In Lieu Fee ProgramsIn 2008, EPA and the U.S. Army Corps of Engineers (the Corps) issued revised regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under Section 404 of the Clean Water Act commonly referred to as the Final Mitigation Rule. These regulations are designed to improve the effectiveness of compensatory mitigation to replace lost aquatic resource functions and area, expand public participation in compensatory mitigation decision making, and increase the efficiency and predictability of the mitigation project review process.

In-lieu fee (ILF) 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 Department of the Army 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. According to the 2008 Rule, an in-lieu fee program instrument is “the legal document for the establishment, operation, and use of an in-lieu fee program.”

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For more information on compensatory mitigation general, please go to ASWM’s Compensatory Mitigation webpage by clicking here.