I am standing outside a municipal building in the middle of the night. With me is a client, his engineer and his attorney. We have just left meeting with the Conservation Commission and the client is venting. Not at me. He is unhappy with the system.
Background: The client has a project that will impact over 10,000 square feet of wetlands. We have meet with the Department of Environmental Services (DES) and the federal agencies. All agree it is a worthwhile project that will be a positive impact to the state. All agree that avoidance and minimization have been followed and the remaining wetland impacts are the minimum needed to allow the project to proceed.
But with over 10,000 square feet of wetland impact, compensatory mitigation is required. My client is more than happy to pay into the Aquatic Resources Mitigation (ARM) fund. In fact, the federal agencies are saying they prefer the ARM fund to other forms of mitigation, such as wetland creation or upland buffer preservation. So, why is my client not happy?
Under the DES rules, we are required to meet with the Conservation Commission to ask if there are mitigation opportunities in the Town. Of course, the Commission does not want us to pay into the ARM fund because the money leaves the Town, with no guarantee that it will return to the Town in the form of an ARM fund grant. So the Commission tells us to go look for good preservation parcels. They can’t tell us whether they are available, or whether they will even meet the stringent requirements for a mitigation parcel at the DES, or even if there are wetlands on the parcel to be protected.
“Just go look,” the Commission says.
As my client says, “Is this a wild goose chase or what? We’ve just lost a month!”
However, the era of the wild mitigation goose chases may be coming to an end. In the new rules for the DES, under Chapter Env-Wt 801.03 (b), it states, “If on-site mitigation is not practicable for permanent wetland impacts and the municipality does not have a list of local mitigation projects, or if none of the projects on the list are appropriate mitigation for the applicant’s proposed project …..” The applicant may than go to payment into the ARM fund.
According to the DES, this is the way it will work:
1- Pre-application meeting at the DES to determine if avoidance and minimization has been met and that the project requires compensatory mitigation.
2- Attend the hearing at the Conservation Commission. If the Commission has no list of viable mitigation projects or sites, the applicant is free to pay into the ARM fund.
We have been assured by DES that this will stop the wild mitigation goose chases that we have been sent on in the past by Conservation Commissions. The DES says they are committed to working with the Commissions to create lists of projects that will meet the mitigation requirements of both the Department and the federal agencies.
It will be interesting to see if scenario above will be the new normal for meetings with Conservation Commissions. It will be interesting to see if the Department holds to the rules and stops the Commissions from sending applicants off in search of mitigation parcels with little direction.
Potentially, this will be much better for applicants who need wetland mitigation for their projects. Time will see.
Have a great holiday and see you next year!
“In My View” is an opinion article. It is my view of wetland and other environmental issues that will or may affect your business or organization. It will sometimes give you updates on new rules or legislation that has recently passed. In other cases, I will discuss legislation that is “in the works” at our state capital. As the name would imply, it is my view of what this rule, legislation or change means to you. I am constantly meeting with clients, friends and local regulatory officials who are asking me what this rule means or what that piece of legislation does. For that reason, I am posting this for the benefit of associates of GES who might care to have this information. I will not be political, but I do reserve the right to be opinionated. If in the coming months there is a topic, law, rule or regulation that you would like me to discuss, let us know. If I feel that I am competent to say something about it, I will discuss it in the future.
That concludes this Months article. Each past article will be stored on our website at www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.
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