[Federal Register Volume 65, Number 216 (Tuesday, November 7, 2000)]
[Notices]
[Pages 66914-66917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28516]



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Part IV

Department of Defense
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Department of the Army, Corps of Engineers



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Environmental Protection Agency

Department of the Interior
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Fish and Wildlife Service



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Department of Commerce
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National Oceanic and Atmospheric Administration



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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; Notice

  Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / 
Notices  

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[FRL-6898-3]


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

AGENCIES: Corps of Engineers, Department of the Army, DOD; 
Environmental Protection Agency; Fish and Wildlife Service, Interior; 
and National Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, Commerce.

ACTION: Notice.

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SUMMARY: The Army Corps of Engineers (Corps), Environmental Protection 
Agency (EPA), Fish and Wildlife Service (FWS) and National Marine 
Fisheries Service (NMFS) are issuing final policy guidance regarding 
the use of in-lieu-fee arrangements for the purpose of providing 
compensation for adverse impacts to wetlands and other aquatic 
resources. Compensatory mitigation projects are designed to replace 
aquatic resource functions and values that are adversely impacted under 
the Clean Water Act Section 404 and Rivers and Harbors Act Section 10 
regulatory programs. These mitigation objectives are stated in 
regulation, the 1990 Memorandum of Agreement on mitigation between 
Environmental Protection Agency (EPA) and the Department of the Army, 
the November 28, 1995, Federal Guidance on the Establishment, Use and 
Operation of Mitigation Banks (``Banking Guidance''), and other 
relevant policy. The advent of in-lieu-fee approaches to mitigation has 
highlighted the importance of several fundamental objectives that the 
agencies established for determining what constitutes appropriate 
compensatory mitigation. The purpose of this memorandum is to clarify 
the manner in which in-lieu-fee mitigation may serve as an effective 
and useful approach to satisfy compensatory mitigation requirements and 
meet the Administration's goal of no overall net loss of wetlands. This 
in-lieu-fee guidance elaborates on the discussion of in-lieu-fee 
mitigation arrangements in the Banking Guidance by outlining the 
circumstances where in-lieu-fee mitigation may be used, consistent with 
existing regulations and policy.

EFFECTIVE DATE: The effective date is October 31, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Jack Chowning (Corps) at (202) 
761-4614; Ms. Lisa Morales (EPA) at (202) 260-6013; Mr. Mark Matusiak 
(FWS) at (703) 358-2183; Ms. Susan-Marie Stedman (NMFS) at (301) 713-
2325.

SUPPLEMENTARY INFORMATION: This notice publishes interagency guidance 
regarding the use of in-lieu-fee arrangements for the purpose of 
providing compensation for adverse impacts to wetlands and other 
aquatic resources. Any comments or questions on the document may be 
directed to the persons listed above in the section entitled: FOR 
FURTHER INFORMATION CONTACT.

    Dated: October 20, 2000.
Michael L. Davis,
Deputy Assistant Secretary (Civil Works), Department of the Army.

    Dated: October 20, 2000.
Robert H. Wayland III,
Director, Office of Wetlands, Oceans, and Watersheds, Environmental 
Protection Agency.

    Dated: October 31, 2000.
Jamie Clark,
Director, Fish and Wildlife Service, Department of the Interior.

    Dated: October 25, 2000.
Scott B. Gudes,
Deputy Under Secretary for Oceans and Atmosphere, National Oceanic and 
Atmospheric Administration, Department of Commerce.

Memorandum to the Field

Subject: 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

I. Purpose

    Compensatory mitigation projects are designed to replace aquatic 
resource functions and values that are adversely impacted under the 
Clean Water Act Section 404 and Rivers and Harbors Act Section 10 
regulatory programs. These mitigation objectives are stated in 
regulation, the 1990 Memorandum of Agreement on mitigation between 
Environmental Protection Agency (EPA) and the Department of the Army, 
the November 28, 1995, Federal Guidance on the Establishment, Use and 
Operation of Mitigation Banks (``Banking Guidance''), and other 
relevant policy. The advent of in-lieu-fee approaches to mitigation has 
highlighted the importance of several fundamental objectives that the 
agencies established for determining what constitutes appropriate 
compensatory mitigation. The purpose of this memorandum is to clarify 
the manner in which in-lieu-fee mitigation may serve as an effective 
and useful approach to satisfy compensatory mitigation requirements and 
meet the Administration's goal of no overall net loss of wetlands. This 
in-lieu-fee guidance elaborates on the discussion of in-lieu-fee 
mitigation arrangements in the Banking Guidance by outlining the 
circumstances where in-lieu-fee mitigation may be used, consistent with 
existing regulations and policy.

II. Background

    A. ``In-lieu-fee'' mitigation occurs in circumstances where a 
permittee provides funds to an in-lieu-fee sponsor instead of either 
completing project-specific mitigation or purchasing credits from a 
mitigation bank approved under the Banking Guidance.
    B. A fundamental precept of the Section 404(b)(1) Guidelines is 
that no discharge of dredged or fill material in waters of the U.S. may 
be permitted unless appropriate and practicable steps have been taken 
to minimize all adverse impacts associated with the discharge. (40 CFR 
230.10(d)) Specifically, the Section 404(b)(1) Guidelines establish a 
mitigation sequence, under which compensatory mitigation is required to 
offset wetland losses after all appropriate and practicable steps have 
been taken to first avoid and then minimize wetland impacts. Compliance 
with these mitigation sequencing requirements is an essential 
environmental safeguard to ensure that CWA objectives for the 
protection of wetlands are achieved. The Section 404 permit program 
relies on the use of compensatory mitigation to offset unavoidable 
wetlands impacts by replacing lost wetland functions and values.
    C. The agencies further clarified their mitigation policies in a 
Memorandum of Agreement (MOA) between the EPA and the Department of the 
Army Concerning the Determination of Mitigation under the Clean Water 
Act Section 404(b)(1) Guidelines (February 6, 1990). That document 
reiterates that ``the Clean

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Water Act and the Guidelines set forth a goal of restoring and 
maintaining existing aquatic resources. The Corps will strive to avoid 
adverse impacts and offset unavoidable adverse impacts to existing 
aquatic resources, and for wetlands, will strive to achieve a goal of 
no overall net loss of values and functions.'' Moreover, the MOA 
clarifies that mitigation ``should be undertaken, when practicable, in 
areas adjacent or contiguous to the discharge site,'' and that ``if on-
site compensatory mitigation is not practicable, off-site compensatory 
mitigation should be undertaken in the same geographic area if 
practicable (i.e., in close proximity and, to the extent possible, the 
same watershed).'' As outlined in the MOA, the agencies have also 
agreed that ``generally, in-kind compensatory mitigation is preferable 
to out-of-kind.'' The MOA further states that mitigation banking may be 
an acceptable form of compensatory mitigation. The agencies recognize 
the general preference for restoration over other forms of mitigation, 
given the increased chance for ecological success.
    D. Pursuant to these standards, project-specific mitigation for 
authorized impacts has been used by permittees to offset unavoidable 
impacts. Project-specific mitigation generally consists of restoration, 
creation, or enhancement of aquatic resources that are similar to the 
aquatic resources of the impacted area, and is often located on the 
project site or adjacent to the impact area. Permittees providing 
project specific mitigation have a U.S. Army Corps of Engineers (Corps) 
approved mitigation plan detailing the site, source of hydrology, types 
of aquatic resource to be restored, success criteria, contingency 
measures, and an annual reporting requirement. The mitigation and 
monitoring plan becomes part of the Section 404 authorization in the 
form of a special condition. The permittee is responsible for complying 
with all terms and conditions of the authorization and would be in 
violation of their authorization if the mitigation did not comply with 
the approved plan.
    E. In 1995, the agencies issued the Banking Guidance. Consistent 
with that guidance, permittees may purchase mitigation credits from an 
approved bank. Mitigation banks will generally be functioning in 
advance of project impacts and thereby reduce the temporal losses of 
aquatic functions and values and reduce uncertainty over the ecological 
success of the mitigation. Mitigation banking instruments are reviewed 
and approved by an interagency Mitigation Banking Review Team (MBRT). 
The MBRT ensures that the banking instrument appropriately addresses 
the physical and legal characteristics of the bank and how the bank 
will be established and operated (e.g., classes of wetlands and/or 
other aquatic resources proposed for inclusion in the bank, geographic 
service area where credits may be sold, wetland classes or other 
aquatic resource impacts suitable for compensation, methods for 
determining credits and debits). The bank sponsor is responsible for 
the operation and maintenance of the bank during its operational life, 
as well as the long-term management and ecological success of the 
wetlands and/or other aquatic resources, and must provide financial 
assurances.
    F. The Banking Guidance describes in-lieu-fee mitigation as 
follows: ``. . . in-lieu-fee, fee mitigation, or other similar 
arrangements, wherein funds are paid to a natural resource management 
entity for implementation of either specific or general wetland or 
other aquatic resource development project, are not considered to meet 
the definition of mitigation banking because they do not typically 
provide compensatory mitigation in advance of project impacts. 
Moreover, such arrangements do not typically provide a clear timetable 
for the initiation of mitigation efforts. The Corps, in consultation 
with the other agencies, may find circumstances where such arrangements 
are appropriate so long as they meet the requirements that would 
otherwise apply to an offsite, prospective mitigation effort and 
provides adequate assurances of success and timely implementation. In 
such cases, a formal agreement between the sponsor and the agencies, 
similar to a banking instrument, is necessary to define the conditions 
under which its use is considered appropriate.''

III. Use of In-Lieu-Fee Mitigation in the Regulatory Program

    In light of the above considerations and in order to ensure that 
decisions regarding the use of in-lieu-fee mitigation are made more 
consistently with existing provisions of agency regulations and permit 
policies, the following clarification is provided. It is organized in a 
tiered manner to reflect and incorporate the agencies' broader 
mitigation policies, and is based on relative assurances of ecological 
success.
    A. Impacts Authorized Under Individual Permit: In-lieu-fee 
agreements may be used to compensate for impacts authorized by 
individual permit if the in-lieu-fee arrangement is developed (or 
revised, if an existing agreement), reviewed, and approved using the 
process established for mitigation banks in the Banking Guidance. MBRTs 
should review applications from such in-lieu-fee sponsors to ensure 
that such agreements are consistent with the Banking Guidance.
    B. Impacts Authorized Under General Permit: As a general matter, 
in-lieu-fee mitigation should only be used to compensate for impacts to 
waters of the U.S. authorized by a Section 404 general permit, as 
described below:

    1. Where ``On-site'' Mitigation Is Available and Practicable: As 
a general matter, compensatory mitigation that is completed on or 
adjacent to the site of the impacts it is designed to offset (i.e., 
project-specific mitigation done by permittees consistent with Corps 
approved mitigation plans) is preferable to mitigation conducted 
off-site (i.e., mitigation bank or in-lieu-fee mitigation). The 
agencies' preference for on-site mitigation, indicated in the 1990 
Memorandum of Agreement on mitigation between the EPA and the 
Department of the Army, should not preclude the use of a mitigation 
bank or in-lieu-fee mitigation when there is no practicable 
opportunity for on-site compensation, or when use of a bank or in-
lieu-fee mitigation is environmentally preferable to on-site 
compensation, consistent with the provisions in paragraph 2 below.
    2. Where ``On-site'' Mitigation Is Not Available or Practicable: 
Except as noted below in a. or b., where on-site mitigation is not 
available, practicable, or determined to be less environmentally 
desirable, use of a mitigation bank is preferable to in-lieu-fee 
mitigation where permitted impacts are within the service area of a 
mitigation bank approved to sell mitigation credits, and those 
credits are available. Use of a mitigation bank is also preferable 
over in-lieu-fee mitigation where both the available in-lieu-fee 
arrangement and the service area of an approved mitigation bank are 
outside of the watershed of the permitted project impacts, unless 
the mitigation bank is determined on a case by case basis to not be 
practicable and environmentally desirable.
    a. Where Mitigation Bank Does Not Provide ``In-kind'' 
Mitigation: In those circumstances where wetlands impacts proposed 
for general permit authorization are within the service area of an 
approved mitigation bank with available credits, but the impacted 
wetland type is not identified by the Mitigation Banking Instrument 
for compensation within such bank, then the authorized impact may be 
compensated through an in-lieu-fee arrangement, subject to the 
considerations described in Section IV below, if the in-lieu-fee 
arrangement would provide in-kind restoration as mitigation.
    b. Where Mitigation Bank Does Not Provide Restoration, Creation, 
or Enhancement Mitigation: In those circumstances where wetlands 
impacts proposed for general permit authorization are within the 
service area of an approved mitigation bank, but the only available 
credits are through preservation, then the authorized impact may

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be compensated through an in-lieu-fee arrangement subject to the 
considerations described in Section IV below, if the in-lieu-fee 
arrangement would provide in kind restoration as mitigation.

IV. Planning, Establishment, and Use of In-lieu-fee Mitigation 
Arrangements

    This section describes the basic considerations that should be 
addressed for any proposed use of in-lieu-fee mitigation to offset 
unavoidable impacts associated with a discharge authorized under a 
general permit described in Section III above.

A. Planning Considerations

    1. Qualified Organizations: Given the goal to ensure long-term 
mitigation success, the Corps, in consultation with the other Federal 
agencies, should carefully evaluate the demonstrated performance of 
natural resource management organizations (e.g., governmental 
organizations, land trusts) prior to approving them to manage in-lieu-
fee arrangements. In fact, given the unique strengths and specialties 
of such organizations, it may be useful for the Corps, in consultation 
with other Federal resource agencies, to establish formal arrangements 
with several natural resource management organizations to ensure there 
are sufficient options to effectively replace lost functions and 
values. In any event, in-lieu-fee arrangements and subsequent 
modifications should be made in consultation with the other Federal 
agencies and only after an opportunity for public notice and comment 
has been afforded.
    2. Operational Information: Those organizations considered 
qualified to implement formal in-lieu-fee arrangements should work in 
advance with the Corps to ensure that authorized impacts will be offset 
fully on a project-by-project basis consistent with Section 10/404 
permit requirements. As detailed in the paragraphs that follow, 
organizations should supply the Corps with information in advance on 
(1) potential sites where specific restoration projects or types of 
restoration projects are planned, (2) the schedule for implementation, 
(3) the type of mitigation that is most ecologically appropriate on a 
particular parcel, and (4) the financial, technical, and legal 
mechanisms to ensure long-term mitigation success. The Corps should 
ensure that the formal in-lieu-fee arrangements and project 
authorizations contain distinct provisions that clearly state that the 
legal responsibility for ensuring mitigation terms are satisfied fully 
rests with the organization accepting the in-lieu-fee. In-lieu-fee 
sponsors should be able to demonstrate approval of all necessary State 
and local permits and authorizations. In-lieu-fee sponsors (e.g., 
State) should notify the Corps and MBRT if the service area of any 
mitigation bank overlaps the jurisdiction in which their in-lieu-fees 
may be spent.
    3. Watershed Planning: Local watershed planning efforts, as a 
general matter, identify wetlands and other aquatic resources that have 
been degraded and usually have established a prioritization list of 
restoration needs. In-lieu-fee mitigation projects should be planned 
and developed to address the specific resource needs of a particular 
watershed.
    4. Site Selection: The Federal agencies and in-lieu-fee sponsor 
should give careful consideration to the ecological suitability of a 
site for achieving the goal and objectives of compensatory mitigation 
(e.g., posses the physical, chemical and biological characteristics to 
support the desired aquatic resources and functions, preferably in-kind 
restoration or creation of impacted aquatic resources). The location of 
the site relative to other ecological features, hydrologic sources, and 
compatibility with adjacent land uses and watershed management plans 
shall be considered by the Federal agencies during the evaluation 
process.
    5. Technical Feasibility: In-lieu-fee mitigation should be planned 
and designed to be self-sustaining over time to the extent possible. 
The techniques for establishing aquatic resources must be carefully 
selected. The restoration of historic or substantially degraded aquatic 
resources (e.g., prior-converted cropland, farmed wetlands) utilizing 
proven techniques increases the likelihood of success and typically 
does not result in the loss of other valuable resources. Thus, 
restoration should be the first option considered for siting in-lieu-
fee mitigation. This guidance recognizes that in some circumstances 
aquatic resources must be actively managed to ensure their 
sustainability. Furthermore, long-term maintenance requirements may be 
necessary and appropriate in some cases (e.g., to maintain fire 
dependent habitat communities in the absence of natural fire, to 
control invasive exotic plant species). Proposed mitigation techniques 
should be well-understood and reliable. When uncertainties surrounding 
the technical feasibility of a proposed mitigation technique exist, 
appropriate arrangements may be phased-out or reduced once the 
attainment of prescribed performance standards is demonstrated. In any 
event, a plan detailing specific performance standards should be 
submitted to ensure the technical success of the project can be 
evaluated.
    6. Role of Preservation: As described in the Banking Guidance, 
simple purchase or ``preservation'' of existing wetlands may be 
accepted as compensatory mitigation only in exceptional circumstances. 
Mitigation credit may be given when existing wetlands and/or other 
aquatic resources are preserved in conjunction with restoration, 
creation or enhancement activities, and when it is demonstrated that 
the preservation will augment the functions of the restored, created or 
enhanced aquatic resource.
    7. Collection of Funds: Funds collected under any in-lieu-fee 
arrangement should be used for replacing wetlands functions and values 
and not to finance non-mitigation programs and priorities (e.g., 
education projects, research). Funds collected should be based upon a 
reasonable cost estimate of all funds needed to compensate for the 
impacts to wetlands or other waters that each permit is authorized to 
offset. Funds collected should ensure a minimum of one-for-one acreage 
replacement, consistent with existing regulation and permit conditions. 
Land acquisition and initial physical and biological improvements 
should be completed by the first full growing season following 
collection of the initial funds. However, because site improvements 
associated with in-lieu-fee mitigation may take longer to initiate, 
initial physical and biological improvements may be completed no later 
than the second full growing season where (1) initiation by the first 
full growing season is not practicable, (2) mitigation ratios are 
raised to account for increased temporal losses of aquatic resource 
functions and values, and (3) the delay is approved in advance by the 
Corps.
    8. Monitoring and Management: The in-lieu-fee sponsor is 
responsible for securing adequate funds for the operation and 
maintenance of the mitigation sites. The wetlands and/or other aquatic 
resources in the mitigation site should be protected in perpetuity with 
appropriate real estate arrangements (e.g., conservation easements, 
transfer of title to Federal or State resource agency or non-profit 
conservation agency). Such arrangements should effectively restrict 
harmful activities (e.g., incompatible uses) that might otherwise 
jeopardize the purpose of the compensatory mitigation. In addition, 
there should be appropriate schedules for regular (e.g., annual) 
monitoring reports to document funds received, impacts permitted, how

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funds were disbursed, types of projects funded, and the success of 
projects conducted under the in-lieu-fee arrangement. The Corps, in 
conjunction with other Federal and State agencies, should evaluate the 
reports and conduct regular reviews to ensure that the arrangement is 
operating effectively and consistent with agency policy and the 
specific agreement. The Corps will track all uses of in-lieu-fee 
arrangements and report those figures by public notice on an annual 
basis.

B. Establishment of In-Lieu-Fee Agreements

    A formal in-lieu-fee agreement, consistent with the planning 
provisions above, should be established by the sponsor with the Corps, 
in consultation with the other agencies. It may be appropriate to 
establish an ``umbrella'' arrangement for the establishment and 
operation of multiple sites. In such circumstances, the need for 
supplemental information (e.g., site specific plans) should be 
addressed in specific in-lieu-fee agreements. The in-lieu-fee agreement 
should contain:
    1. a description of the sponsor's experience and qualifications 
with respect to providing compensatory mitigation;
    2. potential site locations, baseline conditions at the sites, and 
general plans that indicate what kind of wetland compensation can be 
provided (e.g., wetland type, restoration or other activity, proposed 
time line, etc.);
    3. geographic service area;
    4. accounting procedures;
    5. methods for determining fees and credits;
    6. a schedule for conducting the activities that will provide 
compensatory mitigation or a requirement that projects will be started 
within a specified time after impacts occur;
    7. performance standards for determining ecological success of 
mitigation sites;
    8. reporting protocols and monitoring plans;
    9. financial, technical and legal provisions for remedial actions 
and responsibilities (e.g., contingency fund);
    10. financial, technical and legal provisions for long-term 
management and maintenance (e.g., trust); and
    11. provision that clearly states that the legal responsibility for 
ensuring mitigation terms are fully satisfied rests with the 
organization accepting the fee.
    In cases where initial establishment of in-lieu-fee compensatory 
mitigation involves a discharge into waters of the United States 
requiring Section 10/404 authorization, submittal of a Section 10/404 
application should be accompanied by the in-lieu-fee agreement.

V. General

    A. Effect of Guidance. This guidance does not change the 
substantive requirements of the Section 10/404 regulatory program. 
Rather, it interprets and provides guidance and procedures for the use 
of in-lieu fee mitigation consistent with existing regulations. The 
policies set out in this document are not final agency action, but are 
intended solely as guidance. The guidance is not intended, nor can it 
be relied upon, to create any rights enforceable by any party in 
litigation with the United States. This guidance does not establish or 
affect legal rights or obligations, establish a binding norm on any 
party and it is not finally determinative of the issues addressed. Any 
regulatory decisions made by the agencies in any particular matter 
addressed by this guidance will be made by applying the governing law 
and regulations to the relevant facts.
    B. Definitions. Unless otherwise noted, the terms used in this 
guidance have the same definitions as those terms in the Banking 
Guidance. Note that as part of the Administration's Clean Water Action 
Plan, the Federal agencies have proposed a tracking system to more 
accurately account for wetland losses and gains that includes 
definitions of terms such as restoration used in wetland programs. 
Future notice will be given when these definitions will be applied to 
Section 10/404 regulatory program.
    C. Effective Date. This guidance is effective immediately on the 
date of the last signature below. Therefore, existing in-lieu-fee 
arrangements or agreements should be reviewed and modified as necessary 
in light of the above.
    D. Conversion to Banks: If requested by the in-lieu-fee sponsor, 
the Corps, in conjunction with the other Federal agencies, will provide 
assistance and recommendations on the steps necessary to convert 
individual in-lieu-fee arrangements to mitigation banks, consistent 
with the Banking Guidance.
    E. Future Revisions. The agencies are supporting a comprehensive, 
independent evaluation of the effectiveness of compensatory mitigation 
by the National Academy of Sciences. The technical results of this 
evaluation are expected to be used by the public to improve the quality 
of wetlands and aquatic resource restoration, creation, and 
enhancement. The agencies will take note of the results of this 
evaluation and other relevant information to make any necessary 
revisions to guidance on compensatory mitigation, to ensure the 
greatest opportunity for ecological success of restored, created, and 
enhanced wetlands and other aquatic resources. At a minimum, a review 
of the use of this guidance will be initiated no later than 12 months 
after the effective date.

Michael L. Davis,
Deputy Assistant Secretary (Civil Works), Department of the Army.
Robert H. Wayland III,
Director, Office of Wetlands, Oceans, and Watersheds Environmental 
Protection Agency.
Jamie Clark,
Director, Fish and Wildlife Service, Department of the Interior.
Scott B. Gudes,
Deputy Under Secretary for Oceans and Atmosphere, National Oceanic 
and Atmospheric Administration, Department of Commerce.

[FR Doc. 00-28516 Filed 11-6-00; 8:45 am]
BILLING CODE 6560-50-P