I. INTRODUCTION
In order for wetland restoration and banking program pilot to succeed, the hurdle posed by the Department’s existing performance standards for replication of altered wetlands must be eliminated. 310 CMR 10.55 (4)(b) establishes the general rules for replication of permitted wetland alterations. The regulations require the replicated area to be approximate in size, shape, location and to have a hydraulic connection to the same water body or waterway as the altered wetland. The Wetland Bank cannot generally meet these site specific requirements. Therefore, unless the bank is in very close proximity to the altered wetland, there are two options available:
(1) to change the general performance standards for all replication of wetlands, or
(2) to create a special regulatory process for allowing a constructed or restored wetland to be used as a wetland and restoration bank.
Due to the nature of the wetland restoration banking program as a pilot, we believe the latter option is preferable as a limited project under the Department’s regulations. Withdrawals from the Wetland Bank would also be through a limited project application under the regulations.
II. IMPLEMENTATION
Under the proposed pilot we would envision the following scenario:
A. CREATION AND RESTORATION
A Notice of Intent will be filed with the Conservation Commission to create or restore a wetland area that is not otherwise dedicated for replication or restoration for an existing project, to be used as a Wetland Bank. In order to be considered as a Wetland Bank, general criteria would be established by regulation that would require the Wetland Bank to perform certain wetland functions in the protection of the interests of the Wetlands Act. Constructed and restored wetlands would be classified in the same categories as wetlands identified under the Act and regulations including wet meadows, swamps, forested wetlands, etc. Under the terms of this limited project application, once the Wetland Bank was approved and constructed, other parties could make withdrawals from the Bank.
B. WITHDRAWAL
In order to make a withdrawal or seek credit from the pilot Wetland Bank, the Applicant will file a Notice of Intent with its local Conservation Commission seeking permission to construct the project and to use a Wetland Bank for replication rather than replicating on site. The approval to use the Wetland Bank would be from the local Conservation Commission that approved the Project. No approval from the Conservation Commission that approved the creation of the Wetland Bank would be required. The Conservation Commission would then decide whether the withdrawal from the Wetland Bank would be allowed rather than replicating on site. The formula for withdrawal would be as follows: The decision would be made on the basis of whether, in the Commission’s opinion, a withdrawal from the Wetland Bank would contribute to the protection of the interests of the Act and meet the performance standards under the limited project section.
III. WETLAND BANK LANGUAGE
The following wetland bank limited project provisions should be added to the Department’s regulations.
A. Limited Project at 10.53 (3)(t): The construction of a new wetland or the restoration of a wetland to be used as a Wetland Bank and as credit for compensatory replication for permitted wetland impacts or alterations. In order to be eligible to be used as a credit for compensatory replication, the Wetland Bank must provide the wetland functions of a specific wetland type as determined by qualified personnel and must have an approved Bank Enabling Instrument. The Bank Enabling Instrument shall be consistent with and include the requirements listed in the Pilot Wetlands Banking Project Memorandum of Agreement dated January 30, 1998, as may be modified.
B. 10.53(3)(u): Off-site wetland mitigation that allows credit for wetland alteration from a Wetland Bank at a location separate from the wetland affected by the Project, provided that the issuing authority finds that said off-site mitigation substantially replaces the in kind functions of the altered wetland; or provided that the issuing authority approves out-of-kind mitigation. Off-site mitigation shall come from the same watershed, unless it is not available or not feasible. Said off-site mitigation shall be at a minimum of 1:1 restoration or replication of vegetated wetlands for fills on the same reach of a stream as the bank site, 1.2:1 for fills on the same branch of the stream, and 1.5:1 for fills in the same watershed. No bank withdrawals would be allowed for fills not in the same watershed as the bank site. Out-of-kind mitigation may be allowed only if the issuing authority determines that in-kind mitigation is not technically feasible or if the issuing authority determines that out-of-kind mitigation is preferable to in-kind mitigation and shall be at a 2:1 restoration credit.
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