Title: The Myth of Mitigation
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000858/00001
 Material Information
Title: The Myth of Mitigation
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Article Sierra Article January/February 1988
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 29
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000858
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


C7I ski res orts replace riii cr? Golf courses substitute
lfr nllrshlinds? On millions ofacrns of 'ildlands lost to
dI'lopiI'Int1 a liliiiaicd disaster is a disaster'ust the same.

The Myth ofMitigation

Torn Turner
111% .sA shopping mall
SRdeveloper named Ed-
ward.. D)eBartolo went
looking for a site in
southern Massachusetts,
he settled on a boggy
plot in South Attlchoro. Situated along
the 1-95 corridor between Boston and
Providence, surrounded on all sides by
traffic. Sweeden's Swamp seemed just
To fill in a swamp. however, a devel-
oper needs a dredge-and-fill permit
fri.m the Army Corps of Engineers. To
get this permit, the developer must per-
suade the Corps that there is good rea-
son for the project to be near water, and
that there are no economically feasible
alternate sites. Finally. the applicant
must convince the Corps that its mitiga-
tion measures will minimize the proj-
ect' adverse effects.
Mitigation-that slippery, multisense
Essentially, to mitigate means to re-
duce the unpleasant effects of develop-
ment. In the Attleboro case, Pyramid
Companies, which took over the prop-
erty from DeBartolo. proposed several
mitigation measures, the most contro-
versial being creation of a 330-acre wet-
land in a gravel pit a couple of miles
aw.iy roman the existing swamp. Pyra-
mid contended that. with some on-site
habitat restoration, this would more
than make tup for the 32 acres to be
buried under the new mall.
1 li' proposal fir the artificial bog
1itk l to illltprt'es thei lo'al office of the
S.orp's ot l.nlgineers. But when word of
the pining disapproval reached Corps
h,.idqu.rterl s i W awiLmgton, 1(.C., D)i-
i ,tm ofi Civil Wink M.ajor General

John F. Wall ordered approval of the
application. In fact, the Corps later ar-
gued that because there would be a net
growth in wetland acreage, the impact
of the project would be positive. "The
Corps said, in Tffect, 'We prefer what
you had in mind to what nature had in
mind-so you can have your way with
nature,'" says Bob l)rcher, the Sierra
Club Legal l)efense Fund staffattorney
who represented the Club in the litiga-
tion that followed
Opponents of the proposed mitiga-
tion pointed out that attempts to create
wetlands seldom succeed and that it
takes years to determine if a man-made
swamp will sustain itself Furthermore,
they noted, the wetland Pyramid pro-
posed to create would attract different
species from those that depended on the
existing swamp. Finally, they argued
that the new wetland would be too far
from the existing swamp to serve as
proper mitigation.
Mall opponents found an ally in the
EPA, which has the power under
the Clean Water Act to review-and
veto-the Corps of Engineers' dredge-
and-fill permits. It had exercised that
power only four times. Sweeden's
Swamp was the fifth.
In a strongly worded decision, Jen-
nifer Joy Wilson, an assistant admin-
istrator of the EPA in Washington.
).C.. vetoed the Corps' approval of
Pyramid permit. "It is unacceptable."
she wrote. "to trade the certain benefits
provided by this functioning wetland
for the un'ert.un benefits of a large-scale
wetland creation."
I'yra.nid Sied. claiming that the I-PA
had overt'pped its hmits. The Sierra
Clubh I egal IDeensc Fund ((:1 DI ) im-
terviin'd on bKch-.f of the (lub on the

t ,I /

S EPA's side, as did several other groups
interested in maintaining what they con-
sidered a vital check-and-balance sys-
tem. On October 6, 1987, Federal Dis-
trict Court Judge Thomas J. McAvoy
upheld the EPA action, a decision hailed
by wetland defenders throughout the
The creation of artificial habitat is not
the only issue in the mitigation de-
bate. Another aspect of the discussion
centers on conflicting interpretations of
the Council on Environmental Quality's
definitions of mitigation. According to
the CEQ, mitigation entails (1) avoiding
an impact altogether by not taking an
action or parts of an action; (2) minimiz-
ing an impact by limiting the degree or
magnitude of an action and its imple-
mentation; (3) rectifying an impact by
repairing, rehabilitating, or restoring
the affected environment; (4) reducing
or eliminating an impact over time
through preservation and maintenance
during the life of the action; and/or (5)
compensating for an impact by replac-
ing or providing substitute resources or
The CEQ's definitions mean some-
thing different to each agency involved
in mitigation. The EPA, for example,
thinks the CEQ options ought to be
considered in order, with number 1
being first choice in all cases and number
5 being the last resort. The Corps dis-
agrees; its formal policy is to consider all
five and choose what it thinks best.
Those five definitions arc staid and
formal. Others are more pungent. In
Waterfront Age. Joy B. Zedlin, a biologist
at San Diego State University, describes
mitigation as "a license to develop."
Karin Sheldon, a SCLDF attorney in
Denver, calls mitigation "an agency's
excuse for doing what it wants to do
anyway." Indeed. some proposals have
stretched the word's meaning to the
breaking point:
a On the Klamath River in Oregon, the
city of Klamath Falls and a developer
want to build a d.an th.t would destroy
a popular stretch of whitcwater. As miti-
gation, they propose building a ski re-
sort some miles distant.

a In southern Texas, where the Rio
Grande joins the Gulf of Mexico, a pri-
vate developer wants to build a resort
that would destroy 8,000 acres of sea-
sonal wetlands. The developer offers ar-
tificial freshwater ponds and irrigated
golf courses as mitigation.
a In Northern California, Oakland In-
ternational Airport wants to fill 180
acres of wetlands in order to build new
facilities. Airport operators put forward
a plan to mitigate the damage by acquir-
ing and setting aside comparable acreage
in the Napa Valley. Not only would the
habitat be quite different, the mitigation
site would be some 50 miles from the
* In northern Louisiana, the Corps mit-
igated the effects of a barge canal project
by buying and giving to the Fish and
Wildlife Service 17,400 acres of fresh-
water wetlands and uplands that then
became the D'Arbonne National Wild-
life Refuge. The Corps neglected to ac-
quire the mineral rights beneath the ref-
uge, however, and natural gas operators
have poisoned dozens of acres with
brine and toxic mud.
* And to describe American Cyana-
mid's offer ofsurgical sterilization for its
female workers as an alternative to los-
ing their jobs in a lead-contaminated
factory, Judge Robert Bork used the
term-you guessed it-mitigation.
W while the definition debate rages,
more and more cases are winding
up in courts. A few judges have ruled
on the side of environmentalists. The
Ninth Circuit Court of Appeals in San
Francisco recently agreed with the
Oregon Natural Resources Council's
contention that mitigation provisions
proposed in an environmental impact
statement (EIS) for a dam on a tributary
of the Rogue River were too vague.
"The importance of the mitigation plan
cannot be overestimated," the court's
ruling stated. "It is a determinative fac-
tor in evaluating the adequacy of an en-
vironmental impact statement."
From a case in Southern California
came what is perhaps the first court
order to stop a project because mitiga-
tion promises haven't been kept. The

case involves construction of a flood-
control ditch and freeway interchange
through Sweetwater Marsh in Chula
Vista. To mitigate the impact of this
project, San Diego County promised to
acquire and preserve 188 acres of habitat
critical to the survival of two endan-
gered species of birds: the light-footed
clapper rail and the California least tern.
When construction continued without
satisfactory progress toward protecting
the critical habitat, the Sierra Club and
the League for Coastal Protection filed
suit. In May 1987 the court halted con-
struction until San Diego completes the
mitigation work.
."We won because the Endangered
Species Act is tough," says SCLDF at-
torney Laurens Silver. "Most other mit-
igation litigation has been brought un-
der the National Environmental Policy
Act, which simply requires a federal
agency to follow a few procedures be-
fore it goes ahead with what it wants to
do-unless the agency wants to interfere
with endangered species."
Except in cases involving endangered
species, no court has forced an agency to
abide by mitigation measures promised
in an EIS. "It's an enormous loophole in
NEPA," says Buck Parker of SCLDF.
"Judges are quite happy to stop an agen-
cy from doing something, but much
less eager to tell the same agency to do
something positiv-evcen if the agency
has promised to do just that."
While some broken promises end up
in court, many probably do not. In an
attempt to find out how well mitigation
promises are kept. Rep. Gerry Studds
(D-Mass.) recently asked the General
Accounting Office to conduct a survey
of federal agencies' compliance with
NEPA to find out how faithfully they
have carried out mitigation projects.
Most environmentalists expect the re-
port, due out sometime this year, to
expose a sorry record.
The general failure of mitigation as
practiced has given rise to a contro-
versial innovation known as mitigation
banking. Crudely put. mitigation bank-
ing is a system whereby an agency gen-
erates mitigation credits to be sold later

32 |AM-4 I I Hil A\l'% X



to developers who want permission to
destroy a functioning habitat.
It's supposed to work as follows: An
agency--probably public but conceiv-
ably private-acquires a degraded site
such as a diked wetland or a filled-in
marshland. The agency restores the
wetland and is entitled to make a deposit
at the mitigation
bank-four habitat
credits, let's say.
Along comes a de-
veloper who wants
to dredge ten acres
of a bay shore to
build a marina. To
obtain a permit, he
must prove that he
will mitigate the
loss by preserving / '
or restoring ten
acres in the vicin-
ity He can't find
" vlny suitable wet-
Snds himself so he
goes to the mitiga-
tion bank and buys
ten acres' worth of
mitigation credits.
One version of
mitigation banking
is being tested in
Oregon, where a
new law developed
with the help of
Sierra Club activ-
ists has just gone
into effect. The law
authorizes the state
to set up a publicly
owned mitigation
fund; limits off-site
mitigation to five
acres; requires that
mitigation occur within the same hab-
itat and within 40 miles of the develop-
ment; and provides for careful monitor-
ing and frequent reporting on the
progress of mitigation sites.
"The intent of the new law." accord-
imn to .on Christenson. a Sierra Club
activist who worked on the legislation.
"is to prevent the mitigation fund from
encouraging projects that will destroy

existing wetlands." He points out that
banks may be used only after all on-site
mitigation methods are examined and
found to be impracticable. "We're not
totally convinced that this is the way to
go," he says, "but we hope that the
Oregon experience may serve as a
model for efforts elsewhere."

damage to the original site," she says.
In an essay mi .Autdiilwo magazine last
spring. Peter Steinhart delivered a short
but elegant verdict: "Mitigation isn't."
Indeed, even with the concept firmly
entrenched in several federal laws, the
United States is losing wildlife habitat at
an alarming rate-close to halfa million

One question underlies all of the dis- acres per year of wetlands alone.
putted mitigation schemes and at- Parker of the Sierra Club Legal De-
tempted reforms: Is it really mitigation fense Fund agrees with Steinhart.
to "save" one parcel of land in order to "We've talked of unmitigated disasters
get permission to destroy another? for years." he saw. "That suggests
Vivian Newman, chair of the Sierra there's such a thing a, 'mitigated' disas-
Club's National Coastal Committee. is ters. Maybe we're learning, finally, that
vehement about the subject. "Buying there is not." a
substitute habitat only leads to a net loss TOM T si a ri, n ,, ,, sh'i ChI.I h
and does nothing at all to lessen the Lc.al I),t.', I :,,;d


sl, Iu 33

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