The Corps of Engineers (Corps) and U.S. Environmental Protection Agency issued regulations pertaining to Compensatory Mitigation for Losses of Aquatic Resources (33 CFR Parts 325 and 332) effective June 9, 2008. These regulations govern compensatory mitigation for activities authorized by permits issued by the Corps. The regulations establish performance standards and criteria for the use of permittee-responsible compensatory mitigation, mitigation banks, and in-lieu programs to improve the quality and success of compensatory mitigation projects for activities authorized by Corps permits.
As the Corps-approved Sponsor of the In-Lieu Fee (ILF) Program for Massachusetts, the Department of Fish and Game (DFG) and its Divisions have the authority and responsibility under M.G.L. c. 21A § 8, M.G.L. c. 131 and c. 131 and M.G.L. c. 130 for the management, protection and restoration of the Commonwealth’s wildlife, including marine fisheries, and other habitats and ecological resources that support the state’s wildlife. In the furtherance of its duties as the ILF Sponsor, DFG has established an ILF program account and is authorized to accept ILF payments from Corps permittees for the purpose of implementing compensatory mitigation in accordance with its ILF Program Instrument.
- ILF mitigation shall occur only after compliance with the standard progression of avoidance and minimization.
- An ILF payment may be used by a Corps permittee as all or part of the compensatory mitigation for impacts from projects authorized by the Corps’ Regulatory Program in Massachusetts.
- If approved, Corps permits will be conditioned to require an ILF payment to DFG. No work may be performed under the permit until receipt of written verification that the required ILF payment has been received by DFG and DFG accepts responsibility for providing compensation mitigation in accordance with its ILF Program Instrument.
- Fees may be adjusted by DFG, as needed, based on its ILF Program experience, including changes in costs of implementing ILF compensatory mitigation projects.