A BILL TO BE ENTITLED
AN ACT to (1) Clarify the functional value of isolated wetlands and intermittent streams, (2) direct the department of Environment and natural resources and the department of transportation to jointly petition the wilmington district of the united states army corps of engineers to allow for greater flexibility and opportunity to perform wetlands mitigation beyond the immediate watershed where development will OCCUR, and (3) direct the Department of environment and natural resources and the environmental management commission to review fees charged by the ecosystem enhancement program.
The General Assembly of North Carolina enacts:
SECTION 1.(a)  G.S. 143‑214.11 reads as rewritten:
"§ 143‑214.11.  Ecosystem Enhancement Program: compensatory mitigation.
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(c)	Compensatory Mitigation Emphasis on Replacing Ecological Function and Values Within Same River Basin. – The emphasis of compensatory mitigation is on replacing functions and values within the same river basin unless it is demonstrated that restoration of other areas would be more beneficial to the overall purposes of the Ecosystem Enhancement Program.
(d)	Compensatory Mitigation Options Available to Government Entities. – A government entity may satisfy compensatory mitigation requirements by the following actions, if those actions are consistent with the basinwide restoration plans and also meet or exceed the requirements of the Department or of the United States Army Corps of Engineers, as applicable:
(1)	Payment of a fee established by the Commission into the Ecosystem Restoration Fund established in G.S. 143‑214.12.
(2)	Donation of land to the Ecosystem Enhancement Program or to other public or private nonprofit conservation organizations as approved by the Department.
(3)	Participation in a compensatory mitigation bank that has been approved by the United States Army Corps of Engineers, provided that the Department or the United States Army Corps of Engineers, as applicable, approves the use of such bank for the required compensatory mitigation.
(4)	Preparing and implementing a compensatory mitigation plan.
(d1)	Compensatory Mitigation Options Available to Applicants Other than Government Entities. – An applicant other than a government entity may satisfy compensatory mitigation requirements by the following actions, if those actions meet or exceed the requirements of the United States Army Corps of Engineers:
(1)	Participation in a compensatory mitigation bank that has been approved by the United States Army Corps of Engineers, provided that the Department or the United States Army Corps of Engineers, as applicable, approves the use of such bank for the required compensatory mitigation. This option is only available in a hydrologic area where there is at least one compensatory mitigation bank that has been approved by the United States Army Corps of Engineers.
(2)	Payment of a fee established by the Commission into the Ecosystem Restoration Fund established in G.S. 143‑214.12. – This option is only available to an applicant who demonstrates that the option under subdivision (1) of this subsection is not available.
(3)	Donation of land to the Ecosystem Enhancement Program or to other public or private nonprofit conservation organizations as approved by the Department.
(4)	Preparing and implementing a compensatory mitigation plan.
(e)	Payment Schedule. – A standardized schedule of compensatory mitigation payment amounts shall be established by the Commission. Compensatory mitigation payments shall be made by applicants to the Ecosystem Restoration Fund established in G.S. 143‑214.12. The monetary payment shall be based on the ecological functions and values of specific types of wetlands and streams, including coastal wetlands, riparian wetlands, non‑riparian wetlands, perennial streams, and intermittent streams, permitted to be lost and on the cost of restoring or creating wetlands and streams capable of performing the same or similar functions, including directly related costs of wetland and stream restoration planning, long‑term monitoring, and maintenance of restored areas. Compensatory mitigation payments for wetlands shall be calculated on a per acre basis. Waters of the State that are isolated wetlands shall have one‑third the functional value of wetlands that are contiguous with waters of the United States. Compensatory mitigation payments for streams shall be calculated on a per linear foot basis. Intermittent streams shall have one‑third the functional value of perennial streams.
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SECTION 1.(b)  No later than March 1, 2014, the Environmental Management Commission shall adopt rules to amend its standardized schedule of compensatory mitigation payments consistent with G.S. 143‑214.11, as amended by subsection (a) of this section.
SECTION 2.(a)  No later than October 1, 2013, the Department of Environment and Natural Resources and the Department of Transportation shall jointly petition the Wilmington District of the United States Army Corps of Engineers (Wilmington District) to allow for greater flexibility and opportunity to perform wetlands mitigation outside of the eight‑digit Hydrologic Unit Code (HUC) where development will occur. The Departments shall seek this greater flexibility and opportunity for mitigation for both public and private development. The Departments shall request that the Wilmington District review the flexibility and opportunities for mitigation allowed by other Districts of the United States Army Corps of Engineers.
SECTION 2.(b)  The Departments shall jointly report on their progress in petitioning the Wilmington District as required by subsection (a) of this section to the Environmental Review Commission no later than January 1, 2014.
SECTION 3.(a)  The Department of Environment and Natural Resources, including the Ecosystem Enhancement Program and the Division of Water Quality, and the Environmental Management Commission shall review the fee structures of the individual programs administered by the Ecosystem Enhancement Program, including the fee structures of the compensatory mitigation program, the riparian buffer protection program, and the nutrient offset program. In their review, the Department and Commission shall examine ways that the fee structures might be made more efficient and cost‑effective while still maintaining adequate protection of public health, the environment, and natural resources. The Department and Commission shall specifically consider the requirements of G.S. 143‑214.11(e) that:
(1)	Compensatory mitigation payments shall be based on the ecological functions and values of wetlands and streams permitted to be lost and on the cost of restoring or creating wetlands and streams capable of performing the same or similar functions, including directly related costs of wetland and stream restoration planning, long‑term monitoring, and maintenance of restored areas.
(2)	Compensatory mitigation payments for wetlands shall be calculated on a per acre basis.
(3)	Compensatory mitigation payments for streams shall be calculated on a per linear foot basis.
SECTION 3.(b)  The Department and Commission shall report on the results of the review required by subsection (a) of this section, including any anticipated changes to the fee structures or recommendations, to the Environmental Review Commission no later than January 1, 2014.
SECTION 4.  This act is effective when it becomes law.