Improving Corps Civil Works Compensatory Mitigation Act

Madam President, I rise to introduce bipartisan legislation that aims to improve flexibility around compensatory and environmental mitigation for U.S Army Corps of Engineers Civil Works infrastructure projects. This legislation would provide the Army Corps with the authority to contract with a third-party provider for the full-scale delivery of compensatory mitigation for Civil Works projects.

Compensatory mitigation refers to the restoration, establishment, enhancement, or preservation of wetlands, streams, or other aquatic resources for the purpose of offsetting unavoidable adverse impacts authorized by Clean Water Act section 404 permits and other Department of the Army permits. Not only does the Army Corps require Clean Water Act permittees to mitigate for discharges into U.S. waters, the Corps itself must also mitigate for impacts from Civil Works flood control, navigation, and water supply projects

U.S. Army Corps of Engineers Civil Works projects often impact jurisdictional waters under the Clean Water Act or terrestrial and aquatic species which require mitigation offsets. However, since 2015, the Corps has started or completed an average of just 58 percent of its required annual mitigation, which means about 42 percent of Civil Works projects have been constructed without their impacts timely addressed through mitigation, according to annual status reports on construction projects requiring mitigation.

The urgent need to improve the delivery and durability of mitigation alongside Civil Works projects is even greater in California's Sacramento region, which is one of the most at-risk areas for flooding in the United States due to its location at the confluence of and within the floodplain of the American and Sacramento Rivers.

American River Common Features is a Corps Civil Works flood control project that is critical to protect the growing city of Sacramento and surrounding areas. However, due to a mitigation bank credit shortage in the Sacramento Region, there are no available credits to offset the projects impacts for the Corps, and the inability to directly contract with a third-party risks delaying construction of this critical public safety project.

This legislation would allow the Corps to directly contract with a third-party for the use of permittee-responsible compensatory mitigation, mitigation banks, and in-lieu programs, and apply performance standards and criteria outlined by the U.S. Army Corps of Engineers, DoD, and U.S. Environmental Protection Agency regulations issued in 2008 to improve the quality and success of compensatory mitigation projects for activities authorized by Department of the Army permits.

As stated in the Federal Register, ``This rule improves the planning, implementation and management of compensatory mitigation projects by emphasizing a watershed approach in selecting compensatory mitigation project locations, requiring measurable, enforceable ecological performance standards and regular monitoring for all types of compensation and specifying the components of a complete compensatory mitigation plan, including assurances of long-term protection of compensation sites, financial assurances, and identification of the parties responsible for specific project tasks.''

While the bill does not require Corps Civil Works to utilize this authority, clarifying the Corps' authority to directly contract with third-parties, as this legislation does, would improve the delivery and durability of compensatory mitigation projects for Civil Works projects across the country to ensure the construction of critical flood control, navigation, and water supply projects.

I thank my colleague Senator Tillis from North Carolina for introducing this bill with me, and I look forward to its consideration for the 2024 Water Resources Development Act.

Madam President, I rise to introduce bipartisan legislation that aims to improve flexibility around compensatory and environmental mitigation for U.S Army Corps of Engineers Civil Works infrastructure projects. This legislation would provide the Army Corps with the authority to contract with a third-party provider for the full-scale delivery of compensatory mitigation for Civil Works projects.

Compensatory mitigation refers to the restoration, establishment, enhancement, or preservation of wetlands, streams, or other aquatic resources for the purpose of offsetting unavoidable adverse impacts authorized by Clean Water Act section 404 permits and other Department of the Army permits. Not only does the Army Corps require Clean Water Act permittees to mitigate for discharges into U.S. waters, the Corps itself must also mitigate for impacts from Civil Works flood control, navigation, and water supply projects

U.S. Army Corps of Engineers Civil Works projects often impact jurisdictional waters under the Clean Water Act or terrestrial and aquatic species which require mitigation offsets. However, since 2015, the Corps has started or completed an average of just 58 percent of its required annual mitigation, which means about 42 percent of Civil Works projects have been constructed without their impacts timely addressed through mitigation, according to annual status reports on construction projects requiring mitigation.

The urgent need to improve the delivery and durability of mitigation alongside Civil Works projects is even greater in California's Sacramento region, which is one of the most at-risk areas for flooding in the United States due to its location at the confluence of and within the floodplain of the American and Sacramento Rivers.

American River Common Features is a Corps Civil Works flood control project that is critical to protect the growing city of Sacramento and surrounding areas. However, due to a mitigation bank credit shortage in the Sacramento Region, there are no available credits to offset the projects impacts for the Corps, and the inability to directly contract with a third-party risks delaying construction of this critical public safety project.

This legislation would allow the Corps to directly contract with a third-party for the use of permittee-responsible compensatory mitigation, mitigation banks, and in-lieu programs, and apply performance standards and criteria outlined by the U.S. Army Corps of Engineers, DoD, and U.S. Environmental Protection Agency regulations issued in 2008 to improve the quality and success of compensatory mitigation projects for activities authorized by Department of the Army permits.

As stated in the Federal Register, ``This rule improves the planning, implementation and management of compensatory mitigation projects by emphasizing a watershed approach in selecting compensatory mitigation project locations, requiring measurable, enforceable ecological performance standards and regular monitoring for all types of compensation and specifying the components of a complete compensatory mitigation plan, including assurances of long-term protection of compensation sites, financial assurances, and identification of the parties responsible for specific project tasks.''

While the bill does not require Corps Civil Works to utilize this authority, clarifying the Corps' authority to directly contract with third-parties, as this legislation does, would improve the delivery and durability of compensatory mitigation projects for Civil Works projects across the country to ensure the construction of critical flood control, navigation, and water supply projects.

I thank my colleague Senator Tillis from North Carolina for introducing this bill with me, and I look forward to its consideration for the 2024 Water Resources Development Act.

Madam President, I ask unanimous consent that the text of the bill be printed in the Record.