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The Mythology of Mitigation Banking

March 2016

Citation: 46 ELR 10200

Issue: 3

Author: R. Kyle Alagood

Fragile but economically, culturally, and ecologically important, Louisiana’s wetlands comprise 40% of all wetlands in the United States, but its wetland loss is 80% percent of the national total. The state loses the equivalent of a football field of wetlands to the Gulf of Mexico every hour—this, despite a decades-old national policy calling for “no net loss” of wetlands. The United States has a complex wetlands-protection regime that purports to protect wetlands, but instead has resulted in irreversible destruction of natural wetlands. This Comment questions whether compensatory mitigation, particularly mitigation banking, is a viable long-term replacement for destroyed natural wetlands. Looking at the failure of mitigation banking to offset wetlands destruction in Ohio, where wetlands are relatively stable, the Comment illustrates that even in a best-case scenario where the challenges of tides, subsidence, and sea-level rise are not present, mitigation banking fails the no-net-loss objective. The Comment discusses policy and law oversight mechanisms that bear upon the success (or failure) of mitigation banking in the United States, yet concludes that wetlands mitigation is no replacement for wetlands protection in Louisiana’s vast coastal wetlands ecosystem.

R. Kyle Alagood holds an M.S. degree from University College London and a J.D. from Louisiana State University Law Center.

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