West Virginia Code of State Rules › Agency 47 - Water Resources, Division Of Water And Waste Management › Title 47 - LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION OF WATER RESOURCES › Series 47-05A - Regulations for State Certification of Activities Requiring Federal Licenses and Permits › Section 47-5A-6 - Compensatory Mitigation

Current through Register Vol. XLI, No. 28, July 12, 2024
6.1. The
				Department may require the applicant, as a condition of certification, to
				compensate for aquatic resources lost through compensatory mitigation and/or
				monetary compensation. If mitigation/compensation is required, necessary
				agreements will be executed prior to certification.
6.2. Compensatory Mitigation Requirements.
6.2.a. For permanent stream impacts/losses to
				aquatic resources where a Section 404 permit is required, compensatory
				mitigation projects shall be completed consistent with 33 CFR Part 332,
				effective date April 10, 2008, as required by the Federal Clean Water Act, for
				the types and locations of waters impacted.
6.2.b. For temporary stream impacts/losses to
				aquatic resources where a Section 404 permit is required, compensatory
				mitigation projects shall be completed consistent with 33 CFR Part 332,
				effective date April 10, 2008, as required by the Federal Clean Water Act, for
				the types and locations of waters impacted at a prorated amount of three
				percent (3%) per year, or portion thereof. Temporary stream impacts or losses
				to aquatic resources projected to last longer than 20 years shall be mitigated
				pursuant to the rate for permanent stream impacts or losses set forth in
				subdivision 6.2.a. above.
6.2.c.
				Compensation for wetlands must occur for impacts cumulatively greater than
				one-tenth (1/10) acre and above at the following ratios:
6.2.c.1. Impacts to open water wetlands are
				to be replaced at a ratio of one (1) unit created for each unit
				impacted.
6.2.c.2. Impacts to
				emergent wetlands are to be replaced at a ratio of two (2) units created for
				each unit impacted.
6.2.c.3.
				Impacts to scrub-shrub type wetlands are to be replaced at a ratio of three (3)
				units created for each unit impacted.
6.2.c.4. Impacts to forested wetlands are to
				be replaced at a ratio of three (3) units created for each unit
				impacted.
6.2.c.5. If a forested or
				scrub shrub wetland is converted to an emergent wetland it is to be mitigated
				at a ratio of two (2) units created for each unit impacted.
6.2.d. An applicant for a proposed
				project who desires to provide compensatory in-kind mitigation prior to the
				disturbance of the resource, will comply with the following criteria:
6.2.d.1. Mitigation ratio will be at one (1)
				unit created to every one (1) unit impacted.
6.2.d.2. Mitigation shall be completed 12
				months prior to the impact of the resource. Full credit realization will be
				dependent upon the success criteria set forth in the mitigation plan.
6.2.d.3. Mitigation plans will meet the
				review and approval of the Department of Environmental Protection and Division
				of Natural Resources. Satisfactory completion will be determined by concurrence
				of DEP and DNR prior to final approval of mitigation obligation.
6.2.e. In certain instances, the
				Secretary may consider the acquisition of existing wetlands. All wetlands
				acquired, using the acquisition method of mitigation, shall either be deeded to
				the West Virginia Division of Natural Resources Office of Lands and Streams for
				management by the Wildlife Resources Section or placed under a conservation
				easement and be protected from disturbance by the permittee or their designee.
				Acquisition ratios are the following:
6.2.e.1.
				Five (5) units to every one (1) unit for open body wetlands;
6.2.e.2. Ten (10) units to every one (1) unit
				for wet meadow wetlands and;
6.2.e.3. Fifteen (15) units to every one (1)
				unit for scrub-shrub and forested wetlands.
6.2.f. Monetary mitigation for permanent
				stream or wetland impacts will be assessed consistent with 33 CFR Part 332
				methodologies and rates, effective date April 10, 2008.
6.2.g. Monetary mitigation for permanent
				wetland impacts will be assessed consistent with 33 CFR Part 332 methodologies
				and rates, effective date April 10, 2008, provided the replacement ratios in
				6.2.d. are incorporated.
6.2.h. A
				payment plan over three (3) years may be allowed, provided that the Department
				receives the compensation prior to impacting a water of the U.S.
6.2.i. Where payment or compensation projects
				are deferred, the Secretary may require the applicant to post a payment bond in
				a form satisfactory to the Secretary, to be effective until compensation is
				made or the in-kind project is satisfactorily completed. The bond shall be
				released upon satisfactory completion of compensation or payment as determined
				by the Secretary.
6.2.j. In lieu of
				monetary compensation, applicants can make in-kind donations of land that would
				be suitable for lake development, water resources improvement or creation, or
				the creation of facilities associated with recreation. Such sites must have the
				approval of both, the Division of Natural Resources, Wildlife Resources Section
				and the Department.
6.2.k. Impacts
				to Recreational Resources Associated with Section 10 Permits.
6.2.k.1. Where monetary compensation is the
				agreed upon mitigation for impacts to recreational resources associated with
				Section 10 permits, compensation shall be at a rate of $150 per linear foot for
				single-row barge fleeting areas. For multiple-row barge fleeting areas, the
				rate shall be $2 per square foot of occupied river. The Secretary will not
				consider the percentage of time the fleeting area may be vacant in this
				calculation.
6.2.k.2. The Secretary
				may consider and approve non-monetary mitigation proposals for impacts to
				recreational resources associated with Section 10 permits on a case-by-case
				basis.
6.2.l. The
				Secretary, consistent with values determined appropriate by the West Virginia
				Division of Natural Resources for replacement of fish, shall require
				compensation for loss of fish caused by impingement or entrainment at FERC
				regulated hydropower facilities.