Long-term Protection of Compensatory Mitigation Sites – Equivalency Across Mitigation Providers?

We will discuss the findings from a multi-year research project conducted by Stetson’s Institute for Biodiversity Law and Policy regarding two critical elements of effective long-term protection for compensatory mitigation sites: site protection instruments and long-term financing mechanisms. Our research project reviewed how the 2008 Compensatory Mitigation Rule’s requirements for site protection instruments and long-term financing mechanisms have been applied throughout the country. We sampled and reviewed permits, mitigation plans, site protection instruments, and other documents related to compensatory mitigation sites for permittee-responsible mitigation, in-lieu fee programs, and mitigation banks across all Corps Districts nationwide. The study is based on documents obtained on RIBITS and from Corps Districts through more than 60 Freedom of Information Act requests, as well as interviews and discussions with various stakeholders. Our presentation will highlight the range of approaches employed and make recommendations about legal instruments and financial mechanisms used to protect mitigation sites in the long term. We also will discuss the extent to which mitigation banks, in-lieu fee programs, and permittees are—or are not—held to equivalent standards with respect to long-term protection requirements under the 2008 Rule.