For decades now, various state and non-profit programs promising to offset development and infrastructure impacts to our Nation’s streams, rivers, wetlands, and shores, have built bureaucracies, staffed up offices, collected large fees, taken donations, and unfortunately received little if any consistent federal oversight for compliance. And too frequently, they have done little to replace the lost aquatic resources required by any real ‘mitigation’ under the Clean Water Act.
Unfortunately, these placebos for mitigation are not new environmental sinkholes. More than 20 years ago the National Academy of Sciences (NAS) exposed the widespread failures of Permittee-Responsible Mitigation(PRM) projects and In-Lieu Fee (ILF) mitigation programs in offsetting unavoidable impacts to the Nation’s water resources. In fact, when the 2008 Final Mitigation Rule was nearing final draft, there was serious consideration to removing In-Lieu Fee programs altogether as a legal form of offset under the Rule.
Despite this, the past decade has seen an explosion of In-Lieu Fees across the U.S., causing increased concern among environmental groups, the mitigation industry, and many of those in senior government policy positions. For anyone wondering about the ongoing issues surrounding this form of mitigation, you’ll want to read the excellent study by Martin Doyle from Duke University published recently, or just skim through newspaper headlines in North Carolina, for example, where taxpayers were exposed to hundreds of millions of dollars in liability at the hands of a single such state-run program.
To compound all the ILF programs popping up, there are unfortunately self-interests in all sectors – private, government and non-profit – promoting that these proven-to-fail, low-quality forms of environmental mitigation will somehow survive forever. There are greedy businesspeople and investors trying to figure out how to “own all mitigation.” There are local, county and state governments, and rafts of NGOs who until recently couldn’t pronounce ‘mitigation,’ all looking to cash in on the latest gold rush with their own brand new program.
The NAS study long ago warned us about the moral and environmental risks of these consistently-failed forms of mitigation. The decades of non-compliance and non-performance reported in the study gave rise to a much-improved program under the 2008 Final Mitigation Rule. We should be reminded that the Rule’s preference for high-quality mitigation banking and the restoration work done by these projects to fully offset unavoidable impacts to our water resources, could not be more vital for our environment.
