Wednesday, November 12, 2014

Contemplations on Mitigation

While not strictly a land use issue (although Matt Festa can easily explain to you that everything is a land use issue), I just posted a short essay I wrote for Ecology Law Currents - the online companion to Berkeley's Ecology Law Quarterly. If you haven't noticed, I am generally obsessed with fascinated by mitigation issues and particularly where we privatize mitigation via land trusts (often with conservation easements). In this essay, I discuss the mitigation regime for wetlands under section 404 of the Clean Water Act and criticize the use of preservation of land as a mitigation technique. This essay is a precursor to a longer book chapter that will appear in theory one day, so comments and suggestions are warmly welcomed.

Here is the official abstract:

Preservation is a Flawed Mitigation Strategy

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges wetland destruction will occur. Instead of preventing wetland conversion, developers compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. This essay urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas, concerns of accountability and democracy arise. Although I focus on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well.

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