49-256.02. Compensatory mitigation
(Conditionally Rpld.)
A. As a part of the program established pursuant to section 49-256.01, and consistent with the guidelines established pursuant to 33 United States Code section 1344(b)(1), the director shall establish by rule standards and criteria for the use of all types of compensatory mitigation, including on-site and off-site permittee-responsible mitigation, mitigation banks and in-lieu fee mitigation to offset unavoidable impacts to WOTUS authorized by permits issued under this article.
B. Mitigation banks and in-lieu fee programs may be used to compensate for unavoidable impacts to WOTUS that are authorized by general permits and individual permits, including after-the-fact permits, in accordance with rules established pursuant to this section. In addition to other potential injunctive relief or other relief requested under section 49-262, mitigation banks and in-lieu fee programs may be used to satisfy requirements arising from an enforcement action under this article.
C. Rules established by the director pursuant to this section shall identify alternative compensatory mitigation options for a permit applicant if an approved mitigation bank or in-lieu fee program that is located in the same watershed as the permit applicant's proposed discharge rejects that permit applicant's participation in that mitigation bank or in-lieu fee program.