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Posted 9/1/2016

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ALEXANDRIA, VIRGINIA.  The Institute for Water Resources (IWR) has just released a new handbook entitled Compensatory Mitigation Site Protection Instrument Handbook for the Corps Regulatory Program to provide a reference resource for Corps district regulatory staff involved with ensuring that mitigation projects are protected.   Under the 2008 Corps-EPA Mitigation Rule (33 CFR 332/40 CFR part 230 Subpart J) all compensatory mitigation plans required for Department of the Army (DA) permits must have/address 12 fundamental elements.   One of these elements is a “site protection instrument” to ensure long-term protection of the compensatory mitigation site.  The site protection instrument must protect the aquatic habitats (including wetland and streams), riparian areas, buffers, and uplands that make up the compensatory mitigation project. Site protection must be provided through real estate instruments or other available mechanisms, as appropriate.

Reviewing site protection instruments for compensatory mitigation projects may take regulators outside their regular areas of practice and expertise.  The handbook is intended to inform regulators of the basics of protection of compensatory mitigation projects and to encourage them to work more effectively with Counsel to ensure that compensatory mitigation projects receive durable long-term protection.

The handbook also identifies different mechanisms that can be used to protect compensatory mitigation projects including conservation easements, deed restrictions, title transfer, conservation land use agreements, and federal facility management plans. It describes and compares key features of each of these mechanisms.  As well, it describes important considerations for site protection instruments including what elements to include, marketable title statutes, other interests in property, title insurance, eminent domain, subordination, severed rights, and suggestions for prohibited and acceptable uses of the compensatory mitigation site.

The handbook also includes a section on frequently asked questions and provides links to model site protection instruments in use in a number of districts and states.  Comments and information on experiences should be submitted in writing to Steve Martin (steven.m.martin@usace.army.mil).

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For more information, www.iwr.usace.army.mil

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