The cost of filling a stream during development in the DFW market jumped over-night with implementation of the new 50-50 rule in October 2013. When project plans require impacting a stream (e.g., filling, piping, re-routing, etc.) the U.S. Army Corps of Engineers requires that those impacts be off-set by purchasing stream mitigation credits as part of a “wetland” permit. Stream mitigation is parallel to the wetland mitigation process. The reader may be more familiar with the fact that when a project such as a residential development requires filling a jurisdictional wetland, the developer may have to purchase wetland credits as part of the wetland permit. Jurisdictional streams are addressed in the same permitting process, but now more restrictions have been placed on how impacts to streams are compensated.
Stream mitigation credits are created by businesses that restore a stream, such as a degraded segment of the Trinity River, thereby creating credits for that stream restoration that they can sell. Stream banks and wetland banks usually consist of one large-scale project that generates hundreds of credits to sell to several projects in nearby watersheds.
The 50-50 rule requires that half of the stream credits for a project be “in-channel” credits. In-channel credits are created by stream restoration projects that involve things like erosion control inside the stream channel. An example of an activity that is not an in-channel stream restoration project is planting trees in the floodplain. Stream banks can get “stream credit” for that, but that is not the same as “in-channel” credits. That is where the 50-50 rule comes in. At least 50% of stream mitigation credits for a project need to be “in-channel” credits and the other 50% can be the less stringent “stream credits” or “riparian credits”.
The impact to the cost of stream credits is from the much higher cost of “in-channel” credits. The few stream banks with “in-channel” credits in parts of the DFW market have much higher prices for in-channel credits than other available stream credits. Policy changes in the last decade also have shifted from previously favoring on-site mitigation projects to now favoring purchase of stream and wetland credits, where available. The result has been that it is much harder to get approval of projects that re-create or restore existing aquatic features at the project site and instead the rules now push an applicant toward purchase of increasingly expensive stream credits. These Corps of Engineers policy changes have increased the liability of having a stream at a property.
It is critical that streams be accurately delineated and their jurisdictional determination be carefully considered. W&M staff have decades of experience delineating streams and wetlands, providing preliminary jurisdictional determination, and assisting with the permit process. If you need stream and wetland consulting services, please contact Aaron Brewer.