"Compensatory mitigation, as this approach became known, promised a way to have your K-mart and your wetland too. You want to build a new mall here, on top of this salt marsh? No problem, the new reasoning went; just create a new marsh on another stretch of coast. Your highway will disrupt the habitat of an endangered bird? No sweat, just move the bird to a new ecosystem build conveniently out of the way."
- Leslie Roberts, 1993
The Clean Water Act (CWA), passed in 1972, gave the government, specifically the Environmental Protection Agency, control of setting water quality and effluent standards. The goal of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" (Federal Water Pollution Control Act, Public Law 92-500). Section 404 of this act requires land owners to get a site-specific permit from the Army Corps of Engineers before dredging or filling activities of any navigable waters, including wetlands (Weems and Canter 1995, Kelly 2001).
Images of a mitigation sign (left) and a mitigation site (right) from www.sws.org.
In 1986, in response to an outcry by the organization Ducks Unlimited about the decline in duck population, President George W. Bush, Senior promised to achieve "no net loss of wetlands" (Searchinger 1992). This promise lead to the North American Wetlands Conservation Act, signed in December of 1989, which provides funding to buy and protect wetlands throughout continental North America (S.804). This, however, is a problem because an estimated 75 percent of the nation's wetlands are located on private property (National Research Council 2001). This policy has become increasingly controversial as development expands.
In order to achieve "no net loss" of wetlands, mitigation became a viable policy option for replacing destroyed wetlands. Mitigation consists of the restoration or creation of a wetland. In theory, this mitigation project should be executed in a similar landscape position to the original wetland, morphology should resemble the original wetland as closely as possible, and water should be able to be held in the system (Weems and Canter 1995). After selecting a mitigation site, a hole is dug, lined, contoured, and filled with water. Wetland plants are also usually planted in order to establish primary productivity and biodiversity. Generally, this is the extent of the mitigation project. The finished product is able to hold water, and support wetland plants to some extent, but they are not wetlands. The problem of replacement wetlands lies within the functionality of the ecosystem; the morphological characteristics of a wetland can be created to an extent - function can not.
In 2001, the National Research Council published a report of their conclusions after an extensive study answering the question of how well compensatory mitigation was maintaining and restoring the nations waters. They found that there are major problems with the mitigation plan, stating that "the goal of no net loss of wetlands is not being met for wetland functions by the mitigation program, despite progress in the last 20 years" (National Research Council 2001). Between the years 1993 and 2000, 24,000 acres of wetland were permitted to be filled by The Corps of Engineers. Policy states that 1.8 acres of mitigation wetland must be made to compensate for the loss of one acre of natural wetland; therefore, around 42,000 acres of mitigation wetland would be expected in return of the wetlands filled between 1993 and 2000. However, it was found that there are no records of mitigation wetlands: they had not been accounted for by the government (National Research Council 2001). In addition, the National Research Council concluded that many of the mitigation wetlands are either never undertaken or fail to meet permit conditions (National Research Council 2001). This lack of creation of guideline criteria to evaluate mitigation success is a major flaw within wetland policy (Kentula 2000, National Research Council 2001).