Photo credit: Supreme Court Pediment by Flickr.com user Kevin Harber

Executive Orders for 2014: Royal Gardner

Back in November of 2013, President Obama issued an executive order on climate preparedness. Because executive orders circumvent Congress within certain limits, they allow the president to implement action to address climate change and other issues. A few weeks ago I asked some of our authors to create their own executive orders to improve our handling of the environment; this is the last installment in the series.  

Transparency on Wetland Mitigation Requirements and Results

by Royal Gardner Back in the day, President Carter issued an Executive Order on the protection of wetlands. Executive Order 11990 calls on agencies “to preserve and enhance the natural and beneficial values of wetlands” while carrying out their duties. I am uncertain what effect, if any, this EO has had on agency actions. If anyone has an example of a project that was killed or substantially modified because of EO 11990, please email me. (I’ll buy lunch for the first person who can offer a documented case.) Moreover, EO 11990 did not apply to federal permits, such as Clean Water Act section 404 permits, for wetland-destroying activities on private property. So my (modest) proposal is that President Obama issue a new EO on the protection of wetlands that extends to federal permits for activities on private property. Under the Clean Water Act, for example, when the U.S. Army Corps of Engineers grants a permit for a project that will fill wetlands, it often requires that the permittee offset the environmental harm through “compensatory mitigation” (e.g., restoring wetlands elsewhere). In particular, the new EO should focus on transparency regarding permit conditions that require compensatory mitigation, transparency on whether the compensatory mitigation is actually provided, and greater enforcement of compensatory mitigation conditions. Transparency on compensatory mitigation conditions: Currently, the Corps of Engineers includes the permit applicant’s proposed compensatory mitigation in its initial public notice of the permit application. The public notices are available (for a time) on Corps District websites, which is a good start. But once the permit is granted, public access is more limited. The permits—and thus the permit conditions, including the compensatory mitigation—are typically not available online. The permits should be published on the web to allow the public to see individual decisions and to track regional and national trends. Transparency on monitoring of compensatory mitigation projects: The Corps of Engineers requires monitoring reports on compensatory mitigation projects. The compensatory mitigation may be provided through a mitigation bank, an in-lieu fee arrangement, or the permittee itself. While some monitoring reports from mitigation banks and in-lieu fee programs are available online, they all should be. Enforcement of conditions: Finally, the Corps of Engineers and the EPA, working with the Department of Justice, should bring more civil enforcement cases when a permittee (or mitigation banker or in-lieu fee program, whatever the case may be) fails to provide the promised mitigation. This rarely occurs now, although a recent case out of South Florida involving Century Homebuilders illustrates how to proceed. Improved tracking of wetland mitigation requirements and results is not only important for our nation’s aquatic resources. Many other countries are also considering adopting “no net loss” policies and biodiversity offset programs, and they should learn from our experiences. But first we need to better inform ourselves.