Virginia Law

Compensatory mitigation requirements may be met by payment of an ad hoc in-lieu fee only in exceptional circumstances where federal regulators do not require compensatory mitigation and the applicant demonstrates that other forms of compensatory mitigation are not available. The use of ad hoc in-lieu fees must be the result of an agreed-upon permit condition between the applicant and the commission or a wetlands board. Localities are encouraged to establish a fund for such payments that is dedicated to tidal wetlands restoration and creation. This could be the same fund established for the receipt of civil charges or civil penalties. Administration of such a fund should include an ability to trace the contribution of ad hoc in-lieu fees to eventual use in actual wetland restoration or wetland creation projects. If payments are made to other dedicated wetland restoration funds, this should be recognized in the permit issued by the commission or a wetlands board. In no case should an ad hoc in-lieu fee amount be accepted that is less than the cost at the prevailing market rate of establishing an area of wetlands that exceeds the area of wetlands impacted by a ratio of at least two to one. Use of the fund could be for actual tidal wetland creation or wetland restoration projects in the locality or for the purchase of credits in an approved compensatory mitigation bank that is authorized subsequent to the receipt of any ad hoc in-lieu fee. Localities are encouraged to combine any ad hoc in-lieu fee with other potential or available funds for wetland restoration or wetland establishment projects.