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Environmental Protection Agency Pt. 230 

10 days prior to the proposed disposal 

date, notify the EPA Regional Administrator and the District Commander of 

the U.S. Coast Guard that the vessel 

has been cleaned and is available for 

inspection; the vessel may be transported for dumping only after EPA and 

the Coast Guard agree that the requirements of paragraph (a)(3) of this section have been met. 

(5) Disposal of these vessels shall 

take place in a site designated on current nautical charts for the disposal of 

wrecks or no closer than 22 kilometers 

(12 miles) from the nearest land and in 

water no less than 50 fathoms (300 feet) 

deep, and all necessary measures shall 

be taken to insure that the vessels sink 

to the bottom rapidly and that marine 

navigation is not otherwise impaired. 

(6) Disposal shall not take place in 

established shipping lanes unless at a 

designated wreck site, nor in a designated marine sanctuary, nor in a location where the hulk may present a 

hazard to commercial trawling or national defense (see 33 CFR part 205). 

(7) Except in emergency situations, 

as determined by the U.S. Army Corps 

of Engineers and/or the U.S. Coast 

Guard, disposal of these vessels shall be 

performed during daylight hours only. 

(8) Except in emergency situations, 

as determined by the U.S. Army Corps 

of Engineers and/or the District Commander of the U.S. Coast Guard, the 

Captain-of-the-Port (COTP), U.S. Coast 

Guard, and the EPA Regional Administrator shall be notified forty-eight (48) 

hours in advance of the proposed disposal. In addition, the COTP and the 

EPA Regional Administrator shall be 

notified by telephone at least twelve 

(12) hours in advance of the vessel’s departure from port with such details as 

the proposed departure time and place, 

disposal site location, estimated time 

of arrival on site, and the name and 

communication capability of the towing vessel. Schedule changes are to be 

reported to the COTP as rapidly as possible. 

(9) The National Ocean Survey, 

NOAA, 6010 Executive Blvd., Rockville, 

MD 20852, shall be notified in writing, 

within 1 week, of the exact coordinates 

of the disposal site so that it may be 

marked on appropriate charts. 

PART 230—SECTION 404(b)(1) 

GUIDELINES FOR SPECIFICATION 

OF DISPOSAL SITES FOR 

DREDGED OR FILL MATERIAL 

Subpart A—General 

Sec. 

230.1 Purpose and policy. 

230.2 Applicability. 

230.3 Definitions. 

230.4 Organization. 

230.5 General procedures to be followed. 

230.6 Adaptability. 

230.7 General permits. 

Subpart B—Compliance With the 

Guidelines 

230.10 Restrictions on discharge. 

230.11 Factual determinations. 

230.12 Findings of compliance or non-compliance with the restrictions on discharge. 

Subpart C—Potential Impacts on Physical 

and Chemical Characteristics of the 

Aquatic Ecosystem 

230.20 Substrate. 

230.21 Suspended particulates/turbidity. 

230.22 Water. 

230.23 Current patterns and water circulation. 

230.24 Normal water fluctuations. 

230.25 Salinity gradients. 

Subpart D—Potential Impacts on Biological 

Characteristics of the Aquatic Ecosystem 

230.30 Threatened and endangered species. 

230.31 Fish, crustaceans, mollusks, and 

other aquatic organisms in the food web. 

230.32 Other wildlife. 

Subpart E—Potential Impacts on Special 

Aquatic Sites 

230.40 Sanctuaries and refuges. 

230.41 Wetlands. 

230.42 Mud flats. 

230.43 Vegetated shallows. 

230.44 Coral reefs. 

230.45 Riffle and pool complexes. 

Subpart F—Potential Effects on Human Use 

Characteristics 

230.50 Municipal and private water supplies. 

230.51 Recreational and commercial fisheries. 

230.52 Water-related recreation. 

230.53 Aesthetics. 

230.54 Parks, national and historical monuments, national seashores, wilderness 


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§ 230.1 40 CFR Ch. I (7–1–10 Edition) 

areas, research sites, and similar 

preserves. 

Subpart G—Evaluation and Testing 

230.60 General evaluation of dredged or fill 

material. 

230.61 Chemical, biological, and physical 

evaluation and testing. 

Subpart H—Actions To Minimize Adverse 

Effects 

230.70 Actions concerning the location of 

the discharge. 

230.71 Actions concerning the material to be 

discharged. 

230.72 Actions controlling the material 

after discharge. 

230.73 Actions affecting the method of dispersion. 

230.74 Actions related to technology. 

230.75 Actions affecting plant and animal 

populations. 

230.76 Actions affecting human use. 

230.77 Other actions. 

Subpart I—Planning To Shorten Permit 

Processing Time 

230.80 Advanced identification of disposal 

areas. 

Subpart J—Compensatory Mitigation for 

Losses of Aquatic Resources 

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. 

AUTHORITY: Secs. 404(b) and 501(a) of the 

Clean Water Act of 1977 (33 U.S.C. 1344(b) and 

1361(a)). 

SOURCE: 45 FR 85344, Dec. 24, 1980, unless 

otherwise noted. 

Subpart A—General 

§ 230.1 Purpose and policy. 

(a) The purpose of these Guidelines is 

to restore and maintain the chemical, 

physical, and biological integrity of 

waters of the United States through 

the control of discharges of dredged or 

fill material. 

(b) Congress has expressed a number 

of policies in the Clean Water Act. 

These Guidelines are intended to be 

consistent with and to implement 

those policies. 

(c) Fundamental to these Guidelines 

is the precept that dredged or fill material should not be discharged into the 

aquatic ecosystem, unless it can be 

demonstrated that such a discharge 

will not have an unacceptable adverse 

impact either individually or in combination with known and/or probable 

impacts of other activities affecting 

the ecosystems of concern. 

(d) From a national perspective, the 

degradation or destruction of special 

aquatic sites, such as filling operations 

in wetlands, is considered to be among 

the most severe environmental impacts 

covered by these Guidelines. The guiding principle should be that degradation or destruction of special sites may 

represent an irreversible loss of valuable aquatic resources. 

§ 230.2 Applicability. 

(a) These Guidelines have been developed by the Administrator of the Environmental Protection Agency in conjunction with the Secretary of the 

Army acting through the Chief of Engineers under section 404(b)(1) of the 

Clean Water Act (33 U.S.C. 1344). The 

Guidelines are applicable to the specification of disposal sites for discharges 

of dredged or fill material into waters 

of the United States. Sites may be 

specified through: 

(1) The regulatory program of the 

U.S. Army Corps of Engineers under 

sections 404(a) and (e) of the Act (see 33 

CFR Parts 320, 323 and 325); 

(2) The civil works program of the 

U.S. Army Corps of Engineers (see 33 

CFR 209.145 and section 150 of Pub. L. 

94–587, Water Resources Development 

Act of 1976); 

(3) Permit programs of States approved by the Administrator of the Environmental Protection Agency in 

accordance with section 404(g) and (h) 

of the Act (see 40 CFR parts 122, 123 and 

124); 

(4) Statewide dredged or fill material 

regulatory programs with best management practices approved under section 

208(b)(4)(B) and (C) of the Act (see 40 

CFR 35.1560); 

(5) Federal construction projects 

which meet criteria specified in section 

404(r) of the Act. 


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Environmental Protection Agency § 230.3 

(b) These Guidelines will be applied 

in the review of proposed discharges of 

dredged or fill material into navigable 

waters which lie inside the baseline 

from which the territorial sea is measured, and the discharge of fill material 

into the territorial sea, pursuant to the 

procedures referred to in paragraphs 

(a)(1) and (2) of this section. The discharge of dredged material into the 

territorial sea is governed by the Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 92–532, and 

regulations and criteria issued pursuant thereto (40 CFR parts 220 through 

228). 

(c) Guidance on interpreting and implementing these Guidelines may be 

prepared jointly by EPA and the Corps 

at the national or regional level from 

time to time. No modifications to the 

basic application, meaning, or intent of 

these Guidelines will be made without 

rulemaking by the Administrator 

under the Administrative Procedure 

Act (5 U.S.C. 551 et seq.). 

§ 230.3 Definitions. 

For purposes of this part, the following terms shall have the meanings 

indicated: 

(a) The term Act means the Clean 

Water Act (also known as the Federal 

Water Pollution Control Act or 

FWPCA) Pub. L. 92–500, as amended by 

Pub. L. 95–217, 33 U.S.C. 1251, et seq. 

(b) The term adjacent means bordering, contiguous, or neighboring. 

Wetlands separated from other waters 

of the United States by man-made 

dikes or barriers, natural river berms, 

beach dunes, and the like are ‘‘adjacent 

wetlands.’’ 

(c) The terms aquatic environment and 

aquatic ecosystem mean waters of the 

United States, including wetlands, that 

serve as habitat for interrelated and 

interacting communities and populations of plants and animals. 

(d) The term carrier of contaminant 

means dredged or fill material that 

contains contaminants. 

(e) The term contaminant means a 

chemical or biological substance in a 

form that can be incorporated into, 

onto or be ingested by and that harms 

aquatic organisms, consumers of 

aquatic organisms, or users of the 

aquatic environment, and includes but 

is not limited to the substances on the 

307(a)(1) list of toxic pollutants 

promulgated on January 31, 1978 (43 FR 

4109). 

(f)–(g) [Reserved] 

(h) The term discharge point means 

the point within the disposal site at 

which the dredged or fill material is released. 

(i) The term disposal site means that 

portion of the ‘‘waters of the United 

States’’ where specific disposal activities are permitted and consist of a bottom surface area and any overlying 

volume of water. In the case of wetlands on which surface water is not 

present, the disposal site consists of 

the wetland surface area. 

(j) [Reserved] 

(k) The term extraction site means the 

place from which the dredged or fill 

material proposed for discharge is to be 

removed. 

(l) [Reserved] 

(m) The term mixing zone means a 

limited volume of water serving as a 

zone of initial dilution in the immediate vicinity of a discharge point 

where receiving water quality may not 

meet quality standards or other requirements otherwise applicable to the 

receiving water. The mixing zone 

should be considered as a place where 

wastes and water mix and not as a 

place where effluents are treated. 

(n) The term permitting authority 

means the District Engineer of the U.S. 

Army Corps of Engineers or such other 

individual as may be designated by the 

Secretary of the Army to issue or deny 

permits under section 404 of the Act; or 

the State Director of a permit program 

approved by EPA under section 404(g) 

and section 404(h) or his delegated representative. 

(o) The term pollutant means dredged 

spoil, solid waste, incinerator residue, 

sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials not covered by the Atomic Energy Act, heat, 

wrecked or discarded equipment, rock, 

sand, cellar dirt, and industrial, municipal, and agricultural waste discharged 

into water. The legislative history of 

the Act reflects that ‘‘radioactive materials’’ as included within the definition of ‘‘pollutant’’ in section 502 of the 

Act means only radioactive materials 


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§ 230.4 40 CFR Ch. I (7–1–10 Edition) 

which are not encompassed in the definition of source, byproduct, or special 

nuclear materials as defined by the 

Atomic Energy Act of 1954, as amended, and regulated under the Atomic Energy Act. Examples of radioactive materials not covered by the Atomic Energy Act and, therefore, included within the term ‘‘pollutant’’, are radium 

and accelerator produced isotopes. See 

Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976). 

(p) The term pollution means the 

man-made or man-induced alteration 

of the chemical, physical, biological or 

radiological integrity of an aquatic 

ecosystem. 

(q) The term practicable means available and capable of being done after 

taking into consideration cost, existing 

technology, and logistics in light of 

overall project purposes. 

(q-1) Special aquatic sites means those 

sites identified in subpart E. They are 

geographic areas, large or small, possessing special ecological characteristics of productivity, habitat, wildlife 

protection, or other important and easily disrupted ecological values. These 

areas are generally recognized as significantly influencing or positively 

contributing to the general overall environmental health or vitality of the 

entire ecosystem of a region. (See 

§230.10(a)(3)) 

(r) The term territorial sea means the 

belt of the sea measured from the baseline as determined in accordance with 

the Convention on the Territorial Sea 

and the Contiguous Zone and extending 

seaward a distance of three miles. 

(s) The term waters of the United 

States means: 

(1) All waters which are currently 

used, or were used in the past, or may 

be susceptible to use in interstate or 

foreign commerce, including all waters 

which are subject to the ebb and flow 

of the tide; 

(2) All interstate waters including 

interstate wetlands; 

(3) All other waters such as intrastate lakes, rivers, streams (including 

intermittent streams), mudflats, 

sandflats, wetlands, sloughs, prairie 

potholes, wet meadows, playa lakes, or 

natural ponds, the use, degradation or 

destruction of which could affect interstate or foreign commerce including 

any such waters: 

(i) Which are or could be used by 

interstate or foreign travelers for recreational or other purposes; or 

(ii) From which fish or shellfish are 

or could be taken and sold in interstate 

or foreign commerce; or 

(iii) Which are used or could be used 

for industrial purposes by industries in 

interstate commerce; 

(4) All impoundments of waters otherwise defined as waters of the United 

States under this definition; 

(5) Tributaries of waters identified in 

paragraphs (s)(1) through (4) of this 

section; 

(6) The territorial sea; 

(7) Wetlands adjacent to waters 

(other than waters that are themselves 

wetlands) identified in paragraphs 

(s)(1) through (6) of this section; waste 

treatment systems, including treatment ponds or lagoons designed to 

meet the requirements of CWA (other 

than cooling ponds as defined in 40 CFR 

423.11(m) which also meet the criteria 

of this definition) are not waters of the 

United States. 

Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an 

area’s status as prior converted cropland by any other federal agency, for 

the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(t) The term wetlands means those 

areas that are inundated or saturated 

by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in 

saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs and similar areas. 

[45 FR 85344, Dec. 24, 1980, as amended at 58 

FR 45037, Aug. 25, 1993] 

§ 230.4 Organization. 

The Guidelines are divided into eight 

subparts. Subpart A presents those provisions of general applicability, such as 

purpose and definitions. Subpart B establishes the four conditions which 

must be satisfied in order to make a 

finding that a proposed discharge of 


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Environmental Protection Agency § 230.6 

dredged or fill material complies with 

the Guidelines. Section 230.11 of subpart B, sets forth factual determinations which are to be considered in determining whether or not a proposed 

discharge satisfies the subpart B conditions of compliance. Subpart C describes the physical and chemical components of a site and provides guidance 

as to how proposed discharges of 

dredged or fill material may affect 

these components. Subparts D through 

F detail the special characteristics of 

particular aquatic ecosystems in terms 

of their values, and the possible loss of 

these values due to discharges of 

dredged or fill material. Subpart G prescribes a number of physical, chemical, 

and biological evaluations and testing 

procedures to be used in reaching the 

required factual determinations. Subpart H details the means to prevent or 

mimimize adverse effects. Subpart I 

concerns advanced identification of 

disposal areas. 

§ 230.5 General procedures to be followed. 

In evaluating whether a particular 

discharge site may be specified, the 

permitting authority should use these 

Guidelines in the following sequence: 

(a) In order to obtain an overview of 

the principal regulatory provisions of 

the Guidelines, review the restrictions 

on discharge in §230.10(a) through (d), 

the measures to mimimize adverse impact of subpart H, and the required factual determinations of §230.11. 

(b) Determine if a General permit 

(§230.7) is applicable; if so, the applicant needs merely to comply with its 

terms, and no further action by the 

permitting authority is necessary. Special conditions for evaluation of proposed General permits are contained in 

§230.7. If the discharge is not covered 

by a General permit: 

(c) Examine practicable alternatives 

to the proposed discharge, that is, not 

discharging into the waters of the U.S. 

or discharging into an alternative 

aquatic site with potentially less damaging consequences (§230.10(a)). 

(d) Delineate the candidate disposal 

site consistent with the criteria and 

evaluations of §230.11(f). 

(e) Evaluate the various physical and 

chemical components which characterize the non-living environment of 

the candidate site, the substrate and 

the water including its dynamic characteristics (subpart C). 

(f) Identify and evaluate any special 

or critical characteristics of the candidate disposal site, and surrounding 

areas which might be affected by use of 

such site, related to their living communities or human uses (subparts D, E, 

and F). 

(g) Review Factual Determinations 

in §230.11 to determine whether the information in the project file is sufficient to provide the documentation required by §230.11 or to perform the pretesting evaluation described in §230.60, 

or other information is necessary. 

(h) Evaluate the material to be discharged to determine the possibility of 

chemical contamination or physical incompatibility of the material to be discharged (§230.60). 

(i) If there is a reasonable probability 

of chemical contamination, conduct 

the appropriate tests according to the 

section on Evaluation and Testing 

(§230.61). 

(j) Identify appropriate and practicable changes to the project plan to 

minimize the environmental impact of 

the discharge, based upon the specialized methods of minimization of impacts in subpart H. 

(k) Make and document Factual Determinations in §230.11. 

(l) Make and document Findings of 

Compliance (§230.12) by comparing Factual Determinations with the requirements for discharge of §230.10. 

This outline of the steps to follow in 

using the Guidelines is simplified for 

purposes of illustration. The actual 

process followed may be iterative, with 

the results of one step leading to a reexamination of previous steps. The permitting authority must address all of 

the relevant provisions of the Guidelines in reaching a Finding of Compliance in an individual case. 

§ 230.6 Adaptability. 

(a) The manner in which these Guidelines are used depends on the physical, 

biological, and chemical nature of the 

proposed extraction site, the material 

to be discharged, and the candidate disposal site, including any other important components of the ecosystem 


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§ 230.7 40 CFR Ch. I (7–1–10 Edition) 

being evaluated. Documentation to 

demonstrate knowledge about the extraction site, materials to be extracted, and the candidate disposal site 

is an essential component of guideline 

application. These Guidelines allow 

evaluation and documentation for a variety of activities, ranging from those 

with large, complex impacts on the 

aquatic environment to those for which 

the impact is likely to be innocuous. It 

is unlikely that the Guidelines will 

apply in their entirety to any one activity, no matter how complex. It is 

anticipated that substantial numbers 

of permit applications will be for 

minor, routine activities that have little, if any, potential for significant 

degradation of the aquatic environment. It generally is not intended or 

expected that extensive testing, evaluation or analysis will be needed to 

make findings of compliance in such 

routine cases. Where the conditions for 

General permits are met, and where 

numerous applications for similar activities are likely, the use of General 

permits will eliminate repetitive evaluation and documentation for individual discharges. 

(b) The Guidelines user, including the 

agency or agencies responsible for implementing the Guidelines, must recognize the different levels of effort that 

should be associated with varying degrees of impact and require or prepare 

commensurate documentation. The 

level of documentation should reflect 

the significance and complexity of the 

discharge activity. 

(c) An essential part of the evaluation process involves making determinations as to the relevance of any 

portion(s) of the Guidelines and conducting further evaluation only as 

needed. However, where portions of the 

Guidelines review procedure are ‘‘short 

form’’ evaluations, there still must be 

sufficient information (including consideration of both individual and cumulative impacts) to support the decision 

of whether to specify the site for disposal of dredged or fill material and to 

support the decision to curtail or abbreviate the evaluation process. The 

presumption against the discharge in 

§230.1 applies to this decision-making. 

(d) In the case of activities covered 

by General permits or section 

208(b)(4)(B) and (C) Best Management 

Practices, the analysis and documentation required by the Guidelines will be 

performed at the time of General permit issuance or section 208(b)(4)(B) and 

(C) Best Management Practices promulgation and will not be repeated 

when activities are conducted under a 

General permit or section 208(b)(4)(B) 

and (C) Best Management Practices 

control. These Guidelines do not require reporting or formal written communication at the time individual activities are initiated under a General 

permit or section 208(b)(4)(B) and (C) 

Best Management Practices. However, 

a particular General permit may require appropriate reporting. 

§ 230.7 General permits. 

(a) Conditions for the issuance of General permits. A General permit for a category of activities involving the discharge of dredged or fill material complies with the Guidelines if it meets 

the applicable restrictions on the discharge in §230.10 and if the permitting 

authority determines that: 

(1) The activities in such category 

are similar in nature and similar in 

their impact upon water quality and 

the aquatic environment; 

(2) The activities in such category 

will have only minimal adverse effects 

when performed separately; and 

(3) The activities in such category 

will have only minimal cumulative adverse effects on water quality and the 

aquatic environment. 

(b) Evaluation process. To reach the 

determinations required in paragraph 

(a) of this section, the permitting authority shall set forth in writing an 

evaluation of the potential individual 

and cumulative impacts of the category of activities to be regulated 

under the General permit. While some 

of the information necessary for this 

evaluation can be obtained from potential permittees and others through the 

proposal of General permits for public 

review, the evaluation must be completed before any General permit is 

issued, and the results must be published with the final permit. 

(1) This evaluation shall be based 

upon consideration of the prohibitions 


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Environmental Protection Agency § 230.10 

listed in §230.10(b) and the factors listed in §230.10(c), and shall include documented information supporting each 

factual determination in §230.11 of the 

Guidelines (consideration of alternatives in §230.10(a) are not directly 

applicable to General permits); 

(2) The evaluation shall include a 

precise description of the activities to 

be permitted under the General permit, 

explaining why they are sufficiently 

similar in nature and in environmental 

impact to warrant regulation under a 

single General permit based on subparts C through F of the Guidelines. 

Allowable differences between activities which will be regulated under the 

same General permit shall be specified. 

Activities otherwise similar in nature 

may differ in environmental impact 

due to their location in or near ecologically sensitive areas, areas with 

unique chemical or physical characteristics, areas containing concentrations 

of toxic substances, or areas regulated 

for specific human uses or by specific 

land or water management plans (e.g., 

areas regulated under an approved 

Coastal Zone Management Plan). If 

there are specific geographic areas 

within the purview of a proposed General permit (called a draft General permit under a State 404 program), which 

are more appropriately regulated by individual permit due to the considerations cited in this paragraph, they 

shall be clearly delineated in the evaluation and excluded from the permit. 

In addition, the permitting authority 

may require an individual permit for 

any proposed activity under a General 

permit where the nature or location of 

the activity makes an individual permit more appropriate. 

(3) To predict cumulative effects, the 

evaluation shall include the number of 

individual discharge activities likely 

to be regulated under a General permit 

until its expiration, including repetitions of individual discharge activities 

at a single location. 

Subpart B—Compliance With the 

Guidelines 

§ 230.10 Restrictions on discharge. 

NOTE: Because other laws may apply to 

particular discharges and because the Corps 

of Engineers or State 404 agency may have 

additional procedural and substantive requirements, a discharge complying with the 

requirement of these Guidelines will not 

automatically receive a permit. 

Although all requirements in §230.10 

must be met, the compliance evaluation procedures will vary to reflect the 

seriousness of the potential for adverse 

impacts on the aquatic ecosystems 

posed by specific dredged or fill material discharge activities. 

(a) Except as provided under section 

404(b)(2), no discharge of dredged or fill 

material shall be permitted if there is 

a practicable alternative to the proposed discharge which would have less 

adverse impact on the aquatic ecosystem, so long as the alternative does 

not have other significant adverse environmental consequences. 

(1) For the purpose of this requirement, practicable alternatives include, 

but are not limited to: 

(i) Activities which do not involve a 

discharge of dredged or fill material 

into the waters of the United States or 

ocean waters; 

(ii) Discharges of dredged or fill material at other locations in waters of 

the United States or ocean waters; 

(2) An alternative is practicable if it 

is available and capable of being done 

after taking into consideration cost, 

existing technology, and logistics in 

light of overall project purposes. If it is 

otherwise a practicable alternative, an 

area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed 

in order to fulfill the basic purpose of 

the proposed activity may be considered. 

(3) Where the activity associated 

with a discharge which is proposed for 

a special aquatic site (as defined in 

subpart E) does not require access or 

proximity to or siting within the special aquatic site in question to fulfill 

its basic purpose (i.e., is not ‘‘water dependent’’), practicable alternatives 

that do not involve special aquatic 

sites are presumed to be available, unless clearly demonstrated otherwise. In 

addition, where a discharge is proposed 

for a special aquatic site, all practicable alternatives to the proposed 

discharge which do not involve a discharge into a special aquatic site are 

presumed to have less adverse impact 


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§ 230.11 40 CFR Ch. I (7–1–10 Edition) 

on the aquatic ecosystem, unless clearly demonstrated otherwise. 

(4) For actions subject to NEPA, 

where the Corps of Engineers is the 

permitting agency, the analysis of alternatives required for NEPA environmental documents, including supplemental Corps NEPA documents, will in 

most cases provide the information for 

the evaluation of alternatives under 

these Guidelines. On occasion, these 

NEPA documents may address a broader range of alternatives than required 

to be considered under this paragraph 

or may not have considered the alternatives in sufficient detail to respond 

to the requirements of these Guidelines. In the latter case, it may be necessary to supplement these NEPA documents with this additional information. 

(5) To the extent that practicable alternatives have been identified and 

evaluated under a Coastal Zone Management program, a section 208 program, or other planning process, such 

evaluation shall be considered by the 

permitting authority as part of the 

consideration of alternatives under the 

Guidelines. Where such evaluation is 

less complete than that contemplated 

under this subsection, it must be supplemented accordingly. 

(b) No discharge of dredged or fill 

material shall be permitted if it: 

(1) Causes or contributes, after consideration of disposal site dilution and 

dispersion, to violations of any applicable State water quality standard; 

(2) Violates any applicable toxic effluent standard or prohibition under 

section 307 of the Act; 

(3) Jeopardizes the continued existence of species listed as endangered or 

threatened under the Endangered Species Act of 1973, as amended, or results 

in likelihood of the destruction or adverse modification of a habitat which 

is determined by the Secretary of Interior or Commerce, as appropriate, to be 

a critical habitat under the Endangered Species Act of 1973, as amended. 

If an exemption has been granted by 

the Endangered Species Committee, 

the terms of such exemption shall 

apply in lieu of this subparagraph; 

(4) Violates any requirement imposed 

by the Secretary of Commerce to protect any marine sanctuary designated 

under title III of the Marine Protection, Research, and Sanctuaries Act of 

1972. 

(c) Except as provided under section 

404(b)(2), no discharge of dredged or fill 

material shall be permitted which will 

cause or contribute to significant degradation of the waters of the United 

States. Findings of significant degradation related to the proposed discharge 

shall be based upon appropriate factual 

determinations, evaluations, and tests 

required by subparts B and G, after 

consideration of subparts C through F, 

with special emphasis on the persistence and permanence of the effects outlined in those subparts. Under these 

Guidelines, effects contributing to significant degradation considered individually or collectively, include: 

(1) Significantly adverse effects of 

the discharge of pollutants on human 

health or welfare, including but not 

limited to effects on municipal water 

supplies, plankton, fish, shellfish, wildlife, and special aquatic sites. 

(2) Significantly adverse effects of 

the discharge of pollutants on life 

stages of aquatic life and other wildlife 

dependent on aquatic ecosystems, including the transfer, concentration, 

and spread of pollutants or their byproducts outside of the disposal site 

through biological, physical, and chemical processes; 

(3) Significantly adverse effects of 

the discharge of pollutants on aquatic 

ecosystem diversity, productivity, and 

stability. Such effects may include, but 

are not limited to, loss of fish and wildlife habitat or loss of the capacity of a 

wetland to assimilate nutrients, purify 

water, or reduce wave energy; or 

(4) Significantly adverse effects of 

discharge of pollutants on recreational, 

aesthetic, and economic values. 

(d) Except as provided under section 

404(b)(2), no discharge of dredged or fill 

material shall be permitted unless appropriate and practicable steps have 

been taken which will minimize potential adverse impacts of the discharge 

on the aquatic ecosystem. Subpart H 

identifies such possible steps. 

§ 230.11 Factual determinations. 

The permitting authority shall determine in writing the potential shortterm or long-term effects of a proposed 


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Environmental Protection Agency § 230.11 

discharge of dredged or fill material on 

the physical, chemical, and biological 

components of the aquatic environment in light of subparts C through F. 

Such factual determinations shall be 

used in §230.12 in making findings of 

compliance or non-compliance with the 

restrictions on discharge in §230.10. 

The evaluation and testing procedures 

described in §230.60 and §230.61 of subpart G shall be used as necessary to 

make, and shall be described in, such 

determination. The determinations of 

effects of each proposed discharge shall 

include the following: 

(a) Physical substrate determinations. 

Determine the nature and degree of effect that the proposed discharge will 

have, individually and cumulatively, 

on the characteristics of the substrate 

at the proposed disposal site. Consideration shall be given to the similarity in 

particle size, shape, and degree of compaction of the material proposed for 

discharge and the material constituting the substrate at the disposal 

site, and any potential changes in substrate elevation and bottom contours, 

including changes outside of the disposal site which may occur as a result 

of erosion, slumpage, or other movement of the discharged material. The 

duration and physical extent of substrate changes shall also be considered. 

The possible loss of environmental values (§230.20) and actions to minimize 

impact (subpart H) shall also be considered in making these determinations. 

Potential changes in substrate elevation and bottom contours shall be 

predicted on the basis of the proposed 

method, volume, location, and rate of 

discharge, as well as on the individual 

and combined effects of current patterns, water circulation, wind and wave 

action, and other physical factors that 

may affect the movement of the discharged material. 

(b) Water circulation, fluctuation, and 

salinity determinations. Determine the 

nature and degree of effect that the 

proposed discharge will have individually and cumulatively on water, current patterns, circulation including 

downstream flows, and normal water 

fluctuation. Consideration shall be 

given to water chemistry, salinity, 

clarity, color, odor, taste, dissolved gas 

levels, temperature, nutrients, and eutrophication plus other appropriate 

characteristics. Consideration shall 

also be given to the potential diversion 

or obstruction of flow, alterations of 

bottom contours, or other significant 

changes in the hydrologic regime. Additional consideration of the possible 

loss of environmental values (§§230.23 

through 230.25) and actions to minimize 

impacts (subpart H), shall be used in 

making these determinations. Potential significant effects on the current 

patterns, water circulation, normal 

water fluctuation and salinity shall be 

evaluated on the basis of the proposed 

method, volume, location, and rate of 

discharge. 

(c) Suspended particulate/turbidity determinations. Determine the nature and 

degree of effect that the proposed discharge will have, individually and cumulatively, in terms of potential 

changes in the kinds and concentrations of suspended particulate/turbidity in the vicinity of the disposal 

site. Consideration shall be given to 

the grain size of the material proposed 

for discharge, the shape and size of the 

plume of suspended particulates, the 

duration of the discharge and resulting 

plume and whether or not the potential 

changes will cause violations of applicable water quality standards. Consideration should also be given to the possible loss of environmental values 

(§230.21) and to actions for minimizing 

impacts (subpart H). Consideration 

shall include the proposed method, volume, location, and rate of discharge, as 

well as the individual and combined effects of current patterns, water circulation and fluctuations, wind and 

wave action, and other physical factors 

on the movement of suspended 

particulates. 

(d) Contaminant determinations. Determine the degree to which the material 

proposed for discharge will introduce, 

relocate, or increase contaminants. 

This determination shall consider the 

material to be discharged, the aquatic 

environment at the proposed disposal 

site, and the availability of contaminants. 

(e) Aquatic ecosystem and organism determinations. Determine the nature and 

degree of effect that the proposed discharge will have, both individually and 

cumulatively, on the structure and 


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§ 230.11 40 CFR Ch. I (7–1–10 Edition) 

function of the aquatic ecosystem and 

organisms. Consideration shall be 

given to the effect at the proposed disposal site of potential changes in substrate characteristics and elevation, 

water or substrate chemistry, nutrients, currents, circulation, fluctuation, 

and salinity, on the recolonization and 

existence of indigenous aquatic organisms or communities. Possible loss of 

environmental values (§230.31), and actions to minimize impacts (subpart H) 

shall be examined. Tests as described 

in §230.61 (Evaluation and Testing), 

may be required to provide information 

on the effect of the discharge material 

on communities or populations of organisms expected to be exposed to it. 

(f) Proposed disposal site determinations. (1) Each disposal site shall be 

specified through the application of 

these Guidelines. The mixing zone shall 

be confined to the smallest practicable 

zone within each specified disposal site 

that is consistent with the type of dispersion determined to be appropriate 

by the application of these Guidelines. 

In a few special cases under unique environmental conditions, where there is 

adequate justification to show that 

widespread dispersion by natural 

means will result in no significantly 

adverse environmental effects, the discharged material may be intended to 

be spread naturally in a very thin layer 

over a large area of the substrate rather than be contained within the disposal site. 

(2) The permitting authority and the 

Regional Administrator shall consider 

the following factors in determining 

the acceptability of a proposed mixing 

zone: 

(i) Depth of water at the disposal 

site; 

(ii) Current velocity, direction, and 

variability at the disposal site; 

(iii) Degree of turbulence; 

(iv) Stratification attributable to 

causes such as obstructions, salinity or 

density profiles at the disposal site; 

(v) Discharge vessel speed and direction, if appropriate; 

(vi) Rate of discharge; 

(vii) Ambient concentration of constituents of interest; 

(viii) Dredged material characteristics, particularly concentrations of 

constituents, amount of material, type 

of material (sand, silt, clay, etc.) and 

settling velocities; 

(ix) Number of discharge actions per 

unit of time; 

(x) Other factors of the disposal site 

that affect the rates and patterns of 

mixing. 

(g) Determination of cumulative effects 

on the aquatic ecosystem. (1) Cumulative 

impacts are the changes in an aquatic 

ecosystem that are attributable to the 

collective effect of a number of individual discharges of dredged or fill material. Although the impact of a particular discharge may constitute a 

minor change in itself, the cumulative 

effect of numerous such piecemeal 

changes can result in a major impairment of the water resources and interfere with the productivity and water 

quality of existing aquatic ecosystems. 

(2) Cumulative effects attributable to 

the discharge of dredged or fill material in waters of the United States 

should be predicted to the extent reasonable and practical. The permitting 

authority shall collect information and 

solicit information from other sources 

about the cumulative impacts on the 

aquatic ecosystem. This information 

shall be documented and considered 

during the decision-making process 

concerning the evaluation of individual 

permit applications, the issuance of a 

General permit, and monitoring and 

enforcement of existing permits. 

(h) Determination of secondary effects 

on the aquatic ecosystem. (1) Secondary 

effects are effects on an aquatic ecosystem that are associated with a discharge of dredged or fill materials, but 

do not result from the actual placement of the dredged or fill material. 

Information about secondary effects on 

aquatic ecosystems shall be considered 

prior to the time final section 404 action is taken by permitting authorities. 

(2) Some examples of secondary effects on an aquatic ecosystem are fluctuating water levels in an impoundment and downstream associated with 

the operation of a dam, septic tank 

leaching and surface runoff from residential or commercial developments on 

fill, and leachate and runoff from a 

sanitary landfill located in waters of 

the U.S. Activities to be conducted on 

fast land created by the discharge of 


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Environmental Protection Agency § 230.21 

dredged or fill material in waters of the 

United States may have secondary impacts within those waters which should 

be considered in evaluating the impact 

of creating those fast lands. 

§ 230.12 Findings of compliance or 

non-compliance with the restrictions on discharge. 

(a) On the basis of these Guidelines 

(subparts C through G) the proposed 

disposal sites for the discharge of 

dredged or fill material must be: 

(1) Specified as complying with the 

requirements of these Guidelines; or 

(2) Specified as complying with the 

requirements of these Guidelines with 

the inclusion of appropriate and practicable discharge conditions (see subparts H and J) to minimize pollution or 

adverse effects to the affected aquatic 

ecosystems; or 

(3) Specified as failing to comply 

with the requirements of these Guidelines where: 

(i) There is a practicable alternative 

to the proposed discharge that would 

have less adverse effect on the aquatic 

ecosystem, so long as such alternative 

does not have other significant adverse 

environmental consequences; or 

(ii) The proposed discharge will result in significant degradation of the 

aquatic ecosystem under §230.10(b) or 

(c); or 

(iii) The proposed discharge does not 

include all appropriate and practicable 

measures to minimize potential harm 

to the aquatic ecosystem; or 

(iv) There does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines. 

(b) Findings under this section shall 

be set forth in writing by the permitting authority for each proposed discharge and made available to the permit applicant. These findings shall include the factual determinations required by §230.11, and a brief explanation of any adaptation of these 

Guidelines to the activity under consideration. In the case of a General permit, such findings shall be prepared at 

the time of issuance of that permit 

rather than for each subsequent discharge under the authority of that permit. 

Subpart C—Potential Impacts on 

Physical and Chemical Characteristics of the Aquatic Ecosystem 

NOTE: The effects described in this subpart 

should be considered in making the factual 

determinations and the findings of compliance or non-compliance in subpart B. 

[45 FR 85344, Dec. 24, 1980, as amended at 73 

FR 19687, Apr. 10, 2008] 

§ 230.20 Substrate. 

(a) The substrate of the aquatic ecosystem underlies open waters of the 

United States and constitutes the surface of wetlands. It consists of organic 

and inorganic solid materials and includes water and other liquids or gases 

that fill the spaces between solid 

particles. 

(b) Possible loss of environmental 

characteristics and values: The discharge of dredged or fill material can 

result in varying degrees of change in 

the complex physical, chemical, and biological characteristics of the substrate. Discharges which alter substrate elevation or contours can result 

in changes in water circulation, depth, 

current pattern, water fluctuation and 

water temperature. Discharges may adversely affect bottom-dwelling organisms at the site by smothering immobile forms or forcing mobile forms to 

migrate. Benthic forms present prior to 

a discharge are unlikely to recolonize 

on the discharged material if it is very 

dissimilar from that of the discharge 

site. Erosion, slumping, or lateral displacement of surrounding bottom of 

such deposits can adversely affect 

areas of the substrate outside the perimeters of the disposal site by changing or destroying habitat. The bulk and 

composition of the discharged material 

and the location, method, and timing 

of discharges may all influence the degree of impact on the substrate. 

§ 230.21 Suspended particulates/turbidity. 

(a) Suspended particulates in the 

aquatic ecosystem consist of finegrained mineral particles, usually 

smaller than silt, and organic particles. Suspended particulates may 

enter water bodies as a result of land 

runoff, flooding, vegetative and 


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§ 230.22 40 CFR Ch. I (7–1–10 Edition) 

planktonic breakdown, resuspension of 

bottom sediments, and man’s activities 

including dredging and filling. Particulates may remain suspended in the 

water column for variable periods of 

time as a result of such factors as agitation of the water mass, particulate 

specific gravity, particle shape, and 

physical and chemical properties of 

particle surfaces. 

(b) Possible loss of environmental 

characteristics and values: The discharge of dredged or fill material can 

result in greatly elevated levels of suspended particulates in the water column for varying lengths of time. These 

new levels may reduce light penetration and lower the rate of photosynthesis and the primary productivity of 

an aquatic area if they last long 

enough. Sight-dependent species may 

suffer reduced feeding ability leading 

to limited growth and lowered resistance to disease if high levels of suspended particulates persist. The biological and the chemical content of the 

suspended material may react with the 

dissolved oxygen in the water, which 

can result in oxygen depletion. Toxic 

metals and organics, pathogens, and viruses absorbed or adsorbed to finegrained particulates in the material 

may become biologically available to 

organisms either in the water column 

or on the substrate. Significant increases in suspended particulate levels 

create turbid plumes which are highly 

visible and aesthetically displeasing. 

The extent and persistence of these adverse impacts caused by discharges depend upon the relative increase in suspended particulates above the amount 

occurring naturally, the duration of 

the higher levels, the current patterns, 

water level, and fluctuations present 

when such discharges occur, the volume, rate, and duration of the discharge, particulate deposition, and the 

seasonal timing of the discharge. 

§ 230.22 Water. 

(a) Water is the part of the aquatic 

ecosystem in which organic and inorganic constituents are dissolved and 

suspended. It constitutes part of the 

liquid phase and is contained by the 

substrate. Water forms part of a dynamic aquatic life-supporting system. 

Water clarity, nutrients and chemical 

content, physical and biological content, dissolved gas levels, pH, and temperature contribute to its life-sustaining capabilities. 

(b) Possible loss of environmental 

characteristics and values: The discharge of dredged or fill material can 

change the chemistry and the physical 

characteristics of the receiving water 

at a disposal site through the introduction of chemical constituents in suspended or dissolved form. Changes in 

the clarity, color, odor, and taste of 

water and the addition of contaminants can reduce or eliminate the suitability of water bodies for populations 

of aquatic organisms, and for human 

consumption, recreation, and aesthetics. The introduction of nutrients 

or organic material to the water column as a result of the discharge can 

lead to a high biochemical oxygen demand (BOD), which in turn can lead to 

reduced dissolved oxygen, thereby potentially affecting the survival of 

many aquatic organisms. Increases in 

nutrients can favor one group of organisms such as algae to the detriment of 

other more desirable types such as submerged aquatic vegetation, potentially 

causing adverse health effects, objectionable tastes and odors, and other 

problems. 

§ 230.23 Current patterns and water 

circulation. 

(a) Current patterns and water circulation are the physical movements of 

water in the aquatic ecosystem. Currents and circulation respond to natural forces as modified by basin shape 

and cover, physical and chemical characteristics of water strata and masses, 

and energy dissipating factors. 

(b) Possible loss of environmental 

characteristics and values: The discharge of dredged or fill material can 

modify current patterns and water circulation by obstructing flow, changing 

the direction or velocity of water flow, 

changing the direction or velocity of 

water flow and circulation, or otherwise changing the dimensions of a 

water body. As a result, adverse 

changes can occur in: Location, structure, and dynamics of aquatic communities; shoreline and substrate erosion 

and depositIon rates; the deposition of 

suspended particulates; the rate and 


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Environmental Protection Agency § 230.30 

extent of mixing of dissolved and suspended components of the water body; 

and water stratification. 

§ 230.24 Normal water fluctuations. 

(a) Normal water fluctuations in a 

natural aquatic system consist of 

daily, seasonal, and annual tidal and 

flood fluctuations in water level. Biological and physical components of 

such a system are either attuned to or 

characterized by these periodic water 

fluctuations. 

(b) Possible loss of environmental 

characteristics and values: The discharge of dredged or fill material can 

alter the normal water-level fluctuation pattern of an area, resulting in 

prolonged periods of inundation, exaggerated extremes of high and low 

water, or a static, nonfluctuating 

water level. Such water level modifications may change salinity patterns, 

alter erosion or sedimentation rates, 

aggravate water temperature extremes, 

and upset the nutrient and dissolved 

oxygen balance of the aquatic ecosystem. In addition, these modifications can alter or destroy communities 

and populations of aquatic animals and 

vegetation, induce populations of nuisance organisms, modify habitat, reduce food supplies, restrict movement 

of aquatic fauna, destroy spawning 

areas, and change adjacent, upstream, 

and downstream areas. 

§ 230.25 Salinity gradients. 

(a) Salinity gradients form where 

salt water from the ocean meets and 

mixes with fresh water from land. 

(b) Possible loss of environmental 

characteristics and values: Obstructions which divert or restrict flow of 

either fresh or salt water may change 

existing salinity gradients. For example, partial blocking of the entrance to 

an estuary or river mouth that significantly restricts the movement of the 

salt water into and out of that area can 

effectively lower the volume of salt 

water available for mixing within that 

estuary. The downstream migration of 

the salinity gradient can occur, displacing the maximum sedimentation 

zone and requiring salinity-dependent 

aquatic biota to adjust to the new conditions, move to new locations if possible, or perish. In the freshwater zone, 

discharge operations in the upstream 

regions can have equally adverse impacts. A significant reduction in the 

volume of fresh water moving into an 

estuary below that which is considered 

normal can affect the location and type 

of mixing thereby changing the characteristic salinity patterns. The resulting changed circulation pattern can 

cause the upstream migration of the 

salinity gradient displacing the 

maximim sedimentation zone. This migration may affect those organisms 

that are adapted to freshwater environments. It may also affect municipal 

water supplies. 

NOTE: Possible actions to minimize adverse 

impacts regarding site characteristics can be 

found in subpart H. 

Subpart D—Potential Impacts on 

Biological Characteristics of 

the Aquatic Ecosystem 

NOTE: The impacts described in this subpart should be considered in making the factual determinations and the findings of compliance or non-compliance in subpart B. 

§ 230.30 Threatened and endangered 

species. 

(a) An endangered species is a plant 

or animal in danger of extinction 

throughout all or a significant portion 

of its range. A threatened species is 

one in danger of becoming an endangered species in the foreseeable future 

throughout all or a significant portion 

of its range. Listings of threatened and 

endangered species as well as critical 

habitats are maintained by some individual States and by the U.S. Fish and 

Wildlife Service of the Department of 

the Interior (codified annually at 50 

CFR 17.11). The Department of Commerce has authority over some threatened and endangered marine mammals, 

fish and reptiles. 

(b) Possible loss of values: The major 

potential impacts on threatened or endangered species from the discharge of 

dredged or fill material include: 

(1) Covering or otherwise directly 

killing species; 

(2) The impairment or destruction of 

habitat to which these species are limited. Elements of the aquatic habitat 

which are particularly crucial to the 

continued survival of some threatened 

or endangered species include adequate 


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§ 230.31 40 CFR Ch. I (7–1–10 Edition) 

good quality water, spawning and maturation areas, nesting areas, protective 

cover, adequate and reliable food supply, and resting areas for migratory 

species. Each of these elements can be 

adversely affected by changes in either 

the normal water conditions for clarity, chemical content, nutrient balance, dissolved oxygen, pH, temperature, salinity, current patterns, circulation and fluctuation, or the physical removal of habitat; and 

(3) Facilitating incompatible activities. 

(c) Where consultation with the Secretary of the Interior occurs under section 7 of the Endangered Species Act, 

the conclusions of the Secretary concerning the impact(s) of the discharge 

on threatened and endangered species 

and their habitat shall be considered 

final. 

§ 230.31 Fish, crustaceans, mollusks, 

and other aquatic organisms in the 

food web. 

(a) Aquatic organisms in the food 

web include, but are not limited to, 

finfish, crustaceans, mollusks, insects, 

annelids, planktonic organisms, and 

the plants and animals on which they 

feed and depend upon for their needs. 

All forms and life stages of an organism, throughout its geographic range, 

are included in this category. 

(b) Possible loss of values: The discharge of dredged or fill material can 

variously affect populations of fish, 

crustaceans, mollusks and other food 

web organisms through the release of 

contaminants which adversely affect 

adults, juveniles, larvae, or eggs, or result in the establishment or proliferation of an undesirable competitive species of plant or animal at the expense 

of the desired resident species. Suspended particulates settling on attached or buried eggs can smother the 

eggs by limiting or sealing off their exposure to oxygenated water. Discharge 

of dredged and fill material may result 

in the debilitation or death of sedentary organisms by smothering, exposure to chemical contaminants in dissolved or suspended form, exposure to 

high levels of suspended particulates, 

reduction in food supply, or alteration 

of the substrate upon which they are 

dependent. Mollusks are particularly 

sensitive to the discharge of material 

during periods of reproduction and 

growth and development due primarily 

to their limited mobility. They can be 

rendered unfit for human consumption 

by tainting, by production and accumulation of toxins, or by ingestion and 

retention of pathogenic organisms, viruses, heavy metals or persistent synthetic organic chemicals. The discharge of dredged or fill material can 

redirect, delay, or stop the reproductive and feeding movements of some 

species of fish and crustacea, thus preventing their aggregation in accustomed places such as spawning or nursery grounds and potentially leading to 

reduced populations. Reduction of detrital feeding species or other representatives of lower trophic levels can 

impair the flow of energy from primary 

consumers to higher trophic levels. The 

reduction or potential elimination of 

food chain organism populations decreases the overall productivity and 

nutrient export capability of the ecosystem. 

§ 230.32 Other wildlife. 

(a) Wildlife associated with aquatic 

ecosystems are resident and transient 

mammals, birds, reptiles, and amphibians. 

(b) Possible loss of values: The discharge of dredged or fill material can 

result in the loss or change of breeding 

and nesting areas, escape cover, travel 

corridors, and preferred food sources 

for resident and transient wildlife species associated with the aquatic ecosystem. These adverse impacts upon 

wildlife habitat may result from 

changes in water levels, water flow and 

circulation, salinity, chemical content, 

and substrate characteristics and elevation. Increased water turbidity can 

adversely affect wildlife species which 

rely upon sight to feed, and disrupt the 

respiration and feeding of certain 

aquatic wildlife and food chain organisms. The availability of contaminants from the discharge of dredged or 

fill material may lead to the bioaccumulation of such contaminants in 

wildlife. Changes in such physical and 

chemical factors of the environment 


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Environmental Protection Agency § 230.41 

may favor the introduction of undesirable plant and animal species at the expense of resident species and communities. In some aquatic environments 

lowering plant and animal species diversity may disrupt the normal functions of the ecosystem and lead to reductions in overall biological productivity. 

NOTE: Possible actions to minimize adverse 

impacts regarding characteristics of biological components of the aquatic ecosystem can 

be found in subpart H. 

Subpart E—Potential Impacts on 

Special Aquatic Sites 

NOTE: The impacts described in this subpart should be considered in making the factual determinations and the findings of compliance or non-compliance in subpart B. The 

definition of special aquatic sites is found in 

§230.3(q–1). 

§ 230.40 Sanctuaries and refuges. 

(a) Sanctuaries and refuges consist of 

areas designated under State and Federal laws or local ordinances to be 

managed principally for the preservation and use of fish and wildlife resources. 

(b) Possible loss of values: Sanctuaries and refuges may be affected by 

discharges of dredged or fill material 

which will: 

(1) Disrupt the breeding, spawning, 

migratory movements or other critical 

life requirements of resident or transient fish and wildlife resources; 

(2) Create unplanned, easy and incompatible human access to remote 

aquatic areas; 

(3) Create the need for frequent maintenance activity; 

(4) Result in the establishment of undesirable competitive species of plants 

and animals; 

(5) Change the balance of water and 

land areas needed to provide cover, 

food, and other fish and wildlife habitat requirements in a way that modifies sanctuary or refuge management 

practices; 

(6) Result in any of the other adverse 

impacts discussed in subparts C and D 

as they relate to a particular sanctuary or refuge. 

§ 230.41 Wetlands. 

(a)(1) Wetlands consist of areas that 

are inundated or saturated by surface 

or ground water at a frequency and duration sufficient to support, and that 

under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil 

conditions. 

(2) Where wetlands are adjacent to 

open water, they generally constitute 

the transition to upland. The margin 

between wetland and open water can 

best be established by specialists familiar with the local environment, particularly where emergent vegetation 

merges with submerged vegetation 

over a broad area in such places as the 

lateral margins of open water, headwaters, rainwater catch basins, and 

groundwater seeps. The landward margin of wetlands also can best be identified by specialists familiar with the 

local environment when vegetation 

from the two regions merges over a 

broad area. 

(3) Wetland vegetation consists of 

plants that require saturated soils to 

survive (obligate wetland plants) as 

well as plants, including certain trees, 

that gain a competitive advantage over 

others because they can tolerate prolonged wet soil conditions and their 

competitors cannot. In addition to 

plant populations and communities, 

wetlands are delimited by hydrological 

and physical characteristics of the environment. These characteristics 

should be considered when information 

about them is needed to supplement information available about vegetation, 

or where wetland vegetation has been 

removed or is dormant. 

(b) Possible loss of values: The discharge of dredged or fill material in 

wetlands is likely to damage or destroy 

habitat and adversely affect the biological productivity of wetlands ecosystems by smothering, by dewatering, 

by permanently flooding, or by altering 

substrate elevation or periodicity of 

water movement. The addition of 

dredged or fill material may destroy 

wetland vegetation or result in advancement of succession to dry land 

species. It may reduce or eliminate nutrient exchange by a reduction of the 

system’s productivity, or by altering 


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§ 230.42 40 CFR Ch. I (7–1–10 Edition) 

current patterns and velocities. Disruption or elimination of the wetland system can degrade water quality by obstructing circulation patterns that 

flush large expanses of wetland systems, by interfering with the filtration 

function of wetlands, or by changing 

the aquifer recharge capability of a 

wetland. Discharges can also change 

the wetland habitat value for fish and 

wildlife as discussed in subpart D. 

When disruptions in flow and circulation patterns occur, apparently minor 

loss of wetland acreage may result in 

major losses through secondary impacts. Discharging fill material in wetlands as part of municipal, industrial 

or recreational development may modify the capacity of wetlands to retain 

and store floodwaters and to serve as a 

buffer zone shielding upland areas from 

wave actions, storm damage and erosion. 

§ 230.42 Mud flats. 

(a) Mud flats are broad flat areas 

along the sea coast and in coastal rivers to the head of tidal influence and in 

inland lakes, ponds, and riverine systems. When mud flats are inundated, 

wind and wave action may resuspend 

bottom sediments. Coastal mud flats 

are exposed at extremely low tides and 

inundated at high tides with the water 

table at or near the surface of the substrate. The substrate of mud flats contains organic material and particles 

smaller in size than sand. They are either unvegetated or vegetated only by 

algal mats. 

(b) Possible loss of values: The discharge of dredged or fill material can 

cause changes in water circulation patterns which may permanently flood or 

dewater the mud flat or disrupt periodic inundation, resulting in an increase in the rate of erosion or accretion. Such changes can deplete or 

eliminate mud flat biota, foraging 

areas, and nursery areas. Changes in 

inundation patterns can affect the 

chemical and biological exchange and 

decomposition process occurring on the 

mud flat and change the deposition of 

suspended material affecting the productivity of the area. Changes may reduce the mud flat’s capacity to dissipate storm surge runoff. 

§ 230.43 Vegetated shallows. 

(a) Vegetated shallows are permanently inundated areas that under normal circumstances support communities of rooted aquatic vegetation, 

such as turtle grass and eelgrass in estuarine or marine systems as well as a 

number of freshwater species in rivers 

and lakes. 

(b) Possible loss of values: The discharge of dredged or fill material can 

smother vegetation and benthic organisms. It may also create unsuitable 

conditions for their continued vigor by: 

(1) Changing water circulation patterns; (2) releasing nutrients that increase undesirable algal populations; 

(3) releasing chemicals that adversely 

affect plants and animals; (4) increasing turbidity levels, thereby reducing 

light penetration and hence photosynthesis; and (5) changing the capacity of 

a vegetated shallow to stabilize bottom 

materials and decrease channel 

shoaling. The discharge of dredged or 

fill material may reduce the value of 

vegetated shallows as nesting, spawning, nursery, cover, and forage areas, 

as well as their value in protecting 

shorelines from erosion and wave actions. It may also encourage the 

growth of nuisance vegetation. 

§ 230.44 Coral reefs. 

(a) Coral reefs consist of the skeletal 

deposit, usually of calcareous or 

silicaceous materials, produced by the 

vital activities of anthozoan polyps or 

other invertebrate organisms present 

in growing portions of the reef. 

(b) Possible loss of values: The discharge of dredged or fill material can 

adversely affect colonies of reef building organisms by burying them, by releasing contaminants such as hydrocarbons into the water column, by reducing light penetration through the 

water, and by increasing the level of 

suspended particulates. Coral organisms are extremely sensitive to even 

slight reductions in light penetration 

or increases in suspended particulates. 

These adverse effects will cause a loss 

of productive colonies which in turn 

provide habitat for many species of 

highly specialized aquatic organisms. 


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Environmental Protection Agency § 230.51 

§ 230.45 Riffle and pool complexes. 

(a) Steep gradient sections of streams 

are sometimes characterized by riffle 

and pool complexes. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a coarse substrate 

in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. Pools 

are characterized by a slower stream 

velocity, a steaming flow, a smooth 

surface, and a finer substrate. Riffle 

and pool complexes are particularly 

valuable habitat for fish and wildlife. 

(b) Possible loss of values: Discharge 

of dredged or fill material can eliminate riffle and pool areas by displacement, hydrologic modification, or sedimentation. Activities which affect riffle and pool areas and especially riffle/ 

pool ratios, may reduce the aeration 

and filtration capabilities at the discharge site and downstream, may reduce stream habitat diversity, and may 

retard repopulation of the disposal site 

and downstream waters through sedimentation and the creation of unsuitable habitat. The discharge of dredged 

or fill material which alters stream hydrology may cause scouring or sedimentation of riffles and pools. Sedimentation induced through 

hydrological modification or as a direct result of the deposition of unconsolidated dredged or fill material may 

clog riffle and pool areas, destroy habitats, and create anaerobic conditions. 

Eliminating pools and meanders by the 

discharge of dredged or fill material 

can reduce water holding capacity of 

streams and cause rapid runoff from a 

watershed. Rapid runoff can deliver 

large quantities of flood water in a 

short time to downstream areas resulting in the destruction of natural habitat, high property loss, and the need 

for further hydraulic modification. 

NOTE: Possible actions to minimize adverse 

impacts on site or material characteristics 

can be found in subpart H. 

Subpart F—Potential Effects on 

Human Use Characteristics 

NOTE: The effects described in this subpart 

should be considered in making the factual 

determinations and the findings of compliance or non-compliance in subpart B. 

§ 230.50 Municipal and private water 

supplies. 

(a) Municipal and private water supplies consist of surface water or ground 

water which is directed to the intake of 

a municipal or private water supply 

system. 

(b) Possible loss of values: Discharges 

can affect the quality of water supplies 

with respect to color, taste, odor, 

chemical content and suspended particulate concentration, in such a way as 

to reduce the fitness of the water for 

consumption. Water can be rendered 

unpalatable or unhealthy by the addition of suspended particulates, viruses 

and pathogenic organisms, and dissolved materials. The expense of removing such substances before the 

water is delivered for consumption can 

be high. Discharges may also affect the 

quantity of water available for municipal and private water supplies. In addition, certain commonly used water 

treatment chemicals have the potential for combining with some suspended 

or dissolved substances from dredged or 

fill material to form other products 

that can have a toxic effect on 

consumers. 

§ 230.51 Recreational and commercial 

fisheries. 

(a) Recreational and commercial 

fisheries consist of harvestable fish, 

crustaceans, shellfish, and other aquatic organisms used by man. 

(b) Possible loss of values: The discharge of dredged or fill materials can 

affect the suitability of recreational 

and commercial fishing grounds as 

habitat for populations of consumable 

aquatic organisms. Discharges can result in the chemical contamination of 

recreational or commercial fisheries. 

They may also interfere with the reproductive success of recreational and 

commercially important aquatic species through disruption of migration 

and spawning areas. The introduction 

of pollutants at critical times in their 

life cycle may directly reduce populations of commercially important 

aquatic organisms or indirectly reduce 

them by reducing organisms upon 

which they depend for food. Any of 


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these impacts can be of short duration 

or prolonged, depending upon the physical and chemical impacts of the discharge and the biological availability 

of contaminants to aquatic organisms. 

§ 230.52 Water-related recreation. 

(a) Water-related recreation encompasses activities undertaken for amusement and relaxation. Activities encompass two broad categories of use: consumptive, e.g., harvesting resources by 

hunting and fishing; and noncomsumptive, e.g. canoeing and sightseeing. 

(b) Possible loss of values: One of the 

more important direct impacts of 

dredged or fill disposal is to impair or 

destroy the resources which support 

recreation activities. The disposal of 

dredged or fill material may adversely 

modify or destroy water use for recreation by changing turbidity, suspended 

particulates, temperature, dissolved 

oxygen, dissolved materials, toxic materials, pathogenic organisms, quality 

of habitat, and the aesthetic qualities 

of sight, taste, odor, and color. 

§ 230.53 Aesthetics. 

(a) Aesthetics associated with the 

aquatic ecosystem consist of the perception of beauty by one or a combination of the senses of sight, hearing, 

touch, and smell. Aesthetics of aquatic 

ecosystems apply to the quality of life 

enjoyed by the general public and property owners. 

(b) Possible loss of values: The discharge of dredged or fill material can 

mar the beauty of natural aquatic ecosystems by degrading water quality, 

creating distracting disposal sites, inducing inappropriate development, encouraging unplanned and incompatible 

human access, and by destroying vital 

elements that contribute to the 

compositional harmony or unity, visual distinctiveness, or diversity of an 

area. The discharge of dredged or fill 

material can adversely affect the particular features, traits, or characteristics of an aquatic area which make it 

valuable to property owners. Activities 

which degrade water quality, disrupt 

natural substrate and vegetational 

characteristics, deny access to or visibility of the resource, or result in 

changes in odor, air quality, or noise 

levels may reduce the value of an 

aquatic area to private property owners. 

§ 230.54 Parks, national and historical 

monuments, national seashores, 

wilderness areas, research sites, 

and similar preserves. 

(a) These preserves consist of areas 

designated under Federal and State 

laws or local ordinances to be managed 

for their aesthetic, educational, historical, recreational, or scientific value. 

(b) Possible loss of values: The discharge of dredged or fill material into 

such areas may modify the aesthetic, 

educational, historical, recreational 

and/or scientific qualities thereby reducing or eliminating the uses for 

which such sites are set aside and 

managed. 

NOTE: Possible actions to minimize adverse 

impacts regarding site or material characteristics can be found in subpart H. 

Subpart G—Evaluation and Testing 

§ 230.60 General evaluation of dredged 

or fill material. 

The purpose of these evaluation procedures and the chemical and biological testing sequence outlined in §230.61 

is to provide information to reach the 

determinations required by §230.11. 

Where the results of prior evaluations, 

chemical and biological tests, scientific research, and experience can 

provide information helpful in making 

a determination, these should be used. 

Such prior results may make new testing unnecessary. The information used 

shall be documented. Where the same 

information applies to more than one 

determination, it may be documented 

once and referenced in later determinations. 

(a) If the evaluation under paragraph 

(b) indicates the dredged or fill material is not a carrier of contaminants, 

then the required determinations pertaining to the presence and effects of 

contaminants can be made without 

testing. Dredged or fill material is 

most likely to be free from chemical, 

biological, or other pollutants where it 

is composed primarily of sand, gravel, 

or other naturally occurring inert material. Dredged material so composed is 


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generally found in areas of high current or wave energy such as streams 

with large bed loads or coastal areas 

with shifting bars and channels. However, when such material is discolored 

or contains other indications that contaminants may be present, further inquiry should be made. 

(b) The extraction site shall be examined in order to assess whether it is 

sufficiently removed from sources of 

pollution to provide reasonable assurance that the proposed discharge material is not a carrier of contaminants. 

Factors to be considered include but 

are not limited to: 

(1) Potential routes of contaminants 

or contaminated sediments to the extraction site, based on hydrographic or 

other maps, aerial photography, or 

other materials that show watercourses, surface relief, proximity to 

tidal movement, private and public 

roads, location of buildings, municipal 

and industrial areas, and agricultural 

or forest lands. 

(2) Pertinent results from tests previously carried out on the material at 

the extraction site, or carried out on 

similar material for other permitted 

projects in the vicinity. Materials shall 

be considered similar if the sources of 

contamination, the physical configuration of the sites and the sediment composition of the materials are comparable, in light of water circulation 

and stratification, sediment accumulation and general sediment characteristics. Tests from other sites may be relied on only if no changes have occurred at the extraction sites to render 

the results irrelevant. 

(3) Any potential for significant introduction of persistent pesticides from 

land runoff or percolation; 

(4) Any records of spills or disposal of 

petroleum products or substances designated as hazardous under section 311 

of the Clean Water Act (See 40 CFR 

part 116); 

(5) Information in Federal, State and 

local records indicating significant introduction of pollutants from industries, municipalities, or other sources, 

including types and amounts of waste 

materials discharged along the potential routes of contaminants to the extraction site; and 

(6) Any possibility of the presence of 

substantial natural deposits of minerals or other substances which could 

be released to the aquatic environment 

in harmful quantities by man-induced 

discharge activities. 

(c) To reach the determinations in 

§230.11 involving potential effects of 

the discharge on the characteristics of 

the disposal site, the narrative guidance in subparts C through F shall be 

used along with the general evaluation 

procedure in §230.60 and, if necessary, 

the chemical and biological testing sequence in §230.61. Where the discharge 

site is adjacent to the extraction site 

and subject to the same sources of contaminants, and materials at the two 

sites are substantially similar, the fact 

that the material to be discharged may 

be a carrier of contaminants is not 

likely to result in degradation of the 

disposal site. In such circumstances, 

when dissolved material and suspended 

particulates can be controlled to prevent carrying pollutants to less contaminated areas, testing will not be required. 

(d) Even if the §230.60(b) evaluation 

(previous tests, the presence of polluting industries and information 

about their discharge or runoff into 

waters of the U.S., bioinventories, etc.) 

leads to the conclusion that there is a 

high probability that the material proposed for discharge is a carrier of contaminants, testing may not be necessary if constraints are available to 

reduce contamination to acceptable 

levels within the disposal site and to 

prevent contaminants from being 

transported beyond the boundaries of 

the disposal site, if such constraints 

are acceptable to the permitting authority and the Regional Administrator, and if the potential discharger 

is willing and able to implement such 

constraints. However, even if tests are 

not performed, the permitting authority must still determine the probable 

impact of the operation on the receiving aquatic ecosystem. Any decision 

not to test must be explained in the determinations made under §230.11. 

§ 230.61 Chemical, biological, and 

physical evaluation and testing. 

NOTE: The Agency is today proposing revised testing guidelines. The evaluation and 


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testing procedures in this section are based 

on the 1975 section 404(b)(1) interim final 

Guidelines and shall remain in effect until 

the revised testing guidelines are published 

as final regulations. 

(a) No single test or approach can be 

applied in all cases to evaluate the effects of proposed discharges of dredged 

or fill materials. This section provides 

some guidance in determining which 

test and/or evaluation procedures are 

appropriate in a given case. Interim 

guidance to applicants concerning the 

applicability of specific approaches or 

procedures will be furnished by the permitting authority. 

(b) Chemical-biological interactive effects. The principal concerns of discharge of dredged or fill material that 

contain contaminants are the potential 

effects on the water column and on 

communities of aquatic organisms. 

(1) Evaluation of chemical-biological 

interactive effects. Dredged or fill material may be excluded from the evaluation procedures specified in paragraphs 

(b) (2) and (3) of this section if it is determined, on the basis of the evaluation in §230.60, that the likelihood of 

contamination by contaminants is acceptably low, unless the permitting authority, after evaluating and considering any comments received from the 

Regional Administrator, determines 

that these procedures are necessary. 

The Regional Administrator may require, on a case-by-case basis, testing 

approaches and procedures by stating 

what additional information is needed 

through further analyses and how the 

results of the analyses will be of value 

in evaluating potential environmental 

effects. 

If the General Evaluation indicates the 

presence of a sufficiently large number 

of chemicals to render impractical the 

identification of all contaminants by 

chemical testing, information may be 

obtained from bioassays in lieu of 

chemical tests. 

(2) Water column effects. (i) Sediments 

normally contain constituents that 

exist in various chemical forms and in 

various concentrations in several locations within the sediment. An elutriate 

test may be used to predict the effect 

on water quality due to release of contaminants from the sediment to the 

water column. However, in the case of 

fill material originating on land which 

may be a carrier of contaminants, a 

water leachate test is appropriate. 

(ii) Major constituents to be analyzed 

in the elutriate are those deemed critical by the permitting authority, after 

evaluating and considering any comments received from the Regional Administrator, and considering results of 

the evaluation in §230.60. Elutriate 

concentrations should be compared to 

concentrations of the same constituents in water from the disposal site. 

Results should be evaluated in light of 

the volume and rate of the intended 

discharge, the type of discharge, the 

hydrodynamic regime at the disposal 

site, and other information relevant to 

the impact on water quality. The permitting authority should consider the 

mixing zone in evaluating water column effects. The permitting authority 

may specify bioassays when such procedures will be of value. 

(3) Effects on benthos. The permitting 

authority may use an appropriate 

benthic bioassay (including bioaccumulation tests) when such procedures will 

be of value in assessing ecological effects and in establishing discharge conditions. 

(c) Procedure for comparison of sites. 

(1) When an inventory of the total 

concentration of contaminants would 

be of value in comparing sediment at 

the dredging site with sediment at the 

disposal site, the permitting authority 

may require a sediment chemical analysis. Markedly different concentrations of contaminants between the excavation and disposal sites may aid in 

making an environmental assessment 

of the proposed disposal operation. 

Such differences should be interpreted 

in terms of the potential for harm as 

supported by any pertinent scientific 

literature. 

(2) When an analysis of biological 

community structure will be of value 

to assess the potential for adverse environmental impact at the proposed disposal site, a comparison of the biological characteristics between the excavation and disposal sites may be required by the permitting authority. Biological indicator species may be useful in evaluating the existing degree of 

stress at both sites. Sensitive species 

representing community components 

colonizing various substrate types 


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Environmental Protection Agency § 230.72 

within the sites should be identified as 

possible bioassay organisms if tests for 

toxicity are required. Community 

structure studies should be performed 

only when they will be of value in determining discharge conditions. This is 

particularly applicable to large quantities of dredged material known to 

contain adverse quantities of toxic materials. Community studies should include benthic organisms such as 

microbiota and harvestable shellfish 

and finfish. Abundance, diversity, and 

distribution should be documented and 

correlated with substrate type and 

other appropriate physical and chemical environmental characteristics. 

(d) Physical tests and evaluation. 

The effect of a discharge of dredged or 

fill material on physical substrate 

characteristics at the disposal site, as 

well as on the water circulation, fluctuation, salinity, and suspended particulates content there, is important in 

making factual determinations in 

§230.11. Where information on such effects is not otherwise available to 

make these factual determinations, the 

permitting authority shall require appropriate physical tests and evaluations as are justified and deemed necessary. Such tests may include sieve 

tests, settleability tests, compaction 

tests, mixing zone and suspended particulate plume determinations, and 

site assessments of water flow, circulation, and salinity characteristics. 

Subpart H—Actions To Minimize 

Adverse Effects 

NOTE: There are many actions which can 

be undertaken in response to §203.10(d) to 

minimize the adverse effects of discharges of 

dredged or fill material. Some of these, 

grouped by type of activity, are listed in this 

subpart. Additional criteria for compensation measures are provided in subpart J of 

this part. 

§ 230.70 Actions concerning the location of the discharge. 

The effects of the discharge can be 

minimized by the choice of the disposal 

site. Some of the ways to accomplish 

this are by: 

(a) Locating and confining the discharge to minimize smothering of 

organisms; 

(b) Designing the discharge to avoid a 

disruption of periodic water inundation 

patterns; 

(c) Selecting a disposal site that has 

been used previously for dredged material discharge; 

(d) Selecting a disposal site at which 

the substrate is composed of material 

similar to that being discharged, such 

as discharging sand on sand or mud on 

mud; 

(e) Selecting the disposal site, the 

discharge point, and the method of 

discharge to minimize the extent of 

any plume; 

(f) Designing the discharge of dredged 

or fill material to minimize or prevent 

the creation of standing bodies of 

water in areas of normally fluctuating 

water levels, and minimize or prevent 

the drainage of areas subject to such 

fluctuations. 

§ 230.71 Actions concerning the material to be discharged. 

The effects of a discharge can be 

minimized by treatment of, or limitations on the material itself, such as: 

(a) Disposal of dredged material in 

such a manner that physiochemical 

conditions are maintained and the potency and availability of pollutants are 

reduced. 

(b) Limiting the solid, liquid, and 

gaseous components of material to be 

discharged at a particular site; 

(c) Adding treatment substances to 

the discharge material; 

(d) Utilizing chemical flocculants to 

enhance the deposition of suspended 

particulates in diked disposal areas. 

§ 230.72 Actions controlling the material after discharge. 

The effects of the dredged or fill material after discharge may be controlled by: 

(a) Selecting discharge methods and 

disposal sites where the potential for 

erosion, slumping or leaching of materials into the surrounding aquatic ecosystem will be reduced. These sites or 

methods include, but are not limited 

to: 

(1) Using containment levees, sediment basins, and cover crops to reduce 

erosion; 

(2) Using lined containment areas to 

reduce leaching where leaching of 


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chemical constituents from the discharged material is expected to be a 

problem; 

(b) Capping in-place contaminated 

material with clean material or selectively discharging the most contaminated material first to be capped with 

the remaining material; 

(c) Maintaining and containing discharged material properly to prevent 

point and nonpoint sources of pollution; 

(d) Timing the discharge to minimize 

impact, for instance during periods of 

unusual high water flows, wind, wave, 

and tidal actions. 

§ 230.73 Actions affecting the method 

of dispersion. 

The effects of a discharge can be 

minimized by the manner in which it is 

dispersed, such as: 

(a) Where environmentally desirable, 

distributing the dredged material widely in a thin layer at the disposal site to 

maintain natural substrate contours 

and elevation; 

(b) Orienting a dredged or fill material mound to minimize undesirable obstruction to the water current or circulation pattern, and utilizing natural 

bottom contours to minimize the size 

of the mound; 

(c) Using silt screens or other appropriate methods to confine suspended 

particulate/turbidity to a small area 

where settling or removal can occur; 

(d) Making use of currents and circulation patterns to mix, disperse and 

dilute the discharge; 

(e) Minimizing water column turbidity by using a submerged diffuser 

system. A similar effect can be accomplished by submerging pipeline discharges or otherwise releasing materials near the bottom; 

(f) Selecting sites or managing discharges to confine and minimize the 

release of suspended particulates to 

give decreased turbidity levels and to 

maintain light penetration for organisms; 

(g) Setting limitations on the 

amount of material to be discharged 

per unit of time or volume of receiving 

water. 

§ 230.74 Actions related to technology. 

Discharge technology should be 

adapted to the needs of each site. In determining whether the discharge operation sufficiently minimizes adverse 

environmental impacts, the applicant 

should consider: 

(a) Using appropriate equipment or 

machinery, including protective devices, and the use of such equipment or 

machinery in activities related to the 

discharge of dredged or fill material; 

(b) Employing appropriate maintenance and operation on equipment or 

machinery, including adequate training, staffing, and working procedures; 

(c) Using machinery and techniques 

that are especially designed to reduce 

damage to wetlands. This may include 

machines equipped with devices that 

scatter rather than mound excavated 

materials, machines with specially designed wheels or tracks, and the use of 

mats under heavy machines to reduce 

wetland surface compaction and 

rutting; 

(d) Designing access roads and channel spanning structures using culverts, 

open channels, and diversions that will 

pass both low and high water flows, accommodate fluctuating water levels, 

and maintain circulation and faunal 

movement; 

(e) Employing appropriate machinery 

and methods of transport of the material for discharge. 

§ 230.75 Actions affecting plant and 

animal populations. 

Minimization of adverse effects on 

populations of plants and animals can 

be achieved by: 

(a) Avoiding changes in water current and circulation patterns which 

would interfere with the movement of 

animals; 

(b) Selecting sites or managing discharges to prevent or avoid creating 

habitat conducive to the development 

of undesirable predators or species 

which have a competitive edge ecologically over indigenous plants or 

animals; 

(c) Avoiding sites having unique 

habitat or other value, including habitat of threatened or endangered 

species; 


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Environmental Protection Agency § 230.80 

(d) Using planning and construction 

practices to institute habitat development and restoration to produce a new 

or modified environmental state of 

higher ecological value by displacement of some or all of the existing environmental characteristics. Habitat 

development and restoration techniques can be used to minimize adverse 

impacts and to compensate for destroyed habitat. Additional criteria for 

compensation measures are provided in 

subpart J of this part. Use techniques 

that have been demonstrated to be effective in circumstances similar to 

those under consideration wherever 

possible. Where proposed development 

and restoration techniques have not 

yet advanced to the pilot demonstration stage, initiate their use on a small 

scale to allow corrective action if unanticipated adverse impacts occur; 

(e) Timing discharge to avoid spawning or migration seasons and other biologically critical time periods; 

(f) Avoiding the destruction of remnant natural sites within areas already 

affected by development. 

[45 FR 85344, Dec. 24, 1980, as amended at 73 

FR 19687, Apr. 10, 2008] 

§ 230.76 Actions affecting human use. 

Minimization of adverse effects on 

human use potential may be achieved 

by: 

(a) Selecting discharge sites and following discharge procedures to prevent 

or minimize any potential damage to 

the aesthetically pleasing features of 

the aquatic site (e.g. viewscapes), particularly with respect to water quality; 

(b) Selecting disposal sites which are 

not valuable as natural aquatic areas; 

(c) Timing the discharge to avoid the 

seasons or periods when human recreational activity associated with the 

aquatic site is most important; 

(d) Following discharge procedures 

which avoid or minimize the disturbance of aesthetic features of an aquatic 

site or ecosystem; 

(e) Selecting sites that will not be 

detrimental or increase incompatible 

human activity, or require the need for 

frequent dredge or fill maintenance activity in remote fish and wildlife areas; 

(f) Locating the disposal site outside 

of the vicinity of a public water supply 

intake. 

§ 230.77 Other actions. 

(a) In the case of fills, controlling 

runoff and other discharges from activities to be conducted on the fill; 

(b) In the case of dams, designing 

water releases to accommodate the 

needs of fish and wildlife; 

(c) In dredging projects funded by 

Federal agencies other than the Corps 

of Engineers, maintain desired water 

quality of the return discharge through 

agreement with the Federal funding 

authority on scientifically defensible 

pollutant concentration levels in addition to any applicable water quality 

standards; 

(d) When a significant ecological 

change in the aquatic environment is 

proposed by the discharge of dredged or 

fill material, the permitting authority 

should consider the ecosystem that 

will be lost as well as the environmental benefits of the new system. 

Subpart I—Planning To Shorten 

Permit Processing Time 

§ 230.80 Advanced identification of disposal areas. 

(a) Consistent with these Guidelines, 

EPA and the permitting authority, on 

their own initiative or at the request of 

any other party and after consultation 

with any affected State that is not the 

permitting authority, may identify 

sites which will be considered as: 

(1) Possible future disposal sites, including existing disposal sites and nonsensitive areas; or 

(2) Areas generally unsuitable for disposal site specification; 

(b) The identification of any area as 

a possible future disposal site should 

not be deemed to constitute a permit 

for the discharge of dredged or fill material within such area or a specification of a disposal site. The identification of areas that generally will not be 

available for disposal site specification 

should not be deemed as prohibiting 

applications for permits to discharge 

dredged or fill material in such areas. 

Either type of identification constitutes information to facilitate individual or General permit application 

and processing. 


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§ 230.91 40 CFR Ch. I (7–1–10 Edition) 

(c) An appropriate public notice of 

the proposed identification of such 

areas shall be issued; 

(d) To provide the basis for advanced 

identification of disposal areas, and 

areas unsuitable for disposal, EPA and 

the permitting authority shall consider 

the likelihood that use of the area in 

question for dredged or fill material 

disposal will comply with these Guidelines. To facilitate this analysis, EPA 

and the permitting authority should 

review available water resources management data including data available 

from the public, other Federal and 

State agencies, and information from 

approved Coastal Zone Management 

programs and River Basin Plans; 

(e) The permitting authority should 

maintain a public record of the identified areas and a written statement of 

the basis for identification. 

Subpart J—Compensatory Mitigation for Losses of Aquatic Resources 

SOURCE: 73 FR 19687, Apr. 10, 2008, unless 

otherwise noted. 

§ 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)(1) Guidelines. 

(3) Compensatory mitigation for unavoidable impacts may be required to 


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ensure that an activity requiring a section 404 permit complies with the Section 404(b)(1) Guidelines. During the 

404(b)(1) 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)(1) 

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 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, 

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 


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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 inlieu 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 


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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 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: reestablishment and rehabilitation. 

Riparian areas are lands adjacent to 

streams, rivers, lakes, and estuarinemarine 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 


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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 


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Environmental Protection Agency § 230.93 

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. (1) 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). 

(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 


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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 inlieu 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, 


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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)(1) 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 


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for adverse environmental impacts resulting from activities authorized by 

DA permits. The district engineer 

should consider relevant environmental factors and appropriate locallydeveloped 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 onsite, off-site, or a combination of onsite 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, inkind mitigation is preferable to out-ofkind 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 


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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-toone 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 inlieu fee programs may be used to compensate for impacts to aquatic resources authorized by general permits 

and individual permits, including afterthe-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 longterm 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. 

(j) 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 


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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, federallyfunded 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 programs in 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)(1) 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. 


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Environmental Protection Agency § 230.93 

(l) 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 

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 (l)(3) of this section. 

(3) If use of a mitigation bank or inlieu 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 


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§ 230.94 40 CFR Ch. I (7–1–10 Edition) 

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 permits 

are encouraged to participate in preapplication 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 33 CFR 

325.1(d)(7), the proposed avoidance and 

minimization and the amount, type, 

and location of any proposed compensatory mitigation, including any outof-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 


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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 inlieu 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 inlieu 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 inlieu 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, onsite 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 longterm 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 


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§ 230.95 40 CFR Ch. I (7–1–10 Edition) 

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(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 §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 


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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 of the instrument. Failure to 

submit monitoring reports in a timely 

manner may result in compliance action by the district engineer. 


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(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. Longterm 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, longterm 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 nonprofit 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 


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Environmental Protection Agency § 230.98 

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 longterm 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 longterm 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 longterm 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 


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§ 230.98 40 CFR Ch. I (7–1–10 Edition) 

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 inlieu 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 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, 


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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; 

(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 inlieu 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, 


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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 inlieu 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 inlieu 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)(1) 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 


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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 inlieu 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. 


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(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, 


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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 of NOAA, 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)(1) 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, 


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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-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 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)(1) 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 


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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 inlieu 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. (1) 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)(1) of this 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. 


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(l) 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 inlieu 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 


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Environmental Protection Agency § 230.98 

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 inlieu 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)(1) 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 inlieu 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. 


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§ 230.98 40 CFR Ch. I (7–1–10 Edition) 

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 inlieu 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 


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Environmental Protection Agency § 230.98 

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 inlieu 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. 


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Pt. 231 40 CFR Ch. I (7–1–10 Edition) 

(t) Site protection. (1) 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 longterm 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 longterm 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. Inlieu 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. 

PART 231—SECTION 404(c) 

PROCEDURES 

Sec. 

231.1 Purpose and scope. 

231.2 Definitions. 

231.3 Procedures for proposed determinations. 

231.4 Public comments and hearings. 

231.5 Recommended determination. 

231.6 Administrator’s final determinations. 

231.7 Emergency procedure. 

231.8 Extension of time. 

AUTHORITY: 33 U.S.C. 1344(c). 

SOURCE: 44 FR 58082, Oct. 9, 1979, unless 

otherwise noted. 

§ 231.1 Purpose and scope. 

(a) The Regulations of this part include the procedures to be followed by 

the Environmental Protection agency 

in prohibiting or withdrawing the specification, or denying, restricting, or 


wwoods2 on DSK1DXX6B1PROD with CFR