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Federal Wetland Mitigation Banking Guidance: Missed Opportunities

February 1996

Citation: ELR 10075

Author: Royal C. Gardner

 

In November 1995, five federal agencies—the U.S. Army Corps of Engineers (the Corps), the U.S. Environmental Protection Agency (EPA), the Natural Resources Conservation Service, the Fish and Wildlife Service (FWS), and the National Oceanic and Atmospheric Administration—issued joint guidance concerning wetland mitigation banking.1 The guidance's chief virtue is its detailed explanation of the approval process for the establishment and operation of mitigation banks.2 Its chief flaw, however, flows from the complexity of this approval process. By calling for consensus decisionmaking among myriad agencies, the guidance creates a bureaucratic labyrinth that will discourage the use of mitigation banks. Moreover, the guidance's restrictions on the use of preservation, while not surprising, will limit the environmental and economic utility of mitigation banking. Unfortunately, the agencies have missed an opportunity to defuse public criticism about the unfairness and ineffectiveness of the current wetland regulatory program.

Mr. Royal C. Gardner is an Assistant Professor of Law at Stetson University College of Law. This Dialogue is adapted from Royal C. Gardner, Banking on Entrepreneurs: Wetlands, Mitigation Banking, and Takings, which will appear in the March 1996 issue of the Iowa Law Review.