§214.41. Mitigation of coastal wetlands losses

A. As used in this Section, the following terms shall have the meaning ascribed to them below:

(1) "Compensatory mitigation" means replacement, substitution, enhancement, or protection of ecological values to offset anticipated losses of those values caused by a permitted activity. Compensatory mitigation may also include construction or implementation of an integrated coastal protection project consistent with the state's master plan for coastal protection and restoration within the same watershed as the permitted activity.

(2) "Ecological value" means the ability of an area to support vegetation and fish and wildlife populations.

(3) "Mitigation" means all actions taken by a permittee to avoid, minimize, restore, and compensate for ecological values lost due to a permitted activity.

(4) "Overriding public interest" means that the public interest benefits of a given activity clearly outweigh the public interest benefits of compensating for wetland values lost as a result of the activity, as in the case of certain mineral extraction, production and transportation activities or construction of flood protection facilities critical for protection of existing infrastructure.

(5) "Permit" means a coastal use permit.

(6) "Permitted activity" means any activity authorized by a coastal use permit or any activity for which the secretary may require a consistency determination pursuant to R.S. 49:214.32.

(7) "Wetlands" means the same as defined in R.S. 49:214.2.

B. The secretary shall adopt regulations to require mitigation. The regulations adopted pursuant to the authority of this Section shall require consideration of all relevant factors in determining the extent of mitigation, including societal and economic value of the proposed activity, ecological values impacted by the proposed activity, and availability of methods for avoiding or minimizing the impacts associated with the proposed activity and for restoring the site impacted by the proposed activity. The regulations adopted pursuant to this Subsection shall require that the secretary consult with the Coastal Protection and Restoration Authority in the determination of the ecological values impacted by an activity proposed in the coastal area that is contained in the state's master plan for integrated coastal restoration and the methods for avoiding or minimizing adverse impacts associated with the proposed coastal master plan activity.

C. Compensatory mitigation, including construction or implementation of an integrated coastal protection project consistent with the state's master plan for coastal protection and restoration within the same watershed as the permitted activity, at a level sufficient to replace or to substitute for the ecological value of the wetlands lost as a result of each permitted activity, shall be required, unless the permittee has satisfactorily demonstrated to the secretary that the required mitigation would render impracticable an activity proposed to be permitted and that such activity has a clearly overriding public interest. In such an instance, provided that the secretary has decided to issue the permit, the secretary shall grant a variance to this compensatory mitigation requirement after giving due public notice. The secretary shall also provide a statement of finding as to the reasons for granting such variance.

D. The secretary shall adopt regulations for evaluating ecological values and for establishing and administering a mitigation credit banking system for compensating the loss of those values, as provided for by this Section. The regulations shall, at a minimum, provide for:

(1) Criteria under which mitigation credits may be earned.

(2) Geographical limitations for the application of mitigation bank credits.

(3) Criteria for the use, banking, or sale of banked credits.

(4) The approval by the secretary for the earning, using, banking, or selling of mitigation bank credits.

(5) Requirements for the maintenance and submission by the secretary of records concerning ecological value losses, and credit and debit accounts for each mitigation bank.

E. The owner of the land on which a permitted activity is to occur shall have the option of requiring on-site or off-site compensatory mitigation on his property located in any jurisdictional area of the coastal zone or any area included in the Louisiana Coastal Wetlands Conservation Plan, notwithstanding any geographical limitation otherwise required by the regulations adopted by the secretary, provided that the secretary determines that the proposed mitigation is acceptable and sufficient.

F. The secretary may adopt regulations establishing procedures for defining and delineating proposed "special significance areas" which may include areas of particular ecological uniqueness or vulnerability, or areas which have special ecological values or productivity. The procedures established by the secretary shall provide as follows:

(1) Upon determining that the unique or special resources in such area are susceptible to loss as a result of future activities in such area, the secretary may, in accordance with the provisions of R.S. 49:953(A), designate a special significance area, which area shall in no event exceed two thousand acres. The designation of the area as one of special significance shall expire on the first day of July of the year following the designation and the area, or any part thereof, shall not be subject to redesignation as such except by the legislature as set forth below.

(2) The secretary may propose to the legislature and thereafter the legislature may, by concurrent resolution, delineate special significance areas upon finding that an area is of particular ecological uniqueness or vulnerability or has special ecological values or productivity, which areas shall in no event exceed two thousand acres each.

(3) Upon designation of a special significance area, the regulations adopted by the secretary shall require that a permittee, in order to receive a permit to conduct an activity having a direct and significant adverse impact on unique or special resources of such area, must demonstrate that the public interest benefits of the proposed activity clearly outweigh the public interest benefits of preserving the unique or special ecological values of the area and must, at a minimum, provide full compensatory mitigation for ecological value losses associated with the permitted activity.

G. Notwithstanding any other provision of this Section to the contrary, in no event shall any regulation adopted by the secretary require compensatory mitigation for any use or activity which the secretary determines is primarily designed, over the life of the project, to provide a net gain in ecological values by replacing, substituting, enhancing, or protecting wetlands, including privately funded marsh management projects or plans.

Acts 1990, No. 1040, §1; Acts 2004, No. 459, §1, eff. June 24, 2004; Acts 2006, No. 548, §1, eff. June 22, 2006; Acts 2018, No. 47, §1; Acts 2018, No. 286, §1.