water
quality, flood control, shoreline
protection) that will likely need to be
addressed at or near the areas impacted
by the permitted impacts.
(iii) A watershed approach may
include on-site compensatory
mitigation, off-site compensatory
mitigation (including mitigation banks
or in-lieu fee programs), or a
combination of on-site and off-site
compensatory mitigation.
(iv) A watershed approach to
compensatory mitigation should
include, to the extent practicable,
inventories of historic and existing
aquatic resources, including
identification of degraded aquatic
resources, and identification of
immediate and long-term aquatic
resource needs within watersheds that
can be met through permittee-
responsible mitigation projects,
mitigation banks, or in-lieu fee
programs. Planning efforts should
identify and prioritize aquatic resource
restoration, establishment, and
enhancement activities, and
preservation of existing aquatic
resources that are important for
maintaining or improving ecological
functions of the watershed. The
identification and prioritization of
resource needs should be as specific as
possible, to enhance the usefulness of
the approach in determining
compensatory mitigation requirements.
(v) A watershed approach is not
appropriate in areas where watershed
boundaries do not exist, such as marine
areas. In such cases, an appropriate
spatial scale should be used to replace
lost functions and services within the
same ecological system (e.g., reef
complex, littoral drift cell).
(3) Information Needs, (i) In the
absence of a watershed plan determined
by the district engineer under paragraph
(c)(l) of this section to be appropriate
for use in the watershed approach, the
district engineer will use a watershed
approach based on analysis of
information regarding watershed
conditions and needs, including
potential sites for aquatic resource
restoration activities and priorities for
aquatic resource restoration and
preservation. Such information
includes: Current trends in habitat loss
or conversion; cumulative impacts of
past development activities, current
development trends, the presence and
needs of sensitive species; site
conditions that favor or hinder the
success of compensatory mitigation
projects; and chronic environmental
problems such as flooding or poor water
quality.
(ii) This information may be available
from sources such as wetland maps; soil
surveys; U.S. Geological Survey
topographic and hydrologic maps; aerial
photographs; information on rare,
endangered and threatened species and
critical habitat; local ecological reports
or studies; and other information
sources that could be used to identify
locations for suitable compensatory
mitigation projects in the watershed.
(iii) The level of information and
analysis needed to support a watershed
approach must be commensurate with
the scope and scale of the proposed
impacts requiring a DA permit, as well
as the functions lost as a result of those
impacts.
(4) Watershed Scale. The size of
watershed addressed using a watershed
approach should not be larger than is
appropriate to ensure that the aquatic
resources provided through
compensation activities will effectively
compensate for adverse environmental
impacts resulting from activities
authorized by DA permits. The district
engineer should consider relevant
environmental factors and appropriate
locally-developed standards and criteria
when determining the appropriate
watershed scale in guiding
compensation activities.
(d) Site selection. (1) The
compensatory mitigation project site
must be ecologically suitable for
providing the desired aquatic resource
functions. In determining the ecological
suitability of the compensatory
mitigation project site, the district
engineer must consider, to the extent
practicable, the following factors:
(i) Hydrological conditions, soil
characteristics, and other physical and
chemical characteristics;
(ii) Watershed-scale features, such as
aquatic habitat diversity, habitat
connectivity, and other landscape scale
functions;
(iii) The size and location of the
compensatory mitigation site relative to
hydrologic sources (including the
availability of water rights) and other
ecological features;
(iv) Compatibility with adjacent land
uses and watershed management plans;
(v) Reasonably foreseeable effects the
compensatory mitigation project will
have on ecologically important aquatic
or terrestrial resources (e.g., shallow sub-
tidal habitat, mature forests),
cultural sites, or habitat for federally- or
state-listed threatened and endangered
species; and
(vi) Other relevant factors including,
but not limited to, development trends,
anticipated land use changes, habitat
status and trends, the relative locations
of the impact and mitigation sites in the
stream network, local or regional goals
for the restoration or protection of
particular habitat types or functions
(e.g., re-establishment of habitat
corridors or habitat for species of
concern), water quality goals, floodplain
management goals, and the relative
potential for chemical contamination of
the aquatic resources.
(2) District engineers may require on-
site, off-site, or a combination of on-site
and off-site compensatory mitigation to
replace permitted losses of aquatic
resource functions and services.
(3) Applicants should propose
compensation sites adjacent to existing
aquatic resources or where aquatic
resources previously existed.
(e) Mitigation type. (1) In general, in-
kind mitigation is preferable to out-of-
kind mitigation because it is most likely
to compensate for the functions and
services lost at the impact site. For
example, tidal wetland compensatory
mitigation projects are most likely to
compensate for unavoidable impacts to
tidal wetlands, while perennial stream
compensatory mitigation projects are
most likely to compensate for
unavoidable impacts to perennial
streams. Thus, except as provided in
paragraph (e)(2) of this section, the
required compensatory mitigation shall
be of a similar type to the affected
aquatic resource.
(2) If the district engineer determines,
using the watershed approach in
accordance with paragraph (c) of this
section that out-of-kind compensatory
mitigation will serve the aquatic
resource needs of the watershed, the
district engineer may authorize the use
of such out-of-kind compensatory
mitigation. The basis for authorization
of out-of-kind compensatory mitigation
must be documented in the
administrative record for the permit
action.
(3) For difficult-to-replace resources
(e.g., bogs, fens, springs, streams,
Atlantic white cedar swamps) if further
avoidance and minimization is not
practicable, the required compensation
should be provided, if practicable,
through in-kind rehabilitation,
enhancement, or preservation since
there is greater certainty that these
methods of compensation will
successfully offset permitted impacts.
(f) Amount of compensatory
mitigation. (1) If the district engineer
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19693
determines that compensatory
mitigation is necessary to offset
unavoidable impacts to aquatic
resources, the amount of required
compensatory mitigation must be, to the
extent practicable, sufficient to replace
lost aquatic resource functions. In cases
where appropriate functional or
condition assessment methods or other
suitable metrics are available, these
methods should be used where
practicable to determine how much
compensatory mitigation is required. If
a functional or condition assessment or
other suitable metric is not used, a
minimum one-to-one acreage or linear
foot compensation ratio must be used.
(2) The district engineer must require
a mitigation ratio greater than one-to-
one where necessary to account for the
method of compensatory mitigation
(e.g., preservation), the likelihood of
success, differences between the
functions lost at the impact site and the
functions expected to be produced by
the compensatory mitigation project,
temporal losses of aquatic resource
functions, the difficulty of restoring or
establishing the desired aquatic resource
type and functions, and/or the distance
between the affected aquatic resource
and the compensation site. The
rationale for the required replacement
ratio must be documented in the
administrative record for the permit
action.
(3) If an in-lieu fee program will be
used to provide the required
compensatory mitigation, and the
appropriate number and resource type
of released credits are not available, the
district engineer must require sufficient
compensation to account for the risk
and uncertainty associated with in-lieu
fee projects that have not been
implemented before the permitted
impacts have occurred.
(g) Use of mitigation banks and in-lieu
fee programs. Mitigation banks and in-
lieu fee programs may be used to
compensate for impacts to aquatic
resources authorized by general permits
and individual permits, including after-
the-fact permits, in accordance with the
preference hierarchy in paragraph (b) of
this section. Mitigation banks and in-
lieu fee programs may also be used to
satisfy requirements arising out of an
enforcement action, such as
supplemental environmental projects.
(h) Preservation. (1) Preservation may
be used to provide compensatory
mitigation for activities authorized by
DA permits when all the following
criteria are met:
(i) The resources to be preserved
provide important physical, chemical,
or biological functions for the
watershed;
(ii) The resources to be preserved
contribute significantly to the ecological
sustainability of the watershed. In
determining the contribution of those
resources to the ecological sustainability
of the watershed, the district engineer
must use appropriate quantitative
assessment tools, where available;
(iii) Preservation is determined by the
district engineer to be appropriate and
practicable;
(iv) The resources are under threat of
destruction or adverse modifications;
and
(v) The preserved site will be
permanently protected through an
appropriate real estate or other legal
instrument (e.g., easement, title transfer
to state resource agency or land trust).
(2) Where preservation is used to
provide compensatory mitigation, to the
extent appropriate and practicable the
preservation shall be done in
conjunction with aquatic resource
restoration, establishment, and/or
enhancement activities. This
requirement may be waived by the
district engineer where preservation has
been identified as a high priority using
a watershed approach described in
paragraph (c) of this section, but
compensation ratios shall be higher.
(i) Buffers. District engineers may
require the restoration, establishment,
enhancement, and preservation, as well
as the maintenance, of riparian areas
and/or buffers around aquatic resources
where necessary to ensure the long-term
viability of those resources. Buffers may
also provide habitat or corridors
necessary for the ecological functioning
of aquatic resources. If buffers are
required by the district engineer as part
of the compensatory mitigation project,
compensatory mitigation credit will be
provided for those buffers.
(^Relationship to other federal, tribal,
state, and local programs. (1)
Compensatory mitigation projects for
DA permits may also be used to satisfy
the environmental requirements of other
programs, such as tribal, state, or local
wetlands regulatory programs, other
federal programs such as the Surface
Mining Control and Reclamation Act,
Corps civil works projects, and
Department of Defense military
construction projects, consistent with
the terms and requirements of these
programs and subject to the following
considerations:
(i) The compensatory mitigation
project must include appropriate
compensation required by the DA
permit for unavoidable impacts to
aquatic resources authorized by that
permit.
(ii) Under no circumstances may the
same credits be used to provide
mitigation for more than one permitted
activity. However, where appropriate,
compensatory mitigation projects,
including mitigation banks and in-lieu
fee projects, may be designed to
holistically address requirements under
multiple programs and authorities for
the same activity.
(2) Except for projects undertaken by
federal agencies, or where federal
funding is specifically authorized to
provide compensatory mitigation,
federally-funded aquatic resource
restoration or conservation projects
undertaken for purposes other than
compensatory mitigation, such as the
Wetlands Reserve Program,
Conservation Reserve Program, and
Partners for Wildlife Program activities,
cannot be used for the purpose of
generating compensatory mitigation
credits for activities authorized by DA
permits. However, compensatory
mitigation credits may be generated by
activities undertaken in conjunction
with, but supplemental to, such
program sin order to maximize the
overall ecological benefits of the
restoration or conservation project.
(3) Compensatory mitigation projects
may also be used to provide
compensatory mitigation under the
Endangered Species Act or for Habitat
Conservation Plans, as long as they
comply with the requirements of
paragraph (j)(l) of this section.
(k) Permit conditions. (1) The
compensatory mitigation requirements
for a DA permit, including the amount
and type of compensatory mitigation,
must be clearly stated in the special
conditions of the individual permit or
general permit verification (see 33 CFR
325.4 and 330.6(a)). The special
conditions must be enforceable.
(2) For an individual permit that
requires permittee-responsible
mitigation, the special conditions must:
(i) Identify the party responsible for
providing the compensatory mitigation;
(ii) Incorporate, by reference, the final
mitigation plan approved by the district
engineer;
(iii) State the objectives, performance
standards, and monitoring required for
the compensatory mitigation project,
unless they are provided in the
approved final mitigation plan; and
(iv) Describe any required financial
assurances or long-term management
provisions for the compensatory
mitigation project, unless they are
specified in the approved final
mitigation plan.
(3) For a general permit activity that
requires permittee-responsible
compensatory mitigation, the special
conditions must describe the
compensatory mitigation proposal,
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19694
which may be either conceptual or
detailed. The general permit verification
must also include a special condition
that states that the permittee cannot
commence work in waters of the United
States until the district engineer
approves the final mitigation plan,
unless the district engineer determines
that such a special condition is not
practicable and not necessary to ensure
timely completion of the required
compensatory mitigation. To the extent
appropriate and practicable, special
conditions of the general permit
verification should also address the
requirements of paragraph (k)(2) of this
section.
(4) If a mitigation bank or in-lieu fee
program is used to provide the required
compensatory mitigation, the special
conditions must indicate whether a
mitigation bank or in-lieu fee program
will be used, and specify the number
and resource type of credits the
permittee is required to secure. In the
case of an individual permit, the special
condition must also identify the specific
mitigation bank or in-lieu fee program
that will be used. For general permit
verifications, the special conditions may
either identify the specific mitigation
bank or in-lieu fee program, or state that
the specific mitigation bank or in-lieu
fee program used to provide the
required compensatory mitigation must
be approved by the district engineer
before the credits are secured.
(1) Party responsible for compensatory
mitigation. (l)For permittee-responsible
mitigation, the special conditions of the
DA permit must clearly indicate the
party or parties responsible for the
implementation, performance, and long-
term management of the compensatory
mitigation project.
(2) For mitigation banks and in-lieu
fee programs, the instrument must
clearly indicate the party or parties
responsible for the implementation,
performance, and long-term
management of the compensatory
mitigation project(s). The instrument
must also contain a provision
expressing the sponsor's agreement to
assume responsibility for a permittee's
compensatory mitigation requirements,
once that permittee has secured the
appropriate number and resource type
of credits from the sponsor and the
district engineer has received the
documentation described in paragraph
(1)(3) of this section.
(3) If use of a mitigation bank or in-
lieu fee program is approved by the
district engineer to provide part or all of
the required compensatory mitigation
for a DA permit, the permittee retains
responsibility for providing the
compensatory mitigation until the
appropriate number and resource type of
credits have been secured from a sponsor
and the district engineer has received
documentation that confirms that the
sponsor has accepted the responsibility
for providing the required compensatory
mitigation. This documentation may
consist of a letter or form signed by the
sponsor, with the permit number and a
statement indicating the number and
resource type of credits that have been
secured from the sponsor. Copies of this
documentation will be retained in the
administrative records for both the
permit and the instrument. If the
sponsor fails to provide the required
compensatory mitigation, the district
engineer may pursue measures against
the sponsor to ensure compliance.
(m) Timing. Implementation of the
compensatory mitigation project shall
be, to the maximum extent practicable,
in advance of or concurrent with the
activity causing the authorized impacts.
The district engineer shall require, to
the extent appropriate and practicable,
additional compensatory mitigation to
offset temporal losses of aquatic
functions that will result from the
permitted activity.
(n) Financial assurances. (1) The
district engineer shall require sufficient
financial assurances to ensure a high
level of confidence that the
compensatory mitigation project will be
successfully completed, in accordance
with applicable performance standards.
In cases where an alternate mechanism
is available to ensure a high level of
confidence that the compensatory
mitigation will be provided and
maintained (e.g., a formal, documented
commitment from a government agency
or public authority) the district engineer
may determine that financial assurances
are not necessary for that compensatory
mitigation project.
(2) The amount of the required
financial assurances must be
determined by the district engineer, in
consultation with the project sponsor,
and must be based on the size and
complexity of the compensatory
mitigation project, the degree of
completion of the project at the time of
project approval, the likelihood of
success, the past performance of the
project sponsor, and any other factors
the district engineer deems appropriate.
Financial assurances may be in the form
of performance bonds, escrow accounts,
casualty insurance, letters of credit,
legislative appropriations for
government sponsored projects, or other
appropriate instruments, subject to the
approval of the district engineer. The
rationale for determining the amount of
the required financial assurances must
be documented in the administrative
record for either the DA permit or the
instrument. In determining the
assurance amount, the district engineer
shall consider the cost of providing
replacement mitigation, including costs
for land acquisition, planning and
engineering, legal fees, mobilization,
construction, and monitoring.
(3) If financial assurances are
required, the DA permit must include a
special condition requiring the financial
assurances to be in place prior to
commencing the permitted activity.
(4) Financial assurances shall be
phased out once the compensatory
mitigation project has been determined
by the district engineer to be successful
in accordance with its performance
standards. The DA permit or instrument
must clearly specify the conditions
under which the financial assurances
are to be released to the permittee,
sponsor, and/or other financial
assurance provider, including, as
appropriate, linkage to achievement of
performance standards, adaptive
management, or compliance with
special conditions.
(5) A financial assurance must be in
a form that ensures that the district
engineer will receive notification at
least 120 days in advance of any
termination or revocation. For third-
party assurance providers, this may take
the form of a contractual requirement
for the assurance provider to notify the
district engineer at least 120 days before
the assurance is revoked or terminated.
(6) Financial assurances shall be
payable at the direction of the district
engineer to his designee or to a standby
trust agreement. When a standby trust is
used (e.g., with performance bonds or
letters of credit) all amounts paid by the
financial assurance provider shall be
deposited directly into the standby trust
fund for distribution by the trustee in
accordance with the district engineer's
instructions.
(o) Compliance -with applicable law.
The compensatory mitigation project
must comply with all applicable federal,
state, and local laws. The DA permit,
mitigation banking instrument, or in-
lieu fee program instrument must not
require participation by the Corps or
any other federal agency in project
management, including receipt or
management of financial assurances or
long-term financing mechanisms, except
as determined by the Corps or other
agency to be consistent with its
statutory authority, mission, and
priorities.
§230.94 Planning and documentation.
(a) Pre-application consultations.
Potential applicants for standard
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19695
permits are encouraged to participate in
pre-application meetings with the Corps
and appropriate agencies to discuss
potential mitigation requirements and
information needs.
(b) Public review and comment. (I)
For an activity that requires a standard
DA permit pursuant to section 404 of
the Clean Water Act, the public notice
for the proposed activity must contain a
statement explaining how impacts
associated with the proposed activity
are to be avoided, minimized, and
compensated for. This explanation shall
address, to the extent that such
information is provided in the
mitigation statement required by 33 CFR
325.1(d)(7), the proposed avoidance and
minimization and the amount, type, and
location of any proposed compensatory
mitigation, including any out-of-kind
compensation, or indicate an intention
to use an approved mitigation bank or in-
lieu fee program. The level of detail
provided in the public notice must be
commensurate with the scope and scale
of the impacts. The notice shall not
include information that the district
engineer and the permittee believe
should be kept confidential for business
purposes, such as the exact location of
a proposed mitigation site that has not
yet been secured. The permittee must
clearly identify any information being
claimed as confidential in the mitigation
statement when submitted. In such
cases, the notice must still provide
enough information to enable the public
to provide meaningful comment on the
proposed mitigation.
(2) For individual permits, district
engineers must consider any timely
comments and recommendations from
other federal agencies; tribal, state, or
local governments; and the public.
(3) For activities authorized by letters
of permission or general permits, the
review and approval process for
compensatory mitigation proposals and
plans must be conducted in accordance
with the terms and conditions of those
permits and applicable regulations
including the applicable provisions of
this part.
(c) Mitigation plan. (1) Preparation
and Approval, (i) For individual
permits, the permittee must prepare a
draft mitigation plan and submit it to
the district engineer for review. After
addressing any comments provided by
the district engineer, the permittee must
prepare a final mitigation plan, which
must be approved by the district
engineer prior to issuing the individual
permit. The approved final mitigation
plan must be incorporated into the
individual permit by reference. The
final mitigation plan must include the
items described in paragraphs (c)(2)
through (c)(14) of this section, but the
level of detail of the mitigation plan
should be commensurate with the scale
and scope of the impacts. As an
alternative, the district engineer may
determine that it would be more
appropriate to address any of the items
described in paragraphs (c)(2) through
(c)(14) of this section as permit
conditions, instead of components of a
compensatory mitigation plan. For
permittees who intend to fulfill their
compensatory mitigation obligations by
securing credits from approved
mitigation banks or in-lieu fee programs,
their mitigation plans need include only
the items described in paragraphs (c)(5)
and (c)(6) of this section, and the name
of the specific mitigation bank or in-lieu
fee program to be used.
(ii) For general permits, if
compensatory mitigation is required, the
district engineer may approve a
conceptual or detailed compensatory
mitigation plan to meet required time
frames for general permit verifications,
but a final mitigation plan incorporating
the elements in paragraphs (c)(2)
through (c)(14) of this section, at a level
of detail commensurate with the scale
and scope of the impacts, must be
approved by the district engineer before
the permittee commences work in
waters of the United States. As an
alternative, the district engineer may
determine that it would be more
appropriate to address any of the items
described in paragraphs (c)(2) through
(c)(14) of this section as permit
conditions, instead of components of a
compensatory mitigation plan. For
permittees who intend to fulfill their
compensatory mitigation obligations by
securing credits from approved
mitigation banks or in-lieu fee programs,
their mitigation plans need include only
the items described in paragraphs (c)(5)
and (c)(6) of this section, and either the
name of the specific mitigation bank or
in-lieu fee program to be used or a
statement indicating that a mitigation
bank or in-lieu fee program will be used
(contingent upon approval by the
district engineer).
(iii) Mitigation banks and in-lieu fee
programs must prepare a mitigation
plan including the items in paragraphs
(c)(2) through (c)(14) of this section for
each separate compensatory mitigation
project site. For mitigation banks and in-
lieu fee programs, the preparation and
approval process for mitigation plans is
described in § 230.98.
(2) Objectives. A description of the
resource type(s) and amount(s) that will
be provided, the method of
compensation (i.e., restoration,
establishment, enhancement, and/or
preservation), and the manner in which
the resource functions of the
compensatory mitigation project will
address the needs of the watershed,
ecoregion, physiographic province, or
other geographic area of interest.
(3) Site selection. A description of the
factors considered during the site
selection process. This should include
consideration of watershed needs, on-
site alternatives where applicable, and
the practicability of accomplishing
ecologically self-sustaining aquatic
resource restoration, establishment,
enhancement, and/or preservation at the
compensatory mitigation project site.
(See§230.93(d).)
(4) Site protection instrument. A
description of the legal arrangements
and instrument, including site
ownership, that will be used to ensure
the long-term protection of the
compensatory mitigation project site
(see § 230.97(a)).
(5) Baseline information. A
description of the ecological
characteristics of the proposed
compensatory mitigation project site
and, in the case of an application for a
DA permit, the impact site. This may
include descriptions of historic and
existing plant communities, historic and
existing hydrology, soil conditions, a
map showing the locations of the impact
and mitigation site(s) or the geographic
coordinates for those site(s), and other
site characteristics appropriate to the
type of resource proposed as
compensation. The baseline information
should also include a delineation of
waters of the United States on the
proposed compensatory mitigation
project site. A prospective permittee
planning to secure credits from an
approved mitigation bank or in-lieu fee
program only needs to provide baseline
information about the impact site, not
the mitigation bank or in-lieu fee project
site.
(6) Determination of credits. A
description of the number of credits to
be provided, including a brief
explanation of the rationale for this
determination. (See §230.93(1).)
(i) For permittee-responsible
mitigation, this should include an
explanation of how the compensatory
mitigation project will provide the
required compensation for unavoidable
impacts to aquatic resources resulting
from the permitted activity.
(ii) For permittees intending to secure
credits from an approved mitigation
bank or in-lieu fee program, it should
include the number and resource type of
credits to be secured and how these
were determined.
(7) Mitigation work plan. Detailed
written specifications and work
descriptions for the compensatory
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mitigation project, including, but not
limited to, the geographic boundaries of
the project; construction methods,
timing, and sequence; source(s) of
water, including connections to existing
waters and uplands; methods for
establishing the desired plant
community; plans to control invasive
plant species; the proposed grading
plan, including elevations and slopes of
the substrate; soil management; and
erosion control measures. For stream
compensatory mitigation projects, the
mitigation work plan may also include
other relevant information, such as
planform geometry, channel form (e.g.,
typical channel cross-sections),
watershed size, design discharge, and
riparian area plantings.
(8) Maintenance plan. A description
and schedule of maintenance
requirements to ensure the continued
viability of the resource once initial
construction is completed.
(9) Performance standards.
Ecologically-based standards that will
be used to determine whether the
compensatory mitigation project is
achieving its objectives. (See § 230.95.)
(10) Monitoring requirements. A
description of parameters to be
monitored in order to determine if the
compensatory mitigation project is on
track to meet performance standards
and if adaptive management is needed.
A schedule for monitoring and reporting
on monitoring results to the district
engineer must be included. (See
§230.96.)
(11) Long-term management plan. A
description of how the compensatory
mitigation project will be managed after
performance standards have been
achieved to ensure the long-term
sustainability of the resource, including
long-term financing mechanisms and
the party responsible for long-term
management. (See §230.97(d).)
(12) Adaptive management plan. A
management strategy to address
unforeseen changes in site conditions or
other components of the compensatory
mitigation project, including the party
or parties responsible for implementing
adaptive management measures. The
adaptive management plan will guide
decisions for revising compensatory
mitigation plans and implementing
measures to address both foreseeable
and unforeseen circumstances that
adversely affect compensatory
mitigation success. (See § 230.97(c).)
(13) Financial assurances. A
description of financial assurances that
will be provided and how they are
sufficient to ensure a high level of
confidence that the compensatory
mitigation project will be successfully
completed, in accordance with its
performance standards (see § 230.93(n)).
(14) Other information. The district
engineer may require additional
information as necessary to determine
the appropriateness, feasibility, and
practicability of the compensatory
mitigation project.
§230.95 Ecological performance
standards.
(a) The approved mitigation plan
must contain performance standards
that will be used to assess whether the
project is achieving its objectives.
Performance standards should relate to
the objectives of the compensatory
mitigation project, so that the project
can be objectively evaluated to
determine if it is developing into the
desired resource type, providing the
expected functions, and attaining any
other applicable metrics (e.g., acres).
(b) Performance standards must be
based on attributes that are objective
and verifiable. Ecological performance
standards must be based on the best
available science that can be measured
or assessed in a practicable manner.
Performance standards may be based on
variables or measures of functional
capacity described in functional
assessment methodologies,
measurements of hydrology or other
aquatic resource characteristics, and/or
comparisons to reference aquatic
resources of similar type and landscape
position. The use of reference aquatic
resources to establish performance
standards will help ensure that those
performance standards are reasonably
achievable, by reflecting the range of
variability exhibited by the regional
class of aquatic resources as a result of
natural processes and anthropogenic
disturbances. Performance standards
based on measurements of hydrology
should take into consideration the
hydrologic variability exhibited by
reference aquatic resources, especially
wetlands. Where practicable,
performance standards should take into
account the expected stages of the
aquatic resource development process,
in order to allow early identification of
potential problems and appropriate
adaptive management.
§230.96 Monitoring.
(a) General. (1) Monitoring the
compensatory mitigation project site is
necessary to determine if the project is
meeting its performance standards, and
to determine if measures are necessary
to ensure that the compensatory
mitigation project is accomplishing its
objectives. The submission of
monitoring reports to assess the
development and condition of the
compensatory mitigation project is
required, but the content and level of
detail for those monitoring reports must
be commensurate with the scale and
scope of the compensatory mitigation
project, as well as the compensatory
mitigation project type. The mitigation
plan must address the monitoring
requirements for the compensatory
mitigation project, including the
parameters to be monitored, the length
of the monitoring period, the party
responsible for conducting the
monitoring, the frequency for
submitting monitoring reports to the
district engineer, and the party
responsible for submitting those
monitoring reports to the district
engineer.
(2) The district engineer may conduct
site inspections on a regular basis (e.g.,
annually) during the monitoring period
to evaluate mitigation site performance.
(b) Monitoring period. The mitigation
plan must provide for a monitoring
period that is sufficient to demonstrate
that the compensatory mitigation project
has met performance standards, but not
less than five years. A longer monitoring
period must be required for aquatic
resources with slow development rates
(e.g., forested wetlands, bogs).
Following project implementation, the
district engineer may reduce or waive
the remaining monitoring requirements
upon a determination that the
compensatory mitigation project has
achieved its performance standards.
Conversely the district engineer may
extend the original monitoring period
upon a determination that performance
standards have not been met or the
compensatory mitigation project is not
on track to meet them. The district
engineer may also revise monitoring
requirements when remediation and/or
adaptive management is required.
(c) Monitoring reports. (1) The district
engineer must determine the
information to be included in
monitoring reports. This information
must be sufficient for the district
engineer to determine how the
compensatory mitigation project is
progressing towards meeting its
performance standards, and may
include plans (such as as-built plans),
maps, and photographs to illustrate site
conditions. Monitoring reports may also
include the results of functional,
condition, or other assessments used to
provide quantitative or qualitative
measures of the functions provided by
the compensatory mitigation project
site.
(2) The permittee or sponsor is
responsible for submitting monitoring
reports in accordance with the special
conditions of the DA permit or the terms
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19697
of the instrument. Failure to submit
monitoring reports in a timely manner
may result in compliance action by the
district engineer.
(3) Monitoring reports must be
provided by the district engineer to
interested federal, tribal, state, and local
resource agencies, and the public, upon
request.
§230.97 Management.
(a) Site protection. (1) The aquatic
habitats, riparian areas, buffers, and
uplands that comprise the overall
compensatory mitigation project must
be provided long-term protection
through real estate instruments or other
available mechanisms, as appropriate.
Long-term protection may be provided
through real estate instruments such as
conservation easements held by entities
such as federal, tribal, state, or local
resource agencies, non-profit
conservation organizations, or private
land managers; the transfer of title to
such entities; or by restrictive
covenants. For government property,
long-term protection may be provided
through federal facility management
plans or integrated natural resources
management plans. When approving a
method for long-term protection of non-
government property other than transfer
of title, the district engineer shall
consider relevant legal constraints on
the use of conservation easements and/
or restrictive covenants in determining
whether such mechanisms provide
sufficient site protection. To provide
sufficient site protection, a conservation
easement or restrictive covenant should,
where practicable, establish in an
appropriate third party (e.g.,
governmental or non-profit resource
management agency) the right to enforce
site protections and provide the third
party the resources necessary to monitor
and enforce these site protections.
(2) The real estate instrument,
management plan, or other mechanism
providing long-term protection of the
compensatory mitigation site must, to
the extent appropriate and practicable,
prohibit incompatible uses (e.g., clear
cutting or mineral extraction) that might
otherwise jeopardize the objectives of
the compensatory mitigation project.
Where appropriate, multiple
instruments recognizing compatible
uses (e.g., fishing or grazing rights) may
be used.
(3) The real estate instrument,
management plan, or other long-term
protection mechanism must contain a
provision requiring 60-day advance
notification to the district engineer
before any action is taken to void or
modify the instrument, management
plan, or long-term protection
mechanism, including transfer of title
to, or establishment of any other legal
claims over, the compensatory
mitigation site.
(4) For compensatory mitigation
projects on public lands, where Federal
facility management plans or integrated
natural resources management plans are
used to provide long-term protection,
and changes in statute, regulation, or
agency needs or mission results in an
incompatible use on public lands
originally set aside for compensatory
mitigation, the public agency
authorizing the incompatible use is
responsible for providing alternative
compensatory mitigation that is
acceptable to the district engineer for
any loss in functions resulting from the
incompatible use.
(5) A real estate instrument,
management plan, or other long-term
protection mechanism used for site
protection of permittee-responsible
mitigation must be approved by the
district engineer in advance of, or
concurrent with, the activity causing the
authorized impacts.
(b) Sustainability. Compensatory
mitigation projects shall be designed, to
the maximum extent practicable, to be
self-sustaining once performance
standards have been achieved. This
includes minimization of active
engineering features (e.g., pumps) and
appropriate siting to ensure that natural
hydrology and landscape context will
support long-term sustainability. Where
active long-term management and
maintenance are necessary to ensure long-
term sustainability (e.g., prescribed
burning, invasive species control,
maintenance of water control structures,
easement enforcement), the responsible
party must provide for such
management and maintenance. This
includes the provision of long-term
financing mechanisms where necessary.
Where needed, the acquisition and
protection of water rights must be
secured and documented in the permit
conditions or instrument.
(c) Adaptive management. (1) If the
compensatory mitigation project cannot
be constructed in accordance with the
approved mitigation plans, the
permittee or sponsor must notify the
district engineer. A significant
modification of the compensatory
mitigation project requires approval
from the district engineer.
(2) If monitoring or other information
indicates that the compensatory
mitigation project is not progressing
towards meeting its performance
standards as anticipated, the responsible
party must notify the district engineer as
soon as possible. The district engineer
will evaluate and pursue measures to
address deficiencies in the
compensatory mitigation project. The
district engineer will consider whether
the compensatory mitigation project is
providing ecological benefits
comparable to the original objectives of
the compensatory mitigation project.
(3) The district engineer, in
consultation with the responsible party
(and other federal, tribal, state, and local
agencies, as appropriate), will determine
the appropriate measures. The measures
may include site modifications, design
changes, revisions to maintenance
requirements, and revised monitoring
requirements. The measures must be
designed to ensure that the modified
compensatory mitigation project
provides aquatic resource functions
comparable to those described in the
mitigation plan objectives.
(4) Performance standards may be
revised in accordance with adaptive
management to account for measures
taken to address deficiencies in the
compensatory mitigation project.
Performance standards may also be
revised to reflect changes in
management strategies and objectives if
the new standards provide for ecological
benefits that are comparable or superior
to the approved compensatory
mitigation project. No other revisions to
performance standards will be allowed
except in the case of natural disasters.
(d) Long-term management. (1) The
permit conditions or instrument must
identify the party responsible for
ownership and all long-term
management of the compensatory
mitigation project. The permit
conditions or instrument may contain
provisions allowing the permittee or
sponsor to transfer the long-term
management responsibilities of the
compensatory mitigation project site to
a land stewardship entity, such as a
public agency, non-governmental
organization, or private land manager,
after review and approval by the district
engineer. The land stewardship entity
need not be identified in the original
permit or instrument, as long as the
future transfer of long-term management
responsibility is approved by the district
engineer.
(2) A long-term management plan
should include a description of long-
term management needs, annual cost
estimates for these needs, and identify
the funding mechanism that will be
used to meet those needs.
(3) Any provisions necessary for long-
term financing must be addressed in the
original permit or instrument. The
district engineer may require provisions
to address inflationary adjustments and
other contingencies, as appropriate.
Appropriate long-term financing
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mechanisms include non-wasting
endowments, trusts, contractual
arrangements with future responsible
parties, and other appropriate financial
instruments. In cases where the long-
term management entity is a public
authority or government agency, that
entity must provide a plan for the long-
term financing of the site.
(4) For permittee-responsible
mitigation, any long-term financing
mechanisms must be approved in
advance of the activity causing the
authorized impacts.
§230.98 Mitigation banks and in-lieu fee
programs.
(a) General considerations. (1) All
mitigation banks and in-lieu fee
programs must have an approved
instrument signed by the sponsor and
the district engineer prior to being used
to provide compensatory mitigation for
DA permits.
(2) To the maximum extent
practicable, mitigation banks and in-lieu
fee project sites must be planned and
designed to be self-sustaining over time,
but some active management and
maintenance may be required to ensure
their long-term viability and
sustainabiliry. Examples of acceptable
management activities include
maintaining fire dependent habitat
communities in the absence of natural
fire and controlling invasive exotic
plant species.
(3) All mitigation banks and in-lieu
fee programs must comply with the
standards in this part, if they are to be
used to provide compensatory
mitigation for activities authorized by
DA permits, regardless of whether they
are sited on public or private lands and
whether the sponsor is a governmental
or private entity.
(b) Interagency Review Team. (1) The
district engineer will establish an
Interagency Review Team (IRT) to
review documentation for the
establishment and management of
mitigation banks and in-lieu fee
programs. The district engineer or his
designated representative serves as
Chair of the IRT. In cases where a
mitigation bank or in-lieu fee program is
proposed to satisfy the requirements of
another federal, tribal, state, or local
program, in addition to compensatory
mitigation requirements of DA permits,
it may be appropriate for the
administering agency to serve as co-
Chair of the IRT.
(2) In addition to the Corps,
representatives from the U.S.
Environmental Protection Agency, U.S.
Fish and Wildlife Service, NOAA
Fisheries, the Natural Resources
Conservation Service, and other federal
agencies, as appropriate, may
participate in the IRT. The IRT may also
include representatives from tribal,
state, and local regulatory and resource
agencies, where such agencies have
authorities and/or mandates directly
affecting, or affected by, the
establishment, operation, or use of the
mitigation bank or in-lieu fee program.
The district engineer will seek to
include all public agencies with a
substantive interest in the establishment
of the mitigation bank or in-lieu fee
program on the IRT, but retains final
authority over its composition.
(3) The primary role of the IRT is to
facilitate the establishment of mitigation
banks or in-lieu fee programs through
the development of mitigation banking
or in-lieu fee program instruments. The
IRT will review the prospectus,
instrument, and other appropriate
documents and provide comments to
the district engineer. The district
engineer and the IRT should use a
watershed approach to the extent
practicable in reviewing proposed
mitigation banks and in-lieu fee
programs. Members of the IRT may also
sign the instrument, if they so choose.
By signing the instrument, the IRT
members indicate their agreement with
the terms of the instrument. As an
alternative, a member of the IRT may
submit a letter expressing concurrence
with the instrument. The IRT will also
advise the district engineer in assessing
monitoring reports, recommending
remedial or adaptive management
measures, approving credit releases, and
approving modifications to an
instrument. In order to ensure timely
processing of instruments and other
documentation, comments from IRT
members must be received by the
district engineer within the time limits
specified in this section. Comments
received after these deadlines will only
be considered at the discretion of the
district engineer to the extent that doing
so does not jeopardize the deadlines for
district engineer action.
(4) The district engineer will give full
consideration to any timely comments
and advice of the IRT. The district
engineer alone retains final authority for
approval of the instrument in cases
where the mitigation bank or in-lieu fee
program is used to satisfy compensatory
mitigation requirements of DA permits.
(5) MO As -with other agencies. The
district engineer and members of the
IRT may enter into a memorandum of
agreement (MOA) with any other
federal, state or local government
agency to perform all or some of the IRT
review functions described in this
section. Such MOAs must include
provisions for appropriate federal
oversight of the review process. The
district engineer retains sole authority
for final approval of instruments and
other documentation required under
this section.
(c) Compensation planning frame-work
for in-lieu fee programs. (1) The
approved instrument for an in-lieu fee
program must include a compensation
planning framework that will be used to
select, secure, and implement aquatic
resource restoration, establishment,
enhancement, and/or preservation
activities. The compensation planning
framework must support a watershed
approach to compensatory mitigation.
All specific projects used to provide
compensation for DA permits must be
consistent with the approved
compensation planning framework.
Modifications to the framework must be
approved as a significant modification to
the instrument by the district engineer,
after consultation with the IRT.
(2) The compensation planning
framework must contain the following
elements:
(i) The geographic service area(s),
including a watershed-based rationale
for the delineation of each service area;
(ii) A description of the threats to
aquatic resources in the service area(s),
including how the in-lieu fee program
will help offset impacts resulting from
those threats;
(iii) An analysis of historic aquatic
resource loss in the service area(s);
(iv) An analysis of current aquatic
resource conditions in the service
area(s), supported by an appropriate
level of field documentation;
(v) A statement of aquatic resource
goals and objectives for each service
area, including a description of the
general amounts, types and locations of
aquatic resources the program will seek
to provide;
(vi) A prioritization strategy for
selecting and implementing
compensatory mitigation activities;
(vii) An explanation of how any
preservation objectives identified in
paragraph (c)(2)(v) of this section and
addressed in the prioritization strategy
in paragraph (c)(2)(vi) satisfy the criteria
for use of preservation in § 230.93(h);
(viii) A description of any public and
private stakeholder involvement in plan
development and implementation,
including, where appropriate,
coordination with federal, state, tribal
and local aquatic resource management
and regulatory authorities;
(ix) A description of the long-term
protection and management strategies
for activities conducted by the in-lieu
fee program sponsor;
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(x) A strategy for periodic evaluation
and reporting on the progress of the
program in achieving the goals and
objectives in paragraph (c)(2)(v) of this
section, including a process for revising
the planning framework as necessary;
and
(xi) Any other information deemed
necessary for effective compensation
planning by the district engineer.
(3) The level of detail necessary for
the compensation planning framework
is at the discretion of the district
engineer, and will take into account the
characteristics of the service area(s) and
the scope of the program. As part of the
in-lieu fee program instrument, the
compensation planning framework will
be reviewed by the IRT, and will be a
major factor in the district engineer's
decision on whether to approve the
instrument.
(d) Review process. (1) The sponsor is
responsible for preparing all
documentation associated with
establishment of the mitigation bank or
in-lieu fee program, including the
prospectus, instrument, and other
appropriate documents, such as
mitigation plans for a mitigation bank.
The prospectus provides an overview of
the proposed mitigation bank or in-lieu
fee program and serves as the basis for
public and initial IRT comment. For a
mitigation bank, the mitigation plan, as
described in § 230.94(c), provides
detailed plans and specifications for the
mitigation bank site. For in-lieu fee
programs, mitigation plans will be
prepared as in-lieu fee project sites are
identified after the instrument has been
approved and the in-lieu fee program
becomes operational. The instrument
provides the authorization for the
mitigation bank or in-lieu fee program to
provide credits to be used as
compensatory mitigation for DA
permits.
(2) Prospectus. The prospectus must
provide a summary of the information
regarding the proposed mitigation bank
or in-lieu fee program, at a sufficient
level of detail to support informed
public and IRT comment. The review
process begins when the sponsor
submits a complete prospectus to the
district engineer. For modifications of
approved instruments, submittal of a
new prospectus is not required; instead,
the sponsor must submit a written
request for an instrument modification
accompanied by appropriate
documentation. The district engineer
must notify the sponsor within 30 days
whether or not a submitted prospectus
is complete. A complete prospectus
includes the following information:
(i) The objectives of the proposed
mitigation bank or in-lieu fee program.
(ii) How the mitigation bank or in-lieu
fee program will be established and
operated.
(iii) The proposed service area.
(iv) The general need for and
technical feasibility of the proposed
mitigation bank or in-lieu fee program.
(v) The proposed ownership
arrangements and long-term
management strategy for the mitigation
bank or in-lieu fee project sites.
(vi) The qualifications of the sponsor
to successfully complete the type(s) of
mitigation project(s) proposed,
including information describing any
past such activities by the sponsor.
(vii) For a proposed mitigation bank,
the prospectus must also address:
(A) The ecological suitability of the
site to achieve the objectives of the
proposed mitigation bank, including the
physical, chemical, and biological
characteristics of the bank site and how
that site will support the planned types
of aquatic resources and functions; and
(B) Assurance of sufficient water
rights to support the long-term
sustainability of the mitigation bank.
(viii) For a proposed in-lieu fee
program, the prospectus must also
include:
(A) The compensation planning
framework (see paragraph (c) of this
section); and
(B) A description of the in-lieu fee
program account required by paragraph
(i) of this section.
(3) Preliminary review of prospectus.
Prior to submitting a prospectus, the
sponsor may elect to submit a draft
prospectus to the district engineer for
comment and consultation. The district
engineer will provide copies of the draft
prospectus to the IRT and will provide
comments back to the sponsor within 30
days. Any comments from IRT members
will also be forwarded to the sponsor.
This preliminary review is optional but
is strongly recommended. It is intended
to identify potential issues early so that
the sponsor may attempt to address
those issues prior to the start of the
formal review process.
(4) Public review and comment.
Within 30 days of receipt of a complete
prospectus or an instrument
modification request that will be
processed in accordance with paragraph
(g)(l) of this section, the district
engineer will provide public notice of
the proposed mitigation bank or in-lieu
fee program, in accordance with the
public notice procedures at 33 CFR
325.3. The public notice must, at a
minimum, include a summary of the
prospectus and indicate that the full
prospectus is available to the public for
review upon request. For modifications
of approved instruments, the public
notice must instead summarize, and
make available to the public upon
request, whatever documentation is
appropriate for the modification (e.g., a
new or revised mitigation plan). The
comment period for public notice will
be 30 days, unless the district engineer
determines that a longer comment
period is appropriate. The district
engineer will notify the sponsor if the
comment period is extended beyond 30
days, including an explanation of why
the longer comment period is necessary.
Copies of all comments received in
response to the public notice must be
distributed to the other IRT members
and to the sponsor within 15 days of the
close of the public comment period. The
district engineer and IRT members may
also provide comments to the sponsor at
this time, and copies of any such
comments will also be distributed to all
IRT members. If the construction of a
mitigation bank or an in-lieu fee
program project requires a DA permit,
the public notice requirement may be
satisfied through the public notice
provisions of the permit processing
procedures, provided all of the relevant
information is provided.
(5) Initial evaluation, (i) After the end
of the comment period, the district
engineer will review the comments
received in response to the public
notice, and make a written initial
evaluation as to the potential of the
proposed mitigation bank or in-lieu fee
program to provide compensatory
mitigation for activities authorized by
DA permits. This initial evaluation
letter must be provided to the sponsor
within 30 days of the end of the public
notice comment period.
(ii) If the district engineer determines
that the proposed mitigation bank or in-
lieu fee program has potential for
providing appropriate compensatory
mitigation for activities authorized by
DA permits, the initial evaluation letter
will inform the sponsor that he/she may
proceed with preparation of the draft
instrument (see paragraph (d)(6) of this
section).
(iii) If the district engineer determines
that the proposed mitigation bank or in-
lieu fee program does not have potential
for providing appropriate compensatory
mitigation for DA permits, the initial
evaluation letter must discuss the
reasons for that determination. The
sponsor may revise the prospectus to
address the district engineer's concerns,
and submit the revised prospectus to the
district engineer. If the sponsor submits
a revised prospectus, a revised public
notice will be issued in accordance with
paragraph (d)(4) of this section.
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(iv) This initial evaluation procedure
does not apply to proposed
modifications of approved instruments.
(6) Draft instrument, (i) After
considering comments from the district
engineer, the IRT, and the public, if the
sponsor chooses to proceed with
establishment of the mitigation bank or
in-lieu fee program, he must prepare a
draft instrument and submit it to the
district engineer. In the case of an
instrument modification, the sponsor
must prepare a draft amendment (e.g., a
specific instrument provision, a new or
modified mitigation plan), and submit it
to the district engineer. The district
engineer must notify the sponsor within
30 days of receipt, whether the draft
instrument or amendment is complete.
If the draft instrument or amendment is
incomplete, the district engineer will
request from the sponsor the
information necessary to make the draft
instrument or amendment complete.
Once any additional information is
submitted, the district engineer must
notify the sponsor as soon as he
determines that the draft instrument or
amendment is complete. The draft
instrument must be based on the
prospectus and must describe in detail
the physical and legal characteristics of
the mitigation bank or in-lieu fee
program and how it will be established
and operated.
(ii) For mitigation banks and in-lieu
fee programs, the draft instrument must
include the following information:
(A) A description of the proposed
geographic service area of the mitigation
bank or in-lieu fee program. The service
area is the watershed, ecoregion,
physiographic province, and/or other
geographic area within which the
mitigation bank or in-lieu fee program is
authorized to provide compensatory
mitigation required by DA permits. The
service area must be appropriately sized
to ensure that the aquatic resources
provided will effectively compensate for
adverse environmental impacts across
the entire service area. For example, in
urban areas, a U.S. Geological Survey 8-
digit hydrologic unit code (HUC)
watershed or a smaller watershed may
be an appropriate service area. In rural
areas, several contiguous 8-digit HUCs
or a 6-digit HUC watershed may be an
appropriate service area. Delineation of
the service area must also consider any
locally-developed standards and criteria
that may be applicable. The economic
viability of the mitigation bank or in-
lieu fee program may also be considered
in determining the size of the service
area. The basis for the proposed service
area must be documented in the
instrument. An in-lieu fee program or
umbrella mitigation banking instrument
may have multiple service areas
governed by its instrument (e.g., each
watershed within a State or Corps
district may be a separate service area
under the instrument); however, all
impacts and compensatory mitigation
must be accounted for by service area;
(B) Accounting procedures;
(C) A provision stating that legal
responsibility for providing the
compensatory mitigation lies with the
sponsor once a permittee secures credits
from the sponsor;
(D) Default and closure provisions;
(E) Reporting protocols; and
(F) Any other information deemed
necessary by the district engineer.
(iii) For a mitigation bank, a complete
draft instrument must include the
following additional information:
(A) Mitigation plans that include all
applicable items listed in § 230.94(c)(2)
through (14); and
(B) A credit release schedule, which
is tied to achievement of specific
milestones. All credit releases must be
approved by the district engineer, in
consultation with the IRT, based on a
determination that required milestones
have been achieved. The district
engineer, in consultation with the IRT,
may modify the credit release schedule,
including reducing the number of
available credits or suspending credit
sales or transfers altogether, where
necessary to ensure that all credits sales
or transfers remain tied to compensatory
mitigation projects with a high
likelihood of meeting performance
standards;
(iv) For an in-lieu fee program, a
complete draft instrument must include
the following additional information:
(A) The compensation planning
framework (see paragraph (c) of this
section);
(B) Specification of the initial
allocation of advance credits (see
paragraph (n) of this section) and a draft
fee schedule for these credits, by service
area, including an explanation of the
basis for the allocation and draft fee
schedule;
(C) A methodology for determining
future project-specific credits and fees;
and
(D) A description of the in-lieu fee
program account required by paragraph
(i) of this section.
(7) IRT review. Upon receipt of
notification by the district engineer that
the draft instrument or amendment is
complete, the sponsor must provide the
district engineer with a sufficient
number of copies of the draft instrument
or amendment to distribute to the IRT
members. The district engineer will
promptly distribute copies of the draft
instrument or amendment to the IRT
members for a 30 day comment period.
The 30-day comment period begins 5
days after the district engineer
distributes the copies of the draft
instrument or amendment to the IRT.
Following the comment period, the
district engineer will discuss any
comments with the appropriate agencies
and with the sponsor. The district
engineer will seek to resolve issues
using a consensus based approach, to
the extent practicable, while still
meeting the decision-making time
frames specified in this section. Within
90 days of receipt of the complete draft
instrument or amendment by the IRT
members, the district engineer must
notify the sponsor of the status of the
IRT review. Specifically, the district
engineer must indicate to the sponsor if
the draft instrument or amendment is
generally acceptable and what changes,
if any, are needed. If there are
significant unresolved concerns that
may lead to a formal objection from one
or more IRT members to the final
instrument or amendment, the district
engineer will indicate the nature of
those concerns.
(8) Final instrument. The sponsor
must submit a final instrument to the
district engineer for approval, with
supporting documentation that explains
how the final instrument addresses the
comments provided by the IRT. For
modifications of approved instruments,
the sponsor must submit a final
amendment to the district engineer for
approval, with supporting
documentation that explains how the
final amendment addresses the
comments provided by the IRT. The
final instrument or amendment must be
provided directly by the sponsor to all
members of the IRT. Within 30 days of
receipt of the final instrument or
amendment, the district engineer will
notify the IRT members whether or not
he intends to approve the instrument or
amendment. If no IRT member objects,
by initiating the dispute resolution
process in paragraph (e) of this section
within 45 days of receipt of the final
instrument or amendment, the district
engineer will notify the sponsor of his
final decision and, if the instrument or
amendment is approved, arrange for it
to be signed by the appropriate parties. If
any IRT member initiates the dispute
resolution process, the district engineer
will notify the sponsor. Following
conclusion of the dispute resolution
process, the district engineer will notify
the sponsor of his final decision, and if
the instrument or amendment is
approved, arrange for it to be signed by
the appropriate parties. For mitigation
banks, the final instrument must contain
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the information items listed in
paragraphs (d)(6)(ii), and (iii) of this
section. For in-lieu fee programs, the
final instrument must contain the
information items listed in paragraphs
(d)(6)(ii) and (iv) of this section. For the
modification of an approved instrument,
the amendment must contain
appropriate information, as determined
by the district engineer. The final
instrument or amendment must be made
available to the public upon request.
(e) Dispute resolution process. (1)
Within 15 days of receipt of the district
engineer's notification of intent to
approve an instrument or amendment,
the Regional Administrator of the U.S.
EPA, the Regional Director of the U.S.
Fish and Wildlife Service, the Regional
Director of the National Marine
Fisheries Service, and/or other senior
officials of agencies represented on the
IRT may notify the district engineer and
other IRT members by letter if they
object to the approval of the proposed
final instrument or amendment. This
letter must include an explanation of
the basis for the objection and, where
feasible, offer recommendations for
resolving the objections. If the district
engineer does not receive any objections
within this time period, he may proceed
to final action on the instrument or
amendment.
(2) The district engineer must respond
to the objection within 30 days of
receipt of the letter. The district
engineer's response may indicate an
intent to disapprove the instrument or
amendment as a result of the objection,
an intent to approve the instrument or
amendment despite the objection, or
may provide a modified instrument or
amendment that attempts to address the
objection. The district engineer's
response must be provided to all IRT
members.
(3) Within 15 days of receipt of the
district engineer's response, if the
Regional Administrator or Regional
Director is not satisfied with the
response he may forward the issue to
the Assistant Administrator for Water of
the U.S. EPA, the Assistant Secretary for
Fish and Wildlife and Parks of the U.S.
FWS, or the Undersecretary for Oceans
and Atmosphere ofNOAA, as
appropriate, for review and must notify
the district engineer by letter via
electronic mail or facsimile machine
(with copies to all IRT members) that
the issue has been forwarded for
Headquarters review. This step is
available only to the IRT members
representing these three federal
agencies, however, other IRT members
who do not agree with the district
engineer's final decision do not have to
sign the instrument or amendment or
recognize the mitigation bank or in-lieu
fee program for purposes of their own
programs and authorities. If an IRT
member other than the one filing the
original objection has a new objection
based on the district engineer's
response, he may use the first step in
this procedure (paragraph (e)(l) of this
section) to provide that objection to the
district engineer.
(4) If the issue has not been forwarded
to the objecting agency's Headquarters,
then the district engineer may proceed
with final action on the instrument or
amendment. If the issue has been
forwarded to the objecting agency's
Headquarters, the district engineer must
hold in abeyance the final action on the
instrument or amendment, pending
Headquarters level review described
below.
(5) Within 20 days from the date of
the letter requesting Headquarters level
review, the Assistant Administrator for
Water, the Assistant Secretary for Fish
and Wildlife and Parks, or the
Undersecretary for Oceans and
Atmosphere must either notify the
Assistant Secretary of the Army (Civil
Works) (ASA(CW)) that further review
will not be requested, or request that the
ASA(CW) review the final instrument or
amendment.
(6) Within 30 days of receipt of the
letter from the objecting agency's
Headquarters request for ASA(CW)'s
review of the final instrument, the
ASA(CW), through the Director of Civil
Works, must review the draft instrument
or amendment and advise the district
engineer on how to proceed with final
action on that instrument or
amendment. The ASA(CW) must
immediately notify the Assistant
Administrator for Water, the Assistant
Secretary for Fish and Wildlife and
Parks, and/or the Undersecretary for
Oceans and Atmosphere of the final
decision.
(7) In cases where the dispute
resolution procedure is used, the district
engineer must notify the sponsor of his
final decision within 150 days of receipt
of the final instrument or amendment.
(f) Extension of deadlines. (1) The
deadlines in paragraphs (d) and (e) of
this section may be extended by the
district engineer at his sole discretion in
cases where:
(i) Compliance with other applicable
laws, such as consultation under section
7 of the Endangered Species Act or
section 106 of the National Historic
Preservation Act, is required;
(ii) It is necessary to conduct
govemment-to-government consultation
with Indian tribes;
(iii) Timely submittal of information
necessary for the review of the proposed
mitigation bank or in-lieu fee program
or the proposed modification of an
approved instrument is not
accomplished by the sponsor; or
(iv) Information that is essential to the
district engineer's decision cannot be
reasonably obtained within the
specified time frame.
(2) In such cases, the district engineer
must promptly notify the sponsor in
writing of the extension and the reason
for it. Such extensions shall be for the
minimum time necessary to resolve the
issue necessitating the extension.
(g) Modification of instruments. (1)
Approval of an amendment to an
approved instrument. Modification of
an approved instrument, including the
addition and approval of umbrella
mitigation bank sites or in-lieu fee
project sites or expansions of previously
approved mitigation bank or in-lieu fee
project sites, must follow the
appropriate procedures in paragraph (d)
of this section, unless the district
engineer determines that the
streamlined review process described in
paragraph (g)(2) of this section is
warranted.
(2) Streamlined review process. The
streamlined modification review
process may be used for the following
modifications of instruments: changes
reflecting adaptive management of the
mitigation bank or in-lieu fee program,
credit releases, changes in credit
releases and credit release schedules,
and changes that the district engineer
determines are not significant. If the
district engineer determines that the
streamlined review process is
warranted, he must notify the IRT
members and the sponsor of this
determination and provide them with
copies of the proposed modification.
IRT members and the sponsor have 30
days to notify the district engineer if
they have concerns with the proposed
modification. If IRT members or the
sponsor notify the district engineer of
such concerns, the district engineer
shall attempt to resolve those concerns.
Within 60 days of providing the
proposed modification to the IRT, the
district engineer must notify the IRT
members of his intent to approve or
disapprove the proposed modification.
If no IRT member objects, by initiating
the dispute resolution process in
paragraph (e) of this section, within 15
days of receipt of this notification, the
district engineer will notify the sponsor
of his final decision and, if the
modification is approved, arrange for it
to be signed by the appropriate parties.
If any IRT member initiates the dispute
resolution process, the district engineer
will so notify the sponsor. Following
conclusion of the dispute resolution
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19702
process, the district engineer will notify
the sponsor of his final decision, and if
the modification is approved, arrange
for it to be signed by the appropriate
parties.
(h) Umbrella mitigation banking
instruments. A single mitigation
banking instrument may provide for
future authorization of additional
mitigation bank sites. As additional sites
are selected, they must be included in
the mitigation banking instrument as
modifications, using the procedures in
paragraph (g)(l) of this section. Credit
withdrawal from the additional bank
sites shall be consistent with paragraph
(m) of this section.
(i) In-lieu fee program account. (1)
The in-lieu fee program sponsor must
establish a program account after the
instrument is approved by the district
engineer, prior to accepting any fees
from permittees. If the sponsor accepts
funds from entities other than
permittees, those funds must be kept in
separate accounts. The program account
must be established at a financial
institution that is a member of the
Federal Deposit Insurance Corporation.
All interests and earnings accruing to
the program account must remain in
that account for use by the in-lieu fee
program for the purposes of providing
compensatory mitigation for DA
permits. The program account may only
be used for the selection, design,
acquisition, implementation, and
management of in-lieu fee compensatory
mitigation projects, except for a small
percentage (as determined by the
district engineer in consultation with
the IRT and specified in the instrument)
that can be used for administrative
costs.
(2) The sponsor must submit
proposed in-lieu fee projects to the
district engineer for funding approval.
Disbursements from the program
account may only be made upon receipt
of written authorization from the district
engineer, after the district engineer has
consulted with the IRT. The terms of the
program account must specify that the
district engineer has the authority to
direct those funds to alternative
compensatory mitigation projects in
cases where the sponsor does not
provide compensatory mitigation in
accordance with the time frame
specified in paragraph (n)(4) of this
section.
(3) The sponsor must provide annual
reports to the district engineer and the
IRT. The annual reports must include
the following information:
(i) All income received,
disbursements, and interest earned by
the program account;
(ii) A list of all permits for which in-
lieu fee program funds were accepted.
This list shall include: the Corps permit
number (or the state permit number if
there is no corresponding Corps permit
number, in cases of state programmatic
general permits or other regional general
permits), the service area in which the
authorized impacts are located, the
amount of authorized impacts, the
amount of required compensatory
mitigation, the amount paid to the in-
lieu fee program, and the date the funds
were received from the permittee;
(iii) A description of in-lieu fee
program expenditures from the account,
such as the costs of land acquisition,
planning, construction, monitoring,
maintenance, contingencies, adaptive
management, and administration;
(iv) The balance of advance credits
and released credits at the end of the
report period for each service area; and
(v) Any other information required by
the district engineer.
(4) The district engineer may audit the
records pertaining to the program
account. All books, accounts, reports,
files, and other records relating to the
in-lieu fee program account shall be
available at reasonable times for
inspection and audit by the district
engineer.
(j) In-lieu fee project approval. (l)As
in-lieu fee project sites are identified
and secured, the sponsor must submit
mitigation plans to the district engineer
that include all applicable items listed
in § 230.94(c)(2) through (14). The
mitigation plan must also include a
credit release schedule consistent with
paragraph (o)(8) of this section that is
tied to achievement of specific
performance standards. The review and
approval of in-lieu fee projects will be
conducted in accordance with the
procedures in paragraph (g)(l)ofthis
section, as modifications of the in-lieu
fee program instrument. This includes
compensatory mitigation projects
conducted by another party on behalf of
the sponsor through requests for
proposals and awarding of contracts.
(2) If a DA permit is required for an
in-lieu fee project, the permit should not
be issued until all relevant provisions of
the mitigation plan have been
substantively determined, to ensure that
the DA permit accurately reflects all
relevant provisions of the approved
mitigation plan, such as performance
standards.
(k) Coordination of mitigation
banking instruments and DA permit
issuance. In cases where initial
establishment of the mitigation bank, or
the development of a new project site
under an umbrella banking instrument,
involves activities requiring DA
authorization, the permit should not be
issued until all relevant provisions of
the mitigation plan have been
substantively determined. This is to
ensure that the DA permit accurately
reflects all relevant provisions of the
final instrument, such as performance
standards.
(1) Project implementation. (1) The
sponsor must have an approved
instrument prior to collecting funds
from permittees to satisfy compensatory
mitigation requirements for DA permits.
(2) Authorization to sell credits to
satisfy compensatory mitigation
requirements in DA permits is
contingent on compliance with all of the
terms of the instrument. This includes
constructing a mitigation bank or in-lieu
fee project in accordance with the
mitigation plan approved by the district
engineer and incorporated by reference
in the instrument. If the aquatic
resource restoration, establishment,
enhancement, and/or preservation
activities cannot be implemented in
accordance with the approved
mitigation plan, the district engineer
must consult with the sponsor and the
IRT to consider modifications to the
instrument, including adaptive
management, revisions to the credit
release schedule, and alternatives for
providing compensatory mitigation to
satisfy any credits that have already
been sold.
(3) An in-lieu fee program sponsor is
responsible for the implementation, long-
term management, and any required
remediation of the restoration,
establishment, enhancement, and/or
preservation activities, even though
those activities may be conducted by
other parties through requests for
proposals or other contracting
mechanisms.
(m) Credit -withdrawal from mitigation
banks. The mitigation banking
instrument may allow for an initial
debiting of a percentage of the total
credits projected at mitigation bank
maturity, provided the following
conditions are satisfied: the mitigation
banking instrument and mitigation plan
have been approved, the mitigation
bank site has been secured, appropriate
financial assurances have been
established, and any other requirements
determined to be necessary by the
district engineer have been fulfilled.
The mitigation banking instrument must
provide a schedule for additional credit
releases as appropriate milestones are
achieved (see paragraph (o)(8) of this
section). Implementation of the
approved mitigation plan shall be
initiated no later than the first full
growing season after the date of the first
credit transaction.
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(n) Advance credits for in-lieu fee
programs. (1) The in-lieu fee program
instrument may make a limited number
of advance credits available to
permittees when the instrument is
approved. The number of advance
credits will be determined by the
district engineer, in consultation with
the IRT, and will be specified for each
service area in the instrument. The
number of advance credits will be based
on the following considerations:
(i) The compensation planning
framework;
(ii) The sponsor's past performance
for implementing aquatic resource
restoration, establishment,
enhancement, and/or preservation
activities in the proposed service area or
other areas; and
(iii) The projected financing necessary
to begin planning and implementation
of in-lieu fee projects.
(2) To determine the appropriate
number of advance credits for a
particular service area, the district
engineer may require the sponsor to
provide confidential supporting
information that will not be made
available to the general public.
Examples of confidential supporting
information may include prospective in-
lieu fee project sites.
(3) As released credits are produced
by in-lieu fee projects, they must be
used to fulfill any advance credits that
have already been provided within the
project service area before any
remaining released credits can be sold or
transferred to permittees. Once
previously provided advance credits
have been fulfilled, an equal number of
advance credits is re-allocated to the
sponsor for sale or transfer to fulfill new
mitigation requirements, consistent with
the terms of the instrument. The number
of advance credits available to the
sponsor at any given time to sell or
transfer to permittees in a given service
area is equal to the number of advance
credits specified in the instrument,
minus any that have already been
provided but not yet fulfilled.
(4) Land acquisition and initial
physical and biological improvements
must be completed by the third full
growing season after the first advance
credit in that service area is secured by
a permittee, unless the district engineer
determines that more or less time is
needed to plan and implement an in-
lieu fee project. If the district engineer
determines that there is a compensatory
mitigation deficit in a specific service
area by the third growing season after
the first advance credit in that service
area is sold, and determines that it
would not be in the public interest to
allow the sponsor additional time to
plan and implement an in-lieu fee
project, the district engineer must direct
the sponsor to disburse funds from the
in-lieu fee program account to provide
alternative compensatory mitigation to
fulfill those compensation obligations.
(5) The sponsor is responsible for
complying with the terms of the in-lieu
fee program instrument. If the district
engineer determines, as a result of
review of annual reports on the
operation of the in-lieu fee program (see
paragraphs (p)(2) and (q)(l) of this
section), that it is not performing in
compliance with its instrument, the
district engineer will take appropriate
action, which may include suspension
of credit sales, to ensure compliance
with the in-lieu fee program instrument
(see paragraph (o)(10) of this section).
Permittees that secured credits from the
in-lieu fee program are not responsible
for in-lieu fee program compliance.
(o) Determining credits. (I) Units of
measure. The principal units for credits
and debits are acres, linear feet,
functional assessment units, or other
suitable metrics of particular resource
types. Functional assessment units or
other suitable metrics may be linked to
acres or linear feet.
(2) Assessment. Where practicable, an
appropriate assessment method (e.g.,
hydrogeomorphic approach to wetlands
functional assessment, index of
biological integrity) or other suitable
metric must be used to assess and
describe the aquatic resource types that
will be restored, established, enhanced
and/or preserved by the mitigation bank
or in-lieu fee project.
(3) Credit production. The number of
credits must reflect the difference
between pre- and post-compensatory
mitigation project site conditions, as
determined by a functional or condition
assessment or other suitable metric.
(4) Credit value. Once a credit is
debited (sold or transferred to a
permittee), its value cannot change.
(5) Credit costs, (i) The cost of
compensatory mitigation credits
provided by a mitigation bank or in-lieu
fee program is determined by the
sponsor.
(ii) For in-lieu fee programs, the cost
per unit of credit must include the
expected costs associated with the
restoration, establishment,
enhancement, and/or preservation of
aquatic resources in that service area.
These costs must be based on full cost
accounting, and include, as appropriate,
expenses such as land acquisition,
project planning and design,
construction, plant materials, labor,
legal fees, monitoring, and remediation
or adaptive management activities, as
well as administration of the in-lieu fee
program. The cost per unit credit must
also take into account contingency costs
appropriate to the stage of project
planning, including uncertainties in
construction and real estate expenses.
The cost per unit of credit must also
take into account the resources
necessary for the long-term management
and protection of the in-lieu fee project.
In addition, the cost per unit credit must
include financial assurances that are
necessary to ensure successful
completion of in-lieu fee projects.
(6) Credits provided by preservation.
These credits should be specified as
acres, linear feet, or other suitable
metrics of preservation of a particular
resource type. In determining the
compensatory mitigation requirements
for DA permits using mitigation banks
or in-lieu fee programs, the district
engineer should apply a higher
mitigation ratio if the requirements are
to be met through the use of
preservation credits. In determining this
higher ratio, the district engineer must
consider the relative importance of both
the impacted and the preserved aquatic
resources in sustaining watershed
functions.
(7) Credits provided by riparian areas,
buffers, and uplands. These credits
should be specified as acres, linear feet,
or other suitable metrics of riparian
area, buffer, and uplands respectively.
Non-aquatic resources can only be used
as compensatory mitigation for impacts
to aquatic resources authorized by DA
permits when those resources are
essential to maintaining the ecological
viability of adjoining aquatic resources.
In determining the compensatory
mitigation requirements for DA permits
using mitigation banks and in-lieu fee
programs, the district engineer may
authorize the use of riparian area,
buffer, and/or upland credits if he
determines that these areas are essential
to sustaining aquatic resource functions
in the watershed and are the most
appropriate compensation for the
authorized impacts.
(8) Credit release schedule, (i) General
considerations. Release of credits must
be tied to performance based milestones
(e.g., construction, planting,
establishment of specified plant and
animal communities). The credit release
schedule should reserve a significant
share of the total credits for release only
after full achievement of ecological
performance standards. When
determining the credit release schedule,
factors to be considered may include,
but are not limited to: The method of
providing compensatory mitigation
credits (e.g., restoration), the likelihood
of success, the nature and amount of
work needed to generate the credits, and
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19704
the aquatic resource type(s) and
function(s) to be provided by the
mitigation bank or in-lieu fee project.
The district engineer will determine the
credit release schedule, including the
share to be released only after full
achievement of performance standards,
after consulting with the IRT. Once
released, credits may only be used to
satisfy compensatory mitigation
requirements of a DA permit if the use
of credits for a specific permit has been
approved by the district engineer.
(ii) For single-site mitigation banks,
the terms of the credit release schedule
must be specified in the mitigation
banking instrument. The credit release
schedule may provide for an initial
debiting of a limited number of credits
once the instrument is approved and
other appropriate milestones are
achieved (see paragraph (m) of this
section).
(iii) For in-lieu fee projects and
umbrella mitigation bank sites, the
terms of the credit release schedule
must be specified in the approved
mitigation plan. When an in-lieu fee
project or umbrella mitigation bank site
is implemented and is achieving the
performance-based milestones specified
in the credit release schedule, credits
are generated in accordance with the
credit release schedule for the approved
mitigation plan. If the in-lieu fee project
or umbrella mitigation bank site does
not achieve those performance-based
milestones, the district engineer may
modify the credit release schedule,
including reducing the number of
credits.
(9) Credit release approval. Credit
releases for mitigation banks and in-lieu
fee projects must be approved by the
district engineer. In order for credits to
be released, the sponsor must submit
documentation to the district engineer
demonstrating that the appropriate
milestones for credit release have been
achieved and requesting the release. The
district engineer will provide copies of
this documentation to the IRT members
for review. IRT members must provide
any comments to the district engineer
within 15 days of receiving this
documentation. However, if the district
engineer determines that a site visit is
necessary, IRT members must provide
any comments to the district engineer
within 15 days of the site visit. The
district engineer must schedule the site
visit so that it occurs as soon as it is
practicable, but the site visit may be
delayed by seasonal considerations that
affect the ability of the district engineer
and the IRT to assess whether the
applicable credit release milestones
have been achieved. After full
consideration of any comments
received, the district engineer will
determine whether the milestones have
been achieved and the credits can be
released. The district engineer shall
make a decision within 30 days of the
end of that comment period, and notify
the sponsor and the IRT.
(10) Suspension and termination. If
the district engineer determines that the
mitigation bank or in-lieu fee program is
not meeting performance standards or
complying with the terms of the
instrument, appropriate action will be
taken. Such actions may include, but are
not limited to, suspending credit sales,
adaptive management, decreasing
available credits, utilizing financial
assurances, and terminating the
instrument.
(p) Accounting procedures. (1) For
mitigation banks, the instrument must
contain a provision requiring the
sponsor to establish and maintain a
ledger to account for all credit
transactions. Each time an approved
credit transaction occurs, the sponsor
must notify the district engineer.
(2) For in-lieu fee programs, the
instrument must contain a provision
requiring the sponsor to establish and
maintain an annual report ledger in
accordance with paragraph (i)(3) of this
section, as well as individual ledgers
that track the production of released
credits for each in-lieu fee project.
(q) Reporting. (1) Ledger account. The
sponsor must compile an annual ledger
report showing the beginning and
ending balance of available credits and
permitted impacts for each resource
type, all additions and subtractions of
credits, and any other changes in credit
availability (e.g., additional credits
released, credit sales suspended). The
ledger report must be submitted to the
district engineer, who will distribute
copies to the IRT members. The ledger
report is part of the administrative
record for the mitigation bank or in-lieu
fee program. The district engineer will
make the ledger report available to the
public upon request.
(2) Monitoring reports. The sponsor is
responsible for monitoring the
mitigation bank site or the in-lieu fee
project site in accordance with the
approved monitoring requirements to
determine the level of success and
identify problems requiring remedial
action or adaptive management
measures. Monitoring must be
conducted in accordance with the
requirements in § 230.96, and at time
intervals appropriate for the particular
project type and until such time that the
district engineer, in consultation with
the IRT, has determined that the
performance standards have been
attained. The instrument must include
requirements for periodic monitoring
reports to be submitted to the district
engineer, who will provide copies to
other IRT members.
(3) Financial assurance and long-term
management funding report. The
district engineer may require the
sponsor to provide an annual report
showing beginning and ending balances,
including deposits into and any
withdrawals from, the accounts
providing funds for financial assurances
and long-term management activities.
The report should also include
information on the amount of required
financial assurances and the status of
those assurances, including their
potential expiration.
(r) Use of credits. Except as provided
below, all activities authorized by DA
permits are eligible, at the discretion of
the district engineer, to use mitigation
banks or in-lieu fee programs to fulfill
compensatory mitigation requirements
for DA permits. The district engineer
will determine the number and type(s)
of credits required to compensate for the
authorized impacts. Permit applicants
may propose to use a particular
mitigation bank or in-lieu fee program to
provide the required compensatory
mitigation. In such cases, the sponsor
must provide the permit applicant with
a statement of credit availability. The
district engineer must review the permit
applicant's compensatory mitigation
proposal, and notify the applicant of his
determination regarding the
acceptability of using that mitigation
bank or in-lieu fee program.
(s) IRT concerns -with use of credits.
If, in the view of a member of the IRT, an
issued permit or series of issued permits
raises concerns about how credits from a
particular mitigation bank or in-lieu fee
program are being used to satisfy
compensatory mitigation requirements
(including concerns about whether
credit use is consistent with the terms of
the instrument), the IRT
member may notify the district engineer
in writing of the concern. The district
engineer shall promptly consult with
the IRT to address the concern.
Resolution of the concern is at the
discretion of the district engineer,
consistent with applicable statutes,
regulations, and policies regarding
compensatory mitigation requirements
for DA permits. Nothing in this section
limits the authorities designated to IRT
agencies under existing statutes or
regulations.
(t) Site protection. (l)For mitigation
bank sites, real estate instruments,
management plans, or other long-term
mechanisms used for site protection
must be finalized before any credits can
be released.
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Federal Register/Vol. 73, No. 70/Thursday, April 10, 2008/Rules and Regulations
19705
(2) For in-lieu fee project sites, real
estate instruments, management plans,
or other long-term protection
mechanisms used for site protection
must be finalized before advance credits
can become released credits.
(u) Long-term management. (1) The
legal mechanisms and the party
responsible for the long-term
management and the protection of the
mitigation bank site must be
documented in the instrument or, in the
case of umbrella mitigation banking
instruments and in-lieu fee programs,
the approved mitigation plans. The
responsible party should make adequate
provisions for the operation,
maintenance, and long-term
management of the compensatory
mitigation project site. The long-term
management plan should include a
description of long-term management
needs and identify the funding
mechanism that will be used to meet
those needs.
(2) The instrument may contain
provisions for the sponsor to transfer
long-term management responsibilities
to a land stewardship entity, such as a
public agency, non-governmental
organization, or private land manager.
(3) The instrument or approved
mitigation plan must address the
financial arrangements and timing of
any necessary transfer of long-term
management funds to the steward.
(4) Where needed, the acquisition and
protection of water rights should be
secured and documented in the
instrument or, in the case of umbrella
mitigation banking instruments and in-
lieu fee programs, the approved
mitigation site plan.
(v) Grandfathering of existing
instruments. (1) Mitigation banking
instruments. All mitigation banking
instruments approved on or after July 9,
2008 must meet the requirements of this
part. Mitigation banks approved prior to
July 9, 2008 may continue to operate
under the terms of their existing
instruments. However, any modification
to such a mitigation banking instrument
on or after July 9, 2008, including
authorization of additional sites under
an umbrella mitigation banking
instrument, expansion of an existing
site, or addition of a different type of
resource credits (e.g., stream credits to
a wetland bank) must be consistent with
the terms of this part.
(2) In-lieu fee program instruments.
All in-lieu fee program instruments
approved on or after July 9, 2008 must
meet the requirements of this part. In-
lieu fee programs operating under
instruments approved prior to July 9,
2008 may continue to operate under
those instruments for two years after the
effective date of this rule, after which
time they must meet the requirements of
this part, unless the district engineer
determines that circumstances warrant
an extension of up to three additional
years. The district engineer must
consult with the IRT before approving
such extensions. Any revisions made to
the in-lieu-fee program instrument on or
after July 9, 2008 must be consistent
with the terms of this part. Any
approved project for which construction
was completed under the terms of a
previously approved instrument may
continue to operate indefinitely under
those terms if the district engineer
determines that the project is providing
appropriate mitigation substantially
consistent with the terms of this part.
Dated: March 28, 2008.
Stephen L. Johnson,
Administrator, U.S. Environmental Protection
Agency.
[FR Doc. E8-6918 Filed 4-9-08; 8:45 am]
BILLING CODE 6560-50-P
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