In Lieu Fee and the New Compensatory Mitigation Rule Changes Approach to Wetland Compensation Projects in Maine

June 06, 2008

Effective June 9, 2008, a new Compensatory Mitigation rule will be in effect, (33 CFR Part 332) providing a new framework for the approval of wetland mitigation offers to compensate for wetland losses subject to federal jurisdiction under the Clean Water Act.
 
The new rule requires that preference be shown to the use of wetland mitigation banks and the In Lieu Fee (ILF) Program. Where use of mitigation banks or ILF will not compensate for the loss of wetland functions and values, the use of permittee-responsible mitigation will be considered, with a preference for using a watershed approach, or an on-site and in-kind mitigation approach, to the use of off-site and out-of-kind mitigation.
 
Permit applications that have been submitted, pursuant to Section 404 of the Clean Water Act, prior to June 9, 2008 will be processed in accordance with the regulations in existence at the time of submission.
 
Permittees who elect to use the ILF program in Maine will be required to pay between $2.96 and $3.96 per square foot of wetland impact, depending upon the geographic region of the project. This money will be provided to the Natural Resource Mitigation Fund for the purpose of use for mitigation projects throughout the State of Maine. The Natural Resource Mitigation Fund will be administered by The Nature Conservancy (TNC).
 
Permittees may also request State approval of the use of ILF as compensation under the State Natural Resource Protection Act (NRPA). If on-site resource mitigation is not available or otherwise practicable, the applicant may request to pay ILF as outlined in the NRPA 38 M.R.S.A. § 480 (Z).

For more information about the new compensatory mitigation rule or the In Lieu Fee program, please contact Heather L. Parent, P. Andrew Hamilton or William V. Ferdinand.
 
This alert is provided as general information, and is not a substitute for legal or other professional advice.