Local Jurisdictions Wrestle with Federal and State Wetland Mitigation Guidelines

By Emmett Pritchard

Use of mitigation bank and in-lieu fee programs as the preferred wetland mitigation alternative has not been fully embraced by local jurisdictions.  Historically, local critical areas regulations have prioritized permittee-responsible, on-site mitigation as the preferred option to offset wetland impacts.  This continues to be the case for most jurisdictions.  However, following issuance of rules for wetland mitigation by the Army Corps of Engineers and EPA in 2008 and subsequent policy developed by Washington Department of Ecology (WDOE) establishing a mitigation hierarchy that prioritizes use of mitigation banks and in-lieu fee programs, city and county jurisdictions throughout Washington have been wrestling with how best to revise their regulations to be consistent with the Federal and State guidelines.  Their challenge has been to reconcile their own mandates to maintain wetland functions within their jurisdictions while at the same time adopting the federal and state guidelines which can result in use of mitigation banks or in-lieu fee sites that may be outside the boundaries of their jurisdiction.

At issue is the national and state shift towards using a watershed-based approach for selection of wetland mitigation sites.  The shift is based on current research indicating that on-site mitigation in urban and urbanizing areas is not sustainable without continual monitoring and maintenance to counteract the effects of human disturbance.  A watershed approach directs mitigation site selection to portions of a watershed where ecological processes have the greatest likelihood of being restored.

Recent critical area code updates by many local jurisdictions now include language to allow use of mitigation banks or in-lieu fee programs.  However, use of these mitigation alternatives is typically allowed only after the on-site, permittee-responsible mitigation alternative is shown to be infeasible or of quantifiably lower functional value than mitigation that could be provided through a mitigation bank or in-lieu fee program.  In certain cases, the tension between local jurisdiction mitigation requirements and those of the Corps of Engineers and WDOE can result in it being necessary for a project applicant to provide mitigation both within the jurisdiction in which the impact occurs to satisfy local jurisdiction requirements and to purchase mitigation bank or in-lieu fee credits to satisfy Corps of Engineers and WDOE mitigation requirements.