Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-5A-6 - Compensatory Mitigation6.1. The Department may require the applicant, as a condition of certification, to compensate for aquatic resources lost through compensatory mitigation and/or monetary compensation. If mitigation/compensation is required, necessary agreements will be executed prior to certification.6.2. Compensatory Mitigation Requirements. 6.2.a. For permanent stream impacts/losses to aquatic resources where a Section 404 permit is required, compensatory mitigation projects shall be completed consistent with 33 CFR Part 332, effective date April 10, 2008, as required by the Federal Clean Water Act, for the types and locations of waters impacted.6.2.b. For temporary stream impacts/losses to aquatic resources where a Section 404 permit is required, compensatory mitigation projects shall be completed consistent with 33 CFR Part 332, effective date April 10, 2008, as required by the Federal Clean Water Act, for the types and locations of waters impacted at a prorated amount of three percent (3%) per year, or portion thereof. Temporary stream impacts or losses to aquatic resources projected to last longer than 20 years shall be mitigated pursuant to the rate for permanent stream impacts or losses set forth in subdivision 6.2.a. above.6.2.c. Compensation for wetlands must occur for impacts cumulatively greater than one-tenth (1/10) acre and above at the following ratios: 6.2.c.1. Impacts to open water wetlands are to be replaced at a ratio of one (1) unit created for each unit impacted.6.2.c.2. Impacts to emergent wetlands are to be replaced at a ratio of two (2) units created for each unit impacted.6.2.c.3. Impacts to scrub-shrub type wetlands are to be replaced at a ratio of three (3) units created for each unit impacted.6.2.c.4. Impacts to forested wetlands are to be replaced at a ratio of three (3) units created for each unit impacted.6.2.c.5. If a forested or scrub shrub wetland is converted to an emergent wetland it is to be mitigated at a ratio of two (2) units created for each unit impacted.6.2.d. An applicant for a proposed project who desires to provide compensatory in-kind mitigation prior to the disturbance of the resource, will comply with the following criteria: 6.2.d.1. Mitigation ratio will be at one (1) unit created to every one (1) unit impacted.6.2.d.2. Mitigation shall be completed 12 months prior to the impact of the resource. Full credit realization will be dependent upon the success criteria set forth in the mitigation plan.6.2.d.3. Mitigation plans will meet the review and approval of the Department of Environmental Protection and Division of Natural Resources. Satisfactory completion will be determined by concurrence of DEP and DNR prior to final approval of mitigation obligation.6.2.e. In certain instances, the Secretary may consider the acquisition of existing wetlands. All wetlands acquired, using the acquisition method of mitigation, shall either be deeded to the West Virginia Division of Natural Resources Office of Lands and Streams for management by the Wildlife Resources Section or placed under a conservation easement and be protected from disturbance by the permittee or their designee. Acquisition ratios are the following:6.2.e.1. Five (5) units to every one (1) unit for open body wetlands;6.2.e.2. Ten (10) units to every one (1) unit for wet meadow wetlands and;6.2.e.3. Fifteen (15) units to every one (1) unit for scrub-shrub and forested wetlands.6.2.f. Monetary mitigation for permanent stream or wetland impacts will be assessed consistent with 33 CFR Part 332 methodologies and rates, effective date April 10, 2008.6.2.g. Monetary mitigation for permanent wetland impacts will be assessed consistent with 33 CFR Part 332 methodologies and rates, effective date April 10, 2008, provided the replacement ratios in 6.2.d. are incorporated.6.2.h. A payment plan over three (3) years may be allowed, provided that the Department receives the compensation prior to impacting a water of the U.S.6.2.i. Where payment or compensation projects are deferred, the Secretary may require the applicant to post a payment bond in a form satisfactory to the Secretary, to be effective until compensation is made or the in-kind project is satisfactorily completed. The bond shall be released upon satisfactory completion of compensation or payment as determined by the Secretary.6.2.j. In lieu of monetary compensation, applicants can make in-kind donations of land that would be suitable for lake development, water resources improvement or creation, or the creation of facilities associated with recreation. Such sites must have the approval of both, the Division of Natural Resources, Wildlife Resources Section and the Department.6.2.k. Impacts to Recreational Resources Associated with Section 10 Permits. 6.2.k.1. Where monetary compensation is the agreed upon mitigation for impacts to recreational resources associated with Section 10 permits, compensation shall be at a rate of $150 per linear foot for single-row barge fleeting areas. For multiple-row barge fleeting areas, the rate shall be $2 per square foot of occupied river. The Secretary will not consider the percentage of time the fleeting area may be vacant in this calculation.6.2.k.2. The Secretary may consider and approve non-monetary mitigation proposals for impacts to recreational resources associated with Section 10 permits on a case-by-case basis.6.2.l. The Secretary, consistent with values determined appropriate by the West Virginia Division of Natural Resources for replacement of fish, shall require compensation for loss of fish caused by impingement or entrainment at FERC regulated hydropower facilities.6.3. Monitoring Requirements. 6.3.a. The permittee shall monitor a compensatory mitigation site until the Secretary determines that the permittee has met the success criteria outlined in the restoration plan.6.3.b. The permittee shall submit monitoring reports yearly until the Secretary determines that the project is complete and has been successful for three consecutive years.