This is a preview of one of the upcoming Volume 34 notes
by Adrienne M. Sakyi
This note will discuss the United States Environmental Protection Agency and Army Corps of Engineer’s recently promulgated final rule that will affect use of mitigation banking as a tool for compensatory mitigation required under Section 404 of the Clean Water Act. State assumption of permitting authority under the Act and extensive state legislation further complicate analysis of the expected effects of this new rule.
Part I of this note will discuss the changes made in the recently promulgated final rule and the methods for effectuating its purpose. Part II will assess the implementation and effect of the final rule on Michigan’s compensatory mitigation regulations under the state’s wetlands program as the first state to assume permitting authority for nontidal waters that are not involved in interstate commerce or transportation under Section 404 of the Clean Water Act. The US EPA and the Corps’s recently promulgated regulation of compensatory mitigation of loss of aquatic resources will not have a direct effect in Michigan because the state has a stringent program that already encompassed the regulations promulgated. Part III will assess the implementation and effect of the final rule on compensatory mitigation in Virginia, a state in the norm of declining to assume permitting authority under Section 404 and instead creating wetlands legislation independent of the Clean Water Act.
The US EPA and the Corps’s recently promulgated regulations will have a direct effect in Virginia because the federal agencies retain jurisdiction and Virginia usually adopts the federal approach, even when it is not bound to do so. Because assumption of permitting authority creates a myriad of obstacles to effective enforcement of regulations, states seeking to protect their wetlands should opt for supplementing federal regulations to retain flexibility and avoid significant burdens and costs.
This issue will continue to develop in the next year, and the EPA has taken a proactive approach in educating the public. Environmental groups also continute to try to influence state and federal policy. Should the state or federal government dictate the development of mitigation banking policy? Is mitigation banking a good idea?
One Comment
Over a period of 1-1/2 years, the St Petersburg Times published a special report on state and federal governments failure to protect Florida’s wetlands.
The special report, entitled Vanishing Wetlands, is available on the web at
http://www.sptimes.com/2006/webspecials06/wetlands/
The intro states, Florida has more wetlands than any other state but Alaska. They stop floods, cleanup water pollution, and replenish drinking supplies. Yet despite government promises, they are disappearing.