A very troubling decision from the federal courts threatens to undo decades of policy to protect wetlands.  The DC Circuit Court of Appeals allowed the US Army Corps of Engineers (USACE) to issue a permit allowing the destruction of 54 acres of wetlands.  Behind all of the details, one issue stands out for Wetlands Watch - an apparent erosion of the 1990 agreement between the US Environmental Protection Agency (EPA) and the USACE that puts a stronger emphasis on AVOIDING wetlands damage rather than destroying a wetland and then simply paying a mitigation bank to offset the damage.

Cutting through the geeky, legal stuff - basically, before 1990, the USACE said that if you paid for a new wetland somewhere else, you could destroy a wetland on your own property.  Essentially you could "buy down" the wetlands impacts by putting up wetlands somewhere else.

The EPA thought that was not right:  first you should avoid any wetlands impacts at all (don't put the parking lot on top of wetlands) - then you should minimize any impacts that were unavoidable (move the proposed house to one edge of the lot so you don't have to fill in as much wetland area) --then, and only then, should you talk about mitigating the wetland damage by going to a wetland bank to buy acreage.

So EPA and USACE agreed in 1990 to follow that sequence of decisions - avoid, minimize, and mitigate as a last option.

This decisions seems to turn back to allowing a developer to "buy down" wetlands damages by simply putting money into a wetlands bank - wetlands damage returns to being simply a cost of doing business. One pro-development newsletter put it this way:

"Moreover, the Court noted that the wetland impact would be mitigated by the preservation, creation, or enhancement of wetlands on about 13 acres of the project site and nearly 120 acres offsite.  This holding confirms the importance of a well established record and a robust mitigation plan not only to satisfy wetland mitigation obligations, but to demonstrate that significant impacts have been sufficiently mitigated to enable issuance of a FONSI (finding of no significant impact = green light for development)."

Translation: "If you buy enough wetlands mitigation bank credits, the significant impacts to the wetlands you want to destroy will go away."   This is a bad precedent.