Configuring Natural Resource Projects to Avoid, Minimize, or Mitigate Wetland Impacts
Natural resource project proponents who hope to develop projects and stay in business avoid “wetlands” assiduously. They know that ecological swamps have become permitting quagmires. Thus, it is somewhat ironic that the public and regulators devote so much attention to urging project proponents to do what they are already inclined to do--avoid or limit project impacts to wetlands. Yet regulators must comply with statutory and regulatory provisions mandating their consideration of alternatives to wetland impacts or ways to mitigate unavoidable impacts. While the regulators' review of alternatives and mitigation may be frustrating when it occurs late in project development, the proponent can take steps to limit disruption caused by the review.
This paper discusses why wetland alternatives analysis and mitigation requirements are imposed, what those requirements entail, and how the project proponent can address those requirements in a timely and cost-effective way.
I. Why Wetland Alternatives Analysis and Mitigation Requirements are Imposed—“No Overall Net Loss of Wetlands.”
Wetlands perform functions within and offer values to the aquatic ecosystem,1 which has led to a national agenda of reversing historic loss of wetlands and slowing future losses.2 The Corps of Engineers (“Corps”) and Environmental Protection Agency (“EPA”) through the Clean Water Act
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