U.S. Army Corps propose In-Lieu Fee program for Colorado's western slope

The U.S. Army Corps has proposed to implement an In-Lieu Fee (ILF) program for Colorado’s western slope. The program provides a compensatory mitigation option for aquatic resources degraded or destroyed as a result of activities permitted under section 404 of the Clean Water Act (CWA). Projects permitted under CWA section 404 pose unavoidable damage to aquatic resources and compensatory mitigation banking is often used to establish, restore or enhance aquatic resources of the same or greater value to the resources lost. Compensatory mitigation programs, such as mitigation banking and ILF programs allow permittees to pass mitigation responsibly and long-term liability onto a third party, which will then be fully responsible for the mitigation project(s). The proposed western slope ILF program however, allows permittees to transfer liability without providing a detailed mitigation plan and site-specific mitigation project selection. This can result in a lack of oversight and an increase in environmental damage during the life of a CWA section 404 permitted project. It also does not ensure that the compensatory mitigation project will be of equal or greater value to the resources lost. It is critical that permittees be held responsible for watershed damage until the compensatory mitigation project and long-term monitoring is completed and deemed successful.In summary SMA recommends that the following criteria are required for projects under the proposed western slope In-Lieu Fee program:

• Require permittees to produce a detailed mitigation plan prior to CWA approved project implementation. This includes plans to avoid or minimize environmental damage at the CWA permitted site. Mitigation plans also must include identification of a specific watershed mitigation site(s), which will be established, restored or enhanced under the ILF program.
• Provide data that shows that there is a substantial need to establish, restore, or enhance a watershed at the selected mitigation site(s).
• Show that the watershed mitigation project(s) is of equal or greater value to the watershed and ecological resources damaged by the project permitted under the CWA, section 404.
• Require permanent environmental protection on the selected mitigation site(s).
• Allow the permittee to purchase half of the mitigation credits prior to project completion, and require the permittee to purchase the remaining credits once the mitigation project and long-term monitoring is completed and deemed successful by the Army Corps.
• Require that mitigation projects begin within one year of the initial transfer of credits. Projects must be completed within two years of commencement.
• Require annual project reports and document all completed ILF projects. Make all information available to the public.

SMA's full comments: Western Slope ILF comments PDF