La. Admin. Code tit. 43 § I-724

Current through Register Vol. 50, No. 5, May 20, 2024

Section I-724 - Rules and Procedures for Mitigation

A. General. This Section provides general procedures for avoiding and minimizing adverse impacts identified in the permit review and consistency authorization review processes, restoring impacted sites when appropriate, quantifying anticipated unavoidable coastal resources ecological value losses, requiring appropriate and sufficient compensatory mitigation, reviewing and establishing mitigation banks and/or in-lieu-fee programs, and evaluating and processing requests for variances from the compensatory mitigation requirement.

B. Avoidance, Minimization, and Restoration of, and Compensation for, Ecological Losses of Coastal Resources Values

1. The secretary shall not grant a coastal use permit or issue a general permit or consistency authorization for an individual activity unless the permit process includes evaluation of the following:

a. any locations, designs, methods, practices, and techniques which may be required, following a thorough review of §§701-719, to avoid and minimize those adverse impacts identified during the permit review and consistency review processes;

b. any locations, designs, methods, practices, and techniques which may be required, following a thorough review of §§701-719, to restore impacted sites when appropriate; and

c. a requirement for compensatory mitigation to offset any net loss of coastal resources ecological value that is anticipated to occur despite efforts to avoid, minimize, and restore permitted/authorized impacts (i.e., unavoidable net loss of coastal resources ecological value), unless a variance is granted pursuant to §724. K.

2. If the secretary determines that a proposed activity would comply with §701-719 and would not result in a net loss of coastal resources ecological values, the secretary shall not require compensatory mitigation.

3. When a proposed oil and gas exploration site would impact coastal resources, the determination regarding the avoidance and minimization of adverse impacts and impact site restoration for the proposed exploration activity and its associated production and transmission activities shall be made through the geologic review procedure. Additionally, the geologic review procedure will be used if:

a. there are environmentally or administratively sensitive features impacted;

b. the project appears likely to have significant secondary impacts (e.g., saltwater intrusion into adjacent wetlands) that could be avoided via alternate locations; or

c. the secretary determines it is necessary.

4. In addition to the requirement contained in §724. B.3, the secretary may utilize the geologic review procedure, when requested by the Louisiana Department of Wildlife and Fisheries (LDWF), to render the determination regarding avoidance and minimization of adverse impacts, and impact restoration and mitigation, for proposed oil and gas exploration activities and associated production and transmission activities which would:

a. occur within 1/4 mile of an oyster seed ground, oyster seed reservation, or a public oyster harvesting area;

b. impact other oyster or other shell reef(s);

c. occur within the boundaries of a wildlife refuge or wildlife management area owned or managed by LDWF;

d. occur within an area designated as a natural and scenic river in accordance with the provisions of R.S. 56:1840 et seq.; or

e. impact unique and/or sensitive coastal habitats (e.g., salt domes, beaches, dunes, reefs, Cheniers, etc.).

C. Quantification of Anticipated Net Gains and Unavoidable Net Losses of Ecological Value

1. Anticipated net gains and unavoidable net losses of coastal resources ecological value shall be quantified as cumulative habitat units (CHUs) or average annual habitat units (AAHUs), whichever is most appropriate. For wetlands, there are several evaluation methods, for other coastal resources, appropriate accepted evaluation methods will be used where practical.

2. CHUs represent the total number of habitat units gained or lost over the life of a project, where net gain or net loss of coastal resources ecological value = (sum of CHUs produced in a future-with-project scenario) - (sum of CHUs produced in a future-without-project scenario).

3. AAHUs represent the annualized number of habitat units gained or lost as a result of a project where, net gain or net loss of coastal resources ecological value = (AAHUs produced in a future-with-project scenario) - (AAHUs produced in a future-without-project scenario). AAHUs = (sum of CHUs for a given scenario) / (project years).

4. Gains and unavoidable losses of ecological value will be determined as follows:

a. for marsh habitats, the June 2009 (or later revision when appropriate), version of the Wetland Value Assessment Methodology Coastal Marsh Community Models (WVA); or

b. for bottomland hardwoods and fresh swamp, the January 10, 1994, or later version of "Habitat Assessment Models for Fresh Swamp and Bottomland Hardwoods Within the Louisiana Coastal Zone" (Model).

5. The secretary may use any certified or accepted peer-reviewed and/or authored habitat evaluation methodology, or a combination of an appropriate habitat evaluation methodology and best professional judgment to determine net gains and unavoidable net losses of ecological value.

D. Compensatory Mitigation Processing Fees

1. In addition to the fees identified at §723. C.3.a.i-ii, when the secretary determines that compensatory mitigation would be required pursuant to §724. B, a fee shall be charged for the evaluation, processing, and determination of compensatory mitigation requirements. The fee shall apply regardless of which compensatory mitigation option is selected and shall be in addition to any cost incurred to implement the required compensatory mitigation. The requested permit or general permit authorization for an individual activity shall not be issued until the secretary has received the compensatory mitigation processing fee. This fee shall be determined as follows.

a. Noncommercial activities which directly impact 1.00 acre or less of vegetated wetlands shall be assessed a compensatory mitigation processing fee of $50.

b. All other activities shall be assessed a compensatory mitigation processing fee according the following table.

Vegetated Wetland Acres Depicted as Directly Altered in Accepted Permit Application	Compensatory Mitigation Processing Fee
0 - 0.50	$ 150
0.51 - 1.00	$ 300
1.01 - 2.00	$ 600
2.01 - 3.00	$ 900
3.01 - 4.00	$ 1,200
4.01 - 5.00	$ 1,500
5.01 - 10.00	$ 2,250
10.01 - 15.00	$ 3,750
15.01 - 25.00	$ 6,000
25.01 - 100.00	$12,500
100.00	$15,000

2. Unless waived or reduced by the secretary, the compensatory mitigation processing fee shall apply even if the secretary grants a full variance to the compensatory mitigation requirement pursuant to §724. K.

E. Compensatory Mitigation Options

1. Compensatory mitigation shall be accomplished through one or more of the following compensatory mitigation options as approved by the secretary:

a. implementation of an individual mitigation measure or measures to offset the unavoidable ecological value losses associated with the permitted activity, pursuant to §724. H;

b. use or acquisition of an appropriate type and quantity of mitigation credits from a mitigation bank approved by the secretary, pursuant to §724. F, or use of an appropriate type and quantity of mitigation credits from a bank that has been approved by the secretary after department review of that bank's mitigation banking instrument, once that instrument is executed by a USACE district engineer;

c. monetary contribution to the Louisiana Wetlands Conservation and Restoration Fund (coastal mitigation account), pursuant to §724. I; and

d. other compensatory mitigation options determined to be appropriate by the secretary.

F. Mitigation Banks

1. The secretary shall provide, without charging a fee, potential mitigation bank sponsors an opportunity to present a preliminary proposal and to receive informal input from the department prior to formally initiating the review process described in the remainder of this Subsection.

2. The secretary shall consider proposals by federal and state agencies, boards, commissions, departments, political subdivisions, corporate bodies, local governing bodies, and private persons or entities to establish wetland mitigation banks. In all cases when a proposed mitigation bank would have impacts on coastal waters, the secretary shall ensure that the department's rules and regulations are incorporated into the review process and agreement document prior to the department becoming a signatory agency.

3. All formal proposals for establishing mitigation banks shall be considered as follows:

a. applications for mitigation bank formal review must be submitted in writing and contain the following:

i. the mitigation bank initial evaluation fee identified in Paragraph 3 of this Subsection;

ii. if the mitigation bank must be permitted, the applicant must state that all necessary permits have been obtained;

iii. a scope of work that does the following:

(a). identifies the coastal resources or habitat restoration activity that the applicant is proposing (e.g., marsh creation, shoreline protection, planting, etc.);

(b). describes the proposed construction activities; and

(c). provides information on how the proposed restoration activity will establish and/or sustain coastal plant communities;

iv. a detailed explanation providing the reasons the proposed site requires coastal resources re-establishment or habitat restoration (i.e., What is the coastal resource or habitat problem or opportunity and why is the proposed measure needed? For example: the shoreline is retreating, the site is a prior converted coastal resource with restoration opportunity, the existing habitat is degraded, etc.);

v. on-site habitat loss rates. The average land loss rate (acres-per-year) and the shoreline erosion rate (linear feet per year) shall be provided;

vi. geographic location. The exact limits/location (latitude and longitude) of the proposed coastal resources or habitat restoration site, center coordinate (GCS NAD 83), plan view plats with the exact coordinates for all boundary corners, and a legal description of the property including section, township, range, and parish where the restoration is to occur;

vii. a list of landowner(s) and addresses for the proposed coastal resources or habitat restoration site; and

viii. the extent of the proposed work: total acreage benefited by the proposed work;

ix. a detailed description of the existing site condition. A description of the soils, drainage patterns/hydrology, and a list all manmade structures occurring on the site shall be provided. Based on the conditions of the site, the secretary may request additional site information;

x. list the proposed habitat type(s): as forested wetland, fresh marsh, intermediate marsh, brackish marsh, saline marsh, fresh swamp, submerged aquatic vegetation and/or bottomland hardwoods;

xi. a long-term protection and maintenance plan (Marsh creation/restoration sites shall be maintained for 20 years, forested wetland sites shall be maintained for 50 years.). A plan for establishing coastal resource vegetation in the event the initial planting fails; a plan for invasive and exotic species management; and a plan for all maintenance and/or management activities (include all timber stand improvement activities);

xii. a planting plan shall include:

(a). planting density of trees per acre;

(b). seedlings size and type of container;

(c). number of marsh grass transplants planted;

(d). size of marsh grass transplants and type of container;

(e). number of total acres to be planted; and

(f). expected survival rate after two growing seasons;

xiii. submittal information:

(a). the party responsible for the submittal and the name of the applicant or landowner;

(b). the domiciliary address;

(c). the name of the agent or contact if different from applicant; and

(d). the mailing address of the agent if different.

4. In determining the acceptability and appropriateness of establishing a mitigation bank, the secretary shall consider the following factors:

a. the entirety of the potential mitigation bank sponsor's history of compliance with governmental programs, including, but not limited to, federal, state, county/parish and local laws, rules and/or regulations;

b. the time period the mitigation bank sponsor can operate and maintain the mitigation bank through the life of the bank (i.e., 20 years for marsh mitigation banks or 50 years for forested wetland mitigation banks) as outlined in the mitigation banking instrument;

c. the mitigation bank's potential to create, restore, protect, enhance, and/or under certain circumstances, preserve coastal resources;

d. the mitigation bank's potential effect (positive or negative) on coastal resource values such as fish and wildlife habitat (particularly rare habitat or habitat for rare fauna), floodwater storage, water quality improvement, storm surge protection, etc.;

e. the mitigation bank's potential effect (positive or negative) on lands and coastal resources values adjacent to or in the vicinity of the bank;

f. whether the proposed project is included on, consistent with, or in conflict with any state and/or federal project list, general plan, or other effort designed to create, restore, protect, enhance, or preserve coastal resources, including, but not limited to, the Louisiana Comprehensive Master Plan for a Sustainable Coast and any future such plan as well as any iteration or revision of such plan.

5. The secretary will process applications for mitigation banks according to §723 and consistent with operating procedures and federal regulations on consistency at 15 CFR 930. All necessary federal, state, and local authorizations required to construct the mitigation bank must be obtained by the bank sponsor. In addition to the fees identified at §723. C.3.a.i-ii, nonrefundable fees shall be charged for the initial evaluation, habitat evaluation, establishment, and periodic review of mitigation banks according to the following table.

Proposed Mitigation Bank Acreage	Informal Review	Initial Evaluation Fee	Habitat Evaluation Fee	Establishment Fee	Periodic Review Fee
0 - 100	$0	$ 75	$ 350	$ 75	$ 50
101 - 500	$0	$150	$ 700	$150	$100
501 - 1,000	$0	$225	$1,050	$225	$200
1,001 - 5,000	$0	$300	$1,400	$300	$300
5,000	$0	$375	$1,750	$375	$400

a. Within 90 days of the secretary's acceptance of the request as complete, the secretary shall render a preliminary determination as to whether the project would be acceptable as a mitigation bank and:

i. if the project is preliminarily determined to be acceptable as a mitigation bank, the secretary shall inform the potential sponsor of such determination in writing; or

ii. if a project is preliminarily determined to be unacceptable as a mitigation bank, the secretary shall advise the potential bank sponsor, in writing, of the reasons for such a determination and, if applicable, the secretary may suggest modifications which could render the project preliminarily acceptable as a mitigation bank; and

iii once the project is preliminarily determined to be acceptable as a mitigation bank, the secretary shall require the potential bank sponsor, within 30 days of written notice, to remit the mitigation bank habitat evaluation fee.

6. Within 90 days of receipt of the mitigation bank habitat evaluation fee, the secretary, in collaboration with the members of the interagency review team (IRT), shall determine the quantity, by habitat type, of mitigation habitat credits potentially available for donation, sale, trade, or use from the proposed mitigation bank as follows.

a. The secretary shall invite the members of the IRT and the potential mitigation bank sponsor to participate in the determination of potential mitigation habitat credits. The secretary shall consider the comments of the members of the IRT and the potential mitigation bank sponsor made during each field investigation or other meeting held to determine the type and quantity of potentially available mitigation habitat credits.

b. The total quantity of potential mitigation habitat credits, by habitat type, attributable to the proposed mitigation bank shall be evaluated by applying the methodology described in §724. C. The sponsor shall ensure that data gathering techniques of sufficient quality and intensity are used to allow replication of habitat response assessments throughout the mitigation bank life.

c. Mitigation habitat credits which are donated, sold, traded, or otherwise used for compensatory mitigation shall be referred to as debited credits.

d. The secretary shall render a final determination as to whether the project proposal would be acceptable as a mitigation bank. If the project is determined to be acceptable as a mitigation bank, the secretary and the mitigation bank sponsor shall be a signing party to the mitigation banking instrument which fulfills the requirements of §724. F.7. The mitigation banking instrument shall serve as the formal document which designates a project as a mitigation bank. The Department of the Army (DA), each state advisory agency, and each federal advisory agency may indicate its approval of the mitigation bank by signing the mitigation banking instrument.

e. If a permit modification is necessary and is requested by the permittee in accordance with §723. D, the secretary shall process the request for modification in accordance with §723. D.

7. The formal mitigation banking instrument shall, at a minimum, include the following:

a. a statement of need for bank establishment;

b. a statement describing the goals and objectives of the mitigation bank and timing for performing the specified mitigation;

c. present ownership of the lands upon which the mitigation bank will be located, to include but not limited to:

i. the legal name of the property owner and nature and verification of the arrangement between the landowner and sponsor; and

ii. a statement describing any right not held by the bank sponsor the exercise of which would interfere with the sponsors operation of the bank;

d. total acreage of bank, physical boundaries, a legal description of the property where the bank is to be located, including section, township, range, and parish and a description of baseline conditions, including descriptions and acreage of existing coastal resource types on the property, land uses (prior, existing and projected), topography, description and map of soil types, and description of hydrologic conditions (including location of existing and proposed levees, water control structures, pumps, drainage ditches, and other drainage features);

e. a description of the mitigation plan, that includes but is not limited to:

i types and acreage of coastal resources to be created, restored, protected, enhanced, and/or preserved; and

ii a detailed description of all work that will be conducted to implement the mitigation plan and thereby produce the mitigation habitat credits, pertinent maps, drawings, aerial photography, planting specifications, and all proposed construction features such as plugs, water control structures, dikes, and land leveling;

f. a long-term maintenance and bank management plan that specifies the period of operation and maintenance of the mitigation bank (i.e. 20 years for marsh habitat and 50 years for forested habitat);

g. identification of the habitat assessment methodology utilized to establish the quantity of mitigation to be credited and the performance standards and success criteria to be used to determine credit availability and the need for remedial action;

h. a monitoring plan and reporting protocol;

i. a narrative statement describing contingency and remedial action plans and responsibilities including but not limited to revegetation and invasive and exotic species control;

j. the financial assurance established by the sponsor to guarantee the implementation and long-term management, maintenance, and monitoring of the mitigation bank, which may include a letter of credit, surety bond, escrow account or other mechanism if found to be acceptable by the secretary;

k. a calculation of mitigation habitat credits or mitigation/management potential based on the projected net increase in habitat value of the coastal resource area;

l. the geographic service area for the mitigation bank;

m. a narrative explanation of the credit reporting protocol and accounting procedures to be used by the sponsor for the mitigation bank;

n. the provisions for protecting the mitigation bank, including the details of the conservation servitude or other appropriate protection instrument;

o. a statement that to be effective all modifications, including transfer of ownership, to the mitigation banking instrument must be in writing and executed by all parties to the mitigation banking instrument; and

p. a statement that addresses provisions for force majeure damages.

8. Mechanisms for Ensuring Remediation, Operation, and Maintenance of Mitigation Bank Features

a. Mitigation habitat credits shall be made available to the mitigation bank sponsor incrementally over the life of the bank based on periodic review of provisions specified in the mitigation banking instrument, provided that:

i. the mitigation bank sponsor has established and recorded a conservation servitude pursuant to §724. F.8.b or other appropriate legal instrument for the conservation and/or protection of the property included in the mitigation bank;

ii. the mitigation bank sponsor provides financial assurance that will insure the availability of funds, for the life of the bank, for remediation (as may be needed for expected and unexpected events), operation, and/or maintenance of the mitigation bank;

iii. the mitigation bank sponsor shall provide for long-term maintenance and operation as specified in the mitigation banking instrument. Should the sponsor fail to remediate, operate, or maintain the mitigation bank in accordance with the mitigation banking instrument, corrective actions shall take place as specified in the mitigation banking instrument;

iv. the mitigation banking instrument has been executed by the parties thereto; and

v. the regulatory permit(s) required to perform the mitigative work has/have been issued.

b. If a conservation servitude is utilized for conservation and protection of the property included in the mitigation bank, it shall be established in accordance with R.S. 9:1271 et seq., and shall:

i. cover all the property located within the mitigation bank;

ii. if timber harvesting will occur, contain specific language regarding the extent of allowable timber harvesting;

iii. contain specific language regarding the extent of other allowable activities;

iv. prohibit all other activities which may reduce the ecological value of the site;

v. specify the term to be 20 years or more for marsh habitats and 50 years or more for forested habitats as outlined in the mitigation banking instrument;

vi. designate the holder of the servitude;

vii. convey a third party right of enforcement to any interested mitigation banking instrument signatory or other party as may be mutually agreed to by the secretary and the mitigation bank sponsor; and

viii. be recorded in the official conveyance records of the clerk of court for the parish in which the property is located.

c. The financial assurance established by the mitigation bank sponsor shall be acceptable to the secretary and shall:

i. ensure payment of the designated amount for remediation, operation, or maintenance of the mitigation measures for a period equal to the life of the mitigation bank; and

ii. ensure that such payments would be made to a party designated in the mitigation banking instrument in the event that the mitigation bank sponsor fails to perform the remediation, operation, or maintenance specified in the mitigation banking instrument.

9. Periodic Review

a. When the secretary determines that a periodic review of the mitigation bank habitat value is warranted, which review shall, in any event, occur at least every five years, the sponsor will be notified in writing and an invoice for payment of the periodic review fee will be issued to the bank sponsor.

i. Payment of the fee will be made to the department within 60 calendar days of being requested to do so by the secretary.

ii. Failure to make payment within 60 days may result in suspension or termination of the authority to issue credits.

iii. The state, members of the IRT, and the mitigation bank sponsor may be invited to participate in each mitigation bank success criteria review; the secretary shall give due consideration to the comments of the members of the IRT and the mitigation bank sponsor made during, or received in writing within 20 days of, each field investigation or other meeting related to these reviews.

iv. The purpose of periodic reviews is to:

(a). evaluate actual bank performance based upon the criteria set forth in the mitigation banking instrument;

(b). develop, where possible, suggestions that the bank sponsor may implement to improve and/or enhance habitat function and bank performance; and

(c). determine if any remediation or adjustments to the prescribed operation or maintenance will be required to avoid a reduction in habitat value credit.

b. If any periodic review or field investigation of the bank indicates that the mitigation measures are not functioning as projected, habitat credit issuance and the sale of credits shall be suspended pending the recalculation of projected credits and/or it is demonstrated that the mitigation measures are functioning as predicted.

c. Credits shall be made available to the mitigation bank sponsor in accordance with the credit release schedule contained in the mitigation banking instrument.

10. Use of Mitigation Banks for Meeting Compensatory Mitigation Obligations

a. The mitigation bank shall not be considered operational until the following have been met:

i. the mitigation bank sponsor has submitted to the department the mitigation bank establishment fee (§724. F.5);

ii. the mitigation banking instrument has been executed by the parties thereto and all required regulatory permits have been acquired;

iii. the bank sponsor has satisfied the requirements that it has in place, a satisfactory mechanism for ensuring remediation, operation, and maintenance of mitigation bank features as provided for above in this Section; and

iv. the compensatory mitigation measures described in an executed mitigation banking instrument have been fully implemented; or at least the initial phase of the mitigation measures have been implemented if the executed mitigation banking instrument calls for phased implementation.

b. A permit applicant may acquire, subject to prior approval by the secretary, mitigation habitat credits from the sponsor of an approved mitigation bank to meet compensatory mitigation requirements; the applicant is required to provide written evidence from the bank sponsor to the secretary that such acquisition has taken place; the applicant's responsibility for this component of the compensatory mitigation requirement ceases upon receipt of such evidence by the secretary; mitigation habitat credits may be acquired as compensatory mitigation for activities which are not subject to this Chapter, provided that the secretary is advised of any such transactions; acquired credits shall be debited from available credits.

c. The bank sponsor shall maintain an account of total, available, and debited credits for each approved mitigation bank as set forth in the mitigation banking instrument, and provide an accounting within 30 days of request by the secretary and as specified in the mitigation banking instrument.

11. Any donation, sale, trade, use, or other transfer of mitigation habitat credits, for any purpose other than satisfying compensatory mitigation obligations must receive prior written approval by the secretary, and must be deducted from the amount of available credits.

12. These regulations (as amended) will only be effective after their effective date and any applications for mitigation banks pending as of the effective date of these regulations (as amended) will be governed by the regulations in effect at the time of its filing.

G. Advanced Mitigation Projects

1. The secretary may consider proposals by federal and state agencies, local governing bodies, and private entities to implement pre-approved mitigation measures. Any entity desiring to implement pre-approved mitigation measures shall be required to abide by all requirements and conditions pursuant to §724. J.

2. An applicant may implement a pre-approved mitigation measure to satisfy the compensatory mitigation requirements of a proposed activity or to offset losses caused by a future project impact.

3. The secretary shall determine the acceptability of a pre-approved mitigation measure(s) in accordance with §724. J.

H. Individual Compensatory Mitigation Measures

1. A permit applicant may implement an individual mitigation measure or measures to satisfy the compensatory mitigation requirements of a proposed activity.

2. The secretary shall determine the acceptability of an individual compensatory mitigation measure(s) in accordance with §724. J.

3. The sufficiency of an individual mitigation measure or measures shall be evaluated consistent with the rules and procedures for mitigation provided elsewhere in this section, best professional judgment, or a combination thereof.

4. If an individual compensatory mitigation measure(s) for any one permitted activity fails more than once, the applicant shall be required to purchase credits from a mitigation bank approved in accordance with §724. F or an approved in-lieu-fee program to satisfy all remaining mitigation obligations associated with the permitted activity.

5. The permit applicant shall be responsible for the monitoring of the mitigation measure and shall submit monitoring reports to the secretary at years one, three, five, and every five years for the remainder of the determined project life to be audited by staff to ensure compliance and perform monitoring as required.

a. The secretary may establish a different reporting schedule that is consistent with the current reporting requirements for mitigation banks so that the reporting requirements for individual compensation measures are equivalent to the reporting requirements of mitigation banks of the same habitat type and hydrologic basin.

b. These monitoring reports shall include but are not limited to the following:

i. on the ground photographs taken during the growing season depicting a completed project with the photo date and approximate scale noted;

ii. a detailed narrative summarizing the condition of the project and all regular maintenance activities;

iii. a drawing based upon the site plan that depicts topography with supporting elevation tables, sampling plots, and permanent photo stations; results of tidal monitoring, including mean high and low water elevations;

iv. results of vegetation survey including visual estimates of percentage of overall cover and percent cover by each species, percentage exotic vegetation, total percentage facultative and total percentage upland species in each vegetation layer,

v. survival rate of planted vegetation, an estimate of natural revegetation, and a qualitative estimate of plant vigor.

c. The permit applicant must submit a final report.

I. Monetary Contributions to the Louisiana Wetlands Conservation and Restoration Fund

1. Compensatory mitigation may be accomplished by monetary contribution to the Louisiana Wetlands Conservation and Restoration Fund (Coastal Mitigation Account).

2. Such monetary contributions shall be used to offset anticipated unavoidable net losses of ecological values and shall be selected as the compensatory mitigation option when it is determined that more suitable options are not available to produce the required habitat benefits and replace those habitat units consistent with any plan adopted pursuant to R.S. 49:214.5.3.

3. The secretary shall determine the amount of the monetary contribution. In determining the amount of the monetary contribution, the secretary may consider any of the following factors: state, federal, or other habitat costs (CWPPRA, CIAP, State Surplus), comparative fee programs, and other in-lieu fee programs. The secretary shall maintain an accurate estimate based on actual construction costs for coastal wetland restoration projects and notify the Department of the Army (DA), resource agencies, and all stakeholders of any modifications to the mitigation trust fund contribution amounts.

3. The secretary shall determine the amount of the monetary contribution. Compensation for compensatory mitigation of unavoidable loss to aquatic resources for the DNRs coastal mitigation account shall be determined based on an analysis of the expected costs associated with the re-establishment of the unavoidable loss to aquatic resources in Louisianas deltaic and chenier plains as a result of permitted use, at the time that the mitigation project construction is to be performed.

4. Coastal mitigation account contribution amounts will be derived using a formula. The product of this formula, for the average cost per acre for marsh habitat is the sum of the cost of mobilization, demobilization, construction of containment features, dredging fill, and all other project costs associated with the construction of an appropriate representative sample of similar projects selected from any of the states coastal protection and restoration programs, to include but not limited to the following:

a. Coastal Wetlands Planning, Protection, and Restoration Act (CWPPRA) Program;

b. Coastal Impact Assistance Program (CIAP);

c. state surplus-funded projects; and

d. other coastal restoration or mitigation projects contracted by other political subdivisions of the state of Louisiana and federally contracted projects for the previous three calendar years prior to the year for which the project is to be mitigated.

i. The cost of each of the projects selected to establish the coastal mitigation account contribution amounts, will be divided by the total number of acres created by the selected projects, expressed in dollars per one tenth of an acre.

ii. The assistant secretary of the Office of Coastal Management may apply a market correction factor to prevent any excess charge, or deficiency that may be caused by anomalous market conditions. The application of a market correction factor is necessary, so that all costs associated with project planning and design; construction; plant materials; labor; legal fees; monitoring; account administration; contingency costs appropriate to the stage of project planning, including uncertainties in construction and real estate expenses; and the resources necessary for the long term management, maintenance, and protection of the coastal mitigation account funded project that are expected to be necessary to ensure successful completion of the coastal mitigation account funded projects are captured by the formula.

iii. The market correction factor assures the mitigation liabilities assumed by the fund, are sufficiently compensated by contributions to the fund.

5. The formula for determining the cost per acre fees for forested wetlands is the average of the costs of available mitigation bank credits, nominalized by their mitigation potential, in the coastal zone of Louisiana.

6. These fees shall be reviewed and updated as appropriate, published when updated in the Potpourri section of the Louisiana Register along with a list of the sample projects used for the formula, or the names of the banks surveyed, reasons and supporting documentation for any decision to utilize a market correction factor, and the factor to be used. This information will also be posted on the LDNR website.

J. Selecting Compensatory Mitigation

1. In selecting compensatory mitigation, the secretary shall consider the recommendations and comments of those state and federal agencies which demonstrated an interest in participating in the selection of the appropriate compensatory mitigation during permit processing. The secretary shall also consider the recommendations and comments of the affected parish if the parish has an approved local program and if the parish demonstrated an interest in participating in the selection of appropriate compensatory mitigation during permit processing.

2. The secretary shall ensure that the selected compensatory mitigation, in order of priority, is sufficient, properly located, and accomplished by the most desirable available/practicable option as set forth in §724. E.1. Compensatory mitigation siting shall be consistent with any plan adopted pursuant to R.S. 49:214.5.3.

3. The selected compensatory mitigation proposal must completely offset the unavoidable net loss of coastal resources due to permitted activities, unless a variance is granted pursuant to §724. K.

4. The compensatory mitigation proposal must have an anticipated positive impact on the Louisiana coastal zone or the Louisiana Coastal Wetlands Conservation Plan area and:

a. may be located, in accordance with R.S. 49:214.41(E), on the affected landowner's or landowners' property, provided the secretary determines that the proposed mitigation is acceptable and sufficient;

b. shall be of the same habitat type as the proposed impact or produce ecological values which would be similar to those lost as a result of the proposed impact; and

c. shall be located within the same hydrologic basin as the proposed impact, unless no feasible and sustainable alternatives for compensatory mitigation exist in that basin. Compensatory mitigation shall be consistent with any plan adopted pursuant to R.S. 49:214.5.3.

5. The procedure for selecting compensatory mitigation for proposed activities which would adversely impact coastal resources on one landowner's or multiple landowners' property shall be as follows.

a. If an applicant proposes unavoidable net losses of, or impacts to coastal resources those net losses or impacts shall be quantified. If deemed necessary, a biology field investigation and associated report shall be provided. The secretary shall, within 10 calendar days after submittal of the field investigation report:

i. determine and provide the habitat type and extent (i.e., acreage, duration) of anticipated net losses of, or impacts to coastal resources to the applicant; and

ii. request the applicant to submit, within 40 days of the date of the anticipated impact determination letter, a compensatory mitigation proposal which has been coordinated with affected landowner(s) that have at least 1 acre or more of anticipated net losses of, or impacts to coastal resources.

b. Once the secretary has provided the habitat type and extent of anticipated net losses of, or impacts to coastal resources to the applicant, the applicant shall notify the affected landowner(s) in writing that mitigation may be required within seven calendar days of receipt of the letter from the secretary and furnish proof of such notification; or if a modification request from the applicant is submitted, and such modification would result in a substantive change in net losses or impacts, notification must be sent by the applicant to the landowner(s) within seven calendar days of the verification and quantification of impacts. The applicant's notification to the landowner(s) must include:

i. the habitat type and extent of anticipated net losses of, or impacts to coastal resources to the affected landowner(s);

ii. information on the landowner's or landowners' mitigation options. All options shall be discussed and coordinated between the applicant and landowner(s) and shall include:

(a). suggestions on developing an on-site compensatory mitigation proposal with the applicant when the anticipated net losses of, or impacts to coastal resources to a given landowner's or landowners' property would be 1 acre or more, unless it is determined to be acceptable by the secretary for net losses of, or impacts to coastal resources less than 1 acre;

(b). a request for the landowner(s) whose anticipated net losses of, or impacts to coastal resources is 1 acre or greater to submit a statement indicating his/her mitigation option within 30 days of such a request. Each landowner's or landowners' statement:

(i). shall indicate acceptance of the applicant's compensatory mitigation proposal should that proposal be located on the landowner's or landowners' property;

(ii). shall propose his/her own mitigation proposal should the landowner(s) find the applicant's mitigation proposal unacceptable and provide a written explanation as to why the proposal is unacceptable;

(iii). shall propose and provide a landowner-authored mitigation plan; or

(iv). shall waive his/her option for mitigation on their property.

c. All compensatory mitigation proposals submitted by the landowner(s) or applicant; developed among the landowner(s), applicant, and the secretary; suggested by state advisory agencies, the Department of the Army (DA), or federal advisory agencies; or developed by the secretary shall be considered and shall include the following:

i. a scope of work that provides:

(a). the wetland creation or habitat restoration activity that the applicant is proposing, for example: erosion control, marsh creation, shoreline protection, plantings, etc.;

(b). information as to whether the proposed wetland creation or habitat restoration activity will result in the establishment of coastal plant communities; a description of the proposed construction activities;

ii. an explanation detailing why the proposed site requires wetland creation or habitat restoration and why this measure should be implemented, for example, the shoreline is retreating, the site is a prior converted wetland, existing degraded habitat, and the applicant is proposing this measure to create a wetland or restore a habitat, etc.;

iii. on-site habitat loss rates. Provide the average land loss rate (acres per year) and the shoreline erosion rate (linear feet per year);

iv. the exact limits/location (latitude and longitude) of the proposed habitat restoration site, center coordinate (GCS NAD 83), plan view plats and the exact coordinates on the plan view plats for all boundary corners must be provided;

v. a list of landowner(s) and addresses for the proposed wetland creation or habitat restoration site;

vi. a list of the extent of the proposed work, total acreage benefited and total linear feet benefited;

vii. the existing site condition. Provide a detailed description of the condition of the site; describe the soils; drainage patterns/hydrology; list all existing manmade structures on the site, etc.;

viii. a list of the proposed resulting wetland creation or habitat type(s), for example, forested wetland, fresh/intermediate marsh, or brackish/salt marsh;

ix. a long-term protection and maintenance plan (marsh creation/restoration sites must be maintained for 20 years, forested wetland sites must be maintained for 50 years), plan for re-establishing wetland vegetation if initial planting fails, plan for invasive species management, and also a plan for all maintenance and or management activities (include all timber stand improvement activities);

x. a planting plan (if applicable) shall include:

(a). the type and number of trees per acre that will be planted;

(b). the size of the seedlings that will be planted and the type of container;

(c). the type and number of marsh grass transplants that will be planted;

(d). the size of the marsh grass transplants that will be planted and the type of container;

(e). the total number of acres that will be planted; and

(f). the expected survival rate of all plants after two years;

xi. and provide the following submittal information:

(a). the party responsible for the submittal;

(b). the name of the applicant and/or landowner(s);

(c). the domiciliary address and phone number of the applicant and/or landowner(s);

(d). the name and phone number of the agent or contact if different from applicant; and

(e). the mailing address of the applicant and/or landowner(s) if different from the domiciliary address.

d. A landowner(s) failure to timely accept the applicant's compensatory mitigation proposal as described in §724. J.5.b.ii.(b) or submit a compensatory mitigation proposal as described in §724. J.5.c. shall result in automatic forfeiture of the landowner's or landowners' option to require compensatory mitigation for the subject activity to be performed on the respective property.

e. Where landowner(s) propose separate/multiple compensatory mitigation measures, the secretary shall consider the following factors in selecting compensatory mitigation provided the option is consistent with any plan adopted pursuant to R.S. 49:214.5.3:

i. cost effectiveness of offsetting coastal resources losses via separate/multiple compensatory mitigation measures versus fewer or a single comprehensive compensatory mitigation measure(s);

ii. practicability, on the part of the secretary, of confirming/enforcing implementation, operation, and maintenance of separate/multiple compensatory mitigation measures versus fewer or a single comprehensive compensatory mitigation measure(s); and

iii. the long-term ecological benefits of separate/multiple compensatory mitigation measures versus fewer or a single comprehensive compensatory mitigation measure(s).

f. The secretary shall select the compensatory mitigation according to the following options, provided the option is consistent with any plan adopted pursuant to R.S. 49:214.5.3:

i. individual compensatory mitigation proposal on the affected landowner's or landowners' property;

ii. acquisition of credits from a mitigation bank or approved in-lieu-fee program; or

iii. individual mitigation proposal not on the affected landowner's or landowners' property.

K. Variances from Compensatory Mitigation Requirements

1. Pursuant to the remainder of this Section, the secretary may grant a full or partial variance from the compensatory mitigation requirement (variance) when a permit applicant or consistency authorization applicant has satisfactorily demonstrated to the secretary:

a. that the required compensatory mitigation would render impracticable an activity proposed to be permitted; and

b. that such activity has a clearly overriding public interest.

2. Variance Request Requirements

a. Following the application of §724. B; development of a compensatory mitigation option(s) pursuant to §724. J; and presentation by the secretary (in accordance with §723. C.8.b) of a draft permit, including conditions for compensatory mitigation, the permit applicant may file a variance request with the secretary.

b. The variance request must be filed and resolved prior to initiation of the proposed activity.

c. The variance request must be filed in writing and include the following:

i. a detailed statement explaining why the proposed compensatory mitigation requirement would render the proposed activity impracticable, including supporting information and data; and

ii. a detailed statement demonstrating that the proposed activity has a clearly overriding public interest by explaining why the public interest benefits of the proposed activity clearly outweigh the public interest benefits of compensating for wetland values lost as a result of the activity, including supporting information and data.

d. As part of the requirements of §724. K.2.c, requests for variances for mineral exploration, extraction, and production activities shall include production projections, including supporting geologic and seismographic information; a projected number of new jobs; and the expected duration of such employment opportunities. The secretary shall ensure that any proprietary information is adequately protected.

e. As part of the requirements of §724. K.2.c, requests for variances for mineral transportation activities shall include information regarding the amount of product proposed to be transported; the destination of the product; a projected number of new jobs and their location; and the expected duration of such employment opportunities. The secretary shall ensure that any proprietary information is adequately protected.

f. As part of the requirements of §724. K.2.c, requests for variances for flood protection facilities shall include the following information:

i. a detailed description of the existing infrastructure which would be protected by the flood protection facility, including public facilities (e.g., roads, bridges, hospitals, etc.), residential areas (including approximate number of homes and associated residents), industries, businesses, and include cost benefit ratios;

ii. detailed drawings or photographic documentation depicting the locations of the above infrastructure components;

iii. a detailed description of the extent and severity of past flooding problems and projections of potential damages due to future flooding events; and

iv. a description of nonstructural and structural flood protection and reduction measures which have been undertaken or implemented in the past, or are reasonably expected to occur in the future.

g. As part of the requirements of §724. K.2.c, all requests for variances shall include cost estimates for implementing the proposed project and performing compensatory mitigation.

h. The request shall be accompanied with a nonrefundable filing and hearing fee of $250.

3. Review and Notification by the Secretary

a. The secretary shall review a variance request and inform the applicant of its completeness within 15 days of receipt.

b. If the variance request is not complete or if additional information is needed, the secretary shall request from the applicant, the additional information necessary to evaluate and process the request. If the applicant fails to respond to such request within 30 days, the secretary may advise the applicant that his request will be considered withdrawn. If the request is considered withdrawn, to reinstate the request, the applicant will be required to resubmit the request including any previously requested additional information, accompanied with an additional nonrefundable filing and hearing fee of $250.

c. The secretary shall not issue a variance prior to publishing a "Notice of Intent to Consider a Variance from the Compensatory Mitigation Requirement", and accepting and considering public comments.

d. Within 30 days of the secretary's acceptance of the variance request as complete, the secretary shall review the request, considering the criteria set forth in §724. K.1, and either:

i. notify the applicant of the secretary's intention to deny the request, including his rationale; or

ii. determine that the variance request warrants further consideration and publish a "Notice of Intent to Consider a Variance from the Compensatory Mitigation Requirement."

e. "Notices of Intent to Consider a Variance from the Compensatory Mitigation Requirement" shall be published in the official state journal, and distributed to Joint Public Notice and all persons that submitted comments on the original public notice, and provided to the local governing authority of the parish or parishes where the proposed activity would take place.

f. "Notices of Intent to Consider a Variance from the Compensatory Mitigation Requirement" shall contain the following:

i. name and address of the applicant;

ii. the location and description of the proposed activity;

iii. a description of the area to be directly impacted (acres and habitat types) and quantification of anticipated unavoidable net losses of ecological value;

iv. a description of the compensatory mitigation plan proposed as a condition of permit issuance;

v. a description of the nature and extent of the variance;

vi. a summary of the information presented by the applicant in fulfillment of §724. K.2.c-g;

vii. notification that public comments, including requests for public hearings, will be accepted for 25 days from the date of publication of the "Notice of Intent to Consider a Variance from the Compensatory Mitigation Requirement."

4. Public Hearings on Variance Requests

a. A public hearing shall be held when:

i. requested by the applicant following the secretary announcing his intention to deny a variance request;

ii. the secretary determines that a public hearing is warranted, following a review of comments received during the period described in §724. K.3.f.vii; or

iii. there is significant public opposition to the variance request, or there have been requests from legislators or from governmental agencies or other authorities, or in controversial cases involving significant economic, social, or environmental issues.

b. Public hearings shall be conducted in accordance with §727.

5. Final Variance Decision

a. The secretary shall issue a final variance decision based on full consideration of the criteria set forth in §724. J.1, information submitted by the applicant, comments received during the public comment period, and comments received at the public hearing if one is held. A "statement of finding" described in §724. K.5.b shall be prepared:

i. within 15 days of the closing of the public comment period if the secretary determines that a public hearing is not warranted; or

ii. within 15 days of the public hearing if one is held.

b. The secretary shall prepare a signed final "statement of finding" which explains the reasons for denying a variance or describes why the proposed compensatory mitigation requirement would have rendered the proposed activity impracticable, describes why the public interest benefits of the proposed activity clearly outweigh the public interest benefits of requiring compensation for wetland values lost as a result of the activity; and describes the nature and extent of the granted variance. This statement shall be part of the permit record, available to the public, and attached to the granted permit.

c. The final variance decision is subject to reconsideration as described at R.S. 49:214.35.

6. Duration of Variance

a. A variance shall be valid only for the original permit recipient. Any party receiving a transferred permit may seek a variance, through the procedures established by §724. K.2-5.

b. A variance shall be valid for the initial terms of the permit to which it is specifically related, unless the variance is modified, or revoked in accordance with §724. K.7.

c. The secretary may extend a variance, in accordance with §723. D.5, concurrently with the extension of the permit to which it is specifically related.

7. Modification or Revocation of Variance

a. If requested by the applicant, the secretary shall consider modifying a variance, according to the procedures described in §724. K.2-5.

b. The secretary may revoke a variance, if:

i. there are inaccuracies in the information furnished by the applicant during the permit or variance review period;

ii. there is any violation of the conditions and limitations of the permit to which the variance is specifically related;

iii. there is any violation of the conditions and limitations of the variance;

iv. the applicant misrepresented, without regard to intent, any material facts during the variance or permit review period; or

v. the actual public interests of the activity turn out to be significantly less than that estimated by the applicant in its statements filed in association with the variance request review.

c. The procedure for revoking a variance shall be as follows.

i. The secretary shall, in writing, inform the variance holder that revocation is being considered, providing reasons for the potential revocation and advising the variance holder that he will be given, if requested within 10 days from receipt of the notice, an opportunity to respond to the reasons for potential revocation.

ii. After consideration of the variance holder's response, or if no response is received, the secretary shall provide written notice to the variance holder, allowing the variance to remain valid or explaining newly imposed compensatory mitigation requirements.

La. Admin. Code tit. 43, § I-724

Promulgated by the Department of Natural Resources, Office of the Secretary, LR 21:835 (August 1995), amended by the Department of Natural Resources, Office of Coastal Management, LR 39:1474 (June 2013), LR 39:2775 (October 2013), LR 40:88 (January 2014), LR 40:1010 (May 2014), Amended by the Department of Natural Resources, Office of Coastal Management, LR 39:1474 (June 2013), LR 39:2775 (October 2013), LR 40:88 (January 2014), LR 40:1010 (May 2014), LR 40:2594 (12/1/2014).

AUTHORITY NOTE: Promulgated in accordance with R.S. 49:214.41.