Fees: a new piece in the wetlands mitigation puzzle.

A new state law authorizes developers--in certain circumstances--to pay a fee to the state in lieu of performing compensatory wetlands mitigation.

The new fee program offers something for everyone: a chance for municipalities to accomplish high-priority local conservation goals; a mechanism for developers to proceed with projects once not viable, because no compensatory wetland mitigation was practicable; and an opportunity for the state to accomplish conservation projects with greater value than can be achieved through conventional compensatory wetland mitigation.

The law--RSA 482-A:3--requires a permit for any proposed project that involves dredging or filling of a wetland. Before the Department of Environmental Services will issue a permit, applicants must show that the proposed project will avoid adverse impacts to wetlands and will minimize and mitigate those wetland impacts that are unavoidable.

Such mitigation is referred to as compensatory wetland mitigation and is performed on-site and off-site of the proposed project.

Municipal conservation commissions usually cooperate with developers in the process of identifying and selecting property to conserve land where compensatory wetland mitigation will be performed off-site.

The more conservation commissions enable developers to achieve compensatory wetland mitigation, the more likely it will be that DES will issue wetland permits to the developers. Consequently, savvy conservation commissions develop detailed plans targeting parcels for land conservation. Such plans increase the likelihood that municipalities will capture funds from developers to conserve targeted parcels as part of developers' compensatory wetland mitigation.

But the fee program is not a substitute for the requirement to avoid or minimize impacts to wetlands.

Where DES requires compensatory wetland mitigation, the applicant must still evaluate available opportunities for upland buffer preservation and wetland restoration and creation.

However, the fee program can change the outcome when an applicant for a wetland permit is unable to achieve compensatory wetlands mitigation.

Before the program allowing in-lieu fees, where DES required such mitigation but the applicant was unable to achieve it, the agency would not grant the wetlands permit. Because not obtaining a wetlands permit could mean the end of a proposed project, developers sometimes paid substantial sums to achieve the requisite mitigation. No law limited the cost an applicant could be required to incur for mitigation.