Preservation Is a Flawed Mitigation Strategy

14 Pages Posted: 12 Nov 2014 Last revised: 31 Jul 2015

See all articles by Jessica Owley

Jessica Owley

University of Miami - School of Law

Date Written: November 11, 2014

Abstract

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.

Keywords: mitigation, conservation easements, mitigation banks, preservation, wetlands, section 404, Clean Water Act

Suggested Citation

Owley, Jessica, Preservation Is a Flawed Mitigation Strategy (November 11, 2014). 42 Ecology Law Currents 2015; SUNY Buffalo Legal Studies Research Paper No. 2015-008. Available at SSRN: https://ssrn.com/abstract=2275585

Jessica Owley (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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