Proposed Wetland Mitigation Rules Not Ready For Prime Time

Gregory H. Smith
Director & Chair, Administrative Law Department and Managing Director of State Capital Office
December 1, 2003

Co-written by Timothy Fortier.

In an effort to simplify the wetland permitting process and enhance predictability for applicants engaged in this process, the Department of Environmental Services (DES) is currently (Fall 2003) developing new wetland mitigation rules.

It is standard practice to provide mitigation compensation in the form of conservation easements or wetland replication in connection with permitted dredging and filling. Under the DES proposal, dated October 1st, “compensatory mitigation” means creation of a new wetland, restoration of a wetland, or preservation of land to offset the impact of a project by replacing or partially replacing wetlands functions and values lost due to the project, or by substituting the value added to a wetland or wetland system for the functions or values lost.

In conjunction with this, DES has proposed a formulaic approach and a table of Compensatory Mitigation Ratios which requires the applicant to calculate the amount of compensatory mitigation that must be provided to the State for ultimate permit approval.

Although this table is designed to make the process simpler, clearer and more predictable, there are serious concerns whether or not this is the best approach for New Hampshire.

Advocates from the business community have supported the mitigation table approach believing it eliminates the need for negotiations with DES officials over the size and nature of the mitigation on projects which meet the table’s criteria. According to this view, the table will work for both small and large projects, under all types of environmental conditions, and make mitigation criteria consistent across the State for all projects.

Environmental advocates, however, have expressed a different view, suggesting the science of wetland creation is still not fully developed or understood and the proposed mitigation table is premature until the results of long-term projects are better understood scientifically. These groups believe the formulaic, table approach can not adequately account for site specific assessment of functions and values. Moreover, they argue, these ratios should only serve as a guide to project developers. These groups have requested the Department conduct more stakeholder meetings and receive more public input before these rulemaking proceedings are completed.

Currently State and federal policy sets an objective of “no net loss” of wetlands functions and values, by development projects which involve dredging and filling of wetlands. This does not automatically translate into a 1:1 areal formula. In order to meet this goal, the Department should be very careful to develop an approach which emphasizes analysis of function and values over strict quantitative comparison of the area. The Department should ensure that wetlands are viewed within their ecological context, and not simply in a “one size fits all” formulaic approach. The size of a proposed wetland impact should not be the primary or driving criteria for determining necessary mitigation.

The proposed mitigation table is an ill-advised policy development for several reasons. Beyond the scientific reasoning advanced above, there are serious constitutional weaknesses in such an approach. The primary reason is it may be unconstitutional in its current format. The New Hampshire Supreme Court has struck down attempts to provide similar mathematical formulas or numerical assessments in the past. Impact fees assessed at 7.5% of the total acreage of any proposed subdivision as a condition of subdivision approval is illegal. Instead, mitigation of land development impacts must be tailored to the specific burdens of the project.

The table does not provide a complete evaluation of wetland functions, and could result in increased confusion rather than simplification, or simply produce unfair or wrong results in individual cases. In recognition of these concerns, the federal mitigation program uses case by case comparisons of functions and values lost to proposed mitigation. This is more scientifically sound and legally defensible. Like our State Supreme Court, the U.S. Supreme Court has ruled that such assessments against private interests must bear a nexus with the burden on public interest to be mitigated.

In conclusion, although the proposed mitigation table may give the appearance of simplicity, it will have an inevitable tendency to produce unfair or inadequate results. The evaluation of wetlands is a qualitative exercise, not a quantitative one. There is no clear relationship between the functions and values assessment process and the ratios provided in DES’ proposed mitigation table.