Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. The government entities involved struggled to locate and understand the permits themselves, let alone the details of the compensatory mitigation projects. A common land protection tool in this context is the conservation easement. These exacted conservation easements exchange public goods for private gain. Attempting to locate and understand these mitigation easements revealed pervasive problems with tracking mitigation in the United States. The federal agencies had trouble finding and understanding records. The county offices charged with recording property restrictions often had inadequate records of land use restrictions. These challenges exacerbate the accountability and enforceability concerns already associated with mitigation programs. Such uncertainty calls into question this method of environmental conservation. This Article highlights pressing concerns with our current mitigation paradigm and calls for reform of federal programs through promulgating new regulations and updating agency guidance. Furthermore, this project calls upon citizens and researchers to turn their eyes to mitigation programs generally and to question whether such programs truly compensate for the environmental harms they facilitate.
Ecology Law Quarterly
Keeping Track of Conservation,
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/172