Opportunity for Improved Wetland Mitigation in Utah - In-Lieu Fee Mitigation Potential in Utah

Wetlands play a crucial role in watersheds and provide critical ecosystem functions, most notably, water quality improvement, fish and wildlife habitat, flood attenuation, drought mitigation, and carbon sequestration. Wetlands in Utah are regulated primarily by the federal government under the Clean Water Act (CWA), which requires mitigation to replace ecological services that are lost to permitted activities. Utah House Bill 118 (2022) directed the Utah Geological Survey to explore the potential for an In-Lieu Fee (ILF) mitigation program to improve wetland resources in Utah. An ILF program would allow entities seeking CWA permits to pay a fee to mitigate impacts to streams and wetlands rather than having to develop their own mitigation plans. To research the possible consequences of an ILF, we conducted document research and interviews with mitigation practitioners and wetland stakeholders and analyzed ten years of permit data. Interview participants agreed that an ILF would improve the quality of wetland mitigation projects, which currently are often small, isolated, and overrun with weeds. An ILF would also improve coordination between the various entities involved in natural resource protection, permitting, and restoration. Further, permittees would benefit from an ILF because it would streamline the permitting process. Research and input from current practitioners showcased that there were many options for running an ILF program that can work for Utah, which has few permitted wetland impacts compared to other, less arid states. The most effective way to build an ILF in Utah is to support a full-time ILF administrator to establish the program and develop and maintain strong relationships with regulators, restoration specialists, and those seeking permits. Based on historical permit rates, such a position could be funded by program fees after the program is established. The future of a self-sustaining ILF program is uncertain, however, due to the recent Sackett v. Environmental Protection Agency (EPA) Supreme Court decision which limited the types of wetlands that are regulated by the federal government. The expected reduction in wetland permitting creates a more challenging environment in which to operate an ILF program because permit fees will likely no longer support a full-time ILF administrator’s salary. At the same time, ensuring high quality mitigation will be more important than ever because there will be more unpermitted and thus unmitigated wetland impacts, leading to loss in ecological functions. Given these considerations, we recommend establishing a position for a wetland mitigation and restoration coordinator who can explore multiple options to preserve and restore wetlands in Utah, coordinate among agencies, and begin to implement an ILF program at a rate and scale appropriate to the new regulatory conditions. By investing in a wetland mitigation and restoration coordinator, the state can support voluntary restoration measures to increase wetland functions while at the same time improving mitigation outcomes for permittees and projects. Together, these actions will lead to healthier, more resilient wetlands that will protect the quality of life for all Utahns.