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Mitigation Banking

Overview

Pennsylvania maintains its independent regulatory and oversight of mitigation banking activities and is not a signatory to the mitigation baking instrument developed through the joint Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) federal mitigation rules (33 CFR Part 332 and 40 CFR Part 230) (2008 Rule). Mitigation bankers should note that the state review of compensatory mitigation bank proposals is significantly integrated with the USACE review processes established through the 2008 Rule to maximize efficiency and provide a seamless review process where feasible. These pages are intended to provide an overview of the general processes used by DEP staff to process and coordinate authorization reviews with the USACE and IRT review and authorization procedures.

The review of Chapter 105 authorizations associated with compensation banking do not fall within the Policy for Implementing the DEP Permit Review Process and Permit Decision Guarantee (PDG Policy, 021-2100-001). DEP will make efforts to follow the applicable processing procedures and time frames established in the policy. There is no obligation by the Department to reach a permit decision within those established timeframes and procedures and no default approval is made.

Pennsylvania Aquatic Resource Compensatory Mitigation “Banking” Framework

The rules promulgated under Title 25 PA Code Chapter 105 do not specifically address compensatory mitigation banking; however, the definition of mitigation at § 105.1; does provide the Department the flexibility to accept compensation in the form of replacing environments impacted or by providing substitute resources. The Department had previously accepted banking established through interagency memorandum of understanding and payment through an in-lieu fee program established by policy since the mid-1990s. The finalization of the federal joint Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) federal mitigation rules (33 CFR Part 332 and 40 CFR Part 230) (2008 Rule) has significantly changed how these previous “ad-hoc” mitigation program developments are treated and approved in order to provide compensatory mitigation for Section 404 and Section 10 authorizations. The way these projects are evaluated, approved and over-seen has substantially changed as a result of the 2008 Rule.

In order to ensure consistent program implementation and development, DEP is adapting various program areas to address the 2008 Rule and establish a framework that will foster joint operating procedures with the federal process consistent with §105.24(b) and the Agreement with USACE (363-0600-003) while ensuring that DEP’s regulatory requirements are met. Public or Private (for profit or non-profit) aquatic resource compensatory mitigation banking will be authorized through two separate but related Chapter 105 Water Obstruction and Encroachment (WO&E) Permits:

  • Water Obstruction and Encroachment Compensation Operation Permit – Establishes the terms and conditions governing the operation of compensatory mitigation banks through which the holder of this permit may provide compensatory mitigation to meet a third party’s compensatory mitigation obligations as required under a separate Chapter 105 permit. This permit, once approved, allows the transfer of responsibility and liability for providing compensatory mitigation from an applicant to the mitigation banker in order to satisfy the applicable aquatic resource compensatory mitigation obligation. The WO&E Compensation Operation Permit incorporates by reference and attachment the USACE District Engineer(s) approved Individual or Umbrella Mitigation Banking Instrument (MBI); specifies any exceptions to the MBI; lists any applicable general and special conditions as deemed necessary.
  • Water Obstruction and Encroachment Compensation Site Construction Permit – Establishes the authority to construct and maintain an aquatic resource improvement site for the purposes of generating aquatic resource compensation credits. Credits when approved and released in accordance with the terms and conditions of this permit must be transferred to the permittee’s WO&E Compensation Operation Permit through a minor amendment. Once credits are approved and transferred, they are then subject to Compensation Operation permit’s terms and conditions and can be used to satisfy third party compensatory mitigation obligations.

General DEP Roles and Responsibilities

Program staff from the Division of Wetlands, Encroachment, and Training are responsible for all aspects of mitigation banking reviews, inspections, credit releases, and compliance. Staff act as DEP’s IRT Co-Chair, make recommendations regarding aquatic resource improvement site pre-proposals or site introductory packages, applicable restoration, and enhancement techniques, as well as the coordination of Water Obstruction and Encroachment Compensation Site Construction Permit field views and reviews. Staff are also responsible for processing amendment requests to provide operational coverage for approved credit releases, any amendments proposed to the WO&E Compensation Operation Permit, updating bank credits ledgers when released and transferred, notifying regional program staff of releases and providing periodic status reports related to banking activity.

Crediting

The crediting standard that is used for compensatory mitigation in Pennsylvania is based upon the Pennsylvania Function-Based Aquatic Resource Compensation Protocol 310-2137-001.

This protocol was developed to ensure consistency when determining compensation requirements and evaluating and crediting compensation projects regardless of the method of implementation to meet Chapter 105 regulatory standards. This compensation protocol is intended for use when authorizations are required by both Pennsylvania and U.S. Army Corps of Engineers (USACE) regulatory programs. 32 P.S. § 693.17(d). See also 25 Pa. Code §§ 105.13(d) and 105.24. Accordingly, the use of this protocol should enable a mitigation banker to concurrently meet both Pennsylvania’s Chapter 105 program compensation requirements and the U.S. Environmental Protection Agency (EPA) and USACE federal mitigation requirements as established by the Compensatory Mitigation for Losses of Aquatic Resources Final Rule published on April 10, 2008 (73 FR 19594). 33 CFR Part 332 and 40 CFR Part 230, Subpart J (relating to compensatory mitigation for losses of aquatic resources).

The Department may approve an alternative compensation methodology (separate from and not contained in the function-based technical guidance) if the Department determines that the methodology is sufficient to attain the regulatory standards in 25 Pa. Code Chapter 105. Complete and legally defensible supporting documentation (rationale, justifications, and calculations) must be included with the applicant's Chapter 105 application to allow the Department to make an informed decision regarding the use of an alternative methodology to satisfy applicable regulatory requirements. Additional application processing time may be necessary when using an alternative methodology because the methodology will require review and approval by the Director of the Bureau of Waterways Engineering and Wetlands prior to use in a final Department authorization.

Approved Mitigation Bank Providers

The link to the file below provides a current list of the private mitigation banking companies that have obtained their approval to operate mitigation banks from DEP. Additional information related to the banks with federal approvals may be accessed by utilizing the U.S. Army Corps of Engineers’ (USACE) website Regulatory In-Lieu Fee and Bank Information Tracking System (RIBITS).

  • To search, Click on State radio button, then Select Pennsylvania from the list of values presented.
  • When Pennsylvania comes into focus, from the MENU Bar on the left side under Mitigation heading Click on Banks & Sites.
  • Scroll through the list of bank sites to find the name of the bank site of interest; Click on the bank name.
  • A variety of information may be accessible including the summary ledger which is viewable in the lower right of the screen. If you click the link at the top of the bank page - [Ledger]; a detailed ledger will be generated for review.

Approved Bank Providers
Approved Banker Sites

Resources

EPA Compensatory Mitigation website