Where is the avoidance in the implementation of wetland law and policy?

Abstract

Many jurisdictions in North America use a ''mitigation sequence'' to protect wetlands: First, avoid impacts; second, minimize unavoidable impacts; and third, compensate for irreducible impacts through the use of wetland restoration, enhancement, creation, or protection. Despite the continued reliance on this sequence in wetland decision-making, there is broad agreement among scholars, scientists, policymakers, regulators, and the regulated community that the first and most important step in the mitigation sequence, avoidance, is ignored more often than it is implemented. This paper draws on literature published between 1989 and 2010, as well as 33 semi-structured, key-informant interviews carried out in 2009 and 2010 with actors intimately involved with wetland policy in Alberta, Canada, to address key reasons why ''avoidance'' as a policy directive is seldom effective. Five key factors emerged from the literature, and were supported by interview data, as being central to the failure of decision-makers to prioritize wetland avoidance and minimization above compensation in the mitigation sequence: (1) a lack of agreement on what constitutes avoidance; (2) current approaches to landuse planning do not identify high-priority wetlands in advance of development; (3) wetlands are economically undervalued; (4) there is a ''techno-arrogance'' associated with wetland creation and restoration that results in increased wetland loss, and; (5) compensation requirements are inadequately enforced. Largely untested but proactive ways to re-institute avoidance as a workable option in wetland management include: watershed-based planning; comprehensive economic and social valuation of wetlands; and long-term citizen-based monitoring schemes.

The Environmental Impact Mitigation Hierarchy as a Hierarchy of Risk

“…For example, Clare, Krogman, Foote & Lemphers [8] state that "many jurisdictions in North America use a 'mitigation sequence' to protect wetlands: First, avoid impacts; second, minimize unavoidable impacts; and third, compensate for irreducible impacts through the use of wetland restoration, enhancement, creation, or protection". McKenney & Kiesecker [9] also refer to 'steps in a sequence' and Ekstrom et al [2] define the mitigation hierarchy as "the sequence of actions…" With this, it was suggested that the word sequence appeared to be a far more accurate and potentially less confusing or misleading description of the ordered series of mitigation interventions that must be considered for efficient and effective impact management.…”

Biodiversity offsetting and restoration under the European Union Habitats Directive: balancing between no net loss and deathbed conservation?

“…The reluctance of the ECJ vis-à-vis novel mitigation strategies under the generic decision-making procedures laid down by the Habitats Directive appears justified. The risk that such a flexible mitigation strategy would undercut the crucial prior steps in the mitigation hierarchy should not be underestimated (Clare et al 2011).…”

Development by Design in Western Australia: Overcoming Offset Obstacles

“…There is broad agreement among scholars, scientists, policymakers, and regulators that the first and most important step in the mitigation hierarchy, avoidance, is ignored more often than it is implemented (i.e., [28]). Developing criteria to determine whether impacts should be avoided altogether will be a key challenge when offsets are an available option, as there are limits to what can be offset [29].…”