Posted: March 14, 2023

This article is the first in our series about natural resource mitigation.

In the last few decades, a movement toward more environmentally-conscious development standards have gone a long way to protect earth’s vital resources, like streams, wetlands, rivers, lakes, as well as plant and animal species. Water and habitat preservation not only helps native plant and animal species thrive, it also builds healthier ecosystems, which in turn builds a healthier environment for humans. But finding a balance between natural resource preservation and new construction can be complicated. There’s a number of factors that can test the commitment to conservation, and regulatory bodies are called in to make sure land development is sustainable for future generations.

Agencies and regulatory bodies in charge of land permitting require developers to primarily avoid impacts to protected or regulated natural resources. If avoidance isn’t feasible, then developers must develop alternatives that minimize impacts. In the event that both avoidance and minimization still result in impacts to natural resources, the agencies will likely require mitigation to be completed in order for the project to move forward.

Mitigation is a nuanced concept that has many moving parts. Becoming familiar with the basics can help create a better understanding of how mitigation works.

Compensatory Mitigation Methods

Compensatory mitigation offsets unavoidable impacts to protected resources primarily by restoring similar types of degraded resources in a specified area or region. For example, if a project impedes on a protected wetland with unavoidable impacts, then wetlands located within the same watershed, but outside of the project area, could be restored. Mitigation should follow a “no net loss” rule, meaning that the natural resource restored should be equal to or greater than the natural resource impacted by both acreage and quality. If off-site, mitigation must be completed within the same watershed as the project area to achieve no net loss.

Restoration re-establishes or rehabilitates a former or degraded wetland to natural or historic functions. It’s just one form of compensatory mitigation. Other forms include:

  • Establishment – Development of a wetland or other aquatic resource where one previously did not exist.
  • Enhancement – Work performed in existing natural habitats that improve one or more function of that habitat
  • Preservation – Using legal and physical mechanisms, such as conservation easements and title transfers, to protect a natural habitat of ecological importance.

Mechanisms For Compensatory Mitigation

Wetland and stream mitigation were the two primary types of compensatory mitigation available when the Environmental Protection Agency (EPA) originally published regulations regarding mitigation requirements in 1980, but the concept has since expanded to include aquatic nutrients, such as sediment and wastewater, and threatened and endangered species.

In many cases, the ideal location for compensatory mitigation is on the actual project site, which could look like rerouting a stream to part of the property where no development is occurring. If on-site mitigation isn’t possible, mitigation can also be completed off-site, through in-lieu fee programs, permittee-responsible mitigation, or purchasing mitigation bank credits.

One of the simplest options of off-site mitigation is to purchase “mitigation credits” from an approved mitigation bank. Mitigation banking is a form of third-party compensatory mitigation that sells credits in exchange for compliance. A landowner can purchase credits from a mitigation bank in an amount equal to or greater than the unavoidable impact they need to mitigate, allowing them to complete construction on their project site and comply with permit requirements. The precise rules and regulations of mitigation banking depend on state and regional guidelines. Mitigation banks have a limited amount of credits they can sell and an obligation to maintain the natural resource to the same standard over a length of time (often decades).

A second option is to purchase credits from an in-lieu-of fee (ILF) program. ILF programs are similar to banks, but their mitigation sites aren’t always constructed prior to environmental impacts taking place. Once enough money is collected by the ILF program, the program sponsor implements the required mitigation project(s). If credits are unavailable from either mitigation banks or ILF programs, the onus is on the land owner or developer to find a mitigation solution, a type of mitigation known as permittee-responsible mitigation.

The important thing to remember is that if your project will involve environmental impacts that will require mitigation, you won’t be able to begin constructing your project until the mitigation solution is identified, approved, and implemented. To avoid unexpected project delays and costs it's always advisable to start considering your mitigation options as early as possible in the project lifetime.

A Need For Expertise

It goes without saying that compensatory mitigation and development permitting compliance can be complex. Having a consultant on board for your project can help you make sense of the ins and outs. Davey Resource Group (DRG) has experience in all aspects of mitigation, from banking to in-field work.

To learn more about which mitigation solutions fit your needs, contact your local DRG office.
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Mitigation Wetlands

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