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Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy

22 Pages Posted: 12 Oct 2008 Last revised: 28 Dec 2014

J. B. Ruhl

Vanderbilt University - Law School

James E. Salzman

University of California, Santa Barbara - Donald Bren School of Environmental Science & Management; University of California, Los Angeles (UCLA) - School of Law

Iris Goodman

Government of the United States of America - Environmental Protection Agency (EPA)

Date Written: October 8, 2008

Abstract

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into the mitigation decision-making standards, requiring that "compensatory mitigation...should be located where it is most likely to successfully replace lost...services." Easily overlooked in the in the 210-page Federal Register document, this is a potentially significant development, but it will be unlikely to gain policy traction without substantial research into the development of efficient and reliable wetland ecosystem service assessment methods. To help orient such research efforts, this article provides: (1) background on the compensatory mitigation program and ecosystem services prior to promulgation of the new rule; (2) an overview of how the new rule integrates ecosystem service analysis into compensatory mitigation decisions; and (3) suggestions for a research agenda to support implementation of that feature of the rule.

Suggested Citation

Ruhl, J. B. and Salzman, James E. and Goodman, Iris, Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy (October 8, 2008). Stetson Law Review, Vol. 38, 2009; FSU College of Law, Public Law Research Paper No. 323. Available at SSRN: https://ssrn.com/abstract=1281048

J. B. Ruhl (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

James E. Salzman

University of California, Santa Barbara - Donald Bren School of Environmental Science & Management ( email )

4670 Physical Sciences North
Santa Barbara, CA 93106-5131
United States

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

Iris Goodman

Government of the United States of America - Environmental Protection Agency (EPA) ( email )

Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, DC 20460
United States

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