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The Trading Game – “In Lieu” Wetlands Mitigation

On Behalf of | Dec 1, 2006 | Land Development & Zoning

In recent years, environmental groups have placed more importance on the preservation on wetlands than protection of property rights. Although most environmental laws have a legitimate public purpose, land owners are now confronted with a system that will spare no expense to preserve a defined wetland that others may call a mosquito breeding ground. Unfortunately, the group promoting environmental regulation are not inclined to purchase property to achieve their goals. Rather, they prefer to satisfy the objectives with onerous regulations. The regulations often shift the burden of preservation to private property owners without compensation. In some cases, private property owners learn that due to ever increasing regulations, their properties have limited development potential.

New Hampshire statutory law requires that any property owner seeking to dredge or fill a wetland, obtain a permit.  In order to obtain a permit, a property owner must prove that the project will not adversely impact wetlands and any wetland disturbance that cannot be avoided must be mitigated. In mitigation, the property owner creates new wetlands in other areas to compensate for the wetlands disturbance. Often, the amount of wetlands required to be established is substantially greater than the area disturbed.  In connection with the Airport Access Highway, the State of New Hampshire required disturbingly large amounts of land to mitigate much smaller disturbed areas.

As of August 18, 2006, a small ray of hope beamed through the legislature for private property owners. The hope comes in the form of a new law known as the Aquatic Resource Compensatory Mitigation Act. The Act provides a new mitigation option for property owners. Instead of providing substitute wetland, the private property owner may elect to pay a fee to obtain a wetlands permit when traditional wetland mitigation is impracticable. The catch is the option is available when the disturbed land area is less than one acre. If you are eligible for “in lieu mitigation, it will come at a price. The fee is based on the costs that would have been incurred to establish a similar wetland ( base price of $65,000 per acre) adjusted by the actual amount of land disturbed and the price of land in the area where the impact is occurring, plus an administrative fee of five (5%) percent.

Although options are always welcome, some may say thanks for nothing!