DAR File No. 42309
This rule was published in the February 15, 2018, issue (Vol. 2018, No. 4) of the Utah State Bulletin.
Natural Resources, Administration
Compensatory Mitigation Program
Change in Proposed Rule
DAR File No.: 42309
Filed: 01/22/2018 01:10:36 PM
Purpose of the rule or reason for the change:
The Department of Natural Resources (Department) received additional comments during the comment period and in response have added additional clarifying language and made other minor changes.
Summary of the rule or change:
In response to comments received during the comment period, additional clarifying language and minor changes are made to this rule. These changes include: adding language to clarify that the mitigation ratio of 4:1 is recommended, not mandated on other agencies by this rule; clarifying how the cost per credit will be determined; adding language to clarify that credits can be earned through preservation of occupied habitats in the conservation bank program; clarifying that credits would be available for use again when the disturbance they are off-setting has returned to a functional habitat; clarifying that in-lieu fee payments in the state sponsored program will not be used to preserve habitats; adopting conservation easement definition from Title 57, Chapter 18; adding definition for bank manager; adding requirement for conservation bank agreements to be recorded with counties; clarifying language on adaptive management strategies; and adding language requiring draft conservation easement language will be a part of the application process. (EDITOR'S NOTE: The original proposed new rule upon which this change in proposed rule (CPR) was based was published in the December 1, 2017, issue of the Utah State Bulletin, on page 67. Underlining in the rule below indicates text that has been added since the publication of the proposed new rule mentioned above; strike-out indicates text that has been deleted. You must view the CPR and the proposed new rule together to understand all of the changes that will be enforceable should the agency make this rule effective.)
Statutory or constitutional authorization for this rule:
- Section 79-2-501
Anticipated cost or savings to:
the state budget:
It is anticipated that the revenue needed to administer this program will be recovered by the proceeds created by the implementation of the program. Therefore, this program is expected to be revenue and cost-neutral to the state of Utah in the long-term.
This proposed rule does not require participation by local governments. Local governments that choose to participate in this program will do so voluntarily, and will be given an opportunity to evaluate the cost versus benefit of their participation in this program before doing so.
This proposed rule does not require participation by any entity. Therefore, this filing does not create any direct cost or savings impacts to other persons or entities. Those who choose to participate in this program will do so voluntarily, and will be given an opportunity to evaluate the cost versus benefit of their participation in this program before doing so.
persons other than small businesses, businesses, or local governmental entities:
This proposed rule does not require participation by any entity. Therefore, this filing does not create any direct cost or savings impact to other persons or entities. Those who choose to participate in this program will do so voluntarily, and will be given an opportunity to evaluate the cost vs. benefit of their participation in this program before doing so.
Compliance costs for affected persons:
This program does not require participation, therefore, no compliance cost is anticipated. For those who choose to participate in this program, the cost to do so is intended to be advantageous to the organization and/or individual.
Comments by the department head on the fiscal impact the rule may have on businesses:
This rule is intended to be mutually beneficial to businesses, local, state, and federal governmental agencies and to the conservation of greater sage-grouse in Utah.
Michael R. Styler, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:Natural Resources
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154
Direct questions regarding this rule to:
- Kaelyn Anfinsen at the above address, by phone at 801-538-7201, by FAX at 801-538-7315, or by Internet E-mail at email@example.com
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
This rule may become effective on:
Michael Styler, Executive Director
Appendix 1: Regulatory Impact Summary Table*
Total Fiscal Costs:
Total Fiscal Benefits:
Net Fiscal Benefits:
*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.
Appendix 2: Regulatory Impact to Non-Small Businesses
The compensatory mitigation program is not new just to Utah but to the other 10 Western States that are developing programs with the similar objective of keeping Greater Sage-grouse from being listed under the U.S. Endangered Species Act. The number of private landowners who will attempt to develop credits for sale under this program as is the number of businesses who will need credits from disturbing Sage-grouse Habitat on federal lands and will be required to complete mitigation. The Department will know a lot more by 2020 when the listing decision for Greater Sage-grouse will be reviewed by the U.S. Fish and Wildlife Service but at this time both the fiscal costs and fiscal benefits are inestimable.
R634. Natural Resources, Administration.
R634-3. Compensatory Mitigation Program.
R634-3-1. Authority and Purpose.
(1) Under authority of Utah State Code Section 79-2-501 et seq., this rule establishes the State of Utah's Compensatory Mitigation Program, including procedures for implementing the program to mitigate for permanent disturbances to greater sage-grouse (hereafter sage-grouse) habitat in Utah.
(2) This rule incorporates the conservation strategies contained in the "Conservation Plan for Greater Sage-grouse in Utah".
(3) Sage-grouse habitat in Utah is
naturally fragmented due to topography, encroachment of conifer
trees, fire, and invasive weeds such as cheat grass. Human-related
activities have also contributed to habitat fragmentation. Research
conducted on sage-grouse in Utah has clearly demonstrated that the
species is space-limited and responds positively when new habitat
is created. This compensatory mitigation program will be used to
increase space (i.e., habitat) for greater sage-grouse[
and to] connect disjointed habitat by creating [ connections and ]corridors[ where they do not exist]. Acres of habitat lost and
created will be the measure used to guide the implementation and
track the success of the program in Utah. Other programs in Utah,
including the Watershed Restoration Initiative, Sage-grouse
Initiative and the Grazing Improvement Program, conduct projects to
improve the quality of the habitat. The lessons learned from those
programs will guide the implementation of this rule.
R634-3-2. Program Goals.
(1) The Compensatory Mitigation Program
seeks to offset the impacts of permanent disturbances to
sage-grouse habitat in Utah by[
(a) encouraging responsible economic
development through avoiding and minimizing permanent disturbance
within sage-grouse habitat, when possible, and thereby maintaining
the distribution of[
functional] sagebrush habitats within Sage-grouse
Management Areas (SGMAs) in Utah; and
(b) providing Compensatory Mitigation
resulting in an increase to or protection of [
functional ]habitat to offset the impacts from
Permanent Disturbance in sage-grouse habitats within Utah.
(1) "Agreement Fee" means a sum of money paid by a Credit Provider upon entering into a Term Mitigation Agreement or Conservation Bank Agreement with the Department to offset the Department's costs in administering the Agreement.
(2) "Application Fee" means a
sum of money
paid by an applicant to the
Department to offset the cost of processing [
any] compensatory mitigation [ applications] submitted to the Department.
(3) "Area of Permanent Disturbance" means the area within a spatial polygon circumscribing the actual permanently disturbed area directly impacting sage-grouse or its habitat.
(4) "Baseline" means the pre-existing condition of a defined project area, prior to commencing any Credit Generation Project.
means permanently protected real property included in or devoted to the development of a Conservation Bank.
6]) "Compensatory Mitigation"
means the restoration or establishment of
sage-grouse habitat or permanent protection of existing occupied
habitat to offset the unavoidable adverse impacts which
permanent disturbance to sage grouse
7]) "Compensatory Mitigation Program" means the
sage-grouse habitat mitigation program created by Title 79, Chapter
2, Part 5 of the Utah Code and this Rule.
8]) "Conservation Bank" means a site or suite of
sites of at least 640 contiguous acres established under a
Conservation Bank Agreement with the Department that provides
ecological functions and services for sage-grouse, expressed as
Credits that are conserved and managed in perpetuity and used to
offset impacts to sage-grouse habitat expressed as Debits,
9]) "Conservation Bank Agreement" means the legal
document for the establishment, operation and use of a conservation
(10) "Conservation Easement" means a voluntary
legal agreement between a landowner and a third party that limits
the use or development of land to protect sage-grouse habitat
11]) "Corridor" means an area of land that
facilitates sage-grouse movement between two or more areas of
Occupied Habitat containing less than 1% canopy cover in conifers
and at least 15% ground cover in perennial grasses, shrubs, and
forbs, and is at least 100 acres in size with a width of at least
12]) "Credit" means an acre of Functional Habitat
or Corridor lands created[ ,]
restored[ ,] or
preserved by a Credit Provider
that may be transferred to a Credit Buyer to offset impacts of
Permanent Disturbances and which represents the value in
Compensatory Mitigation activities.
13]) "Credit Buyer" means any person who purchases
Credits to offset the impacts of permanent [ disturbances] to sage-grouse habitat.
14]) "Credit Exchange Service" means a tool created
by the Department to track the development, maintenance and
transfer of Credits.
15]) "Credit Generation Project" means any planned
project implemented by a Credit Provider or a designee within any
SGMA to create[ ,]
restore[ , or preserve] Functional Habitat or [ to create, restore, or preserve ]Corridors
to generate Credits.
16]) "Credit Maintenance" means the actions
required to ensure that Credit acreage continues to operate as
or [ Corridor lands] for the duration of the disturbance it was
intended to offset.
17]) "Credit Provider" means any person or entity
that creates or restores Functional Habitat or Corridor(s)
to generate Credits to be
transferred utilizing the Credit Exchange Service.
18]) "Credit Transfer Fee" means a sum of money
paid by a Credit Buyer to the
Department when a Credit Provider transfers Credits to a Credit
Buyer to offset the Department's costs in administering this
19]) "Debit" means an acre of sage-grouse habitat
permanently disturbed in a SGMA for which Compensatory Mitigation
20]) "Department" means the Utah Department of
Natural Resources, the agency responsible for administering the
Compensatory Mitigation Program.
21]) "Durability" means the ability for mitigation
measures to remain effective for a period of time that is at least
as long as the impacts from the permanent disturbance that the
mitigation is designed to offset.
22]) "Functional Habitat" means any sage-grouse
habitat, created through a Credit Generation Project, contiguous
with existing Occupied Habitat, and which includes a live sagebrush
canopy cover of at least 10% and no more than 1% canopy cover of
conifer trees over 0.5 meters in height.
23]) "Habitat" means the aggregation of Seasonal
Habitats used by sage-grouse during their yearly life-cycle.
24]) "In-lieu Fee" means money provided to the
State, at the direction of a regulatory agency, to be used for
restoration and enhancement of sage-grouse habitat, with the goal
to create or restore Functional Habitat that satisfies Compensatory
Mitigation requirements to offset Permanent [ Disturbances on federal or state lands.]
25]) "Mitigation Ratio" means the ratio of Credits
needed by a Credit Buyer or produced by the State to offset any
Permanent Disturbance within sage-grouse habitat. [ Any] person
causing Permanent Disturbance to an acre of sage-grouse habitat
should provide four acres of Functional Habitat, Protected Habitat,
or Corridors as a proper Mitigation Ratio to offset indirect
impacts from disturbance and account for differences in habitat
quality without conducting a detailed analysis of either
(27) "Occupied Habitat" means any Habitat utilized by Sage-grouse during any portion of their annual lifecycle.
(28) "Permanent Disturbance" means a human caused action that results in a loss of sage-grouse Habitat for a period of five or more years and includes all areas where the direct effects of the action could be expected to disrupt the common activities of sage-grouse for a period of five years or more.
(29) "Plan" means the current Conservation Plan for Greater Sage-grouse in Utah.
(30) "Program Administrator" means the Executive Director of the Department, or their designee, with authority to establish, operate and manage the Compensatory Mitigation Program.
(31) "Project Area" means the geographic boundary of any Credit Generation Project.
(32) "Protected Habitat" means
an area of [
occupied functional habitat] that is preserved from [ permanent disturbance] through a [ conservation easement] for at least 20 years and is
maintained [ to meet the definition of functional] habitat[ or corridor] for the length of the easement.
32]) "Remedial Action" means any corrective
measures which a Credit Provider is required to take to ameliorate
any injury or adverse impact to Credits or Transferred Credits to
ensure long-term [ durability of Functional Habitat.]
33]) "Reserve Pool" means a pool of Credits,
managed by the Program Administrator or a Bank Manager, intended to
cover risks of potential Reversals on any Project Area.
34]) "Reversal" means a Compensatory Mitigation
Credit that does not persist [ as Functional Habitat ]for the full duration of
the Permanent Disturbance.
35]) "SGMA" means Sage-grouse Management Areas as
identified in the Plan.
36]) "Seasonal Habitat" means all habitats utilized
by sage-grouse for survival during some portion of its life cycle,
including leks, nesting, brood rearing, late brood rearing,
transitional corridors, and winter habitat.
37]) "Service Area" means any SGMA within the State
38]) "SITLA Lands" means lands owned or managed by
the Utah School and Institutional Trust Lands Administration.
39]) "State Lands" means lands owned or managed by
any State of Utah agency other than SITLA.
40]) "Term Mitigation Agreement" means an agreement
between the Department and any person(s) owning or controlling
property [ adjacent to Occupied Habitat ]within any SGMA,
where the landowner [ generates Functional Habitat or Corridor(s)] for the benefit of
sage-grouse, and which actions result in the creation of Credits to
be transferred to Credit Buyers to offset Permanent Disturbances to
41]) "Transfer" means the conveyance of Credits
from one person or entity to another to offset impacts from
42]) "Transferred Credit" means any Credit
transferred [ from] the Department's Credit Exchange Service to
offset impacts from Permanent Disturbance.
43]) "Verification" means the process[ (es)] used to confirm that Compensatory Mitigation
Program rules have been followed through standardized reporting and
44]) "Verifier" means any person or entity that has
been accredited by the Department and certifies or monitors [ the existence of ]Functional Habitat[ or] Corridors
following Credit Generation Projects
utilizing the scientific methods and guidelines approved by the
R634-3-4. State Sponsored Compensatory Mitigation Program.
(1) Compensatory Mitigation for Impacts to Private, SITLA and other State Lands.
(a) To meet the mitigation requirements in the Utah Conservation Plan for Greater Sage-grouse, the Department will:
(i) Generate four acres of Functional Habitat or Corridors in SGMAs for every one acre of Permanent Disturbance on private or SITLA Lands in any SGMA; and
(ii) For every one acre of Permanent Disturbance on State Lands, other than SITLA lands, in any SGMA, the Department will work with other state agencies to generate four acres of Functional Habitat or Corridors.
(2) Determination of Disturbance.
(a) In consultation with county governments and other state agencies, the Department will determine the number of acres of permanent disturbances within all SGMAs on private, SITLA and State Lands every three years, or whenever information becomes available to the Department.
(3) State Credit Generation Projects.
(a) T he Department will identify potential Credit Generation Projects within non-functional habitat in any SGMA. Prior to initiation of any Credit Generation Projects on SITLA, State Lands or federal lands, the Department will assess the Project Area to document the Baseline acres of Functional Habitat present within the Project Area before treatment. After conducting any necessary pre-project planning and assessments, the Department will conduct Credit Generation Projects to generate Credits.
(b) The Department will consult with the concerned county government and other appropriate agencies before conducting the project.
(c) The Department will meet annually with federal agencies with jurisdiction over federal lands to identify potential Credit Generation Projects that may be completed on federal lands utilizing non-federal dollars. Credit Generation Projects will only be initiated after compliance with any necessary federal planning and permitting requirements. After conducting any necessary pre-project planning and assessments, the Department will conduct Credit Generation Projects to generate Credits.
(4) Verification and Tracking of Credits.
(a) Upon completion of any Credit Generation Project on SITLA, State Lands or federal lands, the Department will assess the Project Area utilizing a Verifier to certify the number of Credits generated on the Project Area. Once Credits are certified by the Department, it will track the Credits utilizing the Credit Exchange Service as provided in Section 3-7(1).
(b) Credits generated by the Department will offset Permanent Disturbance on private, SITLA and other State Lands. Credits generated by the Department will not be transferred to Credit Buyers except as provided in 3-4(7).
(5) Monitoring and Maintenance.
(a) The Department will monitor the condition of each Credit utilizing the monitoring and assessment guidelines it adopts pursuant to Section 3-7(5).
(b) If results from monitoring and assessment demonstrate that Credits produced by the Department no longer provide Functional Habitat or Corridors, then the Department may conduct habitat maintenance projects to restore the Credits, or it may create additional Credits to replace them.
(6) Duration, Durability and Reversals. State Assurance.
(a) The Department will ensure that any
Credits generated by the Department to offset permanent
disturbance in any SGMA will be maintained for the duration of
any direct [
and indirect ]impacts from Permanent Disturbance
on those lands and tracked using the Credit Exchange
(b) In the event of a Reversal to any Credits generated by the Department, the Department will apply additional replacement Credits from other Credit Generation Projects in any SGMA throughout the State. Any actions taken under this Section will be tracked in the Credit Exchange Service.
(7) Federal Agency Use of State Generated Credits.
(a) If a federal agency would like to utilize Credits generated by the State to offset Permanent Disturbance on federal lands, the Department may enter into a written agreement with the federal agency outlining the federal agencies' need and use of Credits to offset Permanent Disturbances on federal lands.
(b) Any federal agency may authorize the use of in-lieu payments from a person permanently disturbing habitat to offset the Department's cost to generate monitor, and maintain the Credits. Upon payment of the in-lieu fee to the Department, the federal agency will provide a written receipt stating that the compensatory mitigation requirements are satisfied and allow a project causing permanent disturbance to habitat to proceed on federal lands.
R634-3-5. Term Mitigation Credit Program.
(1) Application; Minimum Qualifications. Any person desiring to enter into a Term Mitigation Agreement with the Department to create Credits to mitigate the impacts of disturbances to sage-grouse habitat within Utah, must:
(a) Own or control and manage at least 100
contiguous acres adjacent to Occupied Habitat in any SGMA in Utah
identified in the Plan that is not Functional Habitat or a
Corridor, but with completion of a Credit Generation Project may
become Functional Habitat or a Corridor or own, manage and control
at least 100 acres of [
occupied habitat] that may become [ protected habitat.]
(b) File a completed application with the Department, which, at a minimum, shall include:
(i) name of the owner of the surface and mineral rights on the property;
(ii) legal description of the proposed Project Area and the total number of acres owned by the applicant;
(iii) the number of acres on which Credits
will be generated[
(iv) the term of years the person will
maintain the Credits on the property, after completing any Credit
Generation Project on the property as identified in the Term
Mitigation Agreement; [
as set by the Legislature].
(c) Upon receiving any completed
application, the Department will make a habitat suitability
determination identifying whether the proposed Credit Generation
Project will likely result in Functional Habitat or Corridor(s) on
and identify the number of potential
Credits which may result from the creation of Functional Habitat[
or Corridor(s). ] In the event another
person owns the mineral rights on an applicant
property, the Department may request a mineral report
for the property.
(d) The Department may deny any application that is incomplete or does not meet the guidelines outlined in this Section.
(e) The Department will consult with the concerned county government and other appropriate agencies before approving the application.
(2) Establishment of Term Mitigation Agreement.
(a) If the Department determines that an applicant property is suitable for generating Credits, it may enter into a Term Mitigation Agreement with the property owner, identifying, at a minimum:
(i) the scope of work necessary to create and maintain Credits on the Property;
(ii) the entity or person(s) responsible to perform any Credit Generation Projects;
(iii) a management plan identifying maintenance and verification duties for the landowner or a third-party entity;
the term of ]the years
for [ Credit Maintenance;]
(v) an option clause for renewing the agreement for an additional term of years;
(vi) the legal or financial mechanisms utilized by the landowner to provide assurances to the Department that the Credits generated on the landowner's property will be in place for the duration of the agreement; and
(vii) for split-estate properties, the Department may require the owner of a mineral estate to co-sign the Term Mitigation Agreement and provide a written guarantee that the mineral estate will not be developed during the term of the agreement.
(b) In no event shall the term of a Term Mitigation Agreement be less than twenty (20) years, which starts when the credit generation project is verified.
(3) Credit Generation Projects
(a) Prior to initiation of any Credit
Generation Project, the Department will assess the Project Area to
Verify the number of acres of Functional Habitat[
present on the Project Area before the
landowner conducts any Credit Generation Projects.
(b) After conducting any necessary pre-project assessments, a Credit Provider or its designees will complete any Credit Generation Projects as outlined in the Term Mitigation Agreement.
(4) Verification; Tracking of Credits.
(a) Once the Credit Generation Projects
are completed, as identified in the Term Mitigation Agreement, a
Verifier will inspect the Credit Generation Project area, determine
the number of Credits generated on the property, and provide a [
Certificate of Credits] to the landowner identifying
the number of Credits available on the property that may be
transferred to a Credit Buyer utilizing the Credit Exchange
(b) Prior to entering the [
credits] in the Credit Exchange Service, the Department shall
collect the Agreement Fee [ set by the Legislature ]from the Credit Provider
to offset any costs of administering the Term Mitigation Agreement
(c) Upon certifying the Credits, the Department will track the Credits in the Credit Exchange Service identified in Section 3-7(1).
(5) Assessment and Monitoring of Credits.
(a) Credits generated under this Section
will be monitored by the Credit Provider and the Department, as
outlined in the Term Mitigation Agreement, to ensure that Credits
continue to serve as Functional Habitat[
or] Corridors for sage-grouse throughout the
duration of the Term Mitigation Agreement.
(b) Credits will be monitored using the Department's Monitoring and Credit Maintenance Policies developed under Section 3-7(5). The Program Administrator may utilize monitoring results to amend the Credit maintenance requirements outlined in the Term Mitigation Agreement.
(6) Durability and Assurances.
(a) Prior to the Department listing any Credits on the Credit Exchange Service, the Credit Provider shall provide the Department with financial and/or legal assurances that the Credits developed will be protected for the duration of the Term Mitigation Agreement. Financial assurances may include Letters of Credit, Performance or Guarantee Bonds, Escrow Agreements, endowments or Causality Insurance coverage to offset any losses or reverses to the Credits on the property. Legal assurances may include permanent or term easements, deed restrictions, and contractual guarantees.
(7) Credit Expiration; Renewal of Exchange Agreements.
(a) All Credits generated or transferred under this Section will automatically expire at the end of the term set out in the Term Mitigation Agreement regardless of whether or not the Credit was transferred. Upon expiration of any Credit, the Department will remove the Credit from the Credit Exchange Service.
(b) The Term Mitigation Agreement can be renewed for an additional term as outlined in the agreement. Prior to reissuing the Credits in the Credit Exchange Service, the Department or a Verifier will confirm that the Credits remain as Functional Habitat or Corridors.
(c) In the event the Department or any person terminates the Term Mitigation Agreement prior to the terms outlined in the agreement, the person providing the Credit Generation Project shall pay the Department its actual costs to obtain or create replacement Credits to complete the remaining years listed in the agreement.
(8) Federal Agency Use of Term Credits.
(a) Any federal regulatory agency that directs Credit Buyers to purchase Term Credits from the Credit Exchange Service is encouraged to utilize the Mitigation Ratios recommended herein, including mitigating at four acres for every one acre of Permanent Disturbance.
(b) Any federal regulatory agency may place additional requirements on a Credit Buyer for maintaining, monitoring, verifying or providing additional assurances for Credits utilized to offset disturbances to sage-grouse habitat on federal land. The federal agency, or a Credit Buyer will be responsible for any additional monitoring or verification requirements developed by a federal agency.
R634-3-6. Conservation Banks.
(a) The Department has jurisdiction over the creation and regulation of Conservation Banks for Sage-grouse in Utah. Any person desiring to operate a Conservation Bank and transfer Credits generated by the Conservation Bank must first receive authorization from the Department.
(2) Application; Minimum Qualifications.
(a) Any person desiring to establish a
Conservation Bank in Utah to create and protect in perpetuity
to generate Credits to mitigate for the
impacts of Permanent [ Disturbances] to sage-grouse habitat within Utah, must:
(i) own, manage and control at least 640
contiguous acres of land that is not Functional Habitat[
or] Corridor(s) [ adjacent to Occupied] Habitat in any SGMA in Utah[ , as identified by the Plan];
(ii) file a completed application with the Department, which shall include:
(A) the name and address of property owner ;
(B) legal description and number of acres included in the proposed Bank Property;
(C) title search of property identifying current owner(s) and title holder(s) and a list of any existing liens on the property;
(D) list of any mineral owners of the property and a mineral title report if a split estate is involved;
(E) name and address of Bank Manager;
(F) a proposed property management plan, including identified Credit Generation Projects and monitoring and maintenance activities to take place on the bank; and
(iii) Pay] the applicable Application Fee[ as outlined in the Fee Schedule attached hereto, as amended
by the Department].
(b) The Department may reject any bank application that is incomplete or does not meet the requirements of this Section.
(3) Establishment of Conservation Bank Agreement.
(a) The Department may review any completed application and determine whether the property identified in the application may be eligible to operate as a Conservation Bank.
(b) The Department will consult with the concerned county government and other appropriate agencies before approving the application.
(c) Upon review and [
informal] approval of the application, the Department will
provide a written notice of contingent bank approval to the
applicant and shall identify the total number of Credits
potentially available on the property upon completion of any Credit
(i) No split-estate property shall receive informal approval unless the applicant provides a mineral report and written guarantee from the owner(s) of the mineral estate that mineral owners, or their lessees or assigns, will not occupy or disturb the surface in any way for mineral exploration or development while the Conservation Bank Agreement is in place. Such written guarantee shall be recorded, and shall run with the land and be binding on successors and assigns of the mineral owner for the term of the Agreement.
(d) After the applicant receives the notice of contingent bank approval, the applicant and the Department may enter into a Conservation Bank Agreement which will, at a minimum, identify:
(i) the Bank Manager;
(ii) the legal description of the Bank Property;
(iii) a property management plan identifying any habitat enhancement and maintenance activities to be conducted by Bank Manager to generate Credits on the Bank Property;
(iv) the Bank Manager's monitoring and reporting requirements and schedule;
(v) any Remedial Actions and adaptive management strategies to be taken in case of a Reversal;
(vi) the amount and type of legal or financial assurances the Bank Manager provides for the conservation and maintenance of the Conservation Bank and Credits;
(vii) a means by which the bank or bank property may be transferred to a third party; and
(e) Prior to executing the Conservation
Bank Agreement or transferring Credits on the Credit Exchange
Service, the owner of the Conservation Bank shall grant a
to any eligible third-party],
a deed restriction, or place the property in an
irrevocable trust ensuring the perpetual protection of the property
for the benefit of sage-grouse and the protection of sage-grouse
(f) The Conservation Bank Agreement may be
implemented in phases, as needed and appropriate, to generate and [
sell] Credits on a periodic basis, and may be modified or
amended by mutual agreement between the Bank and the
(g) The Department shall collect an Agreement Fee from the
person(s) signing the Agreement to offset any costs of
administering the Term Mitigation Agreement.]
(4) Credit Generation Projects.
(a) Prior to initiating any Credit Generation Projects, the Bank Manager or the Department will survey the Project Area to verify the number of acres of existing Functional Habitat or Corridors present and report the survey results to the Department.
(b) Once the Conservation Bank Agreement
is fully executed by all parties and the survey results in
subsection (1) are reported to the Department, the Bank Manager may
begin Credit Generation Projects[
to generate Credits] utilizing the plans and
procedures identified in the Conservation Bank Agreement. The Bank
Manager shall provide written notification to the Department
whenever Credit Generation Projects are completed on the Bank
(5) Verification and Tracking Credits.
(a) Upon completion of any Credit
Generation Projects, as identified in the Conservation Bank
Agreement, a Verifier will inspect the Credit Generation Project
area to determine the number of acres of Functional Habitat or
Corridor that exist on the Bank Property
using the scientific methods approved or
developed by the Department. When the Verifier determines that
Functional Habitat or Corridors exist following Credit Generation
Projects, the Verifier will provide a [
Certificate of Credits] to the Bank Manager identifying the
number of Credits available on the property to be potentially
transferred to a Credit Buyer through the Credit Exchange
(b) Upon Verifying the Credits , the Department will track the Credits on the Credit Exchange Service as identified in Section 3-7(1).
(6) Management and Monitoring Duties.
(a) The Bank Manager shall manage the Bank Property in accordance with the management plans prescribed in the Conservation Bank Agreement.
(b) The Bank Manager shall be responsible for monitoring and maintaining the condition of the Credits on the Bank Property and shall collect data as prescribed in the Conservation Bank Agreement, in accordance with the Department's Monitoring and Credit Maintenance policies and procedures.
(c) The Bank Manager or a designee will submit an annual assessment and monitoring report to the Department utilizing the reporting guidelines developed by the Department.
(7) Conservation Bank Agreement Revisions.
(a) The Bank Manager and the Department
shall meet and confer upon request of [
the other] to consider revisions to the Conservation Bank
Agreement which may be necessary to better conserve the habitat and
conservation values of the Bank Property.
(8) Compliance Inspection.
(a) The Department may conduct any
necessary assessment, monitoring and verification of the Bank
Property to Verify that Credits generated [
by the Bank] qualify as Functional Habitat
or [ Corridor(s)]; to recommend Remedial Action, as needed;
or for any other purpose determined necessary by the Department to
assess compliance with the Conservation Bank Agreement.
(b) In the event the Department or any
person terminates the [
Term Mitigation] Agreement prior to the terms outlined in
the agreement, the [ person providing the Credit Generation Project] shall pay the Department [ the ]its actual costs to obtain or create
to complete the remaining years
listed in the agreement.
The Compensatory Mitigation Program and associated systems to generate and track Credits shall be administered by the Department.
(1) Credit Exchange Service.
(a) The Department shall monitor and track generated and transferred Credits using the Credit Exchange Service which will include the following information:
(i) Credits. Upon Completion of any Credit Generation Project, the Department will track:
(A) the number of Credits generated under each mitigation system herein;
(B) the dates the Credits were Verified and certified by the Department or a trained Verifier;
(C) the types of Habitat(s) created by the Credit(s), if the information is available;
(D) the name and address of each Credit Provider; and
(E) the duration or term for maintaining a Credit.
(ii) Transferred Credits. The Department will track information relating to each Transferred Credit including:
(A) name of Credit Buyer;
(B) the number of Credits transferred to the Credit Buyer;
(C) date of transfer;
(D) duration and term the Credit [
Expires], if applicable.
(iii) Expiration of [
Credits]. If the term of a Credit [ or Transferred Credit ]expires, [ then ]the Department will[ remove the Credit or Transferred Credit from the tracking
system, and] notify the Buyer of the Credit, the Credit
Provider and the involved regulatory agency, if applicable, that
the Credit has expired[ .]
(2) Procedure for Transferring Credits.
(a) A Credit Buyer may negotiate the acquisition price for a Credit with any Credit Provider listed on the Credit Exchange Service.
(b) Once an agreement on [
price] is finalized between the Credit Provider and Credit
Buyer, the Credit Provider shall notify the Department within 7
(c) Once the Department receives notice of the agreement from a Credit Provider, the Department will send the Credit Buyer an invoice identifying the Credit Transfer Fee to be paid by the Credit Buyer to the Department.
(d) The Credit Buyer shall pay the Credit Transfer Fee to the Department within 30 days of the Department sending the invoice. Upon receipt of the Credit Transfer Fee, the Department will transfer the agreed upon Credits to the Credit Buyer.
(e) The Department shall track Credits transferred to any Credit Buyer using the Credit Exchange Service.
(f) Any Credit Buyer may purchase additional Credits to offset future planned development projects anticipated to cause a Permanent Disturbance to sage-grouse habitat.
(g) Once a Credit Buyer acquires a
Transferred Credit, the
Transferred Credit may not be [
transferred or sold] to any other person
(3) Fee Schedule.
(a) The Department will annually develop a fee schedule to cover the cost of the Compensatory Mitigation Program and submit to the Legislature, including:
(i) The Application Fee [
required ]to [ cover] the cost of processing [ any] compensatory mitigation [ applications] submitted to the Department from a potential
(ii) The Agreement Fee[
, which will outline]
the [ costs] of administering Term Mitigation Agreements and
Conservation Banking Agreements
(iii) The Credit Transfer Fee to [
be paid by the Credit Buyer to ]offset the
operation and maintenance costs of the Credit Exchange Service.
(4) Verification and Monitoring Guidelines; Certification.
(a) All Credits must be certified by the
Department or by a Verifier prior to being tracked and transferred
on the Credit Exchange Service to ensure that Credits [
represent] Functional Habitat[ or useable] Corridors
(b) Upon completion of any Credit Generation Project, the
Department, or a Verifier, will visit the Project Area, utilize the
Departments monitoring and assessment guidelines to determine the
number of acres of Functional Habitat or Corridors of new habitat
to calculate available Credits, and provide the Credit Provider
with Certificate of Credits identifying the number of Credits
available to be transferred on the Credit Exchange Service. The
Verifier will also submit a verification report to the Program
Administrator, together with a copy of the Certificate of Credits.
Verifiers may also be utilized by the Department to monitor the
long-term viability of Credits.]
c]) The Department will accredit any person interested in
serving as a Verifier. Accreditation will occur after a person
attends a verification training provided by the Department, or a
designee, and after a person demonstrates proficiency implementing
the Department's monitoring and assessment guidelines.
d]) Verifiers will act as a designee to the Program
Administrator to [ Certify] Credits upon completion of any Credit Generation
e]) Upon completion of any property verification activities,
the Verifier will provide a written Verification report to the
Program Administrator identifying a summary of the verification
, summary of the number of acres of Functional
Habitat[ or] Corridors
in the Credit Generation Project area
and an estimate of the number of Credits [ available, and a copy of the Certificate of
Credits. ] The Department may add additional criteria to
the report needed to carry out this rule.
(5) Monitoring and Assessment Guidelines; Scientific Method.
(a) The Credit Provider, or a designee, is responsible for monitoring and maintaining Credits utilizing the methods identified by the Department throughout the lifetime of the Credit to ensure that each Credit serves as viable Functional Habitat or Corridors for sage-grouse.
(b) The Department, and any trained Verifier, will utilize existing range trend monitoring guidelines or other scientifically approved methods identified by the Department to identify Credit Maintenance activities to be undertaken by a Credit Provider or their designee.
(c) The Department's monitoring and assessment guidelines will be reviewed, at a minimum, every three years to ensure they are consistent with current scientific literature and methods.
(6) Reserve Pool.
(a) All Credits generated by the
Department will be maintained on the Credit Exchange Service to
serve as a [
reserve pool] to off-set losses from Reversals to any Credits
generated under this Program.
(7) Adaptive Management.
(a) The DNR will monitor compensatory mitigation efforts and employ new scientific findings into this Compensatory Mitigation Program , as such information becomes available.
sage-grouse, mitigation, Compensatory]
[ M]mitigation[ Program]
Date of Enactment or Last Substantive Amendment: [
Authorizing and Implemented or Interpreted Law: 79-2-501
More information about a Notice of Change in Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull_pdf/2018/b20180215.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Kaelyn Anfinsen at the above address, by phone at 801-538-7201, by FAX at 801-538-7315, or by Internet E-mail at firstname.lastname@example.org. For questions about the rulemaking process, please contact the Office of Administrative Rules.