Wetland and Shoreland Zoning Tools
In Lieu Fee Mitigation Funds
While grants from state, federal, and private sources together with local fund-raising activities provide much of the capital for land protection and habitat restoration throughout the state, Maine's mitigation requirements for unavoidable environmental impacts offer another tool that well-prepared municipalities can take advantage of to achieve locally identified habitat restoration and preservation goals. Additionally, Maine's newly created in lieu fee program (ILF) for wetland compensation may further facilitate municipal participation in the mitigation process by providing a source of dedicated funds that can implement pre-identified land protection and restoration projects involving significant wetlands.
Mitigating adverse environmental impacts to wetlands and significant wildlife habitat is an integral part of Maine's Natural Resources Protection Act (NRPA) (38 M.R.S.A. § 480 A - BB), a regulatory program administered by the Maine Department of Environmental Protection (DEP). In general, resource mitigation is a sequential process of avoiding adverse impacts whenever possible, minimizing those impacts that cannot be practicably avoided, and compensating for those that cannot be further minimized. Depending on the type of activity requiring mitigation and the type of mitigation offered by the developer, land is protected anywhere from a 1 to 1 acre ratio up to 8 acres for each acre disturbed. Typically, the developer offers a proposed approach to mitigation, and the proposal is approved, modified, or rejected by the review agency.
In formulating a proposal, applicants for development undertake a mitigation site search in the area surrounding the project site. This site search results in several alternative approaches to mitigation that are then submitted to the review agency. Recently, developers have been using Beginning with Habitat data to strategically identify significant areas that would result in greater mitigation value. Municipalities that are pro-active in identifying potential mitigation opportunities within their town borders are in a much better position to actually have these projects implemented by private developers in search of local alternatives. This local "readiness" may also provide an additional incentive that could attract local economic development. The identification of potential mitigation projects (significant habitat preservation and wetland restoration in the form of restoring hydrology and buffers for example) can be one result of a local open space planning effort (refer to the Open Space Planning section).
The recently created ILF program is a new twist on the state's approach to compensatory mitigation. ILF allows developers and others to pay a fee, rather than have a mitigation project selected when they impact wetlands in their development projects. The accumulated fees are then used toward the restoration, enhancement, protection or preservation of other nearby mitigation projects that are pre-qualified based on their ability to provide similar functions and values. The goal of the in lieu fee mitigation program is to ensure there is no "net loss" of wetlands by identifying projects with the greatest chance for success and having a third party use ILF funds to implement the projects.
How ILF Works
In those cases where wetland impacts are unavoidable, under the NRPA, a permit applicant can pay a fee in-lieu to compensate for the impacts they propose in their development plans. The fee amount is based upon the compensation costs that would be otherwise necessary to restore, enhance, create or preserve wetlands with similar functions or values to the one effected. The fee is banked in an account to be managed by a third party and the accumulated funds can then be spent on projects that restore, enhance, or preserve other wetlands and bordering uplands with similar functions and values that are located within the same biophysical region as the permitted disturbance.
Possibilities for Identifying ILF Projects
Aside from managing ILF funds, the third party administering organization will be responsible for identifying eligible projects through application/proposal process and by conducting a review of key areas such as Beginning with Habitat Focus Areas of Statewide Ecological Significance in each biophysical region. Towns conducting open space plans or similar systematic inventory and prioritization efforts could identify potential projects and submit them as candidates to the organization administering ILF. The ILF program allows the DEP to create a more systematic process for wetland mitigation in the State and provides the opportunity to undertake more ecologically meaningful compensation projects. By combining the fees into a single fund, the ILF program also provides a vehicle through which larger, more comprehensive mitigation projects can be accomplished than is typical for a single applicant. It can also be used to restore a variety of wetland types of varying sizes at a number of locations.
When projects are identified, using the accumulated ILF funds, the DEP may enter into an enforceable, written agreement with a public, municipal or a private nonprofit organization for the restoration or protection of these areas. The organization must demonstrate the ability to receive compensation fees, and ensure that compensation projects are implemented and the lands protected in perpetuity.
The utilization of ILF funds can be a good way for municipalities and land trusts to meet their land and habitat protection objectives. Through their strategic conservation plan, comprehensive plan or open space plan, land trusts and towns have the opportunity to identify high value wetlands and habitat protection opportunities in their area. The process described in the Open Space Planning section of this document to identify local focus areas, and the Wetlands Characterization Map offered by Beginning with Habitat, for example, can be good starting points for land trusts and towns to identify potentially high value mitigation projects.