§ 9-19-203 — Compensatory mitigation; guidelines

(a) The compensatory mitigation credit system required
under this act shall be established to allow for development to
be conducted in a manner that recognizes and achieves an order
of avoidance, minimization and where appropriate and authorized
by the permitting agency, compensatory mitigation to ensure the
long-term sustainability of greater sage grouse populations and
habitats.
(b) The board of land commissioners, after consultation as
appropriate with the department of agriculture, the department
of environmental quality, the game and fish department, the oil
and gas conservation commission, the department of
transportation and the Wyoming wildlife and natural resource
trust account board, shall adopt rules for the establishment and
administration of a compensatory mitigation credit system for
greater sage grouse in Wyoming, including rules for evaluating
ecological functions, services and values. The rules shall at a
minimum provide for:
(i) Science-based criteria under which mitigation
credits may be obtained, including provisions that consider
additionality, durability, replacement, direct and indirect
effects, habitat assurance, habitat vulnerability, occupancy,
proximity, access to seasonal habitat and other landscape and
habitat needs for the greater sage grouse;
(ii) Establishment of a compensatory mitigation
oversight group to consist of representatives of the department
of agriculture, the game and fish department, the Wyoming
wildlife and natural resource trust account board and the office
of state lands and investments to evaluate and provide technical
review using the criteria established under paragraph (i) of
this subsection and, where appropriate, recommend certification
of any mitigation credit provider seeking approval under this
act. The group may request assistance from any state, local and
federal agency to review credit provider applications and other
mitigation measures;
(iii) The service area for the use of compensatory
mitigation credits, provided that mitigation shall take place
within the state of Wyoming;
(iv) The length of credits to be used and sold,
provided that any term credit shall be sold for the period of
the expected impact. Credit term expiration before restoration
of the impacted location to suitability shall require the party
responsible for the mitigation to purchase additional credits or
negotiate a credit contract extension. Credit mitigation shall
remain in place until the impact to the habitat of greater sage
grouse is restored to suitability. Any term credit sold under
this act shall be for a period of not less than five (5) years;
(v) Criteria for the use and sale of compensatory
mitigation credits, including specific compensatory mitigation
debit requirements for impacts to greater sage grouse core and
non-core population areas, that insure equivalence and parity
between debit and credit calculations;
(vi) Criteria for other forms of mitigation,
including operator-offered measures and operator-offered
restoration credits, in accordance with subsection (f) of this
section, and measures for reduced or eliminated take;
(vii) The review process for and approval by the
board of land commissioners of recommendations submitted by the
compensatory mitigation oversight group established in paragraph
(ii) of this subsection;
(viii) Requirements for the maintenance and
submission by the board of land commissioners of records
concerning ecological function and greater sage grouse habitat
losses and credit and debit accounts for each mitigation credit
provider;
(ix) Requirements for long-term monitoring,
management and maintenance of lands associated with mitigation
credits obtained under the credit system including monitoring of
impacts to sage grouse habitat to ensure that the impacted
location is returned to full suitability before a credit
purchaser is relieved of liability for mitigation of the impact;
(x) Requirements for periodic financial and
performance audits to be conducted on each mitigation credit
provider authorized to offer credits and any purchaser of term
credits under the compensatory mitigation credit system created
by this section. Audits shall be conducted only to ensure that
the mitigation credit provider or purchaser are in compliance
with the requirements of this act and any rules promulgated for
the mitigation credit system;
(xi) Eligibility criteria for mitigation credit
providers, including a requirement that a mitigation credit
provider shall be a resident of or authorized to conduct
business in Wyoming;
(xii) Requirements for financial assurance associated
with compensatory mitigation credits obtained under the credit
system, provided that the financial assurance requirements are
sufficient to address:
(A) Any corrective measures which a mitigation
credit provider or their successor in interest is required to
take to ameliorate any material injury or adverse impacts to the
land or habitat used for compensatory mitigation for which
credits are offered that materially impairs the conservation
objectives of that land or habitat;
(B) The bankruptcy or financial failure of a
mitigation credit provider authorized to offer credits under the
compensatory mitigation credit system;
(C) Maintenance, monitoring and management
costs.
(c) Every conservation easement used to serve as a credit
under this act shall bind the parties thereto to an agreement
that provides that the state of Wyoming is a third-party
beneficiary to the easement solely with the contingent rights to
enter onto the land subject to the easement for inspection and
to enforce the terms of the easement if the grantee fails to
enforce any of the terms of the easement. The state shall have
the right to access a mitigation credit provider's financial
assurances in order to address any of the occurrences specified
in W.S. 9-19-203(b)(xii).
(d) Upon the purchase of a credit from a mitigation credit
provider approved under this act, the purchaser's obligation for
mitigation represented by that credit shall be transferred to
the mitigation credit provider for the term of the credit.
(e) The board of land commissioners shall certify any
habitat conservation bank that has been certified and approved
by the United States fish and wildlife service as meeting or
exceeding the requirements of this act until the earlier of:
(i) The federally approved habitat conservation bank
is approved under the rules promulgated pursuant to this act; or
(ii) July 1, 2023.
(f) In lieu of or in addition to the compensatory
mitigation credit system provided in this act, an operator may
perform compensatory mitigation measures in a service area that
includes the same or reasonably equivalent properties in Wyoming
to the lands where impacts occur and receive credit from the
board of land commissioners for those measures. The operator
shall retain responsibility for the mitigation measures for the
entire period of the expected impact. The operator shall not
delegate the responsibility for the mitigation measures except
to a mitigation credit provider upon approval by the board of
land commissioners.
(g) No person shall have the right of eminent domain for
compensatory mitigation activities specified in this act.