Part 3 of 3: What to Do If Permittee-Responsible Mitigation is Your Only Route

A plain language explanation of the PRM process

When your project’s impacts to water resources are unavoidable and above regulatory pre-set thresholds, you are responsible for compensatory mitigation.  We reviewed in Part 1 how to navigate the process, and in Part 2 why purchasing mitigation bank or in-lieu fee program credits are the Corps’ preferred methods.

There may be situations in which banks and in-lieu programs are not options.  Bank or in-lieu fee program credits may not be available in your project watershed or even nearby watersheds.  Your project may impact aquatic resources designated as an Outstanding National Resource Water, Exceptional State Water, or an impaired water (303[d] List) – making a permittee-responsible mitigation (PRM) project more ecologically beneficial.  Or perhaps, though the Corps has approved bank or in-lieu credits, your local agency is resistant to mitigation benefits that fall outside of the impacted area inside their jurisdictional boundary.  That means you, as the permit applicant, are responsible for designing and constructing a wetland mitigation project on land that you own or are in control of (you will need to convince the Corps to accept your PRM project).

The Corps has three preferences when it comes to PRM projects (listed in order of Corps preference):

1. PRM using a Watershed Approach
2. PRM that is On-Site and In-Kind
3. PRM that is Off-Site and/or Out of Kind

The first preference, using a watershed-based PRM plan, considers the needs of the watershed for improving aquatic habitat and water quality. In other words, watershed-based PRMs address what the watershed needs most in terms of the function and value of the impacted wetland. For example, a PRM plan could address the effects of habitat loss or conversion; cumulative impacts of past development activities; and chronic environmental problems such as flooding or poor water quality within the same 8-digit Hydrologic Unit Code as the proposed project.

The second preference, on-site or in-kind PRM, attempts to replace the specific wetland functions and values at the point of impact.  Because many of these on-site, in-kind PRMs have created highly fragmented or isolated wetlands during development, their ecological value is lower than watershed based PRMs. They have a greater risk of failing if local land use changes alter local hydrology.

Off-site, or out-of-kind PRM is the least desirable option for the Corps.  This type of PRM is generally only acceptable if all other mitigation options are not available.  The Corps will require explanations for why other types of compensatory mitigation are not feasible and how the proposed mitigation plan will offset the proposed impacts to aquatic resources.  Off-site/out-of-kind PRM is typically not considered acceptable and will require a higher level of regulatory review and scrutiny.

There are six stages in the PRM process to secure that the expected watershed functions:

• First, develop the project’s concept and select its general watershed location.
• Second, translate the concept into a set of site design plans intended to secure long-term success.
• Third, acquire or otherwise secure the site (if required) and undertake construction (or needed modifications) according to the design plan.
• Fourth, conduct periodic inspections to determine if construction followed the design plan and design standards have been met.
• Fifth, execute physical annual monitoring to determine whether performance standards are being met and the design is trending toward the target wetlands functions.
• Sixth, obtain regulatory certification that the site has achieved the specified performance criteria and put in place actions to ensure the site is protected and managed in perpetuity.

Our Best Advice:  Draft a Well-Defined Mitigation Project Plan.

If you take the PRM route, the Corps and local regulatory agencies and the public (during a specified public comment period) will provide input in the development of your final mitigation project plan.

At a minimum your PRM plan (same as bank and in-lieu fee credits) must include 12 elements. Here they are, with our “plain language” translations:

Whatever your mitigation mechanism, we are here to help with plain language and expertise. Whether you are a mitigation credit veteran or a first-time purchaser, the compensatory mitigation process can be daunting.  Connect with us to learn more.