38 Pages Posted: 9 Jul 2009 Last revised: 28 Oct 2013
In April 2008, the U.S. Army Corps of Engineers and the Environmental Protection Agency published a new rule on compensatory mitigation for aquatic resource losses. The preamble noted that an important resource in the development of the new rule was the 2001 National Research Council (NRC) report that comprehensively evaluated the effectiveness of compensatory mitigation efforts and whether they were contributing to the “no net loss” of wetlands. This article, written by nine former members of the NRC Committee on Mitigating Wetland Losses, examines how the new regulation incorporates the primary recommendations set forth in the NRC report. We consider how well the new rule addresses recommendations concerning: the watershed approach; operational guidelines and performance standards; and the treatment of mitigation banks, in-lieu fee programs, and permittee-mitigation. The article concludes with several recommendations to help with achieving the goal of no net loss.
Keywords: Clean Water Act, wetlands, wetland mitigation, mitigation bank, in-lieu fee mitigation, National Research Council
JEL Classification: K32, K23, Q20, Q25, Q28
Suggested Citation: Suggested Citation
Gardner, Royal C. and Zedler, Joy and Redmond, Ann and Turner, R. Eugene and Johnston, Carol A. and Alvarez, Victoria R. and Simenstad, Charles A. and Prestegaard, Karen and Mitsch, William J., Compensating for Wetland Losses Under the Clean Water Act (Redux): Evaluating the Federal Compensatory Mitigation Regulation. Stetson Law Review, Vol. 38, No. 2, 2009; Stetson University College of Law Research Paper No. 2009-24. Available at SSRN: https://ssrn.com/abstract=1431629