By: Javier Vélez Arocho
A tree mitigation bank is an excellent tool for owners whose farms, parcels, or undeveloped properties have construction limitations or restrictions due to their location or environmental characteristics. Many Puerto Rico residents have forested parcels of land located in areas like the Northern Karst Corridor or right next to a state forest.
These lands have many limitations on what can be constructed based on state government laws and regulations. These legal statutes limit the building, the number of units or activity proposed for the property. Faced with these challenges, owners feel lost on what to do with their real state, and many do not look into the possibility of creating a tree mitigation bank.
A tree mitigation bank’s objective is compensating for the loss of wildlife habitats, tree cutting, or impacts to the Carso Special Restricted Planning Area’s integrity due to the development of a project. For these purposes, Law No. 241, supra, Law No. 133, supra, Law No. 292, supra, the “Área de Planificación Especial Restringida del Carso,” and the OGPe’s Joint Permit Regulation defines the specific mitigation activities.
Legal Framework
Puerto Rico Environmental Policy Act (Act. No. 416 of September 22, 2004, as amended).
This law fosters a desirable and convenient harmony between residents and its environment; promotes efforts that would prevent or eliminate environmental and biospheric harm and encourage health and wellness of Puerto Ricans; broadening the understanding of major ecological systems and natural sources in Puerto Rico. Proposed projects that may impact water resources, coastal insular waters, forests, flora, and fauna will be required to comply with Law 416 by obtaining compliance through Section 4(b)3.
Law 241 – Known as the New Wildlife Act of Puerto Rico, Law Núm. 241 of August 15, 1999, Establishes the public policy for protecting wildlife and their habitats in Puerto Rico’s Commonwealth, including jurisdictional waters. The removal of mangroves and other tree species may fall under this law.
Law133 of July 1, 1975 – Puerto Rico Forest Law. Regulates the cutting of trees within the archipelago of Puerto Rico. The proposed actions at SJU may require a permit under Law 133 through Regulations 25 (January 1996). This regulation is now part of the Consolidated General Permit under the Office of Permit Management.
Law 292 of August 21, 1999 – from now on “Carso Law”), in which it was declared as the public policy of the Commonwealth of Puerto Rico “to protect, conserve and manage for the benefit of this and future generations the karst physiography of Puerto Rico.” Said law ordered the DNER to prepare a study that would identify those areas in the karst, among other provisions. Due to their ecological, geological, and hydrological value, their conservation is critical.
Step 1 What is the decision process to determine if my property is the right one for a tree mitigation bank?
If your property is located or includes some of the following natural resources, you may be the right candidate for establishing a tree mitigation bank:
- Karst domes, caves, sinkholes
- Extensive pristine forested lands
- Properties sight next to a state forest or biological reserve
- Mangrove forests
The size of a property used as a mitigation bank depends on what you have available rather than a specific size. Nevertheless, keep in mind that once you commit your property to receive trees as part of mitigation for a construction project, it remains in conservation in perpetuity. Some activities like trekking, bird watching, or mountain bike trails (MTB trails) are permitted on your property as long as they do not impact the mitigation areas.
Step 2 Can my property accommodate concurrent mitigations?
You may want to consider accommodating concurrent mitigations if your parcel has the proper characteristics where different environmental conditions are present. If you own a property where wetland areas exist and restoration and enhancement is possible, the state and federal regulators allow creating a concurrent mitigation project, allowing compliance with federal and state statutes at once.
Step 3 Preparing the submittal package for the DNER’s review and approval
- Application Form – The form has specific information requirements describing the proposed action, including the reason for implementing the mitigation bank (i.e., the mitigation is for a particular construction project). The form requires a survey of the property by a professional land surveyor or civil engineer. The package will also include OGPe’s environmental recommendation and the owner and client agreement notarized by an attorney.
- Tree Inventory – The process includes a tree inventory of the existing forestry resources. Your environmental consultant prepares this study for the agency’s review. The list provides the baseline to accommodate new trees or to conduct enhancement activities if needed.
- The DNER requires a filling fee – a $200.00 filing fee for the proposed mitigation bank’s review and approval.
Always prepare a checklist with all the required documents. The DNER’s Public Domain Division carefully reviews the filed paperwork, and any missing or poorly-prepared form will cause unnecessary delays. If the property is located in the coastal area or includes lands considered public (mangroves), a delineation of the Terrestrial Maritime Zone is required. Allow several months for the completion of this part by your environmental consultant. If the state regulator does not object to the proposed project, they may require additional comments or approve the mitigation activity.
What to expect when preparing a tree mitigation bank project?
As part of the analysis, you will deal with live trees and the weather when considering constructing a tree mitigation bank project. These elements will play a vital role in the success of mitigation activities.
Weather – weather can play a crucial element in the success of a tree mitigation bank project. An extensive drought period and too much rain or winds, especially from storms and hurricanes, can severely impact a mitigation and restoration project. You must be prepared to manage these scenarios.
Other impacts that may affect a restored area’s performance are the extensive use of trimmers for cutting grass as part of the parcel’s regular maintenance. Once you can reach a high survival rate of trees, you may want to consider closing the process with the DNER.
The planning of a restoration proposal must be carefully analyzed, establishing the appropriate variables, understanding the existing soil conditions, and selecting suitable species that allow a higher survival rate. During the planning and conceptualization of a tree mitigation bank project, your environmental consultant should carefully analyze the risks and probabilities of success in reforesting a particular area. The main goal is to return the property to its original state. The data collected during the construction and maintenance of this project will improve the remaining construction activities. Our team will assist you in planning, constructing, and maintaining wetland restoration and mitigation projects.
