Washington, DC — The Bush administration is finalizing a rule that will make it much easier for developers to fill in natural wetlands by allowing them to buy into “mitigation banks,” according to public comments filed today by Public Employees for Environmental Responsibility (PEER). Compounding the effects of a recent U.S. Supreme Court decision (Rapanos et ux., et al. v. United States) cutting back and confusing the scope of federal wetlands regulation, the proposed rule would dramatically reduce oversight and accountability in the remaining program. The rule is open to public comment through tomorrow.
A mitigation credit bank allows developers to buy the right to fill in naturally functioning wetlands by purchasing the promise of the creation or restoration of wetlands elsewhere. On March 28, 2006, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) jointly proposed a rule significantly relaxing the standards governing “compensatory mitigation” for the destruction of aquatic resources, including wetlands and streams, protected under the Clean Water Act.
“Artificially creating wetlands has been aptly compared to trying to turn hamburger back into a cow,” stated PEER Executive Director Jeff Ruch, whose organization filed its comments on behalf of EPA and Corps specialists opposed to the rule. “This rule is a giant green scam to destroy irreplaceable marshes and streams in exchange for developer promises to build sterile, artificial water-bodies someplace else.”
Among the problems created by the proposed rule are that developers —
- Would get “credit” for preserving uplands and buffer areas as compensation for destroying wetlands;
- Could destroy streams, including headwaters of an entire watershed in return for wetlands mitigation banking that does not confer anything near the same biological value; and
- Do not have to assure that the mitigation endures. In other words, a mitigation project offered to compensate for destruction of a wetland today could itself be developed tomorrow.
The Bush administration has hitched its promise of “No Net Loss” of wetlands to the wagon of mitigation projects. Virtually every review of mitigation projects, however, shows that more than two-thirds of them fail to function at all. Today, hundreds of permits to destroy wetlands are issued on the premise of mitigation projects that, based upon both hydrology and history, are pre-destined to fail – a biological shell game which the proposed rule will greatly accelerate.
A primary area of concern is the increased discretion the proposed rule gives the Corps, despite its poor track record of environmental protection. In fact, since 2004, the Corps has refused to release its permitting and enforcement records, prompting PEER to sue the agency to force disclosure of Corps actions under the Freedom of Information Act.
“Granting the Corps additional discretion to enter into real estate deals with developers as a purported strategy for protecting wetlands is like asking frat boys to run abstinence programs for teenage girls,” Ruch added.
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View the proposed mitigation banking rule
Look at PEER’s lawsuit against the Corps seeking wetlands permitting and enforcement records