In My View August 2016 - I Wish
I agree it is a weird time to talk about wishes. It’s not Christmas. It’s not my birthday. It is, however, the time when legislators are thinking about bill titles to submit as well as a time when new administrative rules are being written. So, here goes my wish list.
I wish that we had a way to keep the mitigation in-lieu fees in the municipalities. Whether by law or by rule, I wish that the towns/cities would be able to use the funds for mitigation in the community where the wetland impacts had taken place. I believe the DES could keep the funds in an account for the municipalities for one to two years. If after that time the town or city has not developed an appropriate mitigation project, then the funds go to the general Aquatic Resources Mitigation fund for general distribution to appropriate projects.
I wish we had a simple wetland function and value assessment that was numerical. A system so simple that a “10” wetland has all the functions and values and maybe a few endangered species as well. A “1” wetland would be the proverbial roadside ditch or man-made detention basin. This would not be that difficult. The science is there. There just does not seem to be the will.
What would such an assessment system do for us? First, it would provide a starting point for both developers and regulators in discussion of wetland impact projects. Anything more than a “5”, you best have a really solid argument for requesting the impact.
Second, it would provide the local Conservation Commissions with an understanding of the resource proposed for impact. Many of the Commissions have a relatively robust turnover and a simplified method of assessment would be welcomed. Currently, many Commissioners have a view that all wetlands are equally valuable.
Third, it would provide a basis for compensatory mitigation. Right now, regardless of the value of a wetland, all mitigation in-lieu fee payments are based on square footage of direct wetland impact, or lineal feet of stream impact. It does not matter what the functions and values of the wetlands/streams are - it is pure math. The natural system is not pure math, and neither should the calculation of in-lieu fee payments.
I wish that we could revisit the basis for payments into the in-lieu fee fund or Aquatic Resources Mitigation fund. Do wetlands of relatively low function and value require a mitigation fee of over $200,000 per acre? Does it make any sense that a municipality that is trying to build a school or another community building is subject to the same compensatory mitigation as a large retail development?
I wish we could assume the Clean Water Act 404 wetland program from the US Army Corps of Engineers. Currently, we have too many fingers in the permitting of wetland impacts. We have the Department of Environmental Services. Overlaid on that is the review by the Environmental Protection Agency and the US Army Corps of Engineers. In addition the state rules and regulations do not match the federal regulations. Who’s on first?
I wish we could have a more landscape-based wetland impact permitting method. What sense does it make to avoid and build around a tiny, low value wetland when it would make more sense to impact that wetland and put a buffer on the larger, high-value wetland? Here is where the numerical assessment would become valuable. For example, it would make sense that the applicant can impact a “1” or “2”, but needs to provide a vegetated buffer to the “6”.
Currently, 482A does not allow for the Department of Environmental Services to consider implementing buffers as compensation of impacts to marginal wetlands. I wish that the legislature would consider such a bill to provide the Department with the flexibility to make such findings in support of landscape-based permitting decisions.
This is my wish list. I didn’t even ask for a Mercedes Benz.
“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
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Jim Gove
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