49-256. Adoption and enactment of federal definitions

(Conditionally Rpld.)

For the purposes of this article and for establishing primacy for this state's dredge and fill permit program under 33 United States Code section 1344, the following definitions are adopted and enacted as follows:

1. " Compensatory mitigation" means the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved.

2. " Dredged material" means material that is excavated or dredged from navigable waters.

3. " Fill material" means:

(a) Except as specified in subdivision (c) of this definition, the term fill material means material placed in navigable waters where the material has the effect of:

(i) Replacing any portion of a navigable water with dry land; or

(ii) Changing the bottom elevation of any portion of a navigable water.

(b) Examples of such fill material include, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the navigable waters.

(c) The term fill material does not include trash or garbage.

4. " General permit" means a permit authorizing a category of discharges of dredged or fill material under this article. General permits are permits for categories of discharge which are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.

5. " In-lieu fee 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 dredge and fill permits issued pursuant to this article. Similar to but distinct from a mitigation bank, an in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor. The operation and use of an in-lieu fee program are governed by an in-lieu fee program instrument.

6. " Mitigation bank" means a site, or suite of sites, where resources (e.g., wetlands, streams, riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by dredge and fill permits issued pursuant to this article. In general, a mitigation bank sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor. The operation and use of a mitigation bank are governed by a mitigation banking instrument.

7. " Party affected by a jurisdictional determination" means a permit applicant, landowner, a lease, easement or option holder, or other individual who has an identifiable and substantial legal interest in the property (or a person acting with the approval of any of the foregoing) who has received an approved jurisdictional determination.

8. " Permittee-responsible mitigation" means an aquatic resource restoration, establishment, enhancement, and/or preservation activity undertaken by the permittee (or an authorized agent or contractor) to provide compensatory mitigation for which the permittee retains full responsibility.

9. " Practicable" means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

10. " Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.