VMRC updates tidal wetland mitigation guidelines to align with new state law; stakeholder groups urge stronger sea‑level safeguards

The Marine Resources Commission on Jan. 28 adopted updated guidance for tidal wetland mitigation banking and the agency’s wetland mitigation compensation policy, revisions directed by 2023 legislation (House Bill 1950 as cited in the staff presentation).

Staff told the commission the updates were produced by a stakeholder work group that included the Corps of Engineers, VIMS, DEQ and conservation organizations and that the changes clarify procedures for prospective bankers and provide a new sequencing for compensatory mitigation. Under the updated sequencing, when compensatory mitigation is required the preferred order is: (1) use available tidal wetland mitigation bank credits in the project service area; (2) use an approved in‑lieu fee program (for example, the Virginia Aquatic Resources Trust Fund where applicable); (3) on‑site or approved off‑site mitigation; and (4) local in‑lieu fee payments only in limited or exceptional circumstances. Staff said the changes are intended to encourage more tidal wetland mitigation banks, bring VMRC practice into closer alignment with federal and state interagency practice, and ensure replacement of wetland functions.

Public commenters at the hearing included Wetlands Watch and the Chesapeake Bay Foundation, which asked for explicit requirements that banks account for sea‑level rise and landward migration (both groups urged stronger language — ‘‘shall’’ instead of ‘‘should’’ — where permanence and sea‑level risk are at issue). The groups also urged caution about allowing invasive‑species removal as an eligible mitigation activity without stronger standards. Representatives of mitigation bankers and the Virginia Aquatic Resources Trust Fund supported the effort and said clearer guidance will foster more banks and predictability in permitting.

Associate Member Erskine moved to accept staff’s recommendation to adopt the updated guidelines; Associate Member Branson seconded. The motion passed without objection. Staff said the updates will be posted publicly and that future bank proposals will proceed through the established interagency review team (IRT) process.

The updates change agency guidance to favor bank credits and approved in‑lieu programs over ad‑hoc local in‑lieu payments, in part to reduce temporal loss of compensatory mitigation and to improve ecological outcomes. Commenters asked the commission to revisit the guidelines if science or implementation experience indicates stronger protections for long‑term persistence under sea‑level rise are needed.