Growing Acceptance and Implementation of Mitigation

During the 1970s and ‘80s, people attempted to comply with the Clean Water Act, which included protection of wetlands.  As the Act pertained to wetlands, scientists, legislators, business, and the courts grappled with questions such as what constitutes a wetland, how to delineate a wetland, and whether the federal government even had the right to regulate wetlands.

(Note: the concept of mitigation banking has been replicated in conservation banking—which aimed to protect habitat for species and became increasingly popular in California and Florida. As both forms of environmental conservation matured on state and federal levels, they shared and adopted each other’s best practices.)

| 1982 | 1983 | 1984 | 1985 | Dec. 4,1985 | Key |

(click dates to view more detailed information)

 

| 1982 |

Section 10 of the Endangered Species Act was amended to include the use of Habitat Conservations Plans (HCPs), thus allowing mitigated, incidental take of federally listed species by private landowners.

| 1983 |

U.S. Fish and Wildlife Services issued interim guidance on mitigation banking through a memorandum to its regional directors that recognized the potential for mitigation banking.

| 1984 |

The first wetland mitigation bank, Tenneco LaTerre Mitigation Bank, was  established in Louisiana through a Memorandum of Agreement with USACE (McElfish and Nicholas, 1996).

| 1985 |

The current California Endangered Species Act of 1984 (Fish and Game Code section 1050 et seq) took effect. It superseded the state’s original 1970 Act and more closely resembled the federal Endangered Species Act.

| Dec 4, 1985 |

Supreme Court case United States v. Riverside Bayview challenges scope of federal regulatory powers over waterways delineated in the Clean Water Act’s definition of “Waters of the U.S.” Court’s unanimous ruling affirmed the government’s power to control intrastate wetlands as “Waters of the U.S.”

 

Key:

Conservation Bank – Mitigation banking approach to endangered species

Guidance – Non-binding statement issued by a government agency that advises how an organization can comply with legislation

Memorandum of Agreement – Written understanding of the agreement of cooperation between parties

Mitigation Bank – Restoration, creation, enhancement, or preservation of wetlands or streams that offsets expected adverse impacts to nearby wetlands or streams. Developers buy credits from USACE-permitted banks to fulfill requirements to offset impacts per the Clean Water Act to gain 404 permits and move forward with their projects.

No Net Loss – One acre of restored or preserved wetlands for every one acre of impacted wetlands, ensuring that No Net Loss of wetlands occurs

Rule – Administrative rules are officially promulgated agency regulations that have the force and effect of law. Generally these rules elaborate the requirements of a law or policy. http://definitions.uslegal.com/a/administrative-rule/

 

Mitigation Timeline information compiled and summarized from various sources, including:
Carroll, Nathaniel, Jessica Fox, and Ricardo Bayon. Conservation and Biodiversity Banking: A Guide to Setting Up and Running Biodiversity Credit Trading Systems. London and Sterling: Earthscan, 2008. Print.
Denny, Jemma. Personal Interview. July 2012.
EPA at 40. 2012. United States Environmental Protection Agency. July 2012. http://www.epa.gov/40th.

 

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