Developers in some watersheds Virginia may shortly have to conduct their own
mitigation for wetland and stream impacts. In lieu fee contribution, long a main
stay in mitigation in the Commonwealth, has recently undergone changes that may
affect its usefulness for some permittees.
On May 10, 2010, the Norfolk District Office of the U.S. Army Corps of
Engineers issued a public notice relating to mitigation credit costs. In
compliance with the Corps' 2008 Mitigation Rule (33 CFR Parts 325 and 332), the
Corps has designated The Nature Conservancy (TNC) as the entity to determine
wetland and stream mitigation credit costs in Virginia for work performed
through the Virginia Aquatic Resources Trust Fund (the "Trust Fund"). The Trust
Fund conducts stream and wetland mitigation throughout Virginia and is
administered under a joint agreement between the TNC and the Norfolk District of
the Corps. Where the Corps or the Virginia Department of Environmental Quality (VDEQ)
allow applicants to use in lieu fee payments as mitigation for wetland or stream
impacts, these payments are made into the Trust Fund.
Up until now, both the Corps and VDEQ provided the estimated amounts due as
in lieu fee contributions to compensate for particular impacts permitted under
federal and state law. Under the new program, these previous estimates will be
honored only as long as they are paid by June 8, 2010. After June 8, 2010,
the Corps/VDEQ estimates will not be guaranteed and the TNC determination for
the costs will control.
We anticipate that in lieu mitigation credit costs will increase under the
new scheme. More importantly, however, unless the TNC has credits available in
the applicable watershed, permit applicants will not be permitted to use in lieu
fee mitigation in the future and will have to find and construct their own
mitigation. This is a substantial change from past practices. Therefore, we
strongly recommend that permit applicants who have Corps and/or VDEQ
determinations of mitigation credit costs should pay for such estimates by
June 8 to preserve their ability to use this mitigation strategy.
If you have questions about these new procedures or any other development or
permitting issues, you should call your development counsel. For more
information, please contact the authors.