Swamp love | Maine Wetlands Bank handles wetlands issues that can give developers nightmares. But even the pros worry about the growing complexity of the mitigation process.

A few miles up the road, though, it's easy to miss an important offshoot of the Augusta Crossing development. Tucked alongside the turnpike is a patch of wetlands restored in December by Maine Wetlands Bank LLC. Hired by Packard to fulfill its wetland mitigation responsibilities for Augusta Crossing, Maine Wetlands Bank restored to wetlands a portion of this 36-acre parcel to compensate for the six acres of wetlands Packard's Augusta Crossing project impacted.

Where a gravel road once led to a cul-de-sac on the turnpike's edge — the vestiges of an aborted residential development — Maine Wetlands Bank built retaining pools and a small stream. The pools, located where the cul-de-sac once sat, capture runoff from the road and send the water through a meandering course around boulders and planted winterberry holly and red-twig dogwood, which help filter the runoff before it empties into Stone Brook. In accordance with regulations, Maine Wetlands Bank will monitor the site for the next five years for water quality, plant and wildlife variety, and a host of other wetlands-health indicators.

Maine is a wet place. Land designated as wet lands constitutes about 30% of the state, and there's a good chance you'll encounter wetlands if you want to develop a piece of land. In cases where a project — whether it's private, like Augusta Crossing, or public, in the case of a road widening — will impact wetlands, state and federal regulatory agencies require the restoration or preservation of nearby wetlands to compensate for the loss. The process can be a complex, time-consuming and expensive journey involving myriad state agencies.

Companies hire their own environmental consultants and contractors and undertake the restoration process on their own, or they pay someone else — such as Maine Wetlands Bank — to take on the headaches for them. "We essentially step into the shoes of the applicant and act as if we were the applicant in the mitigation process," says Bob Cleaves, an environmental attorney in Portland and a Maine Wetlands Bank partner.

But new state regulations promise to make an already burdensome process more difficult, even for pros like Maine Wetlands Bank. Complicating it all are a host of state and federal agencies that have an increasingly hard time agreeing on how the wetland mitigation process should be handled. "The Army Corp of Engineers, Inland Fish and Wildlife, the EPA, the DEP — the list goes on and on and on," says Tom Dunham, a principal at Portland-based NAI The Dunham Group and a Maine Wetlands Bank partner. "Everybody thinks it ought to be done their way."

One result, observers say, is that developers may simply stay clear of land that includes wetlands of any kind, thereby increasing the competition for developable land free of wetlands.

"What continues to be a concern," says Cleaves, "is that what's expected of us is a moving target."

Evolving business model
Take the Augusta Crossing mitigation process, for example. After it contracted with Packard, Maine Wetlands Bank spent three years evaluating close to 30 potential mitigation sites before finding two that satisfied all the regulatory agencies. They restored the first site, a 12-acre wetland in Augusta that had been used as a pair of gravel pits, before completing the restoration near Augusta this winter. "After this one," Dunham says, "I need a breather."

Dunham and Cleaves, along with Greg Hastings, another broker at NAI The Dunham Group, had worked together in the past and had noticed a lack of available land for wetland mitigation projects. Then Dunham brought to their attention a large parcel of land in Westbrook that was once wetlands, but had been filled during the 1980s to build an industrial park, a project that was scuttled when federal regulators learned the developer didn't have the proper permits. The land had sat empty for more than a decade, since it couldn't be built upon, and likely would have sat empty for another decade, except that Dunham, Cleaves and Hastings saw value in it. In 2000, the men formed Maine Wetlands Bank, secured the land and broke it up to offer developers sites for wetland mitigation projects.

The trio hired Duke Engineering & Services to help restore the 51-acre property to its natural state. "Before Bob and Tom came along it was just a blight on the landscape," says Cole Peters, formerly a wetland scientist at Duke — he's now with TRC Environmental in South Portland — and a consultant on all Maine Wetland Bank projects. "But it became a win-win for everyone involved and they took the risk to make it happen."

Wetland banking is not a new concept; the idea is used around the country to meet the requirements of federal wetland regulations, Peters says. But Maine Wetlands Bank was the first of its kind in New England, where wetland mitigation projects had only been created piecemeal in the past — "postage stamp-sized projects," Cleaves says. The Maine Wetlands Bank idea was to bring mitigation to much larger parcels.

The partners' various skills, combined with Peters' scientific know-how, seem to make them well-suited for the job. Dunham, for instance, has filed away a host of potential mitigation sites in case developers come knocking. Cleaves, the environmental attorney, navigates the legal aspects of the regulatory approval process, and Peters handles environmental matters, from site evaluation to the approval process to the actual restoration of the wetlands. "We all have expertise to lend, and that's what makes it successful," Peters says.

Maine Wetlands Bank completed mitigation projects at the Westbrook site for Portland International Jetport, which built over wetlands when it expanded its terminal in 2001, and again when it lengthened a runway in 2004. The company also has worked with the Maine Department of Transportation on various projects, and with Regional Waste Systems, now known as EcoMaine, which built a landfill near the Maine Wetlands Bank land in Westbrook. The company maxed out the Westbrook site last February when it restored a few remaining acres for Maine Medical Center, which needed to mitigate for the construction of a laundry building across the street from the Maine Wetlands Bank land.

In the last couple years, Maine Wetlands Bank's business model has changed. Now that the Westbrook site has been completely restored, the company no longer sets land aside for mitigation projects. Now it acts more like a contractor that can be hired by developers like Packard, or state agencies like the DOT, to complete mitigation projects around the state. In 2005, Packard hired Maine Wetlands Bank to restore 11 acres of wetlands to compensate for its Biddeford Crossing development in York County. That project led to the more recent Augusta Crossing job.

Paul Cincotta, project manager for Packard Development's projects in Maine, says it's the knowledge of the local real estate market that makes working with Maine Wetlands Bank attractive for an out-of-state developer. "From our perspective that's the biggest benefit," Cincotta says. "They're also familiar with the DEP and the Corps requirements on a more localized level. In certain instances they can provide more detailed insight into what's approvable and what's not."

However, Cincotta can't say whether Packard actually saves money by contracting Maine Wetlands Bank to do the work, nor will he disclose how much Packard Development pays the company for its services. The per-acre cost of land compensation, which spans everything from preservation to complete restoration, ranges from $75,000 to $150,000, he says, while Dunham puts the high end of that per-acre cost in the "several hundreds of thousands of dollars."

The Maine Department of Transportation worked with Maine Wetlands Bank in 2001 when it constructed the Congress Street interchange on Interstate 295 in Portland. In that case, says Deane Van Dusen, the DOT's manager of field services and mitigation, working with Maine Wetlands Bank actually saved the department money. It only needed two compensation acres from the Westbrook site and paid Maine Wetlands Bank $120,000 per acre. The cost for the department to do the project itself was projected at roughly $140,000 per acre, Van Dusen says.

But each situation is unique, Van Dusen says, and it's not a given that contracting out the work to Maine Wetlands Bank offers a cost savings compared to doing it yourself. But like Cincotta, Van Dusen says money isn't the only reason the DOT chose to work with the company. "They really saved us a lot of time and human resource energy," he says. "[We paid] one price and had them pretty much handle [the project] from construction to post-construction monitoring."

A poor substitute for Mother Nature?
Wetlands are important features on the landscape for numerous reasons, Peters says. They act as a sponge and help prevent flooding. They act as filters in cases where water from highway runoff, for example, would otherwise head for Maine's rivers and streams. They provide habitat for a vast array of wildlife. But half the wetlands in the United States have been destroyed over the last 500 years, Peters says, and there is a responsibility to make sure wetlands persist, whether that means restoring previously destroyed wetlands or preserving them.

There is a competing viewpoint that wetlands created by humans can't fully compensate for those made by Mother Nature. "We may think we're smart," says David Hart, director of the George J. Mitchell Center for Environmental and Watershed Research at the University of Maine in Orono. "But we're not smart enough to always recreate in an artificial mode what was present in a natural wetland."

Peters acknowledges the argument, but says those viewpoints have mostly stemmed from failed attempts to build wetlands where wetlands never existed. By contrast, Maine Wetlands Bank only restores or enhances wetlands that have been damaged in the past, or preserves wetland areas that have escaped development. Either way, Peters believes the verdict "should be up to the amphibians," which he has watched reappear in wetlands that the company has restored. In Westbrook, Peters says, ducks arrived in the wetland within a week of its restoration, and that ducklings were spotted soon after.

But to protect these valuable resources, regulations protecting wetlands are getting stiffer. One set of new regulations expected to go into effect in September concerns the protection of vernal pools, which are basically seasonal wetlands that fill with water in the spring and offer an important habitat devoid of predators for various species of amphibians. But since vernal pools are ephemeral, it means they're harder to detect; a developer may evaluate a site without evidence of a vernal pool in the fall, but by springtime, when the developer is ready to begin construction, the site may be dotted by such pools — a discovery that could derail development.

Peters admits the impact of the new regulations is still unclear because "they haven't been tested." That uncertainty, he says, is enough to create anxiety for developers who fear additional regulatory hurdles, and who worry that the competition for land with little or no wetlands component may be on the verge of heating up — especially in regions like southern Maine, where wetlands-free developable land is already a scarce commodity. It's also causing Dunham and Cleaves to question if going through the increasingly complex process of mitigation will be worth it for them. "It has been profitable for us," Dunham says. "But it's increasingly less efficient and therefore involves more risk."

Dunham may need a breather after the Augusta project, but admits he's looking forward to upcoming projects, including a potential DOT project in Gardiner. "It's not as fluid or efficient as it has been," he says of the process. "But it's been fun, and very rewarding for us."