Chapter 18G.20
IN-LIEU FEE MITIGATION PROGRAMS Revised 3/18

Sections:

18G.20.010    Purpose. Revised 3/18

18G.20.020    Definitions. Revised 3/18

18G.20.030    Participation in the PCILF Program. Revised 3/18

18G.20.040    Administration of the Program. Revised 3/18

18G.20.050    Mitigation Credits. Revised 3/18

18G.20.060    Appendices.

A.    Guidance to Applicants on Submittal Contents for In-Lieu Fee Use Plans.

B.    Letter of Intent to Sell Template.

C.    Statement of Sale Template.

18G.20.010 Purpose. Revised 3/18

Pierce County requires compensatory mitigation for unavoidable impacts to wetlands, streams, and fish and wildlife species and habitat conservation areas. Compensatory mitigation consists of replacing or providing substitute resources or environments and is the second to the last step within the mitigation sequence (PCC 18E.30.050 A. and 18E.40.050). Pierce County may accept the purchase of credits from in-lieu fee (ILF) mitigation programs as fulfillment of the requirements for compensatory mitigation, once all available and prudent measures have been taken to avoid, minimize, rectify, and reduce or eliminate over time any impacts to these critical areas.

The purchase of credits from an ILF program may be approved as compensatory mitigation when the following conditions are met:

•    The ILF program is certified under applicable State and Federal regulations.

•    The Department of Planning and Public Works (PPW) determines that the ILF program provides appropriate compensation for the authorized impacts.

•    The proposed use of credits is consistent with terms and conditions of the ILF program certification.

(Ord. 2017-12s § 2 (part), 2017; Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)

18G.20.020 Definitions. Revised 3/18

Definitions for terms used in the Development Regulations are located in Chapter 18.25 PCC. Terms unique to this Chapter are included below.

"Compensation Planning Framework" means the approach to mitigation receiving site selection, site protection, and implementation in a watershed context. This framework is essentially a watershed plan designed to support resource restoration and must include an analysis of historic freshwater wetland losses and current conditions, a description of the general amounts, types, and locations of freshwater wetland resources the program will seek to provide, and a prioritization strategy for selecting and implementing compensatory mitigation activities. The Compensation Planning Framework sets ILF programs apart from mitigation banking and permittee-responsible mitigation. It is necessary since ILF programs can be approved without the identification of any site.

"Credit" means a unit of measure (e.g., a functional or areal measure or other suitable metric) representing the accrual or attainment of ecological functions at a compensatory mitigation site, including wetland mitigation banks and in-lieu fee sites. The measure of ecological functions is based on the resources restored, established, enhanced, or preserved.

"Credit fees" are fees paid by an Applicant to purchase ILF program credits. Credit fees are used to pay for all aspects of implementing and managing ILF programs and ILF receiving sites, including property or property rights acquisition and long-term management. These costs are determined from full cost accounting of the costs to implement mitigation receiving sites within each service area. The credit fee is determined by dividing all known and expected costs necessary to implement and manage one or more ILF receiving sites within a service area by the number of credits expected to be earned from those ILF receiving sites. Credit fees are unique to each service area. Credit fees will be reviewed and adjusted annually in order to reflect the true cost of implementing ILF receiving sites.

"Credit Purchase Request Form" means a form the Applicant must complete and submit to PPW to initiate credit purchases. The Applicant will be provided this blank form when the wetland approval is issued.

"Credit Purchase Response Form" takes the place of an invoice. This is a form that will be prepared by the PCILF Program Manager after the PPW reviewing biologist approves the Credit Purchase Request Form. This form is used to document that all necessary aquatic resource permits have been received by the Applicant prior to authorizing the sale of PCILF credits. The Applicant will bring this form, along with payment for credits, to the PPW counter in order to purchase credits.

"Debit" means a unit of measure (e.g., a functional or areal measure or other suitable metric) representing the loss of ecological functions at an impact or project site. The measure of ecological functions is based on the resources impacted by the authorized activity.

"Full Cost Accounting" means a method of accounting for all monetary costs of resources used or committed for programs or services. Full cost accounting considers direct and indirect (overhead) operating costs as well as past and future expenses. It recognizes costs over the life of a program or service. For ILF programs, full cost accounting means that the cost per unit of credit must take into account expenses for land acquisition, project planning and design, construction, plant materials, labor, legal fees, monitoring, remediation, adaptive management, contingency costs appropriate to each stage of project planning, long-term management and protection of ILF projects, financial assurances that are necessary to ensure successful completion of ILF projects, and administration of the ILF program.

"In-Lieu Fee Mitigation Program" means a program involving the restoration, establishment, enhancement, and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for authorized, unavoidable impacts to similar resources off site. Similar to a mitigation bank, an in-lieu fee program sells compensatory mitigation credits to applicants whose obligation to provide compensatory mitigation is then transferred to the In-Lieu Program Sponsor. However, the rules governing the operation and use of in-lieu fee programs are somewhat different from rules governing operation and use of mitigation banks. The operation and use of an in-lieu fee program are governed by an in-lieu fee program instrument.

"In-Lieu Fee Program Sponsor" or "Sponsor" means any public or nonprofit entity responsible for establishing, and in most circumstances, operating an in-lieu fee program. The Pierce County Department of Planning and Public Works, Division of Surface Water Management, is the Sponsor of the PCILF Program.

"Interagency Review Team" or "IRT" is the interagency group of federal, tribal, State, and/or local regulatory and resource agency representatives that reviews documentation for, and advises the District Engineer of the U.S. Army Corps of Engineers and the Washington Department of Ecology (Co-Chairs of the IRT) on, the establishment and management of an in-lieu fee program.

"Land fee" appears in the Statement of Sale (Appendix C). The Statement of Sale document is also a document within the PCILF Instrument and it is, therefore, approved by the PCILF Interagency Review Team, which is chaired by the U.S. Army Corps of Engineers and the Department of Ecology. Those agencies require a separate credit fee and land fee. The land fee is that portion of the mitigation fee (known as the credit fee in Pierce County Code) that is for use in acquisition of property or property rights for PCILF mitigation receiving sites.

"Mitigation fee" appears in the Statement of Sale (Appendix C). The Statement of Sale document is also a document within the PCILF Instrument and it is, therefore, approved by the PCILF Interagency Review Team, which is chaired by the U.S. Army Corps of Engineers and the Department of Ecology. Those agencies require a separate credit fee and land fee, which together comprise the mitigation fee. The "mitigation fee" as that term is used in the Statement of Sale has the same meaning as the "credit fee" as that term is used elsewhere in this Code. The mitigation fee is the total of all fees the Applicant must pay for credits and it includes the portion of fees paid for property rights acquisitions for PCILF receiving sites (aka "land fees") and all other fees necessary to implement PCILF receiving sites.

"PCILF Program Instrument" or "the Instrument" means the legal document for the establishment, operation, and use of the Pierce County In-Lieu Fee Program. The latest version of this Instrument may be found on the public website for Pierce County Planning and Public Works, under In-Lieu Fee Program, In-Lieu Fee Program Document Library.

"PCILF Program Manager" or "Program Manager" is the staff person within the Pierce County Division of Surface Water Management with the responsibility of administering the PCILF Program.

"Permittee-responsible mitigation" means compensatory mitigation provided by a developer or project proponent, usually within the same construction season as the impacts, and preferably on the same site as the permitting impacts.

"Pierce County In-Lieu Fee Program" or "PCILF Program" is the ILF program developed by Pierce County for use by public and private developers within Pierce County.

"Statement of Sale" is a form submitted to PPW and other regulatory agencies upon payment of credit fees to the ILF program sponsor. The Applicant is responsible for forwarding copies of the Statement of Sale to applicable permitting agencies; it is their means of demonstrating that they have met compensatory mitigation obligations. A copy of the Statement of Sale Template for the PCILF Program is provided in PCC 18G.20.060 – Appendix C.

"Sub-Drainage Basin" or "Basin" means major subdivision of the primary watersheds, or WRIAs. Sub-basins are defined by a dominant creek or river drainage system, sometimes further broken into reaches. For instance, the Chambers-Clover Creek Watershed (WRIA 12) is broken into four basins: Chambers Bay; Clover Creek/Steilacoom; American Lake (no surface water connection to Chambers or Clover Creek, but all lakes within the watershed have the same subsurface hydrology); and Tacoma West (short watersheds that drain directly to Puget Sound). Basins are roughly five to 25 square miles in area.

(Ord. 2017-12s § 2 (part), 2017; Ord. 2015-25s § 2 (part), 2015; Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)

18G.20.030 Participation in the PCILF Program. Revised 3/18

The County has developed an ILF mitigation program (the PCILF Program) which offers an alternative to permittee-responsible mitigation within Pierce County. Pierce County Planning and Public Works, Division of Surface Water Management, is the Sponsor of this program. This program operates according to the latest version of the PCILF Program Instrument (Instrument) which was developed according to Federal Rule with oversight by the U.S. Army Corps of Engineers and the Washington State Department of Ecology (and is available on the Pierce County Planning and Public Works' public website). See PCC 18G.20.020. Participation in the PCILF Program is subject to the following limitations, requirements and step-wise process:

A.    The PCILF Program applies within the Chambers/Clover Watershed (WRIA 12) and those portions of the Nisqually Watershed (WRIA 11) that are within Pierce County unless other areas are identified in the Instrument. Expansion of the program into other areas of the County will require an update to the Instrument according to the processes laid out in that document. The most current version of the Instrument should be consulted to determine current areas of applicability.

B.    Optional Participation. The purchase of PCILF credits is an option available to developers that have unavoidable impacts to wetlands and other aquatic resource critical areas within the service areas described above.

C.    To use the PCILF Program, Applicants must:

1.    Follow the standard PPW review process, as may be applicable.

2.    Demonstrate that efforts have been taken to avoid wetland and other aquatic resource impacts.

3.    Demonstrate impacts have been minimized to the maximum extent possible and efforts made to incorporate all appropriate measures to rectify, and reduce or eliminate over time any impacts to critical areas (PCC 18E.30.050 A.; PCC 18E.40.050 A.).

4.    Illustrate how on-site mitigation may be implemented to the extent possible and ecologically feasible.

5.    Demonstrate that some or all of the impacts can be mitigated most effectively off site.

6.    Review all available off-site mitigation options (e.g., mitigation banks, ILF program, permittee-responsible).

D.    Acceptance and Use of PCILF Program.

1.    If PPW determines the PCILF Program offers an ecologically preferable and practicable way to meet mitigation obligations associated with an impact project, the Applicant will be informed in writing.

2.    The Applicant then translates the ecological impacts into a number of debits associated with the impact, according to PCC 18G.20.050, and submits an ILF Use Plan (PCC 18G.20.060 – Appendix A) to PPW. This takes the place of a wetland or fish and wildlife mitigation plan.

3.    If the Applicant is proposing the use of the PCILF Program to compensate for non-wetland freshwater aquatic resources, the Program Manager shall notify the Interagency Review Team (IRT) for their consideration of this proposal.

4.    The Applicant has the option to pay 10 percent of the credit fee, as a down payment, any time after receiving approval of the ILF Use Plan in order to reserve the full amount of credits required for two years. Upon receiving this down payment, the Program Manager will issue a Letter of Intent to Sell (PCC 18G.20.060 – Appendix B), which is the Sponsor's commitment that they will make available the required number of credits for up to two years (PCC 18G.20.040 E.3.).

5.    Once the Applicant has received the Wetland or Fish and Wildlife Approval, applicable aquatic resource permits from external resource agencies, and the Pierce County Site Development Permit, Applicant submits the PCILF Credit Purchase Request Form and requests a meeting with the reviewing PPW Biologist then awaits the Credit Purchase Response from the Program Manager.

6.    The Applicant must submit a copy of the Credit Purchase Response and full credit fee or balance of credit fee to buy credits to offset their debits.

7.    The Program Manager issues a Statement of Sale (PCC 18G.20.060 – Appendix C) to the Applicant upon receiving payment of the full credit fee. The Applicant presents this Statement of Sale to PPW. At this point, the Applicant shall have no further responsibility for compensatory mitigation with respect to the project at issue. The Pre-Construction Meeting may now occur.

8.    The PCILF Program Sponsor shall fulfill mitigation obligations according to the Compensation Planning Framework within the Instrument.

(Ord. 2017-12s § 2 (part), 2017; Ord. 2015-25s § 2 (part), 2015; Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)

18G.20.040 Administration of the Program. Revised 3/18

A.    Responsibilities of the PCILF Program Sponsor. Pierce County Planning and Public Works, Surface Water Management Division, is the PCILF Program Sponsor. The sponsor has the following responsibilities:

1.    Prepare Letters of Intent to Sell, Credit Purchase Response Form, and Statement of Sale, per PCC 18G.20.030 D.

2.    Fulfill PCILF credit sales according to the steps laid out in the Instrument. This includes identifying PCILF receiving sites, designing and implementing receiving site restoration/enhancement designs, monitoring and maintaining receiving sites in perpetuity, ensuring long-term site protection, and related tasks.

3.    Determine which PCILF receiving site will be used to compensate for each debit project and whether compensation is being provided at a pre-capitalized site or whether advance credits will be used.

4.    Maintain the Credit/Debit Ledger which will track the sale of credits from each receiving site and the type, category, and area of impact each credit compensates.

5.    Maintain the Fee Ledger which will track all income (credit fees) and expenditures for the program within each service area.

6.    Provide an annual report of the status of the PCILF Program which will summarize the Credit/Debit Ledger and Fee Ledger and discuss the success of the program in achieving adequate compensation for unavoidable impacts.

7.    Annually review credit fee.

8.    Attend public hearings relating to the use of the PCILF Program to compensate for unavoidable impacts to critical areas.

B.    Responsibilities of the Applicant.

1.    Demonstrate adherence to the mitigation sequence (PCC 18E.30.050 A.; PCC 18E.40.050 A.).

2.    Develop ILF Use Plan and submit to PPW.

3.    Request statement of Intent to Sell (PCC 18G.20.060 – Appendix B), if desired, and pay associated administration fees.

4.    Once all necessary aquatic resource permits have been received, complete Credit Purchase Request Form and submit to PPW.

5.    Upon receipt of the Credit Purchase Response from the PCILF Program Manager, submit this to PPW, along with the credit fee.

6.    Submit Statement of Sale to PPW and other applicable regulatory agencies.

C.    Responsibilities of PPW.

1.    Review and evaluate the ILF Use Plan and adequacy of proposed credit purchase to compensate for unavoidable impacts. PPW has the authority to deny the use of the PCILF Program as compensation for impacts on a case-by-case basis.

D.    The Price of a Credit.

1.    The credit fee is based on full cost accounting of all costs associated with credit fulfillment and administration of the PCILF Program. These include, but are not limited to, the costs of all receiving site properties, demolition, remediation, site assessment, design, construction, irrigation and other short-term maintenance, implementation of contingency measures, long-term monitoring and maintenance, program tracking, evaluation and reporting, site selection, and administering the sale of credits. The fees do not cover any expenses outside of the PCILF Program, nor any associated PPW review fees. Exhibit 6 of the Instrument presents, in tabular format, the costs that comprise the credit fee.

2.    The credit fee will be reviewed annually and amended, as necessary, to fully account for the cost of providing ILF mitigation receiving sites and in consideration of additional sites that may have been constructed. Credit fees may increase, decrease, or remain the same at each review. Current fees can be found on the Planning and Public Works, PCILF Program website.

3.    The Program Sponsor will establish credit fees for each service area according to the Sponsor's previously constructed/implemented mitigation receiving sites. The costs associated with these sites will be divided by the number of credits generated on the sites. Administration and Contingency program expenses will be included in the credit fees based on percentages of the construction/implementation costs.

E.    Purchasing Credits.

1.    Credits can be purchased in fractions rounded to the nearest hundredth.

2.    Every purchase of credits will require payment of a $50.00 administration fee.

3.    A nonrefundable down payment equal to the cost of 10 percent of the required credits (plus the $50.00 administration fee) is required with all requests for a Letter of Intent to Sell Credits. Another $50.00 administration fee is required with payment of the remainder of the credit fee. The Applicant may choose to pay the balance of the credit fee immediately and skip the Intent to Sell option but a one-time, $50.00 administration fee payment still applies.

4.    The Sponsor will provide a Letter of Intent to Sell Credits (PCC 18G.20.060 – Appendix B) when they receive payment for 10 percent of the total amount of credits needed to fully mitigate the impact. The Letter of Intent will be valid for two years.

5.    Should two years be insufficient time to secure all permits and approvals, the Applicant may submit a request for a one-time, two-year extension to the Program Manager. Granting of extensions will require an additional nonrefundable 10 percent payment (and the associated $50.00 administration fee). Requests for extensions to the Letter of Intent may be denied if the Applicant cannot demonstrate that progress has occurred in the attempt to secure all required environmental permits. Progress can be demonstrated by, but not limited to, submittal of all required applications and associated fees.

6.    The Sponsor cannot issue the Statement of Sale until:

a.    PPW approves all Critical Area applications.

b.    All other required local permits and approvals have been issued, including but not limited to Site Development.

c.    PCILF credit fees have been paid in the amount identified by the approval documents issued by PPW.

F.    Credit Fee Refunds. Credit fees are not refundable. Credit fees include "mitigation fees" and "land fees."

(Ord. 2017-12s § 2 (part), 2017; Ord. 2015-25s § 2 (part), 2015; Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)

18G.20.050 Mitigation Credits. Revised 3/18

Wetlands. The determination of ILF credits needed to compensate for unavoidable wetland impacts will be determined by the use of the most recent edition of the Washington State Department of Ecology guidance document, Calculating Credits and Debits for Compensatory Mitigation in Wetlands of Western Washington, Washington State Department of Ecology publication #10-06-11, or as hereafter amended. The determination of credits needed from an ILF program for non-wetland aquatic resource impacts will be determined by accepted credit determination methods, at the discretion of PPW, in collaboration with external regulatory agencies. (Ord. 2017-12s § 2 (part), 2017; Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)

18G.20.060 Appendices.

A.    Guidance to Applicants on Submittal Contents for In-Lieu Fee Use Plans.

B.    Letter of Intent to Sell Template.

C.    Statement of Sale Template.

18G.20.060 – Appendix A
Guidance to Applicants on Submittal Contents for In-Lieu Fee Use Plans.
Washington State Interagency Review Team Guidance Paper
Using Credits from In-Lieu Fee Programs:
Guidance to Applicants on Submittal Contents for In-Lieu Fee Use Plans

The Interagency Review Team (IRT) for Washington State includes standing members representing the U.S. Army Corps of Engineers (Corps), U.S. Environmental Protection Agency (EPA), and Washington State Department of Ecology (Ecology). The IRT is issuing this paper to provide guidance to permit applicants who wish to use in-lieu fee (ILF) credits to compensate for unavoidable impacts to wetlands and other aquatic resources, including buffers, associated with their projects. Aquatic resources include but are not limited to freshwater wetlands, rivers, streams, lakes, estuaries, marine environments, and their buffers. The types of impacts to aquatic resources that are eligible to meet mitigation needs through the purchase (or transfer) of ILF credits will vary depending on the ILF program. This paper does not replace or modify any of the existing laws and policies enforced by the IRT member agencies. The IRT reserves the right to make exceptions to or modify this guidance when doing so would benefit the public interest, the aquatic environment, and/or authorized ILF programs operating in Washington State.

This paper consists of an annotated outline for a report that would serve as the mitigation plan for projects proposing to use an ILF program. Since the applicant is proposing to use ILF credits as mitigation, standard mitigation plans are not appropriate, nor are they required. However, some of the same components occur in both. For the purposes of this guidance, we will refer to this submittal as an ILF Use Plan.

The purpose of the ILF Use Plan is to provide permit decision-makers at the regulatory agencies with sufficient information to decide whether project applicants have:

1.    Avoided and minimized aquatic resource impacts to the maximum extent practicable,

2.    Considered all available mitigation opportunities,

3.    Provided sufficient compensation for unavoidable impacts to aquatic resources, and

4.    Demonstrated how purchasing credits from a certified ILF program meets compensatory mitigation requirements.

The ILF Use Plan has two parts: Part A asks applicants to describe impacts as completely as possible. Part B asks applicants to explain why the use of credits from an ILF program is the best choice for mitigating the proposed impacts.

Project managers and wetland specialists at the Corps, Ecology, EPA, and other regulatory agencies typically have general knowledge of ILF programs in the regions they cover. However, it is up to permit applicants to provide enough information in their application package to demonstrate how the use of an ILF program adequately compensates for their specific project's impacts. Following this outline will help applicants to do so.

The following outline summarizes the type of information the IRT recommends for inclusion in an ILF Use Plan. If applicants have questions about what to include in the plan or on the process of permitting mitigation using ILF credits, they should contact the project manager designated for their region (see http://www.nws.usace.army.mil/PublicMenu/documents/REG/PM_county_assignment_list.pdf for a list of Corps project managers and http://www.ecy.wa.gov/programs/sea/wetlands/contacts.htm for Ecology wetland specialists). General guidance on wetland mitigation is available online in Wetland Mitigation in Washington State (Part 1: http://www.ecy.wa.gov/biblio/0606011a.html, Part 2: http://www.ecy.wa.gov/biblio/0606011b.html).

Important Notes to Applicants:

•    For information on authorized ILF programs in Washington State, refer to the Corps' RIBITS website at: https://rsgis.crrel.usace.army.mil/ribits/f?p=107:2:136943704396553 or Ecology's website at: http://www.ecy.wa.gov/mitigation/ilf.html. Permit applicants should contact the ILF program sponsor (sponsor) directly for information on the functions targeted by the ILF program, credit availability, and the process for purchasing credits.

•    Location of an impact project within an ILF program's service area does not guarantee that Federal, State, or local regulatory agencies will approve use of ILF credits as mitigation. As with all mitigation, approval of a specific mitigation plan is decided on a case-by-case basis. The permit application should demonstrate that potential impacts to aquatic resources have been avoided and minimized to the maximum extent practicable and that the ILF program proposed for use has the ability to target appropriate compensation for project impacts. In some cases, agencies may decide that impacts would be better mitigated on or closer to the project site. One agency may require that more ILF credits be used, or one or more agencies may determine that the ILF program will not compensate for the loss of certain functions and, therefore, mitigation for those functions must be provided separately. Applicants should communicate with all permitting agencies early in the permit process and show due caution when considering early purchase of ILF credits. Agencies cannot guarantee that an applicant will be approved to use ILF credits prior to review of the complete application package and a permit decision.

•    If other mitigation for aquatic resource impacts is proposed for a project in addition to purchasing ILF credits, this should be described in detail in a separate standard mitigation plan. Please note: brief mention of the additional mitigation and the citation for the mitigation plan should be included in Part B, Section 1 of the ILF Use Plan.

•    Be aware that sponsors are not authorized to sell credits that have not yet been advanced or released by the IRT. Before deciding on a mitigation path, check with Corps or Ecology project managers to confirm that a particular ILF program will likely have adequate credit available at the time your project is expected to be permitted. It is reasonable for prospective buyers to request an updated credit ledger from the sponsor prior to committing to credit purchase.

In-Lieu Fee Use Plan Outline:

PART A: IMPACT PROJECT DESCRIPTION

1.    Project Description.

Provide a brief description of the development project and the types of activities that will impact aquatic resources including buffers. If a more detailed project description is available in other documents in the application package, this Section should just summarize the project description and cite the more detailed document(s).

2.    Existing Conditions of Aquatic Resources.

Provide a brief description of the aquatic resources and buffers on the development site. Include the location, landscape position, size, vegetation, soils, hydroperiod, source of water, surrounding land uses, and functions. Also include the hydrogeomorphic (HGM) classification and wetland rating as determined by the eastern or western Washington State rating systems (documents are located at: http://www.ecy.wa.gov/programs/sea/wetlands/ratingsystems/index.html). Information should also be summarized in a table format as shown in Example Tables 1 and 2 below. This Section is intended to be a summary of existing conditions and the more detailed documents cited here, such as any wetland delineation or other aquatic resource assessment reports. Cite corresponding drawings and maps showing the existing conditions and aquatic resource boundaries including buffers.

Example Table 1. Existing Conditions of Wetlands and Buffers

Resource Identifier

Wetland Area (acres)

Buffer Area (acres)

Ecology Rating

Local Jurisdiction Rating

Cowardin Classification

HGM Classification

Wetland A

1.01

2.25

IV

4

PEM

Depressional

Wetland B

0.53

1.2

III

4

PSS

Slope

TOTALS

1.54

3.45

Example Table 2. Existing Conditions of Rivers, Streams, and Buffers

Resource Identifier

Water Course Area (linear feet)

Buffer Area (acres)

Classification System Used

Water Type

Local Jurisdiction Rating

State Water Quality Standards

Stream A

300

0.7

WDNR

Non-fish perennial

4

Good

Stream B

500

1.72

WDNR

4

2

Fair

TOTALS

800

2.42

3.    Avoidance and Minimization of Impacts to Aquatic Resources.

Describe how adverse impacts from the project, both direct and indirect, to aquatic resources will be avoided and minimized to the maximum extent practicable. This should include consideration of project location, surrounding land uses, design, construction practices, monitoring efforts and/or other relevant factors. If other sites were considered and rejected based on aquatic resource impacts, mention that information in this Section. If a Clean Water Act Section 404(b)(1) Alternatives Analysis was prepared for the project, cite that document here. Further information is available online at: http://www.epa.gov/owow/wetlands/regs/mitigate.html.

Describe the type and expected acreage of unavoidable impacts. Cite corresponding drawings showing the impact area boundaries including buffers.

Provide the avoidance, minimization, and expected impact information using a table format as in Example Tables 3 and 4 below.

Example Table 3. Avoided, Minimized, and Expected Impacts to

Wetlands and Buffers

Resource Identifier

Impact Area Before* (acres)

Impact Area After** (acres)

Temporarily Impacted Area (acres)

Buffer Impact Area (acres)

Indirect Impact Area (acres)

Avoidance and Minimization Steps Taken

Wetland A

0.08

0.01

0.02

0.05

0

Stormwater outfall designed to minimize impacts to wetland and buffer

Wetland B

0.53

0.08

0.1

0.07

0

Access road rerouted and retaining wall used to minimize footprint

TOTALS

0.61

0.09

0.12

0.12

0

*before = prior to any avoidance and minimization measures implemented.

**after = expected impact after avoidance and minimization measures implemented.

Example Table 4. Avoided, Minimized, and Expected Impacts to

Rivers, Streams, and Buffers

Resource Identifier

Impact Area Before* (acres/linear ft)

Impact Area After** (acres/linear ft)

Temporarily Impacted Area (acres/linear ft)

Buffer Impact Area (acres/linear ft)

Indirect Impact Area (acres/linear ft)

Avoidance and Minimization Steps Taken

Wetland A

0.07 ac

0.02 ac

0

0.1 ac

0

Bridge used for crossing, bridge abutments in stream

Wetland B

0.06 ac

0

0

0.5 ac

0

Design altered to avoid stream altogether. Road path chosen to minimize need for clearing large conifers. Temporary road will be decommissioned and replanted at end of project.

TOTALS

0.13 ac

0.02 ac

0

0.6 ac

0

*before = prior to any avoidance and minimization measures implemented.

**after = expected impact after avoidance and minimization measures implemented.

Note: Examples of impact avoidance and minimization for several types of development include:

•    Commercial Facility: Minimizing new impervious surface, using pervious surfaces for parking lots, using infiltration to treat stormwater, enhancing buffers, providing appropriate water quality treatment, reducing the project footprint from the original proposal, using native landscape plants, using integrated pest management techniques, using other low-impact development measures.

•    Road Widening: Widening asymmetrically to avoid wetlands or streams, widening toward the road median, using retaining walls to reduce side slopes, minimizing new impervious surface by lane re-striping, using road shoulder-installed filters for water quality treatment, locating stormwater treatment facilities outside of aquatic resources.

•    Residential Development: Retaining native vegetation where possible, infiltrating roof runoff, using pervious surfaces for driveways, using other low-impact development measures, enhancing buffers. Required Best Management Practices (BMPs) will not count as avoidance measures, but implementation of additional voluntary BMPs may result in reduced mitigation requirements.

4.    Impacts to Aquatic Resource Functions.

Describe how the functions below are expected to be lost or altered due to your project. Also, include a discussion of the potential indirect and/or temporary impacts to the remaining aquatic resource(s).

•    Water quality: briefly describe characteristics of aquatic resources relative to water movement, extent of vegetation as it relates to potential for slowing and filtering water (e.g., extent of grazing), extent and duration of ponding, opportunity to improve water quality, and so on.

•    Hydrologic: briefly describe characteristics of aquatic resources relative to the ability and opportunity of the aquatic resource to store water.

•    Habitat: briefly describe characteristics of aquatic resources relative to habitat functions such as interspersion of habitats, corridor connectivity, plant species richness, buffer condition, and so on.

If a more detailed function description is available in other documents in the application package, this Section should simply summarize the functions that will be affected and cite the more detailed document(s). If a 'Debit Worksheet' was prepared for the impact project, cite that document here. (See western and eastern versions of Calculating Credits and Debits for Compensatory Mitigation in Wetlands at http://www.ecy.wa.gov/mitigation/creditdebit-comments.html.)

Notes:

All applicants should use the Washington State Wetland Rating System or equivalent and submit the rating forms and accompanying maps/drawings for all wetlands. Rating methods for both western and eastern WA are available at http://www.ecy.wa.gov/programs/sea/wetlands/ratingsystems/index.html). Ecology's Focus Sheet Using the Wetland Rating System in Compensatory Mitigation (Ecology Publication 08-06-009, found at http://www.ecy.wa.gov/biblio/0806009.html) provides a method for using the rating system to compare wetland functions under existing conditions with those after impacts or mitigation.

Applicants may use other wetland function assessments, at their discretion, but they do not substitute for the rating system.

For freshwater wetland impacts proposed to be mitigated using ILF credits, Ecology recommends that applicants calculate "debits" of impact using the method Calculating Credits and Debits for Compensatory Mitigation in Wetlands, available online at http://www.ecy.wa.gov/mitigation/creditdebit-comments.html.

It is essential that an applicant use the method described in the ILF Instrument to determine debits and credits, but debits and credits for some types of impacts (e.g., impacts to streams) will be determined on a case-by-case basis.

Fill or clearing in a buffer may result in indirect impacts to aquatic resources that may also require mitigation. Even temporary clearing of forested or shrub areas in aquatic resources or buffers may have long-term indirect impacts that may require mitigation. The mitigation required depends on the nature of the impacts and the regulatory agencies involved.

PART B: JUSTIFICATION FOR USING AN IN-LIEU FEE PROGRAM

1.    Description of Compensatory Mitigation Options Considered.

Provide a brief description of the potential (or lack thereof) for each type of compensation listed below. The type of compensation proposed to mitigate for the project impact should be ecologically appropriate. In addition, the federal rule titled Compensatory Mitigation for Losses of Aquatic Resources; Final Rule (Federal Rule) 33 CFR Section 332.3(b) specifies that when considering options for successfully providing the required compensatory mitigation for federal permits, the Corps district engineer shall consider the type and location options in the following order:

a.    Wetland mitigation banks;

b.    In-lieu fee programs;

c.    Permittee-responsible mitigation under a watershed approach;

d.    Permittee-responsible mitigation through on-site and in-kind mitigation; and lastly

e.    Permittee-responsible mitigation through off-site and/or out-of-kind mitigation.

If the impact project is within the service area of an approved wetland mitigation bank, document why the bank is not being used. Include information on whether bank use was discussed with agency project managers, and why the bank was determined to be inappropriate compensation. If the impact project will affect critical aquatic resource functions that should be replaced on-site, describe the on-site mitigation opportunities that have been considered. If some on-site mitigation will also occur, cite the mitigation plan and explain why the full mitigation requirements cannot be met on-site.

2.    In-Lieu Fee Program Selection Rationale.

Provide rationale for proposing the ILF program as mitigation. This Section should provide appropriate detail to demonstrate how the ILF credits will provide adequate compensation for the aquatic resource habitat and functions impacted by the project. Identify which ILF program you intend to use, and confirm that your project is located within the service area for that ILF program and that credits are available for sale. Describe how the aquatic resource mitigation needs of the impact project correspond with the purpose, goals, and objectives of the ILF program. (A list of ILF programs is located on Ecology's website at: http://www.ecy.wa.gov/mitigation/ilf.html and the Corps' RIBITS website at: https://rsgis.crrel.usace.army.mil/ribits/f?p=107:2:136943704396553.)

3.    Proposed Use of In-Lieu Fee Credits.

Each ILF program will specify its method for determining credits in the ILF instrument and specify the method that impact projects shall use for determining debits. If a different method is proposed, supply a rationale for this decision. Compensation for impacts to streams and Category I wetlands will be determined by the regulatory agencies on a case-by-case basis.

Applicants need to coordinate with the ILF sponsor to ensure that credits are available. Applicants should consult with agency staff early in the permitting process to discuss credit use. Factors that may affect the number of credits needed to compensate for adverse impacts to aquatic resources include:

•    Whether the impact is permanent or temporary,

•    The extent to which the functions of an aquatic resource are reduced or eliminated when there are indirect impacts to consider,

•    Whether some of the aquatic resource functions affected by a project are mitigated elsewhere.

ILF program credits are generally calculated one of two ways:

1.    Using the Credit/Debit method for freshwater wetlands: the Credit/Debit Method is based on the Washington State Wetland Rating System. It also incorporates some recent refinements and updates in characterizing functions and values.

2.    Using area and ratios: if the ratios proposed for determining the amount of credits needed differ from those suggested in the ILF Instrument, provide the rationale for this.

Show the number of ILF credits that are proposed to be purchased or transferred from the ILF program. If more than one aquatic resource is impacted, it is helpful to use a Table.

4.    Credit Purchase or Transfer Timing.

This Section should note the anticipated timing of purchase or transfer of the credits and any other details regarding credit use that may be relevant to the permit process. It is not necessary to disclose credit costs or specific financial arrangements made between the applicant and ILF program sponsor. When purchasing credits, the final sale should generally not occur until regulatory agencies have issued the permits relevant to the aquatic resource impacts. Prior to impacting aquatic resources, permit applicants must submit to the regulatory agency the proof of purchase (e.g., statement of sale) or transfer of credits.

(Ord. 2014-33 § 2 (part), 2014)

18G.20.060 – Appendix B
Letter of Intent to Sell Template
Pierce County In-Lieu Fee Program
Intent to Sell

I.    PURPOSE

This Intent to Sell confirms the availability of mitigation credits from the Pierce County In-Lieu Fee Program (PCILF) to the Applicant listed in Article III below. This Intent to Sell does not constitute a permit or permission to proceed with any proposed action. The Applicant is responsible for obtaining all necessary permits for a proposed action. This letter does convey that a down payment equal to the cost of 10 percent of the total credits needed has been received by the PCILF Sponsor (hereinafter "Sponsor") and that the full amount of needed credits will be committed to the project described below for a period not to exceed two years. This letter does not indicate full payment for mitigation credits has been received by the Sponsor; the Applicant is only relieved of compensatory mitigation responsibilities for the proposed action when full payment is received by the Sponsor and the Statement of Sale is issued and accepted by applicable regulatory agencies.

II.    COMMITMENT OF MITIGATION CREDITS

The Sponsor agrees to commit pre-capitalized credits from existing PCILF receiving sites or advance credits to meet the compensatory mitigation requirements for the proposed action. These credits will be unavailable to other applicants inquiring about the availability of PCILF mitigation credits, for a period not to exceed two years unless an extension is granted in accordance with PCC 18G.20.040 E.5.

III.    APPLICANT AND IMPACT PROJECT DETAILS

[To be completed by Applicant]

A.    Applicant.

[Applicant Name] (hereinafter "Applicant")

[Address and other Contact information]

Parcel No(s): __________________________

[Impact Site Name/Project Name]

B.    Impact Project.

Watershed Service Area [? Chambers/Clover ? Nisqually]

Permitting Agencies: __________________________

Permit Number(s), if known: ___________________________

[Add additional agencies and permits as necessary]

Description of impacts: [Provide details of project impact]

Description of debits: [Wetland HGM class and category, impact acreage, also functions disturbed. Please list each class and category separately if more than one wetland unit.]

Table 1. Function Disturbed

Improving Water Quality

Hydrologic

Habitat

Debits—Emergent or shrub areas

_____ Acre-points

_____ Acre-points

_____ Acre-points

Debits—Forested areas

_____ Acre-points

_____ Acre-points

_____ Acre-points

TOTAL

_____ Acre-points

_____ Acre-points

_____ Acre-points

IV.    CREDITS TO BE PURCHASED AND FEES TO BE PAID

[To be completed by Sponsor]

A.    Credits Purchased. In exchange for the partial payment of credit fees, the Applicant receives no mitigation credits at this time; however, [# credits is equal to # of debits], credits have been withdrawn from the [Advance Credit pool or released credit balance] in the [Service Area Name] service area and are being held for the project described above, for a period not to exceed two years.

PCILF receiving site if known: [______________________]

B.    Allocation to the PCILF Program Account. The credit fees will be deposited into a unique account for the service area of the impact project.

C.    The Sponsor Agrees to Provide Credits. By accepting this down payment, the Sponsor agrees to preserve the option for the Applicant to purchase the remaining 90 percent of the total credits needed for the impact project described above, until the expiration of this Intent to Sell agreement. The price for the remaining 90 percent of credits will be based on the price per credit at that time of purchase. Upon receipt of full payment for the necessary credits, the Sponsor shall assume all obligations and liabilities associated with implementing mitigation to compensate for the project impacts, according to terms of the final Program Instrument for the Pierce County ILF Program as certified on _____________, ______.

V.    PROOF OF PURCHASE

This Letter of Intent shall serve as official proof that the Applicant has provided a down payment for mitigation credits from the Sponsor and received a commitment from the Sponsor that mitigation credits are available and are to be held for the Applicant for a period not to exceed two years.

A.    Signed Letter of Intent Provided to Applicant. The Sponsor will provide a signed copy of this form to the Applicant within 15 days after receipt of funds from the Applicant. The Applicant is responsible for submitting copies of the Letter of Intent to the appropriate regulatory agencies as proof of down payment for PCILF mitigation credits.

B.    Copies Available to the Interagency Review Team (IRT) Members. Copies of this Letter of Intent shall be made available to any member of the IRT upon the IRT member's request.

VI.    ADDITIONAL PROVISIONS

A.    Reporting Requirements Unaffected. This agreement shall not affect reporting requirements outlined in the program instrument.

B.    Effect of Agreement. This Agreement does not in any manner affect statutory authorities and responsibilities of the Sponsor. This Letter of Intent is not intended, nor may it be relied upon, to create any rights in third parties enforceable in litigation with the United States or the State of Washington. This Letter of Intent does not authorize, nor shall it be construed to permit, the establishment of any lien, encumbrance, or other claim with respect to the PCILF Program property, with the sole exception of the right on the part of the U.S. Army Corps of Engineers or the Department of Ecology to require the Sponsor to implement the provisions of the Program Instrument, including recording conservation easements or similarly restrictive covenants required as a condition of the issuance of permits for discharges of dredged and fill material into waters of the United States and Waters of the State associated with construction and operation and maintenance of a PCILF Mitigation Receiving Site.

C.    Attorneys' Fees. If any action at law or equity, including any action for declaratory relief, is brought to enforce or interpret the provisions of this Letter of Intent, each party to the litigation shall bear its own attorneys' fees and costs of litigation.

D.    Headings and Captions. Any paragraph heading or caption contained in this Letter of Intent shall be for convenience of reference only and shall not affect the construction or interpretation of any provision of this Letter of Intent.

E.    Refunds. The down payment paid at the time of request for this Letter of Intent is nonrefundable.

F.    Expiration. This letter of intent shall be valid for a period not to exceed two years. Should the Applicant request an extension, an additional down payment may be required.

G.    Extensions. If the Applicant has been unable to secure all environmental permits prior to the expiration of the Letter of Intent to Sell, or if the Applicant is unwilling or unready to pay for the remaining 90 percent of necessary credits to fulfill their mitigation obligation, the Applicant may request an extension to the Letter of Intent. Extensions may be granted once and they will guarantee credits for a period not to exceed two years, as with the original Letter of Intent to Sell. However, granting extensions is discretionary, as described in PCC 18G.20.040 E.5.

H.    Credit Price Not Locked. The price of a credit may change on an annual basis. It may rise or it may fall, depending upon market prices of construction contracts and other factors. The price of the initial 10 percent of credits for the Letter of Intent does not lock in the price for the remainder of credits; the remainder of credits must be purchased at the credit price in force at the time the Statement of Sale is requested.

IN WITNESS WHEREOF, the Sponsor and the Applicant confirm the information contained in this Letter of Intent to Sell to be true as written.

SPONSOR

______________________________________

________________

[Name]

Date

ILF Program Manager

APPLICANT

______________________________________

________________

[Name]

Date

 

EXPIRATION OF THIS AGREEMENT:

_________________________

 

Date (2 years from Date of issue)

(Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)

18G.20.060 – Appendix C
Statement of Sale Template
Pierce County In-Lieu Fee Program
Statement of Sale

OFFICIAL RECORD OF SALE OF MITIGATION CREDITS PURSUANT TO THE TERMS AND CONDITIONS OF (1) THE PIERCE COUNTY IN-LIEU FEE PROGRAM; (2) THE FINAL PROGRAM INSTRUMENT; AND (3) THE PROVISIONS CONTAINED IN 33 CFR PARTS 325 AND 332 AS REVISED EFFECTIVE JUNE 9, 2008 [THE FEDERAL MITIGATION RULE].

I.    PURPOSE

This Statement of Sale confirms the sale of mitigation credits from the Pierce County In-Lieu Fee Program (PCILF) to the Applicant listed in Article III below. This Statement of Sale does not constitute a permit or permission to proceed with any proposed action. The Applicant is responsible for obtaining all necessary permits for a proposed action.

II.    TRANSFER OF PERMIT MITIGATION RESPONSIBILITY

The PCILF Sponsor (hereinafter Sponsor) agrees to accept full legal responsibility for satisfying the compensatory mitigation requirements for all permits granted by the United States Army Corps of Engineers, the State of Washington, and all local permits for which credit fees from an Applicant have been accepted under the terms of this Statement of Sale. This responsibility includes compliance with 33 CFR 332, 40 CFR 230, Chapters 18E.10 through 18E.40 and 18G.20 PCC, any applicable state and other local jurisdictional laws, and the terms of the Program Instrument. In satisfaction of the compensatory mitigation requirements, the Sponsor shall provide compensatory mitigation of the type and in the amount necessary to meet applicable Federal, State, and local regulation requirements.

III.    APPLICANT AND IMPACT PROJECT DETAILS

[To be filled out by Applicant]

A.    Applicant.

[Applicant Name] (hereinafter "Applicant")

[Address and other Contact information]

Parcel No(s): __________________________

[Impact Site Name/Project Name]

B.    Impact Project.

Watershed Service Area [? Chambers/Clover ? Nisqually]

Permitting Agency: __________________________

Permit Number(s): ___________________________

[Add additional agencies and permits as necessary]

Description of impacts: [Provide details of project impact]

Description of debits: [Wetland HGM class and category, impact acreage, also functions disturbed. Please list each class and category separately if more than one wetland unit.]

Table 1. Function Disturbed

Improving Water Quality

Hydrologic

Habitat

Debits—Emergent or shrub areas

_____ Acre-points

_____ Acre-points

_____ Acre-points

Debits—Forested areas

_____ Acre-points

_____ Acre-points

_____ Acre-points

TOTAL

_____ Acre-points

_____ Acre-points

_____ Acre-points

IV.    CREDITS PURCHASED AND MITIGATION FEES PAID

[To be filled out by Sponsor]

A.    Credits Purchased. In exchange for the payment of mitigation fees, the Applicant receives [# credits is equal to # of debits] mitigation credits. These credits have been withdrawn from the [Advance Credit pool or released credit balance] in the [Service Area Name] service area.

PCILF Receiving site if known: [___________________]

B.    Allocation to the PCILF Program Account. The mitigation fees will be deposited into the following funds within the Pierce County ILF Program Account (see Basic Agreement Article IV.D. and Appendix F of the Instrument):

Where the [year] price per credit is: $__________

Previously paid down payment secured through a Letter of Intent for 10 percent of necessary credits: $____________

Fees collected from Applicant for remaining 90 percent of credits: $_________

Total Mitigation Fees Collected from Applicant: $_________

(75% of these fees comprise the "credit fee" and 25% comprise the "land fee".)

Land Fee Account: $__________ (100% of land fee)

Program Admin. Account: $________ (15% of total credit fee)

Contingency Account: $________ (10% of total credit fee)

Long-Term Management Account: $________ (5% of total credit fee)

Individual Mitigation Projects Account: $________ ( 70% of total credit fee)

C.    The Sponsor Agrees to Implement Mitigation. Upon acceptance of these fees from the Applicant, the Sponsor is agreeing to implement mitigation, and assume all associated obligations and liabilities according to terms of the final Program Instrument for the Pierce County ILF Program as certified on __________, _____.

V.    PROOF OF PURCHASE

This Statement of Sale shall serve as official proof that the Applicant has purchased mitigation credits from the Sponsor.

A.    Signed Statement of Sale Provided to Applicant. The Sponsor will provide a signed copy of this form to the Applicant within 15 days after receipt of funds from the Applicant. The Applicant is responsible for submitting copies of the fully executed Statement of Sale to the appropriate regulatory agencies as proof of purchase of ILF mitigation credits.

B.    Signed Statement of Sale Provided to the United States Corps of Army Engineers and the Washington State Department of Ecology. The Sponsor will provide a signed copy of this form to the above identified organizations within 15 days after receipt of funds from the Applicant.

C.    Copies Available to the Interagency Review Team (IRT) Members. Copies of this Statement of Sale shall be made available to any member of the IRT upon the IRT member's request.

VI.    ADDITIONAL PROVISIONS

A.    Allocation of Funds. The Sponsor will deposit the moneys listed above into the program account in the amounts listed in Article IV.B. of this Statement of Sale. Record of these funds will also be added to the Program Account Ledger.

B.    Spending Authorization. Upon initial receipt of credit fees, the Sponsor shall be authorized to spend up to 75 percent of funds allocated to Administrative Accounts according to Appendix F, Section 5.0 of the Program Instrument. The Co-chairs of the IRT (the District Engineer of the U.S. Army Corps of Engineers and the Department of Ecology), after consultation with the IRT, must authorize all additional expenditures from the program account pursuant to 33 CFR 332.8(i)(2) and pursuant to Article IV.B of the Basic Agreement.

C.    Reporting Requirements Unaffected. This agreement shall not affect reporting requirements outlined in the program instrument.

D.    Effect of Agreement. This Agreement does not in any manner affect statutory authorities and responsibilities of the Sponsor. This Statement of Sale is not intended, nor may it be relied upon, to create any rights in third parties enforceable in litigation with the United States or the State of Washington. This Statement of Sale does not authorize, nor shall it be construed to permit, the establishment of any lien, encumbrance, or other claim with respect to the ILF program property, with the sole exception of the right on the part of the Corps to require the Sponsor to implement the provisions of Program Instrument, including recording conservation easements or similarly restrictive covenants, required as a condition of the issuance of permits for discharges of dredged and fill material into waters of the United States associated with construction and operation and maintenance of a Mitigation Site.

E.    Attorneys' Fees. If any action at law or equity, including any action for declaratory relief, is brought to enforce or interpret the provisions of this Statement of Sale, each party to the litigation shall bear its own attorneys' fees and costs of litigation.

F.    Headings and Captions. Any paragraph heading or caption contained in this Statement of Sale shall be for convenience of reference only and shall not affect the construction or interpretation of any provision of this Statement of Sale.

G.    Refunds. Mitigation Fees, Credit Fees, and Land Fees are not refundable.

IN WITNESS WHEREOF, the Sponsor and the Applicant confirm the information contained in this Statement of Sale to be true as written.

SPONSOR

______________________________________

________________

[Name]

Date

ILF Program Manager

 

APPLICANT

______________________________________

________________

[Name]

Date

(Ord. 2015-15 § 1 (part), 2015; Ord. 2014-33 § 2 (part), 2014)