Wetlands Mitigation — Why Draining the Swamp Is a Local Story

November 7, 2018
At a wetlands restoration project, newly planted salt marsh cordgrass grows where construction debris once littered the shoreline of Scuffletown Creek, choking out the natural wetlands. Photo: U.S. Army/Patrick Bloodgood. Click to enlarge.

TipSheet: Wetlands Mitigation — Why Draining the Swamp Is a Local Story

Draining the swamp (we are talking real swamps) is paradoxically not good for fish, birds, flood control and other environmental benefits.

But it’s often good for developers. So it’s likely that wherever you are, somebody is likely trying to get a wetlands permit near you.

And chances are it’s controversial — and a story.

Many such permits depend on “mitigation” — the creation or preservation of a wetland somewhere else to offset the loss of the one you want to build a shopping mall (or whatever) on.

The buying and selling of wetland mitigation credits is, in fact, a profitable industry. If you were a free-market enthusiast, you might even say that putting a dollar value on wetlands helps preserve them.

As the Trump administration attacks the wetlands preservation provisions in the Clean Water Act (more from SEJournal’s “Beat Basics” here), the whole mitigation process has been cast into doubt. Some lawyers have even said federal wetlands mitigation policy has been “revoked.”

The uncertainty may not be resolved until the U.S. Environmental Protection Agency and the Army Corps of Engineers issue definitive regulations and the Supreme Court resolves the inevitable legal challenges.

In the meantime, it’s good to be aware of the mitigation quandary as you cover proposals to build, whether it’s that shopping mall, industrial park, housing development, college campus, freeway interchange or whatever else needs permits near you.

Legalities around WOTUS rule unresolved

Section 404 of the Clean Water Act requires someone who wants to dredge or fill a waterway to get a permit. This has been going on since 1972 at least.

Traditionally, it has applied to the draining or filling of wetlands, and it has in fact been the key federal tool for wetland preservation. The law gives EPA and the Corps shared jurisdiction over the permits.

Congress was a little fuzzy in its legislative language, and for decades the agencies dealt with it administratively. Then in 2001 and 2006 the Supreme Court issued decisions that tossed out the previous structure and left it up to the agencies to figure out what the law was. Congress was hopelessly unable to legislate a clarification.

One thing to know is that, as of this moment, the legal situation with wetlands remains unresolved.

Part of the question is EPA’s “Waters of the United States” (WOTUS) rule, which tries to define just which lakes, streams, rivulets and bogs the Clean Water Act actually protects. One reason this remains unclear is that the status of EPA’s 2015 WOTUS rule (also known as the “Clean Water Rule”) varies from circuit to circuit and district to district.

The legal tangle is too thick to parse here, but watch out for the Supreme Court to take up the issue. Again.

Find ‘banked’ wetlands nearby

The Trump administration has worked hard to downplay environmental concerns, despite the law. EPA has signalled its intent to give its current permit veto authority over to the Corps (subscription required), and the Corps has signalled its intent to give its permitting authority to the states (subscription required).


The “banked” wetland that offsets

your proposed nearby shopping mall

is probably also near you.


A key thing to be aware of is that the “banked” wetland (or similar water resource) that offsets your proposed nearby shopping mall is probably also near you (rules require the offset to be in the same watershed as the sacrificed wetland).

If you look at the permit or proposed permit, you can probably figure out where it is. Go there. Take a look. Look at the agreement (often a “conservation easement”). Talk to the owner. Talk to the environmentalists. Talk to the city planners and ecology professors. Is it being maintained in a way that delivers all the benefits (e.g., frogs or ducks) originally promised?

Another thing to be aware of is that wetlands banking is a profitable business. To free-market enthusiasts, this may be a good thing.

An article by Associated Press reporter Jason Dearen in June 2018 describes the “billion-dollar wetlands mitigation banking industry.” Dearen’s piece notes that if the definition of what makes a wetland is reduced or restricted, that would affect the value of the banked wetlands, thus harming the do-gooder entrepreneurs preserving banked wetlands.

A further way into this subject is “Paving Paradise,” a 2009 book by Craig Pittman and Matthew Waite (read a review in the SEJournal).

Regulatory uncertainty reigns

One further buzz-kill: EPA’s regulatory process for fixing the 2015 Obama WOTUS rule is, well, stuck in the mud. To track it, start at this EPA page. EPA and the Corps proposed repealing it in July 2017. They are still taking comments on the repeal part — we have yet to get to the replace part.

Meanwhile, courts leave about half the states with either the Obama rule, or regulations that preceded it. In 2008, the early Obama administration actually issued a joint rule for mitigation banking, but its current status may be iffy.

The Trump administration and its allies tend to think of all regulations as “burdensome and unnecessary” but to laud “regulatory certainty.” To risk stating the obvious, the administration’s moves so far may have accomplished the reverse of what they want. Uncertainty.

If you are covering a wetlands mitigation story, you will want to check in with your Corps of Engineers district office, your EPA regional office or your state’s wetland management agency. Your county or municipal planning agency may also be helpful.

The two industries that historically have opposed wetlands rules the most are land developers and farmers. Check in with your state or local chapter of the National Association of Home Builders or the Farm Bureau.

Environmental groups tend to work for wetlands preservation. Groups that tend to operate at the local or state level include the National Wildlife Federation, Ducks Unlimited, the Nature Conservancy and the Izaak Walton League.

* From the weekly news magazine SEJournal Online, Vol. 3, No. 40. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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