November 01, 2016

The Presidential Memorandum on Mitigation

J.B. Ruhl

Compensatory mitigation—the practice of offsetting harm caused to natural resources at one location by restoring, enhancing, creating, or preserving similar resources at another location—has been the lubricant of natural resources permitting programs for over four decades. Indeed, it is difficult to envision how regimes such as the Clean Water Act’s (CWA) Section 404 program for permitting development in jurisdictional wetlands, or the Endangered Species Act’s (ESA) Section 10 program for permitting habitat impacts causing incidental take of protected species, could operate without the option of compensatory mitigation.

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