Thurston County In-Lieu Fee Mitigation Program


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Presentation by: Rich Doenges, Thurston County Water Resources

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Thurston County In-Lieu Fee Mitigation Program

  1. 1. An evolving effort
  2. 2. Topics for this morning Regulatory and policy context ILF process Current progress Next steps
  3. 3. Current process for compensatory mitigation of wetlands isbroken; most wetland mitigation projects fail to offset lostwetland function at both temporal and spatial scales.The causes:• Poor site selection• Poor design• Poor site management and maintenance• Poor follow-through by regulatory agency
  4. 4. ILF Defined In a Federal Rule published in April 2008, The U.S. ArmyCorps of Engineers (the Corps) and the U.S. EnvironmentalProtection Agency (EPA) define an in-lieu fee program as: “A program involving the restoration, establishment,enhancement, and/or preservation of aquatic resourcesthrough funds paid to a governmental or non-profit naturalresources management entity to satisfy compensatorymitigation requirements... Similar to a mitigation bank, anin-lieu fee program sells compensatory mitigation creditsto permittees whose obligation to provide compensatorymitigation is then transferred to the in-lieu programsponsor.”
  5. 5. ILF designed to offset for unavoidable environmental damagesto wetlands or other aquatic resources by restoring, creating,enhancing, or preserving wetland functions within a specificwatershed or geographical area through fees paid by developersto an ILF sponsor (only non-profits or governmental entitiesneed apply) in order to purchase wetland functional “credits”that offset the wetland functional “debits” (as determined byregulatory agencies and only after they determine the impact(s)is unavoidable) lost from impacted wetlands.
  6. 6. After the wetland credit purchase is complete, the developer(purchaser) is relieved of any responsibility for the success ofthe wetland mitigation and their regulatory requirements forwetland mitigation.Sponsor is solely responsible for the success of the mitigationand must implement the mitigation in three growing seasonsfrom receipt of the fees. Fees calculated to support theadministration of the program in addition the design,construction and management of the mitigation site
  7. 7. Mitigation (credit producing) sites can be selected in advancewith watershed characterization plans/analyses;Mitigation sites can be designed to address critical watershedneeds caused by historical loss of wetlands;Mitigation of small projects combined into larger and moresustainable wetland complexes;Reduced transaction time for purchaser and less hassle;Long term protection and maintenance of mitigation siteBut there’s more…
  8. 8. Collecting fees and managing accounts;Selection, design and construction of mitigation sites;Tracking mitigation credits– sold and invested;Reporting (death, taxes and reporting…)Maintenance and long term mitigation site management.
  9. 9. How it works, summarized Applicants work with regulatory agencies and tribes to identify ways a proposed project can avoid andminimize environmental impacts. Regulatory agencies determine preferred options for mitigating unavoidable impacts. Mitigationoptions may include: on-site mitigation (if ecologically-feasible and likely to succeed), off-site mitigation sponsored by the permittee, purchasing credits from a mitigation bank (if one is available), or purchasing credits from the Thurston County In-Lieu Fee Program. If the applicant chooses to use the TC Water Resources (TCWR) (and the regulatory agenciesapprove), the ecological impacts translated into a number of debits associated with the impact. The applicant buys credits from the TCWR to offset the debits associated with the impact. Bypurchasing credits, the applicant satisfies their compensatory mitigation requirements andhave no further involvement in the mitigation implementation. The TCWR chooses a mitigation site from a predefined Roster. Roster sites may be publicly orprivately owned, and will be chosen based on science-based watershed priorities from the watershedcharacterization analysis. The TCWR plans, implements, monitors and maintains projects at chosen sites that will achieveecological “lift.” On balance, completed projects should result in a number of credits equal to orgreater than the number of debits associated with the original impacts. *At multiple points in the process, an Interagency Review Team (IRT) will review and approve projectproposals. The IRT is co-chaired by the Corps and the Washington Department of Ecology (Ecology);other members will include representatives state and federal regulatory agencies, tribes, and localgovernments.
  10. 10. ILF ComponentsThe County’s assumption of the sponsorship from the PSP in developing an ILF program was a significantincrease in responsibilities in the amended grant contract.Briefly, the ILF approval process(referred to by Army of Corps of Engineers involves: Preparation and approval of three documents: prospectus, instrument and agreement. The prospectus is basically an annotated outline summarizing the objectives, operation andprocedures of the ILF program. The instrument is the largest and most complex of the ILF documents. It describes in detail wherethe ILF will be active, the type of impacts mitigated, how the mitigation sites will be selected and whowill be the sponsor. Additionally, the instrument will include specific procedures, requirements anddescription of the physical, technical and financial characteristics of the ILF project, includingthe geographical area, project goals and performance measures, operation, maintenance andfinancial controls. The agreement describes the terms specifying responsibilities for the establishment, use,operation, and management of the sponsors In-Lieu Fee Program consistent with federalregulations and incorporates by reference all of the instrument’s technical findings andappendices
  11. 11. ILF Component DetailsThe Corps and the Department of Ecology are responsible for approving an ILF program through thecertification process. The certification process is defined under the federal mitigation rule (33CFRParts 325 and 332, 40 CFR Part 230). The basic certification steps are:1. Sponsor submits a prospectus to Ecology and the Corps. Once the prospectus is determinedcomplete by the agencies, a public notice is issued seeking public comment regarding theproposed project.2. The Interagency Review Team (IRT) is convened. The IRT may include representatives fromEcology, Corps, U.S. Environmental Protection Agency, U.S. Fish & Wildlife Service, NationalOceanic and Atmospheric Administration-Fisheries, local and tribal governments, and otherstate agencies including the Washington Departments of Fish and Wildlife and NaturalResources. The IRT reviews and provides technical input regarding the sponsor’s projectdesign, service area, performances measures, and number of credits available. Public commentsare considered again during this technical review stage.3. The sponsor submits a draft in-lieu fee instrument for IRT review and comment. Thesecomments are then incorporated by the sponsor and submitted as a Final Instrument to the IRT.4. Once the final instrument is approved by the IRT, the sponsor negotiates a binding agreementwith the Corps and Ecology.5. The approval process is complete once Ecology, the Corps, and sponsor sign the in-lieu feeagreement which incorporates the instrument in its entirety.
  12. 12. Timeline for ILF Approval
  13. 13. TC Watershed Characterization The goal of watershed characterization is to identifyareas within each watershed that are more suitable for: Restoration actions; Protection; and Higher intensity development.
  14. 14. Watershed Characterizationdata process and analysis
  15. 15. NisquallyStudy Areas
  16. 16. The Property That Got Away
  17. 17. Mitigation Site Selection Watershed-scale characteristics, such as aquatic habitatdiversity, habitat connectivity, surface water areas (wetlandsand streams), ground water flow patterns Extent to which the site has potential to contribute to therestoration or protection of watershed processes Potential of the mitigation-receiving site to successfullycontribute to a gain in functions as a result of mitigationactivities Hydrologic conditions, soil characteristics, and other physicaland chemical characteristics The size and adequacy of buffers necessary to protect themitigation-receiving site from adjacent development or landuse Location and availability of hydrologic sources (includingavailability of water rights, presence of State-Owned AquaticLands) and other ecological features
  18. 18. Mitigation Site Selection Compatibility with adjacent land uses and watershed management plans Reasonably foreseeable effects the compensatory mitigation project will have onecologically important aquatic or terrestrial resources (e.g., shallow sub-tidal habitat,mature forests), cultural sites, or habitat for federally- or state listed threatened orendangered species Other relevant factors including but not limited to:Development trendsAnticipated land use changesHabitat status and trendsLocal or regional goals for the restoration or protection of particular habitat types or functions(e.g., re-establishment of habitat corridors or habitat for species of concern)Water quality goalsFloodplain management goalsThe relative potential for chemical contamination of the aquatic resources.The relative locations of the impact and mitigation receiving sites in the stream networkCost of acquisition and implementationLocation with respect to urban centers.
  19. 19. Mitigation & Restoration(don’t mix)TCWRP will not derive credit from any project(s) alreadyfunded with Salmon Recovery Fund money or any projectsalready planned and funded or completed to meet a permitcondition. However, there may be cases when ILFmitigation fees can be used to implement a salmonrecovery project or other restoration project. For this tooccur, all of the following must apply: The project is not funded There is not a restriction related to the funding used toacquire a site where the project will occur The project is not a requirement associated with a permit(e.g. a mitigation project)
  20. 20. Identify replacement property and acquire it!Respond to public comments on ILF ProspectusBegin preparation of ILF Instrument with IRT
  21. 21. Rich Doenges (360) 754-4106doenger@co.thurston.wa.usTC ILF Prospectus: information on ILF and other mitigation initiatives