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Mitigation

What is mitigation?

The Virginia Water Protection permit regulations state that "mitigation means sequentially avoiding and minimizing impacts to the extent practicable, and then compensating for remaining unavoidable impacts of a proposed action" (9 VAC 25-210-10). Virginia State Water Control Law states that when Virginia Water Protection permits are issued, such "permits should contain requirements for compensating impacts on wetlands". The law further states that "such compensation requirements shall be sufficient to achieve no net loss of existing wetlands acreage and functions" (§ 62.1-44.15:21 B, Code of Virginia).

Federal wetlands mitigation policy is guided by a Memorandum of Agreement between the US Army Corps of Engineers (Corps) and the US Environmental Protection Agency that clarify a three-step approach to avoiding impacts, minimizing impacts, and compensating for unavoidable impacts (see THE DETERMINATION OF MITIGATION UNDER THE CLEAN WATER ACT SECTION 404(b)(1) GUIDELINES, February 1990).

DEQ has also drafted Guidance on Avoidance and Minimization (PDF) of impacts to surface waters.

What is compensatory mitigation?

Compensatory mitigation is the last step in the three-step approach to compensate for unavoidable impacts to wetlands.

In December 2002, the Corps published a Regulatory Guidance Letter clarifying their policies on compensatory mitigation. This guidance was revised in July 2004 and re-issued as the Norfolk District Corps and Virginia Department of Environmental Quality Recommendations for Wetland Compensatory Mitigation: Including Site Design, Permit Conditions, Performance Criteria, and Monitoring Criteria (PDF). The document explains many of the terms and practical application of compensatory mitigation concepts. Additionally, a checklist (PDF) was developed in conjunction with the new recommendation document.

Again in June 2005, DEQ and the Corps further clarified policies in their joint agreement on how federally-funded wetland mitigation projects will be considered unacceptable mitigation credit for the restoration or creation component under federal and state regulatory programs.

Compensatory mitigation is defined in the Virginia Water Protection Program regulation as "actions taken that provide some form of substitute aquatic resource for the impacted aquatic resource" (9 VAC 25-210-10). In Virginia, compensatory mitigation may include:

  • Wetland creation or restoration
  • Stream restoration (see DEQ's new Stream Impact and Compensation Assessment Manual below)
  • Purchase or use of wetland mitigation bank credits at a DEQ-approved mitigation bank
  • Contributing to a DEQ-approved in-lieu fee fund
  • Preservation of existing wetland and streams, when utilized in conjunction with creation, restoration, or mitigation bank credits
  • Preservation or restoration of upland buffers adjacent to surface waters, when utilized in conjunction with creation, restoration, or mitigation bank credits

The compensation ratios below are generally accepted, especially when compensation is required for a VWP general permit activity. Alternative ratios may be required by DEQ for activities permitted under a VWP individual permit.

  • 2 acres compensation for each 1 acre of impact (2:1) for forested wetland impacts
  • 1.5:1 for scrub-shrub wetland impacts
  • 1:1 for emergent wetland impacts
  • project-specific ratios for other surface water impacts

Unified Stream Methodology (USM) - January 2007

The Unified Stream Methodology (USM) is a collaborative effort between the U.S. Army Corps of Engineers, Norfolk District (COE) and the Virginia Department of Environmental Quality (DEQ). The purpose of this Manual is to describe a method to rapidly assess what the stream compensation requirements would be for permitted stream impacts and the amount of “credits” obtainable through implementation of various stream compensation practices. The Manual describes a process to: 1) assign a Reach Condition Index (RCI) to the stream to be impacted; 2) assess the type or severity of impact; 3) determine the compensation requirement; and, 4) determine what types of and the amount of the various compensation practices that will satisfy the compensation requirement. This manual may be used for projects requiring stream compensation under the COE regulatory program and the DEQ’s Virginia Water Protection Permit Program (VWPP).

The following compensation credits are presented in the manual for use on projects involving stream compensation.

  • Restoration = 1 credit per foot
  • Enhancement = 0.09 – 0.3 credits per foot per bank
  • Riparian Areas = 0 – 0.4 credits per foot

What is mitigation banking?

The purpose of mitigation banks is to replace the biological, chemical, and physical functions of wetland resources by quantifying the replaced function as a "credit", which can be purchased by third parties to compensate ("debit") for unavoidable wetland losses. Advantages of mitigation banks include:

  • Larger sites with potentially increased functions and values
  • Economies of scale for financial resources, long-term monitoring and maintenance
  • Compensation occurs in advance of the impact
  • Potentially reduces permit review time frames

Federal guidance defines mitigation banking as "wetlands restoration, creation, enhancement, and in exceptional circumstances, preservation, undertaken expressly for the purpose of compensating for unavoidable wetland losses in advance of development actions, when such compensation cannot be achieved at the development site or would not be as environmentally beneficial." For the full text on the Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, see
http://www.epa.gov/owow/wetlands/guidance/mitbankn.html

The Corps' Institute for Water Resources conducted the National Wetlands Mitigation Banking Study from 1992 to 1997. Refer to:
http://www.iwr.usace.army.mil/inside/products/pub/iwrreports/wmb_wp_Jan98.pdf

The USACE web page provides a list of DEQ-approved wetland mitigation banks.

Many people believe that any parcel of land can be converted to wetland. Suggestions for Proposing Mitigation Banks has been jointly developed by the Corps' Norfolk District office and DEQ to assist those considering a mitigation bank project: Mitigation Bank "Do"s and "Don't"s (PDF).

A final template (May 2004) has been developed by the Virginia Department of Environmental Quality, the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service to assist interested persons in developing a Mitigation Banking Instrument (PDF).

Areas under a restoration agreement between private landowners and the U.S. Fish & Wildlife Service or the Natural Resources Conservation Service: Existing Federal Programs to Restore Wetlands and How Such Areas Will Be Considered in the Review of Permit Applications

What is an In-Lieu Fee Fund?

An In-Lieu Fee fund, usually managed by a public natural resources agency or a non-governmental organization, collects fees from entities unavoidably impacting wetland resources as compensatory mitigation for those wetland impacts. The In-Lieu Fee manager uses the cumulative funds to create or restore wetland resources on other parcels of land. The Corps' Institute for Water Resources examined several in-lieu fee arrangements and published the results in a report in November 2000. Refer to: http://www.iwr.usace.army.mil/inside/products/pub/iwrreports/IWRReport_ILF_Nov00.PDF

Federal guidance defines In-lieu-fee mitigation as mitigation that "occurs in circumstances where a permittee provides funds to an in-lieu-fee sponsor instead of either completing project-specific mitigation or purchasing credits from a mitigation bank approved under the Banking Guidance." For the full text of the Federal Guidance on the Use of In-Lieu-Fee Arrangements for Compensatory Mitigation under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, see: http://www.epa.gov/owow/wetlands/regs/inlieufee.pdf

Virginia legislative and regulatory authority for In-lieu Fee Funds comes from § 62.1-44.15:21 B of the Code of Virginia and 9 VAC 25-210-116 D of the Virginia Administrative Code, as noted below:

  • § 62.1-44.15:21 B of the Code of Virginia:

    ... Permits shall contain requirements for compensating impacts on wetlands. Such compensation requirements shall be sufficient to achieve no net loss of existing wetland acreage and functions, and may be met through wetland creation or restoration, purchase or use of mitigation bank credits pursuant to subsection D, or contributing to a fund that is approved by the Board and is dedicated to achieving no net loss of wetland acreage and functions...

  • 9 VAC 25-210-116 D of the Virginia Administrative Code (In-lieu fee fund approval):
    1. In order for contribution to an in-lieu fee fund to be an acceptable form of compensatory mitigation, the fund must be approved for use by the board and must be dedicated to the achievement of no net loss of wetland or stream acreage and function through the preservation, restoration and creation of wetlands or streams.
    2. The board may approve the use of a fund by:
      1. Approving use of a fund for a specific project when approving a VWP permit; or
      2. Granting approval of a fund at a board meeting.
    3. In order for the board to approve the use of a fund, the fund must meet the following criteria:
      1. Demonstration of a no net loss policy in terms of wetland or stream acreage and function by adoption of operational goals or objectives for preservation, creation or restoration of wetland or stream acreage and function;
      2. Consultation with DEQ on selection of sites for preservation, restoration, or creation;
      3. A commitment to provide annual reports to the board detailing contributions received and acreage and type of wetlands or streams preserved, created or restored in each watershed with those contributions, as well as the mitigation credits contributed for each watershed of project impact;
      4. A mechanism to establish fee amounts that will ensure each contribution will be adequate to compensate for the wetland or stream acreage and function lost in the impacted watershed; and
      5. Such terms and conditions as the board deems necessary to ensure a no net loss of wetland or stream acreage and functions from permitted projects providing compensatory mitigation through contributions to the fund.
    4. Such approval may be granted for up to five years and may be renewed by the board upon a demonstration that the fund has enhanced wetland or stream acreage or function through the preservation, creation or restoration of wetlands or streams. Such demonstration may be made with the reports submitted pursuant to subdivision 3 c of this subsection.
    5. The board may approve the use of an in-lieu fund only after publishing a notice of its intent in the Virginia Register of Regulations at least 45 days prior to taking such action and after accepting and considering public comments on its approval of the fund for at least a 30-day period. Where approval is contemplated in accordance with subdivision 2 a of this subsection, compliance with the public notice and comment requirements for approval of the VWP permit shall meet this requirement.

Virginia Aquatic Resources Trust Fund

The Virginia Wetlands Restoration Trust Fund was established as a cooperative partnership between The Nature Conservancy and the US Army Corps of Engineers (Corps-Norfolk District) in a Memorandum of Understanding (August, 1995). The fund is utilized when other on-site or off-site compensation alternatives are determined to be impracticable. An amendment (PDF) to the 1995 Memorandum of Understanding was made in December 2003. Among other things, the ammendment changed the name of the fund to the Virginia Aquatic Resources Trust Fund and allowed for stream restoration contributions to be made.

The Corps-Norfolk District reviews and has the final authority to commit to potential projects that The Nature Conservancy proposes.

DEQ originally approved the use of the fund on December 19, 2001 (PDF) as an acceptable form of compensatory mitigation for impacts to state waters, including wetlands, permitted under Virginia Water Protection individual and general permits. That approval was updated on January 31, 2007 (PDF) after a public comment period was held.

As part of DEQ's committments, a report is drafted each year on previous year's activities by the Virginia Aquatic Resources Trust Fund (PDF format).

Elizabeth River Restoration Trust

A Memorandum of Understanding (PDF) was signed in July 2003 by the Virginia Department of Environmental Quality, U.S. Army Corps of Engineers-Norfolk District and The Elizabeth River Project to implement a new in-lieu fee program, known as the Elizabeth River Restoration Trust (ERRT). The partners signed an Operating Agreement (PDF) in May 2004 to implement the Memorandum of Understanding and to establish the operating parameters of this Trust Fund.

ERRT is committed to a goal of "no-net-loss" of aquatic resources and to achieve improvements in the environmental and aquatic health of the Elizabeth River watershed. Projects contributing to the ERRT must proceed through DEQ’s and the Corps’ regulatory processes first; ERRT can be used when other on-site or off-site compensation alternatives are determined to be impracticable. The primary focus of the ERRT is compensating for impacts to tidal submerged lands and tidal wetlands within the Elizabeth River watershed.

As part of DEQ's commitments, a report is drafted each year by ERRT on the previous year's activities:

2005 Annual Report (PDF)

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