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The Value of Wetlands as Wetlands: The Case for Mitigation Banking

May 1993

Citation: 23 ELR 10261

Issue: 5

Author: Royal C. Gardner and William J. Haynes

Wetlands mitigation banking, a concept endorsed by former President Bush as a means to achieve the goal of no net loss of wetlands, is a valuable resource management tool that deserves the support of the Clinton Administration. Wetlands mitigation banking, which provides for the advance compensation of wetlands losses due to development activities, offers an opportunity to show that environmental protection and economic development are not necessarily incompatible. Indeed, mitigation banking may help resolve, or at least alleviate, the tension between protecting private property rights and preserving wetlands.

In its simplest terms, wetlands mitigation banking involves restoring, enhancing, creating, or preserving wetlands to offset the impacts of a future project. Credit for these environmentally beneficial actions is, in effect, banked until needed. The credit is later withdrawn to satisfy the mitigation requirements of federal, state, or local permits. In a more complex scenario, an individual or entity that has accumulated credits may sell them to third parties which in turn use them to satisfy their own mitigation requirements. Ideally, a market would emerge in which these credits could be bought and sold.

Mr. Haynes served as General Counsel of the Department of the Army from March 1990 to January 1993. Mr. Gardner is an Assistant to the General Counsel. This Dialogue is based on remarks Mr. Haynes delievered to the Environment, Energy, and Natural Resources Section of the District of Columbia Bar on May 18, 1992.

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