After decades of effort, the voluntary, collaborative approach to restoring the health and vitality of the Chesapeake Bay— the largest estuary in the United States—has not worked and, in fact, is failing. A diverse group of 57 senior scientists and policymakers have joined forces to save the Bay. This is our plan.

Mitigation Madness

(Posted by Fred Tutman.)

The legend of Robin Hood is about a fabled band of brave outlaws in medieval England who took money from the rich under a repressive monarchy and redistributed it to the poor. Sounds like a good thing right? Take something from somebody who has too much and give it instead to somebody who has not enough. What could be wrong with that? Fast forward into reality on the Chesapeake Bay, the 21st century and the lopsided world of “net environmental impacts” where we can take a perfectly good and functioning wetlands site, turn it into a parking lot and then make up for it by restoring a wetlands half way across the state. Wow. The ultimate ecological shell game. Have we really arrived at a state of affairs where not only are our watersheds competing for scarce resources but also for the spoils of ecologically damaging construction activity in other watersheds?

The core rationale to this warped and misguided practice is that we are in some way assuring that there is no “net” loss of wetlands. But of course artificially created wetlands do not at all compensate for naturally occurring ones, and besides what about the local impacts such losses create? Local impacts are usually poorly aligned with “net” impacts. My dealings with planning boards and engineers in my seven Patuxent Counties suggests that the relative value of these everyday mitigation trade-offs are incomprehensible. You swap a good thing for a bad thing and in the end the only commonality between the components in the transaction is that it all involves “things” almost impossible to fairly quantify. It encourages one to just fiddle with the numbers on paper and receive instant government sanction for bad practices. Like the wampum we used to give Native Americans for their land, most of these swaps are dreadful bargains. What is given is usually a poor substitute for what was taken. The transactions appear as a lifeline to those who want to feel a little less guilty about wrecking an ecosystem in one place, as long as something gets fixed elsewhere. Usually these “deals” are measured in acres, or dollars or some other benchmark that does not fairly represent the true value held by those who have been dispossessed of it. The standard operating procedure is that most will take a funded off-site mitigation project any day of the week in exchange for a quid pro quo that helps an applicant obtain a permit to do exactly what he was inclined to do all along. Want to redirect a stream? Sure no problem, go fix another one somewhere else halfway across the state.

The idea that there is something just or fair in this sort ecosystem haggling is mind boggling to anybody on the receiving end of a lousy construction project with “mitigation” attached to it. Let’s be clear about what a lousy one is. It’s one that gives rise to unfair, wanted and unnecessary impacts. One that confers the burden of bad practice arbitrarily onto others with no choice over the impacts or outcomes. It is the relative injustice of helping some business interest make a profit while impoverishing the next few generations of downstream stakeholders. But it is okay because we said mea culpa in some other county that-a-way? Please tell me most people don’t think this is okay.

The builders typically think the purpose of environmental regulations is to protect their property rights. Environmental moderates think it is about “balancing” or compromising the equities to make sure everybody walks away with something. Granted, hardliners like me have always assumed the purpose of the laws was simply to protect the environment and the public interest embodied in clean air, water and land. All sides of the equation have entirely different expectations for the outcome of the process. But in the end, there is something incompatible in what they all want. It is impossible to balance these competing interests, one must simply choose what is wanted most. Frankly, there is no property right that allows you to ruin the property interests of those downstream or next door, there is no way to balance or compromise over the gold standard of pure clean water. If laws are to protect the environment, we need to enforce them, not balance them.

So back to legendary Robin Hood. He was as legend tells us, a patriot operating in under a cruel regime where he needed to become an outlaw in order to obtain justice for those without access to power. But when it comes to robbing the environment in broad daylight with the full weight of the government and big investment money behind you, and where the wealth being appropriated is environmental wealth (the “commons”), then how come not nearly as many people see this for what it really is? It is legalized highway robbery under a different name. Regulatory agencies more terrified of being sued by business interests than they are of dirty water are genuinely a poor substitute for the idealism of a Robin Hood.

Some reading this will plainly think I am against environmental mitigation. I’m not. I’m against bad mitigation. I’m against mitigation that masquerades as honest remediation. I’m against swapping the environmental wealth like fisheries, clean water, and healthy benthic life from one community or habitat and then giving the rewards or reinvestment to another community, sometimes in an entirely different watershed or even in a different County or State. I am against mitigation being the first resort instead of being the last option thrown on the table. And I am against environmentalism that regards mitigation as an option that is just as attractive as preservation.

4 Responses to Mitigation Madness

  1. Also, on the subject of wetlands mitigation, there appears to be no downward limit on wetland impacts, as long as they are mitigated in accordance with current law and regulations. In other words, ALL the natural wetlands in MD could be destroyed or degraded by the impacts of road construction, development etc – as long as the impacts are mitigated. The original ‘commons’ could be reduced to zero. Let me know if there is anything in law or regulation that says otherwise.

  2. Yes, Nick I agree. Few in our Bay movement have looked closely at what has evolved as far a mitigation practices statewide. An entire industry has sprung up around what should be a last resort instead of the first reflex. It is a very business friendly approach that if left unchecked will keep deferring problems until there is literally nothing left to “mitigate”. It also creates genuine injustices for those whose environmental quality is being swapped elsewhere. Some environmental groups have become adept at attracting mitigation projects to their locale with barely a passing consideration for the bad practices in somebody else’s backyard that gave rise to the need for opportunity for mitigation. Guh!

    • Until the regulatory agencies decide to require mitigation on a functional replacement basis, not a square foot and linear foot basis, this is what we’re stuck with. But given that a good number (let’s say 25%) of regulatory staff are over their heads with the technicalities of the current system – which is almost 25 years old (87 Manual), wishing for a more comprehensive and accurate system is kind of a far fetched concept.

      Sad, really.

  3. Thank you for putting this so clearly. How about this mitigation just offered at a hearing I was at – take down 24 mature trees lining a highway providing shade for commuters and sucking up storm water in a intense urban area and plant some more trees in the nearby park. Trees in parks are nice, but they are not mitigating the impact of removing mature trees from the urban landscape.