Of particular interest to folks who are considering projects that require compensatory wetland mitigation is the first paragraph of the Purpose and General Considerations section:
“…When a mitigation bank or an ILF program is available, compensatory mitigation conducted using these options is considered preferable to permittee-responsible alternatives unless the permittee can make the case that a permittee-responsible mitigation project, alone or in concert with bank/ILF, is more ecologically appropriate based on the needs of the watershed, sustainability, and/or has a higher likelihood of replacing lost aquatic resource functions.”
ILF is an In-Lieu Fee program, such as the Aquatic Resources Mitigation (ARM) program that is in the State of New Hampshire. While the rules of the Wetlands Bureau have payment into the ARM fund as the last alternative for mitigation, the Corps has payment into an ILF fund as the first alternative. Given that mitigation is required for certain projects, and that the determination of the value of the mitigation is determined by the Corps and Environmental Protection Agency (EPA) under compliance with the Clean Water Act, why are the rules different? Under the State Programmatic General Permit, the Corps and EPA have final say on mitigation efforts and have the final sign off to permits issued by the Wetlands Bureau. I question whether the Wetland Bureau even needs rules for compensatory mitigation. Just refer to the Corps guidance document.
Of course, this new guidance document just keeps moving us further and further away from keeping wetland mitigation in the community in which the wetland impacts take place. There is a clear message that unless the wetland mitigation meets the expectation of the Corps and EPA, the permit applicant might just as well open the check book. And even if the wetland mitigation (usually restoration or preservation) is a “good one”, expect that a payment into the ARM fund of some lessor amount will still be required.
There is even a greater discrepancy when one looks at the ratios of wetland impacts to mitigation required. The Corps guidance has changed the language from “ratio” to “multiplier”. “A rose by any other name….” Perhaps in this case, we should call it “a thorn”.
Recommended mitigation multipliers for direct permanent impacts to emergent, scrub-shrub, or forested wetlands are 20 preserved acres for each 1 acres of impact. This has increased from the previous guidance of 15 to 1. The rules of the Wetland Bureau are 10 to 1. But the Wetlands Bureau’s rules are never followed, only the guidance by the Corps.
There is now mitigation required for temporary impacts. Looking at the area requirement above as the “standard”, temporary fill in forested wetlands (like swamp mats) is 15% of standard. Temporary fill in emergent wetlands is 5% of standard. Temporary fill in scrub-shrub wetlands is 10%.
There is now mitigation required for secondary impacts of conversion from one type of wetland to another. Permanent conversion of forested wetland to emergent wetland (you cut the trees) is 30% of the standard amount of mitigation.
There is a buffer of 100 feet to a stream. There is a multiplier for clearing vegetation within 100 feet of the stream. A higher multiplier for clearing within the first 50 feet of the stream, and a lower multiplier for clearing within 50 to 100 feet from the stream.
Of course, none of these secondary or temporary impacts require mitigation if there is no direct permanent wetland impact. However, it is not clear to me if by staying below 10,000 square feet of direct impact will relieve the applicant of compensatory mitigation. If the direct impacts, plus the secondary and temporary impacts (adjusted by multiplier) add up to over 10,000 square feet, does that mean mitigation will be required? I don’t know the answer to that.
It is my expectation, however, that the days of the projects with 9, 950 square feet of direct wetland impact with no required mitigation, are over.
To see the full mitigation document, please go to our website.
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