Last month, I gave you a brief overview of the Public Notice of September 13, 2016 that released the “Revision of New England District Compensatory Mitigation Guidance” (New England District, US Army Corps of Engineers). The term “mitigation” in general means a sequence of: 1.) avoidance of wetland resources, 2.) minimization of impacts to wetland resources, and 3.) compensation for unavoidable wetland resources. This public notice, however, focused solely on “compensation” or “compensatory mitigation”. This is what needs to be done after all the plans have been drawn up, the project has been vetted by a pre-application meeting, and it is agreed that the remaining impacts to wetlands are unavoidable and need to be mitigated.
In New Hampshire, we have thresholds for when compensatory mitigation will be required. The New Hampshire Department of Environmental Services has told us that the thresholds will not change, even with the release of this new guidance by the Army Corps of Engineers. The thresholds are as follows: 1.) 10,000 square feet or more of permanent wetland impact, 2.) alter or disturb 200 linear feet or more of a stream, 3.) construction of a pond of more than 20,000 square feet of impact in a wetland, 4.) docking structures that exceed certain criteria, or 5.) any wetland impact that involves an exemplary natural community or an endangered or threatened species, habitats or reproduction areas.
I also noted last month that the ratios (now called multipliers) for Upland Buffer Preservation have changed and are now 20:1 versus the prior 15:1 (NHDES rules are still published at 10:1, but are moot). Upland Buffer Preservation, which is the most common form of compensatory mitigation that applicants attempt to provide, still has the loose requirement that the preservation area is approximately 50% upland (or more) and 50% wetland (or less). There has to be a wetland resource of value that is being protected by the upland buffer. So, the idea of preserving an old farm that is subject to development (a common favorite of municipal conservation commissions) is most likely not acceptable unless a very valuable wetland will be preserved as well. Old farm fields that have become wet meadows typically do not have the functions and values that are needed to meet preservation.
Another hang up with preservation is the concept of isolation. If the area would appear to be worthy of preservation, but is isolated or soon to be isolated by surrounded developments (residential or commercial), there is not a long-term strategy to maintain its viability as a preservation area. The function that made it so attractive as a preservation area will become eroded as development creates a barrier to the movement for wildlife from the outside. So, the viable preservation area needs to be adjacent to other preservation areas. The concept of preservation is to form a large contiguous block of natural lands that will support a diversity of plants and animals.
The last, and potentially most difficult, aspect of preservation is the form of long-term protection. The preferred method of long-term protection is conservation easement. However, trying to find an easement holder has become more and more difficult. Conservation commissions, who used to be the standard easement holders for preservation lands in the municipalities, no longer wish to be burdened by the need to monitor the easement areas. These are volunteers from the towns and cities that just don’t have the time to do the yearly monitoring required.
Land trusts are the next groups of potential easement holders. However, virtually all of them have basic limits of the size of the parcels they will accept, and ranges from 50 to over 100 acres. They also require fairly significant one-time payments into a monitoring fund, payments ranging from $10,000 to over $25,000. The applicant also must pay the land trust for a completed boundary survey and a base line documentation, which is usually done for land trust staff. All this takes a lot of time, and the applicant can’t begin work on the project until the transaction is complete. This often takes more time than the project can allow for. Development is time sensitive, and an economy in good health can be fleeting.
It is not surprising that payment into the ARM fund is becoming the preferred alternative for compensatory mitigation. From a pure time management perspective, the ARM fund payment has the best chance of being the fastest permitting approach.
NHDES still has a fascination with asking the conservation commission for possible upland buffer mitigation parcels. In the entire time I have been consulting, I had only one instance where the town’s proposed parcel was accepted as mitigation. Pretty bad odds. Again, what do you expect from a volunteer group. Some commissions can barely seat a quorum. I still maintain that the wetlands rules need to change and have payment into the ARM fund first in the preference line of potential mitigation strategies rather than last.
I will tell you that the new guidance document is a wealth of information for those either creating or restoring wetlands. While creating wetlands is virtually not done in the current permitting world, restoration is still an accepted practice, especially in the context of actions taken without a permit (violations). The Ecological Performance Standards alone are worthy of review by scientists, consultants and regulators.
For instance, under density goals for woody plants, “unless otherwise specified in the mitigation plans, this should be at least 500 trees and shrubs per acre, of which at least 350 per acre are trees for proposed forested cover types, that are healthy and vigorous and are at least 18” tall.”
Other details are “each mitigation site shall have at least 95% areal cover, excluding planned open water areas or planned bare soil areas (such as for turtle nesting), by native species.”
While many of the restoration areas we get involved with are relatively small and do not need the kind of detail provided in the guidance, it certainly provides valuable information and checklists for large restoration areas.
So, I do find the new guidance document as a valuable reference tool. I don’t expect huge changes in deliberations with DES, Corps and EPA regarding compensatory mitigation. I do find that often the Corps and EPA would prefer going directly to the ARM fund payment rather than the DES approach of vetting potential municipal upland buffer preservation sites. I believe they may view it as a waste of time.
So do I.
In My View” is an opinion article that will be posted to you once a month. 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 sending this out to 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 you do not wish to receive further articles, let us know by a “reply to”, and we will delete your name. If you know of someone who might want to receive future articles, just send this on to them and copy us. We will add them to the distribution list. 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 HYPERLINK "http://www.gesinc.biz" www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.