In Lieu Fee Stream and Wetland Mitigation

The WVDEP ILF Program is an environmental mitigation program designed to provide an additional resource for satisfying compensatory mitigation requirements. It allows individuals, companies, or government entities to compensate for unavoidable, permitted adverse impacts to wetlands, streams, and buffers in West Virginia. Instead of implementing their own mitigation projects, permittees can fulfill their legal obligations by paying a fee directly into the state-administered ILF fund.  

The program operates under the federal 2008 Compensatory Mitigation Rule (33 CFR Part 332) and the West Virginia In-Lieu Fee Stream and Wetland Mitigation Program Instrument (fully updated and approved in 2021). It satisfies mitigation mandates tied to:  

• Section 404 of the Clean Water Act (USACE permits)
• Section 10 of the Rivers and Harbors Act
• Section 401 Water Quality Certification (State of West Virginia)

Any permittee who has received or is applying for a permit that mandates compensatory mitigation for aquatic impacts may request to use the program. However, standard mitigation sequencing must be followed first: Avoid impacts, Minimize impacts, and finally, Compensate for unavoidable impacts.  

Generally, no. Under the federal mitigation hierarchy, approved mitigation banks are given preference. Permittees are typically allowed to participate in the WVDEP ILF Program only if there are no mitigation bank credits available within the appropriate watershed service area to satisfy the permit requirements.  

Fees are calculated based on the quantity and quality of the proposed stream or wetland impacts. Permittees must input qualitative and quantitative baseline data into the West Virginia Stream and Wetland Valuation Metric (WVSWVM) Version 3.0 (September) to determine the exact number of stream or wetland credits required.  

Once the required amount of mitigation credits is established via the metric, the financial cost is applied using the following baseline ILF program rates:  

Upon the transfer of fees and final regulatory approval, all legal liability and mitigation responsibility shift from the permittee to the WVDEP. The WVDEP assumes full liability for the design, implementation, performance, and long-term stewardship of the mitigation sites.  

Unlike mitigation banks, which build ecological sites before selling credits, an ILF program collects fees first ("advance credits"). Once sufficient funds are aggregated within a particular watershed service area, the WVDEP pools those resources to fund ecologically significant restoration, enhancement, or preservation projects.  

The WVDEP distributes collected funds through Grant Funding Opportunities. These opportunities are published and accessible through the following channels:  

• West Virginia Vendor Self Service (VSS) Portal: View active listings directly on the wvOASIS VSS Portal .
• Email Distribution List: Receive notifications directly in your inbox. To be added to the distribution list,email the ILF Program Coordinator, Kristy Rodrigue, at Kristy.L.Rodrigue@wv.gov.

You can view the credit availability by downloading the In-Lieu Fee Available Credits document in the Program Documents section of this page.