Maine Department of Transportation
Umbrella Wetland Mitigation Bank Prospectus
May 14, 2008
Prepared by: Deane C. Van Dusen, Manager
Field Services & Mitigation Division
Environmental Office
Maine Department of Transportation
16 State House Station
Augusta, Maine 04333
1.0 Introduction
The Maine Department of Transportation (MaineDOT) proposes to establish the Umbrella Mitigation Bank for Transportation (UMBT). The purpose of the UMBT is to provide a framework under which site specific mitigation deposits are established to be used as compensation for unavoidable wetland impacts resulting from state transportation projects within Maine.
MaineDOT is developing the UMBT to proactively implement restoration, creation, enhancement and preservation opportunities currently identified in the state as well as future options. Potential UMBT projects will be developed and proposed under terms of a Mitigation Banking Instrument (BI) currently under preparation.
2.0 Bank Objectives
MaineDOT’s goals in establishing the UMBT are: 1) to streamline the Section 404 permit evaluation process by providing a means of compensating in advance for unavoidable wetland impacts resulting from state transportation projects; 2) to provide high value mitigation based on the ecological/landscape approach; 3) to preserve and restore resources based on state-wide priorities; and 4) to follow mitigation priorities established by the U. S Corps of Engineers (Corps)(33 CFR Part 332) and Environmental Protection Agency’s (EPA)(40 CFR Part 230) Compensatory Mitigation for Losses of Aquatic Resources [Scroll down to Summary] (hereafter “the Rule”). This ruling gives priority to mitigation banking followed by in lieu fee and permittee-responsible wetland compensation options. The Rule also improves the planning, implementation and management of mitigation projects by emphasizing a watershed approach along with the ecological benefits derived from mitigation banking.
Since December 2004, MaineDOT has operated the only state-approved wetland mitigation bank in Maine, which is administrated by the Maine Department of Environmental Protection (DEP) under Natural Resource Protection Act (NRPA) permit #L-21760-MB-A-N. Because this bank’s current deposits contain only excess DEP mitigation credit the two banks will be maintained separately. New deposits consisting of both federal and state credit will use the UMBT. The UMBT “deposits” would augment MaineDOT’s state mitigation bank.
Section 480-Z of Maine’s NRPA (38 M.R.S.A. §§ 480 A-BB) authorizes DEP to establish and operate an in lieu fee program for natural resource mitigation. Extensive input from an interagency workgroup that included representatives from DEP, state and federal resource agencies, Corps, Maine State Planning Office, Federal Highway Administration and MaineDOT resulted in Maine’s in lieu fee program becoming active in 2007. The UMBT is expected to provide complementary benefits to the in lieu fee program by augmenting or adding to its efforts to restore, enhance, replace, and preserve aquatic resources based on state-wide priorities established by state and federal resource agencies, non-governmental conservation organizations and state planning agencies.
MaineDOT’s need for the UMBT is based on 4 points:
1) responds to the new Corps/EPA Rule prioritizing use of wetland banks;
2) provides an opportunity to build landscape/watershed scale mitigation projects based on state-wide priorities;
3) potential for more cost-effective mitigation based on project scale and site specific parameters; and
4) mitigation planning and construction for large scale regional transportation projects and biophysical regions where a number of road projects are forecasted.
3.0 Establishment and Operation
3.1 Mitigation Banking Instrument (BI)
The BI and the development and operation of the UMBT will be in accordance with the Rule. MaineDOT’s responsibilities under the program will be administered by MaineDOT’s Environmental Office – Field Services and Mitigation Division.
MaineDOT proposes to use a combination of restoration, creation, enhancement and preservation of a wide variety of aquatic resources and upland buffers for the purpose of generating compensation credits. MaineDOT will provide for long-term preservation and management of the project areas included in the UMBT.
The UMBT will be used for MaineDOT/private or public transportation related partnerships involving compensatory mitigation for unavoidable impacts to waters of the United States in the State of Maine. These activities are authorized under Section 404 and 401 of the Clean Water Act, and/or Section 10 of the River and Harbors Act and the DEP Chapter 310 of the NRPA, provided such use has complied with all applicable requirements and is authorized by the appropriate authority.
3.2 Site Development Plans
Mitigation sites included in the BI will be designed by developing conceptual and final site development plans (“Plans”) that will be submitted to the Interagency Review Team (IRT) for review and approval on a project by project basis. This team makeup will follow the Federal Guidance recommendations. Project sites can be built in advance of the UMBT deposit as long as the initial plan concepts are approved by the IRT, with confirmation in writing from the Corps District Engineer (DE). Projects built in advance for some other purpose than mitigation banking, and meet Federal Guidance criteria as bank projects, will not be approved by the IRT.
Development of the mitigation sites will begin with the submission of conceptual plans to the IRT for evaluation. If the IRT’s review of the conceptual plans is favorable and the projects are determined to be feasible, MaineDOT will proceed with preparing the final plans. Once developed, the final plans will be submitted to the IRT for review and approval.
Upon approval, the final plans for the mitigation sites will be attached as an Addendum to the BI, and the mitigation sites will become a component of the BI. Credits will be released consistent with the schedule of credit availability in accordance with the final plans. Approved bank sites or approved phases of the bank sites may be left undeveloped until a credit use is identified and approved by the regulatory agencies.
In the event the final plans are not approved, the IRT will provide MaineDOT with specific reasons for not approving the submittals. MaineDOT may resubmit revised final plans with specific modifications or justifications that address the IRT concerns.
3.3 Real Estate Provisions
MaineDOT will provide for the perpetual protection and preservation of each bank site through management agreements, restrictive covenants with 3rd party enforcement or conservation easements. These provisions will conform to the current NE District of the Corps guidance with the language modified on a case-by-case basis to allow for existing elements such as road easements, road/bridge crossings, hike/bike trails and other activities. Each real estate instrument used must be approved by the IRT. MaineDOT will record a restrictive covenant, easement or similar management agreement for each site added to the UMBT by addendum. This agreement may also be transferable with DE approval, to an acceptable conservation organization (federal, state, private) upon fulfillment of the project objectives.
3.4 Establishment of Credits
An evaluation of the conceptual plan of each bank site will be performed by the IRT to determine an approximation of the credits the MaineDOT could reasonably expect as a result of the proposed mitigation site. This evaluation will provide the justification for continuing with the proposed mitigation site.
The final calculation of credits generated as a result of the individual mitigation sites will be determined by the IRT based on the final plan for each mitigation site as approved by the IRT. Each final plan will describe the design to be implemented accompanied by the credit accounting approved by the IRT. The deposit of site credits in the BI will be implemented via a BI addendum.
3.5 Use of Credit
The following types of projects may be eligible to use the UMBT:
MaineDOT projects that require authorization under the Corps with a Category II or Individual Permit (IP) under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act and/or Permit-by-Rule (PBR), Tier II, IP under DEP Chapter 310 of NRPA, and a Land Use Regulations Commission (LURC) Full Permit under Section 10.25,P,1,b,(2), in consultation with the other regulatory and resource agencies. These regulatory agencies will determine the eligibility of such projects to use the UMBT on a case-by-case basis. Once the Corps and/or DEP have determined that mitigation in the UMBT is ecologically preferable to other options, mitigation may be provided by the use of the mitigation credit from the UMBT.
3.6 Crediting/Debiting and Accounting Procedures
MaineDOT will be responsible for accounting for credits and debits in the UMBT. MaineDOT will use a separate ledger for each mitigation bank site. The accounting ledger will be developed in consultation with the IRT. The MaineDOT and IRT will follow the guidelines established by the Corps and EPA in the Rule for accounting procedures.
Each credit for mitigation will be comprised of the appropriate accounting metric determined via the IRT consistent with the terms of the BI or plan addenda, unless modified in future guidelines established through mitigation guidance documents prepared by the permitting agencies.
4.0 Disclaimer
The BI will not in any manner supersede or alter the statutory authorities and responsibilities, regulations, policies and guidance of the signatory agencies or any other agency.
5.0 Geographic Service Area
The geographic service area (GSA) for the UMBT will be statewide. Specific plans will identify which of the state’s 19 biophysical region(s) will be serviced by a specific project (see attached Bailey’s Ecoregional Provinces, Sections, and Subsections of Maine – Maine Natural Areas Program (MNAP) 2008).
6.0 MaineDOT’s Obligations
MaineDOT agrees to: Establish and/or maintain the mitigation sites and ownership until:
a. Banking activity is voluntarily terminated through written notice by MaineDOT with the approval of the IRT, or
b. A third party stewardship organization adopts the responsibilities of long-term site management/maintenance with DE approval.
Submit to the IRT an annual report describing the condition of each mitigation site in relation to the success criteria outlined in the final plan and credit/debit ledgers for each bank site.
Develop necessary adaptive management plans and/or implement appropriate remedial actions for mitigation sites in coordination with the IRT in the event a mitigation site fails to achieve the success criteria specified in the final plan.
7.0 IRT’s Obligations
The IRT agrees to follow the time frames defined in the Rule on regulations governing compensatory mitigation.
8.0 Permits
MaineDOT will obtain all documentation, permits and other authorizations required to establish and maintain the UMBT.
9.0 MaineDOT’s Qualifications
MaineDOT is the largest development entity in the state with 25 years of experience in wetland mitigation project development. The department has built some 85+ sites during its tenure ranging in size from 158 s/f to 1050 acres. A dedicated Mitigation Unit staff has consistently provided high quality technical/scientific expertise in all project phases involving wetland restoration, creation, enhancement and preservation. The Unit understands the role wetland functions and values play in natural ecosystems and how they affect the quality of life for all living things. The staff’s combined mitigation experience is 51 years and has a highly successful track record for meeting or exceeding regulatory performance standards and permit requirements. The Mitigation Unit understands the importance of delivering successful, highly productive, cost efficient mitigation projects and is accountable for the functional replacement of unavoidable wetland impacts caused by MaineDOT projects.
10.0 Financial Assurance Requirements
MaineDOT spends on average approximately $2 million/year on wetland compensation projects. Most of this funding has Federal Highway Administration participation. The financial abilities of MaineDOT to meet the mandated compensatory mitigation obligations have always been a top priority when obtaining and meeting the requirements of a project permit. MaineDOT will continue to provide successful planning, implementation and monitoring to meet the required performance standards for each banked mitigation site.
MaineDOT will provide financial assurances for each bank site as part of individual plans. Acceptable forms of financial assurances will be established in the BI.
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