If you cannot plant: paying one hundred dollars per tree, planting elsewhere or donating land

It is Rule 3.4.4 of Joint Regulation No. 9473, titled Mitigation and Planting Guidelines, inside Chapter 3.4 on Environmental Permits. It sets the guidelines for the uniform application of the planting and mitigation requirements, and describes the alternatives when planting inside the project is not possible: external planting, monetary compensation, conservation easement, purchase or transfer of land, mitigation banks and concurrent mitigations. It also sets the CES Plan implementation reports. The number of trees is in Rule 3.4.2 and the planting standards in Rule 3.4.3, each with its own guide on this site; the general prohibitions, the five-year validity and the permit’s renewal are in the same chapter’s final sections, covered in the Incidental Operational Single Permit guide.

The alternatives are considered when mitigation by planting in the same place the cutting is authorised is not possible. Monetary compensation is considered to cover the partial or total cost of planting and maintenance in cases where planting is not possible. Mitigation banks may be used only to mitigate for tree cutting: they do not include mitigation for the finca’s cabida, formation of solares or parking. And the concurrent-mitigation proposal is available to the permit holder of a project approved by OGPe or by an Autonomous Municipality with delegated Hierarchy I to III, required to comply with several mitigations for the same project.

• That planting outside the project area be done in the first instance on land within the same watershed.Verified against the official source
• Planting the corresponding share before cutting begins: one hundred per cent where one hundred trees or fewer are required, fifty per cent from one hundred and one to five hundred, and twenty-five per cent from five hundred and one upwards.Verified against the official source
• Planting the remaining trees during the course of construction and finishing within one year of having begun the tree cutting.Verified against the official source
• That the IA de Siembra in charge certify compliance to OGPe as a prerequisite to approval of any later stage, uploading the certification to the case filed in the SUI.Verified against the official source
• That land transferred to the DRNA be free of charges and encumbrances, and that the permit holder bear the survey and appraisal cost, which is not considered part of the mitigation.Verified against the official source
• That the inspector designated for the CES Plan reports be an engineer or architect authorised to practise in Puerto Rico.Verified against the official source
• Submitting the first CES Plan report not later than the fifth business day from the works’ start date, and the following ones monthly.Verified against the official source

• For planting on land of a private entity or governmental organisation: a communication authorising the proponent to plant on the chosen plots and evidencing the land’s protection and conservation.
• For planting on private land: evidence that the land is encumbered with a Perpetual Conservation Easement in the DRNA’s favour under Act 183-2001.
• The Planting Plan with the corresponding external mitigation, prepared by the IA de Siembra or those in charge of the project after the planting site is chosen.
• The IA de Siembra’s certification of compliance with the external planting, uploaded to the case filed in OGPe’s SUI.
• For concurrent mitigations: the proposal to the DRNA showing that a single mitigation can meet part or all of the mitigations required by state and federal agencies, and the DRNA’s communication accepting or rejecting it.
• The CES Plan implementation reports, prepared and certified by the designated inspector under Regulation No. 4209 of 4 May 1990, with colour photographs of a minimum size of four by six inches.

1. 1

   Step 1: First, plant where you cut

   The impact of tree cutting must be mitigated or compensated, as a general rule, in the area that suffered the impact of the cutting, pruning or transplanting. The first option considered is planting in the same area where the cutting occurred, to minimise the impact of the proposed action. Only when that mitigation is not possible will OGPe evaluate mitigating by planting on plots other than the approved project area or, failing that, the rest of the modalities.

2. 2

   Step 2: The six proposals OGPe evaluates

   OGPe evaluates these mitigation proposals: that planting be done in the areas designated inside the project for that purpose; that it be done partly or wholly outside the project area; that it be effected, partly or wholly, through monetary compensation; that mitigation be done by establishing a conservation easement in the DRNA’s favour; that it be effected by purchasing or transferring land of natural value with tree cover to the DRNA; or that it be done by a combination of all the above alternatives.

3. 3

   Step 3: Planting outside: the same watershed and three kinds of land

   Planting outside the project area must be done in the first instance on land within the same watershed. Three kinds of land may be used. Land previously identified by the DRNA: the Department keeps a Registry of Planting Sites, and the applicant arranges with the DRNA one of the sites already identified. Land belonging to a private entity or governmental organisation: a communication must be presented authorising the planting on those plots and evidencing the land’s protection and conservation. And private land: evidence must be supplied that the land is encumbered with a Perpetual Conservation Easement in the DRNA’s favour under Act 183-2001.

4. 4

   Step 4: One hundred, fifty or twenty-five per cent before cutting

   If planting outside the project area is approved, it is required, as a special condition of the authorisation, that a number of trees be planted at that site before cutting proceeds. Where planting outside the project is required for one hundred trees or fewer, one hundred per cent is planted before cutting begins. From one hundred and one to five hundred trees, fifty per cent is planted before beginning. From five hundred and one trees upwards, twenty-five per cent is planted before beginning. The remaining trees must be planted during the course of the project’s construction and finished within one year of having begun the tree cutting. This is not a paper detail: it changes the works schedule, because the first batch of planting comes before the first chainsaw.

5. 5

   Step 5: The certification that blocks later stages

   The IA de Siembra in charge of the project certifies compliance with this section to OGPe as a prerequisite to approval of any later stage, and must upload that certification to the case filed in OGPe’s SUI. That is: without that certification the project’s next stage does not advance. And where the project is public infrastructure promoted by the Government, the cutting and the mitigation are carried out simultaneously.

6. 6

   Step 6: Paying: one hundred dollars per tree

   Monetary compensation is considered to cover the partial or total cost of planting and maintaining trees in cases where planting is not possible. The contribution is paid into the special reforestation account or the special account of the Natural Heritage Programme, both administered by the DRNA, and used under Act 195-1998 and Act 150-1998. The cost the Regulation establishes for each tree is one hundred dollars: an estimated economic value comparable to planting and maintaining a tree to the Regulation’s own standards. That cost will be reviewed by the DRNA every five years, which is notified to OGPe. For public infrastructure projects promoted by the Government or social-interest projects, the Secretary of the DRNA has discretion to reduce the value.

7. 7

   Step 7: Handing over land instead of planting

   The land proposed to compensate for the cutting must meet one of three items. That the land be identified on the DRNA’s list of land considered or evaluated for acquisition, or abut State Forests or Natural Reserves with a Management Officer and an administrative structure facilitating conservation and management. That the land’s monetary value be equal to or greater than the cost of establishing the planting using the chapter’s own per-tree cost, though the Secretary of the DRNA has discretion to accept land of lower value if the plot’s conditions have high natural value and it is wished to acquire or conserve it. Or that the land be of natural value with forest cover and the number of trees on it be not less than the number to be impacted by the project.

8. 8

   Step 8: The transfer: free of encumbrances and at the permit holder’s cost

   The IA de Siembra arranges with the DRNA the plot to be acquired as mitigation. Land used under this category need not have a current survey and appraisal when proposed, but the cost of that process must be borne by the permit holder following the requirements the DRNA establishes, and the survey and appraisal cost is not considered part of the mitigation. Land transferred to the DRNA must be free of charges and encumbrances. And the final process of purchase in the DRNA’s name or the transfer of title follows the provisions of the Act and of Regulation No. 8816 of 19 September 2016.

9. 9

   Step 9: Mitigation banks: only for the cutting

   The DRNA accepts mitigation banks only on fincas encumbered in the Department’s favour by a Perpetual Conservation Easement under Act 183-2001. Planting trees additional to those required as cutting mitigation may not be used as a mitigation bank. And there is a limit worth being clear about before investing: the mitigation-bank alternative may be used only to mitigate for tree cutting, and does not include mitigation for the finca’s cabida, formation of solares or parking. The Secretary of the DRNA has discretion to accept or reject a finca as a bank, and any holder of a finca who wishes it considered may file an application with the DRNA.

10. 10

    Step 10: A single mitigation for several demands

    Sometimes alternative mechanisms are needed to comply with all the mitigations different laws and regulations demand for the environmental impact of one project. The permit holder of a project approved by OGPe or by an Autonomous Municipality with delegated Hierarchy I to III, required to comply with several mitigations for the same project or construction activity, may present the DRNA a proposal showing that a single mitigation can meet part or all of the mitigations required by state and federal agencies. Proposals are evaluated under each applicable law and regulation. The DRNA issues a communication accepting or rejecting the proposal; if accepted, the mitigation is included in the Incidental Operational Single Permit and in the communication of compliance with Act 241-1999.

11. 11

    Step 11: The CES Plan reports: on the fifth day and then monthly

    The designated inspector must submit periodic reports to OGPe on the CES Plan’s implementation and the development of its activities, and must be an engineer or architect authorised to practise in Puerto Rico. The reports are prepared and certified under Regulation No. 4209 of 4 May 1990, and if deemed necessary they may be required at different intervals. All are submitted electronically in the case file before OGPe. The first report must be submitted not later than the fifth business day from the works’ start date, and the following ones monthly from that date. All must include colour photographs of a minimum size of four by six inches evidencing the provisional and permanent erosion-control measures implemented. And once the authorised activities end, a final report must be submitted evidencing their completion and the implementation of the applicable permanent erosion-control measures.

The mitigation proposal enters through OGPe with the Incidental Operational Single Permit via the SUI, and the IA de Siembra uploads its certifications there. What goes to the DRNA goes separately: the external planting site from the Registry of Planting Sites, the plot to be acquired as mitigation, the application for a finca to be considered a mitigation bank, and the concurrent-mitigation proposal, which the DRNA accepts or rejects by written communication.

• Starting the cutting before planting the percentage the authorisation’s special condition demands.
• Looking for external planting land outside the watershed when the rule orders looking first within the same watershed.
• Planting on private land without evidence of the Perpetual Conservation Easement in the DRNA’s favour.
• Asking for monetary compensation as a first option when planting on site is in fact possible.
• Budgeting the mitigation land’s survey and appraisal as part of the mitigation: it does not count.
• Offering the DRNA land with charges and encumbrances.
• Counting on a mitigation bank to cover mitigation for cabida, solares or parking.
• Designating as CES Plan inspector someone who is not an authorised engineer or architect.
• Submitting the first CES Plan report after a month instead of on the fifth business day from the works’ start.
• Sending the reports without the colour photographs of at least four by six inches.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov

• Department of Natural and Environmental Resources

  drna

  www.drna.pr.gov