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Natural Resource Damages, Mitigation Banking, and the Watershed Approach

November 2018

Citation: 48 ELR 11001

Issue: 11

Author: Cynthia R. Harris and James M. McElfish, Jr.

This Article examines potential opportunities for state and tribal natural resource trustees to integrate restoration and compensation for natural resource damages with other ecological restoration programs and coordinating with mitigation banks and in-lieu fee (ILF) programs developed under Clean Water Act §404. The Oil Pollution Act and the Comprehensive Environmental Response, Compensation, and Liability Act provide for recovery of funds from responsible parties to restore natural resources damaged by the release of petroleum or hazardous substances. Programs under other laws are designed to offset permitted impacts to waters of the United States. Integrating §404 banking and ILF programs, the watershed approach, and conservation banking with the natural resource damage assessment process offers three potential advantages: (1) It may reduce the time period until active restoration occurs; (2) it provides for potential efficiencies in evaluating ecosystem services, identifying restoration options, and implementing needed actions; and (3) it may produce a more regionally oriented outcome by identifying sites that can serve multiple ecosystem goals.

Cynthia R. Harris is a Staff Attorney at the Environmental Law Institute. James McElfish is a Senior Attorney at the Environmental Law Institute.

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