The State Regulatory Context for Wetland Mitigation Banking and In-Lieu-Fee Mitigation

The State Regulatory Context for Wetland Mitigation Banking

In addition to the federal guidelines developed to govern the creation and use of wetland mitigation banks, some states have developed their own statutes, regulations, or guidelines. Twenty-three states have either statutes or regulations to authorize the use of wetland mitigation banks. Specifically, 12 states have both state statutes and regulations to authorize the use of wetland mitigation banks.[1] Nine states have only statutes,[2] while two states, Michigan and Ohio, have only regulations. Idaho currently has a proposed statute addressing wetland mitigation banks, and New Hampshire and Washington have proposed regulations.

Eight states have chosen to issue guidelines to govern the use of wetland mitigation banks, rather than to enact or adopt statutes and regulations.[3] Ten states with statutes and regulations have also issued guidelines.[4] Six of these 10 guidelines expand upon the statutes and regulations.[5] When this report describes state guidelines, it is referring to the eight states that only have guidelines and the six that have expanded their formal programs by guidelines (the remaining four guidelines simply mimic the state statutes). Delaware and Illinois have draft guidelines to address the operation of wetland mitigation banks.

Some counties have adopted legislation that is stricter than the applicable state or federal regulations. Permittees wishing to develop in certain counties must then comply with the county requirements in addition to the state and federal requirements. Examples of counties that have adopted banking programs include DuPage County, Illinois; King County, Washington; and Pierce County, Washington.

The State Regulatory Context for In-Lieu-Fee Mitigation

In addition to the federal guidelines developed to govern the creation of in-lieu-fee programs, some states have developed their own statutes, regulations, or guidelines to supplement the federal requirements for in-lieu-fee programs. Nine states have authorized statutes and/or regulations that address the establishment of in-lieu-fee programs.[6] Specifically, three states, Florida, New Jersey, and North Carolina, have statutes and regulations that address in-lieu-fee programs. Four states, Louisiana, Maryland, Oregon, and Pennsylvania, just have regulations, and two states, Maine and Virginia, just have statutes.

Three states, Arizona, Colorado, and South Carolina, have chosen to just issue guidelines regarding in-lieu-fee programs, rather than to formally promulgate statutes and regulations. Maryland has issued guidelines in addition to its regulation addressing in-lieu-fee programs, and Pennsylvania and Virginia have also issued guidelines in addition to their state statutes addressing in-lieu-fee programs.

Last updated July 2002.

[1] Arkansas, Florida, Illinois, Louisiana, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Texas, and Wisconsin.

[2] California, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia, Washington, and Wyoming.

[3] Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Missouri, and South Carolina.

[4] Arkansas, California, Kentucky, Maryland, Minnesota, Oregon, Virginia, Washington, Wisconsin, and Wyoming.

[5] California, Kentucky, Minnesota, Virginia, Washington, and Wisconsin.

[6] Florida, Louisiana, Maine, Maryland, New Jersey, North Carolina, Oregon, Pennsylvania, and Virginia.

Cite: Environmental Law Institute. 2002. “Banks and Fees: The Status of Off-Site Wetland Mitigation In the United States” Washington, DC: Environmental Law Institute. <www2.eli.org/wmb>. July 2002.