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).  Virginia Water Protection permit regulations further specify that ‘compensatory mitigation for project impacts shall be sufficient to achieve no net loss of existing wetland acreage and no net loss of functions in all surface waters’ (9 VAC 25-210-116).

On March 31, 2008, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) announced innovative new standards to promote no net loss of wetlands by improving wetland restoration and protection policies, increasing the effective use of wetland mitigation banks and strengthening the requirements for the use of in-lieu fee mitigation (see EPA Mitigation Rule pamphlet). 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 (2008 Final Compensatory Mitigation Rule).For additional information on the Mitigation Rule, see the Corps' Question and Answers Factsheet (Corps Rule PDF).  In 2008, the Commonwealth of Virginia revised Virginia Water Protection permit regulations in order to align with Federal wetlands mitigation policy and standards, to promote no net loss of wetland acreage and function, and stream functions and water quality benefits.

What is compensatory mitigation?

Compensatory mitigation is the last step in the three-step approach to compensate for unavoidable impacts to wetlands and streams. The Department of Environmental Quality (DEQ) worked closely with the Norfolk District Corps office to develop the Offsite Mitigation Guidelines, issued in March 2008.  These guidelines are for use for mitigation banks, in-lieu-fee mitigation projects, and permittee responsible mitigation sites.  The guidelines identify (1) priority areas for mitigation sites, (2) mitigation sites that have a higher likelihood of success, and (3) mitigation sites that may satisfy more than one conservation goal. 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 was developed in conjunction with the recommendation document. 

Compensation Requirements

The wetland compensation ratios below are used in calculating compensatory mitigation requirements for unavoidable impacts to wetlands and 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.

  • 2:1 (2 acres compensation for each 1 acre of impact) 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 Corps and the Virginia DEQ. The purpose of USM is to describe a method to rapidly assess the stream compensation requirements for permitted stream impacts and the amount of stream credits obtained through implementation of various stream mitigation practices. The USM 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 amounts of the various mitigation practices that will satisfy the compensation requirement. The USM may be used for projects requiring stream compensation under the Corps’ regulatory program and the DEQ’s Virginia Water Protection Permit (VWPP) Program. 

Compensation Credits 

Compensatory mitigation is defined in the Virginia Water Protection Program regulation as ‘the restoration, creation, enhancement, or in certain circumstances preservation of aquatic resources, or in certain circumstances an out-of-kind measure having a water quality, habitat, or other desirable benefit for the purposes of offsetting unavoidable adverse impacts to aquatic resources that remain after all appropriate and practicable avoidance and minimization has been achieved’ (9 VAC 25-210-10).  Compensatory mitigation may include: 

  • Wetland creation, restoration, enhancement, and/or preservation;
  • In-stream restoration, enhancement, or preservation (see the Unified Stream Methodology below);
  • Riparian or Upland Buffer re-establishment, restoration, enhancement, and/or preservation adjacent to streams and wetlands;
  • Exclusion of grazing livestock from streams and wetlands (see the Unified Stream Methodology below);
  • Preservation of an entire watershed and/or streams that are confirmed T&E species habitat (see the Unified Stream Methodology below).

The following wetland mitigation credit ratios are presented for use on projects involving wetland compensation, which may be subject to more detailed site-specific information.

  • Creation or Restoration = 1:1 (one credit per one acre)
  • Enhancement = A range of 1:3 to 1:9 (one credit per three acres to nine acres) depending on functions enhanced
  • Preservation = 1:10
  • Upland Buffer Restoration = 1:15
  • Upland Buffer Preservation = 1:20 to 1:40

The Unified Stream Methodology (USM) is used to determine the number of stream mitigation credits that are potentially or actually available on a given mitigation site.  The following stream mitigation credit ratios are presented in the USM for use on projects involving stream compensation, however more detailed site-specific information about the individual mitigation activities is necessary to fill out the USM Forms, which provide the final number of stream mitigation credits.

  • Restoration = 1 credit per 1 linear foot
  • Enhancement = 0.09 – 0.3 credits per 1 linear foot per stream bank
  • Riparian Buffer Activities = 0 – 0.4 credits per linear foot
  • Cattle Exclusion, Watershed Preservation, T&E Species Protection = Site-specific

Compensatory mitigation may take the form of the following options, which DEQ shall consider in the following order (9 VAC 25-210-116(c)(2) – (c)(3)):

  • Purchase or use of wetland or stream mitigation credits at a DEQ-approved mitigation bank;
  • Purchase or use of wetland or stream mitigation credits from a DEQ-approved in-lieu fee mitigation program;
  • Permittee-responsible mitigation under a watershed approach; 
  • Permittee-responsible mitigation through onsite and in-kind mitigation;
  • Permittee-responsible mitigation through off-site or out-of-kind mitigation;
  • Restoration, enhancement, or preservation of upland buffers adjacent to wetlands and/or streams when utilized in conjunction with the options above; and
  • Preservation of wetlands and/or streams when utilized in conjunction with the options listed above.

What is mitigation banking?

The Commonwealth of Virginia defines a mitigation bank as ‘a site providing off-site, consolidated compensatory mitigation that is developed and approved in accordance with all applicable federal and state laws or regulations for the establishment, use, and operation of mitigation banks and is operating under a signed banking agreement.'  

"Mitigation banking" means compensating for unavoidable wetland or stream losses in advance of development actions through the sale or purchase of credits from a mitigation bank. The purpose of mitigation banks is to replace the acreage and biological, chemical, and physical functions of wetland and stream resources by quantifying the replaced acreage and function as a 'credit', which can be purchased by third parties (‘permittees’) 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

The Corps' Institute for Water Resources conducted the National Wetlands Mitigation Banking Study from 1992 to 1997. Refer to: National Wetland Mitigation Banking Study. The USACE web page provides additional information on mitigation banking. A list of DEQ-approved wetland mitigation banks can be found on RIBITS (Regulatory In Lieu Fee and Bank Information Tracking System). Click on the RIBITS Instructional Handbook for further details on accessing and navigating the site.

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'ts" (PDF). A mitigation banking instrument template (February 5, 2010) was developed by the Virginia Department of Environmental Quality, the U.S. Army Corps of Engineers, and the Interagency Review Team members to assist interested persons in developing a Mitigation Banking Instrument.

Persons engaging in the establishment and operation of mitigation banks in multiple jurisdictions within Virginia may submit general erosion and sediment control (ESC) standards and specifications to the Department of Environmental Quality (DEQ) for review and approval. More information on erosion and sediment control can be found at http://www.deq.virginia.gov/Programs/Water/StormwaterManagement.aspx

What is an In-Lieu Fee Fund?

The Commonwealth of Virginia defines In-lieu-fee mitigation as ‘a program operated by a nonprofit organization or governmental agency that receives moneys from persons impacting wetlands or streams pursuant to an authorized, permitted activity and that expends the moneys received to provide consolidated compensatory mitigation for permitted wetland or stream impacts.’  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. For additional information on in-lieu fee funds, please reference the full text of the Compensatory Mitigation for Losses of Aquatic Resources.

Virginia Aquatic Resources Trust Fund

The Virginia Aquatic Resources Trust Fund (VARTF) is an in-lieu fee mitigation program which acquires stream and wetland conservation projects throughout Virginia in order to compensate for impacts to streams and wetlands permitted by state and federal regulatory agencies. The VARTF is dedicated to replacing the greatest value in terms of acreage and function, while providing a specific emphasis on protecting Virginia’s rare plants, animals, and natural communities.  Click the link for more information: http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/virginia/explore/the-virginia-aquatic-resources-trust-fund-home.xml. The VARTF operates under a 2011 agreement between The Nature Conservancy, DEQ, and the Corps. This agreement replaces previous memorandums of agreement and brings VARTF into compliance with federal regulation (Final Mitigation Rule). Under the VARTF Program Instrument, The Nature Conservancy, as the program Sponsor, will provide credit availability letters and price quotes to applicants, as requested. Applicants seeking price quotes and credit availability letters should contact The Nature Conservancy c/o Suzy Sidharta, ssidharta@tnc.org, (434) 951-0578. The approved instrument can be found here:

The Corps and DEQ chair the Interagency Review Team that reviews and approves projects proposed by VARTF.  DEQ originally approved the use of the fund on December 19, 2001 (Fund - PDF) as an acceptable form of compensatory mitigation for impacts to state waters, including wetlands, permitted under Virginia Water Protection individual and general permits. DEQ’s signature to the 2011 VARTF Program Instrument serves as approval of VARTF as a form of compensatory mitigation.  The most recent DEQ authorization of the VARTF took place in 2016, when the VARTF was approved for an additional 3 years. The VARTF drafts an Annual Report on the mitigation activities implemented during the previous year by the Virginia Aquatic Resources Trust Fund.  The VARTF annual reports are available on The Nature Conservancy's VARTF page. Take an insider's look at The Nature Conservancy's work.

Living River Restoration Trust

Living River Restoration Trust (formerly Elizabeth River Restoration Trust) is an approved in-lieu fee program, which has been in operation in the Commonwealth of Virginia since 2003, in accordance with a Memorandum of Understanding dated July 18, 2003 among Elizabeth River Project (ERP – the original sponsor), DEQ, and the Corps.  ERP, DEQ, and the Corps worked collaboratively to develop the “Elizabeth River Restoration Trust Operating Agreement” dated May 19, 2004 (2004 Program Instrument), which provided the regulatory approval needed for ERP to develop compensatory mitigation sites for impacts to aquatic resources authorized by Corps permits and/or DEQ VWP permits.  On September 16, 2009, ERP, DEQ, and the Corps signed the “First Amendment to the Living River (previously Elizabeth River) Restoration Trust Operating Agreement” (2009 Amendment).  The 2009 Amendment made the following revisions to the 2004 Program Instrument:  1) Officially changed the name and sponsor of the program to Living River Restoration Trust; 2) Established a new valid term and expiration date (May 4, 2019) for the Program Instrument; and 3) Incorporated the 2008 federal regulations for “Compensatory Mitigation for Losses of Aquatic Resources:  Final Rule.”  

The LRRT updated their Program Instrument in 2018.  DEQ determined that the draft 2018 Program Instrument complies with the Code of Virginia (62.1-44.15:20-23) and Virginia Administrative Code (9VAC25-210-116D).  Due to the specific watersheds, water resources, and mitigation types within which LRRT operates, DEQ determined that it does not need to sign the 2018 Program Instrument to approve the use of the LRRT program.  DEQ may approve the use of the LRRT in-lieu fee program as compensatory mitigation on a case-by-case basis through the VWP Permit Program. LRRT is committed to a goal of 'no-net-loss' of aquatic resources, where appropriate to water resources, and to achieve improvements in the environmental and aquatic health of the Elizabeth River watershed. The primary focus of the LRRT is compensating for impacts to tidal submerged lands and tidal wetlands within the Elizabeth River watershed.  Projects contributing to the LRRT must proceed through the Corps mitigation site review process, and Interagency Review Team review and approval.  LRRT can be used as an approved in-lieu fee fund mitigation option, where deemed appropriate by regulatory agencies. 

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Virginia Department of
Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000


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