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Washington, D.C. – In an effort to create a more equitable and commonsense wetlands mitigation process, Alaska Congressman Don Young recently introduced legislation to expand compensatory mitigation options as they pertain to Clean Water Act (CWA) section 404 permitting on State, Indian, and Alaska Native owned wetlands.

“Locking away lands into perpetuity does not match up with the impacts of these projects. Ultimately, mitigation must better reflect the life of a project,” said Congressman Don Young. “I’ve heard from businesses, land owners, and countless other Alaskans that the current process – in a state with more wetlands than any other – has created major barriers for investment and development. These requirements are often perceived as nothing short of government extortion, all for trying to exercise our right to use our lands and resources. We drastically need additional oversight on this matter and new tools that create a more equitable and fair system.”

H.R. 3271, the Preservation Leasing of State or Indian Lands Act, creates a more balanced approach to land use restrictions and long term land management. Congressman Young’s legislation would establish “Preservation Leasing” as a mechanism available for fulfilling compensatory mitigation in accordance with the CWA 404 permit process.

In Alaska and across the country, many projects subject to 404 permits have a lifespan. At the end of the project lifespan, these permits require full rehabilitation and reclamation of these lands.  However, current regulations offer mitigation options that are neither equitable nor reflect the temporary use of these lands.

Currently, three mechanisms are available for completing compensatory mitigation, all of which lock away lands into perpetuity and often place undue burdens on permittees:

• Mitigation Banks: Requires a permittee to pay an assessed value to a third party mitigation bank responsible for permanently preserving purchased wetlands.

• In-lieu Fee Mitigation: Requires a permittee to pay an assessed value to a third party in-lieu free program responsible for finding wetlands to permanently preserve in the future.

• Permittee-Responsible Mitigation: Requires a permittee to restore, mitigate, or permanently preserve existing wetlands located at or adjacent to the proposed project site.  Permittee-responsible mitigation can include placing private and public lands into a preservation easement, forever restricting unencumbered use.

H.R. 3271 would create a fourth option for compensatory mitigation that allows states, tribes, and Alaskan Natives to place selected portions of their land into a “preservation lease” status to mitigate permittee activities on or near their lands. The permittee would pay the landholder for the impact and holding of their lands throughout the term of the lease.  These lands would remain undisturbed and would be reserved for mitigation of the specific project. 

A Significant Difference

Once the lands impacted by the project have been rehabilitated in accordance with the plan in the 404 permit, and hydrological functions and fish and wildlife habitat have been restored, “preservation lease” lands would revert back to the landowner without restriction.

• The permanency requirement that is in regulations for an easement would not apply.

• There would be a term for a preservation lease.

• Preservation leasing would add to the existing tools available for mitigation impacts to wetlands.

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