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42 Ecology L. Currents 101 (2015)

handle is hein.journals/ecolwcur42 and id is 1 raw text is: 










     Preservation Is a Flawed Mitigation

                              Strategy


                              Jessica Owley*


                              INTRODUCTION

     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 Act limits the ability to dredge or fill a wetland. To
do so, one must first obtain a section 404 permit. These permits, which the
Army Corps of Engineers (Corps) issues 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 that wetland destruction will occur. Thus,
instead of preventing    wetland  conversion, developers in this scenario
compensate for wetlands lost. Compensatory mitigation can come in the form
of restoration, creation, enhancement, and/or preservation of wetlands and
other aquatic resources. Wetlands are preserved        by prohibiting   their
conversion, often through property encumbrances like conservation easements
and deed restrictions. This scenario exchanges preservation of certain wetlands
for a right to degrade or destroy other wetlands.
     This Article 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 with little to no oversight by the Corps or the EPA,
concerns of accountability and democracy arise. Although this Article focuses
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.


     *  Associate Professor, SUNY Buffalo Law School. I am indebted to the thoughtful comments
and careful consideration of this piece by Amanda Leiter, Mike Lewyn, Mike Pappas, Justin Pidot, and
Julia Purdy. Nicholas Fischer provided research assistance for early stages of this project. As always, the
ELQ staff provided careful editing that undoubtedly improved the piece.

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