20200579 Ver 1_Public Comments_20220606

1
NCERA
April 19, 2022
North Carolina
ENVIRONMENTAL
RESTORATION
ASSOCIATION
Katie Merritt
North Carolina Department of Environmental Quality — Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1617
Delivered electronically to: [e-mail]
Dear Mrs. Merritt,
I am writing on behalf of the North Carolina Environmental Restoration Association (NCERA). As laid
out below, we have significant concerns about the Whirligig Station Nutrient Offset Banking
Instrument that has been proposed by the City of Wilson. Our concerns apply not only to this specific
proposal, but also to the precedent it would set. To our knowledge, this would be the first time that
a local government may establish its own nutrient offset banking instrument with the intent to sell
credits to third parties and compete with private nutrient offset mitigation banks.
Our main concern relates to whether this bank may be established under State law and, if so, the
priority that must be given to private compensatory mitigation banks. G.S. 143-214.11 defines
compensatory mitigation as the "restoration, creation, enhancement, or preservation of
jurisdictional waters required as a condition of a permit issued by the Department or by the United
States Army Corps of Engineers." While this definition does not specifically mention nutrient offset
credits, those credits would satisfy this definition. Thus, nutrient offset credits are a specific type of
compensatory mitigation.
Since 2009, the State has required entities other than governmental agencies to satisfy mitigation
requirements by one of several specific measures. G.S. 143-214.11 prioritizes participation in a
compensatory mitigation bank for non -governmental entities and provides applicable definitions.
The law defines a compensatory mitigation bank as "a private compensatory mitigation bank or an
existing local compensatory mitigation bank." An existing local compensatory mitigation bank is
defined as a mitigation bank operated by a unit of local government that is a party to a mitigation
banking instrument executed on or before July 1, 2011, notwithstanding subsequent amendments to
such instrument executed after July 1, 2011. Finally, the definition of private compensatory
mitigation bank provides that no site owned by a government entity or unit of local government shall
be considered a private compensatory mitigation bank.
A separate statute, G.S. 143-214.26, authorizes the creation of nutrient offset banks by the
Department. This statute does not specifically include the same limitations that apply to
compensatory mitigation banks. However, because nutrient offset credits are a type of
compensatory mitigation, it follows that nutrient offset banks are a specific type of compensatory
mitigation banks. Thus, the limitations applicable to compensatory mitigation banks should apply to
Page 1 of 3

nutrient offset banks as they are a type of compensatory mitigation bank. The specific requirements
for nutrient offset banks do not repeat this general requirement, but there is no reason to do so. In
fact, if limitations applicable to compensatory mitigation banks generally were not intended to apply
to this subset of compensatory mitigation banks, the statutes would have made that distinction clear.
This interpretation was adopted by the Department's predecessor. On October 1, 2008, the
Department of Environment and Natural Resources issued a guidance document entitled
"Implementation of N.C. General Assembly Session Law 2008-152". The document stated that DENR
would apply the requirements of 2008-152 "to mitigation for streams, wetlands, isolated wetlands,
buffers and nutrient offset." (Emphasis added.) Further, in a flow -chart included in the document,
the Department specifically stated that applicants must use credits from "private" banks before
proceeding to the In -Lieu Fee program.
Session Law 2008-152 was entitled "An Act to Promote Compensatory Mitigation by Private
Mitigation Banks as Recommended by the Environmental Review Commission." While the statutes
amended by that law have been amended further since the guidance was issued, the law created the
prioritization of private mitigation banks. That fundamental concept has remained consistent in all
later revisions of the statute. Similarly, while G.S. 143-214.26 was enacted after this interpretation,
nothing in that statute or the rules adopted pursuant to that statute demonstrate a different intent.
The City of Wilson's proposed Whirligig Station Nutrient Offset Banking Instrument clearly does not,
and cannot, satisfy the definition of a compensatory mitigation bank. By definition, a compensatory
mitigation bank is a private compensatory mitigation bank or an existing local compensatory
mitigation bank. Because the site is owned by the City of Wilson, it cannot qualify as a private
compensatory mitigation bank. Similarly, because the bank was not in existence as of July 1, 2011, it
cannot qualify as an existing local compensatory mitigation bank. Because it fails to satisfy either
condition, it cannot be a compensatory mitigation bank.
The Department should rule that the City of Wilson's proposed Whirligig Station Nutrient Offset
Banking Instrument does not, and cannot, qualify as a nutrient offset bank. Nutrient offset banks are
a specific type of compensatory mitigation bank. If an entity cannot satisfy the definition of a
compensatory mitigation bank, it cannot satisfy the definition of a nutrient offset bank. This is
consistent with previous guidance issued by the Department's predecessor and does not conflict with
any statutes enacted or rules adopted since that time.
The prioritization for private compensatory mitigation banks is based on sound public policy and
applies equally in the case of nutrient offset banks. This prioritization recognizes that there is an
inherent conflict of interest in allowing a government entity to both require mitigation efforts and to
sell credits to satisfy that requirement. Therefore, a private entity may use payments in lieu of
participation in a compensatory mitigation bank only when the latter option is not available. The
same logic applies to the specific type of compensatory mitigation at hand here — nutrient offset
credits. Given the legislature's clear prioritization of private compensatory mitigation banks, the
Department should apply these same limitations and priorities to nutrient offset banks.
Page 2 of 3

In addition to our concern about the legality of whether a local government may establish a nutrient
offset bank, we have concerns about the precedent that this would set and the practical impact it
would have on the Department and other industry stakeholders. The Department already faces
significant constraints with respect to the timely approval of permit applications. While the approval
of a single application to establish a nutrient offset bank does not significantly affect those
constraints, allowing local governments to establish nutrient offset banks could add significant
additional burdens in the future and could push the application process to the breaking point.
We believe that many nutrient offset banks established by local governments would most likely be
relatively small. However, these applications would require review by the Department and, if the
nutrient offset bank was established, ongoing monitoring. We believe that the additional burdens
placed on the Department and the impact that could have on private industry would outweigh the
relatively small amount of additional nutrient offset credits that would be generated by these banks.
In conclusion, the City of Wilson's proposed Whirligig Station Nutrient Offset Banking Instrument
does not satisfy the requirements for a compensatory mitigation bank. For this reason, the
Department should rule that the proposed Whirligig Station Nutrient Offset Banking Instrument
cannot satisfy the requirements for nutrient offset bank, a specific type of compensatory mitigation
bank. This is consistent with previous interpretations by the Department's predecessor that have not
been overruled by subsequent changes to statutes, rules, or announced interpretations. Even if the
Department determines that projects owned by a local government can form the basis of a nutrient
offset bank, it should evaluate the impact of this application on the industry as a whole and deny the
application as not in the best interest of the State.
Feel free to contact me with any additional questions or comments.
Sincerely,
Kayne Van Steil, President
North Carolina Environmental Association
Page 3 of 3

2
Greene Environmental Services (GES) is providing the following information to
argue against the City of Wilson's Public Mitigation Bank:
1. Unfair competitive advantage
Research/literature describing competitive advantage (Michael Porter)
suggests that permitting public entities to participate in the private
marketplace can result in an unfair competitive advantage in favor of the
public sector entity. The proposed City of Wilson Mitigation Bank dearly
falls within this description. Examples of competitive advantage in this case
include taxes (or the lack thereof), land acquisition costs,
legal/administrative costs, rent, utilities, etc.
In addition, the NOBI exempts the City of Wilson from securing a third party
to provide permanent conservation easement stewardship. Securing a
third -party permanent conservation easement is a very expensive private
bank requirement.
2. Legislative intent
We argue that the DWR's interpretation that the City of Wilson's Mitigation
bank is allowed under the mitigation banking rules does not address
legislative intent. Specifically, current legislation describes the
limitations/parameters of public entities in the private marketplace.
GS148-128 Authorization for Correction Enterprises requires the following:
• Generate sufficient funds from sales to be self-supporting (wages,
capital, administrative costs, etc.
• Sales are limited to public agencies, cities, counties, and tax exempt
organizations. Sales can be made to private contractors, but only when
goods purchased will be used to perform work under contract with a
public agency.
• DWR's City of Wilson Public Mitigation Bank NOBI does not include any
of these requirements/restrictions.

3. CAPEX/Risk management disruption
Greene Environmental Services has a significant investment in the Neuse 03
service area. Our investment/allocation of risk management capital was
based on a known set of risk management factors. The introduction of a
subsidized public mitigation bank with the ability to sell in the private
marketplace was never envisioned as a potential competitor. For example,
in the past two and a half years, GES has sold 1500 pounds of Nitrogen
credits to the City of Wilson. The introduction of almost 2000 pounds of
"subsidized" public mitigation credits would effectively eliminate GES from
the City of Wilson credit market. We argue that the City of Wilson could
simply give their credits away without suffering any significant financial
harm. This raises the question of how private mitigation banks are to
evaluate/allocate risk capital if DWR is allowed to use rule interpretation to
create new subsidized marketplace competition. Competitors in this case
are not held to the same marketplace realities that the private sector
participants are required.
In closing, the introduction of publicly subsidized mitigation banks into the
private marketplace is effectively the transfer of private sector profits to
government. Add the fact that millions of dollars of CAPEX expenditures become
at risk with this transfer. Disruption of capital investment is a certainty. If the
introduction of subsidized public mitigation banks is the goal of DWR and
municipalities, we strongly suggest that this should be accomplished through the
legislative process, not through rule interpretation.

3
From: Merritt, Katie
To: Barrett Jenkins
Cc: Huisman, John
Subject: RE: [External] FW: Wilson Whirligig
Date: Wednesday, April 6, 2022 2:18:00 PM
Attachments: DENR release SL 2008 152 v4 1.pdf
Barrett,
Thank you for your comments. I will record this as a public comment for the subject project, which
is on Public Notice until April 19, 2022. DWR will respond to your comment once the public
comment period has closed and DWR has had the time to compile all comments received.
Thank You.
From: Barrett Jenkins[mailto:[e-mail]]
Sent: Wednesday, April 6, 2022 12:47 PM
To: Merritt, Katie <[e-mail]>
Subject: [External] FW: Wilson Whirligig
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an
attachment to Report Spam.
Katie,
FYI, not sure if this falls under your scope directly or others but I figured I would check in with John
as he was the contact originally referenced for the attached policy.
Any more background you can provide on whether DENR will still uphold a preference for third
parties to first use private mitigation banks vs public would be appreciated as the NCERA will likely
be following this very closely and obviously this sets a precedent that threatens many members
existing nutrient offset banks.
Thanks,
Barrett
From: Barrett Jenkins
Sent: Wednesday, April 06, 2022 12:32 PM
To: Huisman, John <[e-mail]>
Subject: Wilson Whirligig
John,
I just saw the public notice for the City of Wilson's nutrient offset bank and the NCERA members
have been discussing the implications of this as it appears Wilson is attempting to and NCDENR has

approved Wilson selling nutrient offset credits to third parties.
I just wanted to get some clarification from you all on how you see this working relative to DENRs
historic position that private mitigation banks, whether stream wetland buffer or nutrient have
preference over public mitigation banks such as the one proposed.
Give me a call if you get a chance to discuss.
Thanks,
Barrett
512.230.0424

October 1, 2008 For General Release
A77A
,21F1
NCDENK
Ecosystem
Ennantement
PROGRAM
Implementation of N.C. General Assembly Session Law 2008-152
The purpose of this document is to communicate to N.C. Department of Environment and Natural Resources
partners and customers how the department will implement SL 2008-152, An Act to Promote Compensatory
Mitigation by Private Mitigation Banks. This document describes what actions will be taken by the Division of
Water Quality (DWQ) and the Ecosystem Enhancement Program (EEP), two NCDENR agencies whose policies
and procedures are affected by the law. The act places additional obligations on permit applicants before they
can access the EEP In -Lieu Fee (ILF) program.
Applicability and Regulatory Effect
• The requirements of the law complements existing statutory and rule requirements, and will be applied
to mitigation for streams, wetlands, isolated wetlands, buffers and nutrient offset.
• The law totally or partially overrides the following existing DWQ rules: 15A NCAC 2H .0506(h)(1);
15A NCAC 2H .0506(h)(3); 15A NCAC 2H .1305(g)(1); and 15A NCAC 2H .1305(g)(3)
• Applicant -provided mitigation is still approvable by DWQ, when suitable, even when a private bank has
credits available in the hydrologic unit.
• The law is applicable to mitigation that is required for compliance associated with violations.
• Mitigation banks developed by public entities are not subject to preferences expressed in the law for
private mitigation banks.
Definitions
"Available mitigation credit" is considered to mean that credits in the amount requested have been released
for sale at the time of the request. If credits are available through a private mitigation bank, applicants are
required to use the bank to fulfill their compensatory -mitigation requirements (unless they choose to provide
the mitigation themselves).
Procedures
The flow charts on subsequent pages are intended to offer a step-by-step guide to permit applicants needing to
comply with this law. In general the following process will be followed:
1. Permit applicants will be responsible for ensuring compliance with the law. EEP and DWQ will assist
applicants by notifying them of the new requirements and directing them to applicable information on
the Web. EEP and DWQ both will provide updated links and information on their Web sites:
http://www.nceep.net/pages/ILF Program intro.html and
http://h2o. enr. state.nc.us/ncwetlands/documents/mitigation_banks.doc
2. DWQ will provide on their Web site a listing of approved mitigation banks, their locations, contact
information and credit types available as a reference for permit applicants (see Web links in previous
item). Applicants to EEP's ILF programs will need to refer to this Web site for up-to-date information
on banks in their hydrologic unit prior to submitting a request to EEP for mitigation.
1

3. Applicants will need to contact mitigation banks operating in the eight -digit hydrologic unit where the
impact will occur directly to determine credit availability prior to submitting an ILF request form to
EEP for mitigation.
4. Beginning Oct. 1, 2008, users of EEP's Nutrient Offset Program will need to provide evidence of their
compliance with SL 2008-152 prior to obtaining a letter of verification from their local government.
Payments into the Nutrient Offset Program cannot be accepted without written verification of
compliance with SL 2008-152 from the local government. Payments approved by local governments
prior to Oct. 1, 2008 are not subject to this law. Those participants may access EEP's ILF program as
planned, or pursue other options to satisfy their nutrient reduction requirements.
5. Applicants will be asked to verify that they have complied with SL 2008-152 upon submittal of an ILF
request form to EEP. EEP's mitigation request form has been updated to include written
acknowledgement by the applicant of the law's requirements and compliance with it.
6. EEP's acceptance letters and receipts have been revised to include the following statement: "You must
also comply with all other state, federal or local government permits, regulations or authorizations
associated with this activity including SL 2008-152, An Act to Promote Compensatory Mitigation by
Private Mitigation Banks."
7. Once an applicant has determined that credits are not available from a private mitigation bank, the
applicant may use EEP's ILF program, as long as the EEP acceptance letter is current (i.e., unexpired).
EEP's acceptance letters currently expire nine months from issuance and can be renewed upon request
from an applicant.
8. Mitigation acceptance letters that were issued by EEP prior to Oct. 1, 2008 and that are unexpired are
considered valid and will be honored.
9. Credits secured through EEP's ILF program are not transferable to another applicant.
Contacts
DWQ — For streams, wetlands and buffers:
For nutrient offset:
EEP:
Eric Kulz, Mitigation Review Coordinator
919-715-9050
[e-mail]
John Huisman, Environmental Senior Specialist
919-807-6463
[e-mail]
Kelly Williams, In -Lieu Fee Coordinator
919-716-1921
[e-mail]
2

Applicant Avoids
and Minimizes
Impacts to
Stream, Wetland
and Buffer
CEnd Process
Yes
•
►( Begin Process
Applicants
Continues
Through 4
Permit
Process
From the DWQ
PMB List, Are Sufficient
Credits Available From PMB
in Impacted Hydrologic
Unit? (Click
here for
List)
►
Applicant Seeks
CAMA/401 /404
Permit for
Wetland,
Stream, or
Buffer Impacts
Applicant Consults
COE/DCM/DWQ
as Needed to
Discuss Mitigation
Options
Permit Applicant Process for Stream,
Wetland and Buffer Mitigation
Permit application will not
be processed by
permitting agencies until
mitigation plan is final.
Applicant Considers Mitigation Options. Options
Available are:
Option 1. Private Bank (THIRD -PARTY)
Option 2. EEP - In -Lieu Fee (THIRD -PARTY)
Option 3. Permittee Responsible Mitigation
Applicant Must
Use Option 1 -
Private Mitigation
Bank (PMB)
♦
Applicant Follows
Bank's Procedures
to Obtain Letter of
Credit Reservation
to Submit with
Permit Application
•
CProcess Ends )
Yes
Does Applicant Prefer
Third Party Mitigation?
Bank procedures are likely to differ
from bank to bank. Applicants
must discuss payment, receipt &
refund procedures with each
banking firm.
Do
Permit Agencies
Accept Use of ILF
rogram as Mitigatio
Plan?
Applicant Submits
Acceptance Letter Yes
with Permit
Application
Yes-*
Applicant Sends
Copies of Permits to
EEP's ILF Coordinator
for Invoicing
•
Applicant May
Access Option 2 -
EEP's In -Lieu Fee
Program
•
PDefinitions
lr)" Third -Party Mitigation: Mitigation done by an entity
C' other than the permittee, typically an In -Lieu Fee
`, Program or Private Mitigation Bank.
Private Mitigation Bank (PMB): Private businesses that
develop and sell mitigation credits.
Letter of Credit Reservation: Document that demonstrates
that mitigation credits are being held for an applicant.
Permittee Responsible Mitigation: Mitigation done by a
company or individual receiving a permit.
Applicant Sends Completed ILF
Request and Session Law 2008-152
Compliance Form to EEP ILF
Coordinator (Click here to See Session
Law 2008-152)
•
EEP Reviews
Mitigation Request
and Makes
Acceptance
Decision
Does EEP
ccept Request?
►
Applicant Consults
with Permit
Agencies
Applicant/Agent
Receives Invoice
from EEP
Process Ends)
Applicant Chooses
Option 3 - Applicant
► Completes Mitigation
working with Permit
Agency
Click Here for
ILF Request
Form
►
Applicant Makes
Payment/EEP
Issues Receipt/
EEP is
Responsible for
Mitigation
Process Ends)
<Process Ends)
3

CBegin Process
Permit Applicant Process
for Nutrient Mitigation
(End Process
Applicant Must Buy
Credits From Private
Bank
Applicant Seeks
Stormwater Permit
From Local
Government
Applicant Offsets
Nutrients Onsite as
Needed and Acquires
Stormwater Permit &
Proceeds With Project
As Permitted And
Designed
t Yes
DWQ Reviews
and
Authenticates
Available
Credit
Amounts for
Private Bank.
Applicant
Submits
Verification of
Available Credit,
Credit
Specifications &
Receipt For
Payment from
Bank to Local
Government
End Process
Do
Private Banks That
Have Sufficient
Credits Exist Withi
HU?
No
Applicant Does Stormwater
Calculations To Determine
Nitrogen And Phosphorous
Release From
Development Project
Does
Applicant Wish to Use
Buydown Option to
Offset Nutrient
Yes
s Buydown
Allowable and
Approved by Local
overnment
Yes
Local Government
Advises Applicant
To Determine If
Credits Are
Available From
Private Banks
•
Applicant Checks For
Private Banks Offering
Nutrient Credits Within
Hydrologic Unit Using
DWQ Website - by
Clicking Here
Definitions
;-1
Hydrologic Unit (HU): The 8-digit drainage basin identification
number as identified by the U.S. Geological Survey.
Private Mitigation Bank (PMB): Private businesses that
develop and sell mitigation credits.
Applicant May Access ILF
Program
Bank Procedures are Likely
Differ from Bank to Bank.
Applicants Must Discuss
Payment, Receipt & Refund
Procedures with Each
Banking Firm.
Applicant Works with
Local Government on
Alternate Reduction
Strategies
♦
(End Process)
Local Government Writes
Verification Letter Stating
Applicant Has Complied with SL
2008-152 & Can Access ILF
N.O. Program (Click Here for
SL 2008-152)
•
Applicant Submits
Verification Letter
& Payment To
EEP's ILF
Coordinator
•
Applicant
Receives Receipt
from EEP
•
EEP Sends
Receipt To Local
Government For
Release Of
Stormwater Permit
End Process)
4

DWR Staff found this December 2008 Memo and sent it to Barrett Jenkins showing that the
October 2008 memo he included in his comments was not the final version
Updated December 18, 2008 For General Release
1 • OF WATER
NCDENR n - -
E0wstem ancement
PROGRAM
Implementation of N.C. General Assembly Session Law 2008-152
The purpose of this document is to communicate to N.C. Department of Environment and Natural Resources
partners and customers how the department will implement SL 2008-152, An Act to Promote Private
Compensatory Mitigation by Private Mitigation Banks. This document describes what actions will be taken by
the Division of Water Quality (DWQ) and the Ecosystem Enhancement Program (EEP), two NCDENR agencies
whose policies and procedures are affected by the law. The Act places additional obligations on permit
applicants before they can access the EEP In -Lieu Fee (ILF)-Program.
Applicability and Regulatory Effect
• The requirements of the law complement existing statutory and rule requirements, and will be applied to
mitigation for streams, wetlands and isolated wetlands. The law does not apply to the state's nutrient
offset and buffer programs.
• The law totally or partially overrides the following existing DWQ rules: 15A NCAC 2H .0506(h)(1);
15A NCAC 2H .0506(h)(3); 15A NCAC 2H .1305(g)(1); and 15A NCAC 2H .1305(g)(3)
• Applicant- provided mitigation is still approvable by DWQ, when suitable, even when a private bank
has credits available in the hydrologic unit.
• The law is applicable to mitigation that is required for compliance associated with violations.
• Mitigation banks developed by public entities are not subject to preferences expressed in the law for
private mitigation banks.
Definitions
"Available mitigation credit" is considered to mean that credits in the amount requested have been released
for sale at the time of the request. If credits are available through a private mitigation bank, applicants are
required to use the bank to fulfill their compensatory mitigation requirements (unless they choose to provide
the mitigation themselves).
Procedures
The flow chart at the end of this document is intended to offer a step-by-step guide to permit applicants needing
to comply with this law. In general the following process will be followed:
1. Permit applicants will be responsible for ensuring compliance with the law. EEP and DWQ will assist
applicants by notifying them of the new requirements and directing them to applicable information on
the web. EEP and DWQ will both provide updated links and information on their Web sites
(http://www.nceep.net/pages/mitigate.htm and
http://h2o. enr. state.nc.us/ncwetlands/documents/mitigation_banks.doc).
2. DWQ will provide on its Web site a listing of approved mitigation banks, locations, contact information
and credit types available as a reference for permit applicants (see Web links in previous item).
1

Applicants to EEP's ILF programs for stream and wetland mitigation will need to refer to this Web site
for up-to-date information on banks in their hydrologic unit prior to submitting a request to EEP for
mitigation.
3. Applicants will need to contact mitigation banks operating in the eight -digit hydrologic unit where the
impact will occur directly to determine credit availability prior to submitting an ILF request form to
EEP for mitigation.
4. Applicants will be asked to verify that they have complied with SL 2008-152 upon submittal of an ILF
request form to EEP. EEP's mitigation request form has been updated to include written
acknowledgement by the applicant of the law's requirements and compliance with it.
5. EEP's acceptance letters and receipts have been revised to include the following statement: "You must
also comply with all other state, federal or local government permits, regulations or authorizations
associated with this activity including SL 2008-152, An Act to Promote Compensatory Mitigation by
Private Mitigation Banks."
6. Once an applicant has determined that credits are not available from a private mitigation bank, the
applicant may use EEP's ILF program, as long as the EEP acceptance letter is current (i.e., unexpired).
EEP's acceptance letters currently expire nine months from issuance and can be renewed upon request
from an applicant.
7. Mitigation acceptance letters that were issued by EEP prior to Oct.1, 2008 and that are unexpired are
considered valid and will be honored.
8. Credits secured through EEP's ILF program are not transferable to another applicant.
Contacts
DWQ:
EEP:
Eric Kulz, Mitigation Review Coordinator
919-715-9050
[e-mail]
Kelly Williams, In -lieu Fee Coordinator
919-716-1921
[e-mail]
2

12/18/2008
Applicant Avoids
and Minimizes
Impacts to
Stream or
Wetland
CEnd Process
Applicant Seeks
CAMA/401/404
►( Begin Process ► Permit for
Wetland or
Stream Impacts
Applicant
Continues
Through
Permit
Process
Yes
•
For the Stream/Wetland
Portion, Applicant Must
Use Option 1 - Private
Mitigation Bank (PMB)
•
Applicant Follows
Bank's Procedures
to Obtain Letter of
Credit Reservation
to Submit with
Permit Application
♦
(Process Ends)
Applicant Consults
USACE/DCM/
DWQ as Needed
to Discuss
Mitigation Options
Permit Applicant Process for Stream
and Wetland Mitigation
Permit application will not
be processed by
permitting agencies until
mitigation plan is final.
Applicant Considers Mitigation Options. Options
Available are:
Option 1. Private Bank (THIRD -PARTY)
Option 2. EEP - In -Lieu Fee (THIRD -PARTY)
Option 3. Permittee Responsible Mitigation
From the
DWQ
PMB List, Are
Sufficient Credits
Available From PMB in
Impacted
Hydrologic
Unit?
Yec
Does
Applicant Prefer Third
Party
Mitigation?
(Click here for
PMB List)
Bank procedures are likely to differ
from bank to bank. Applicants
must discuss payment, receipt &
refund procedures with each
banking firm.
Do
Permit
Agencies Accept
Use of ILF Program as
Mitigation Plan? Note:
Mitigation plan must be
approved by permitting
agencies prior to
permit
issuance
Applicant Submits
Acceptance Letter
and/or mitigation t
plan with Permit
Application
Yes —
Applicant Sends
Copies of Permits to
EEP's ILF Coordinator
for Invoicing
Yes
company or individual receiving a permit.
•
Applicant May
Access Option 2 -
EEP's In -Lieu Fee
Program
1
Applicant Sends Completed ILF
Request and Session Law 2008-152
Compliance Form to EEP ILF
Coordinator
EEP Reviews
Mitigation Request
and Makes
Acceptance
Decision
Applicant/Agent
Receives Invoice
from EEP
Applicant
Chooses Option
3 - Applicant
► Completes
Mitigation
working with
Permit Agency
♦
Click Here for
ILF Request
Form
Applicant Makes
Payment/EEP
Issues Receipt/
EEP is
Responsible for
Mitigation
Definitions
Third -Party Mitigation: Mitigation done by an entity
other than the permittee, typically an In -Lieu Fee
Program or Private Mitigation Bank.
Private Mitigation Bank (PMB): Private businesses that
develop and sell mitigation credits.
Letter of Credit Reservation: Document that demonstrates
that mitigation credits are being held for an applicant.
Permittee Responsible Mitigation: Mitigation done by a , 1
1
Process Ends)
Process Ends 1
Applicant Consults
with Permit
Agencies
►(Process Ends)