Posted by: Lawyer Sanders | September 2, 2009

Kentucky environmental attorney Sanders says USACE must re-value the priority of preserving existing high quality streams and waterways in Kentucky under Section 404 of Clean Water Act.

The U.S. Army Corps of Engineers and U.S. EPA give a very low priority to preserving existing streams and waterways for purposes of conducting compensatory mitigation under the Clean Water Act. Indeed, some districts currently offer only a 10% credit ratio for steams preserved and do so in grumbling fashion. In practical terms, many districts uses a 0.1 multiplier per linear foot of stream preserved. This ratio makes it economically unfeasible, if not downright impracticable, to preserve streams and waterways for purposes of conducting compensatory mitigation.

In the view of many permit reviewers and some district engineers, streams are already protected under Section 404 of Clean Water Act, and therefore credits should not be awarded for simply preserving what is already protected by the Act. This position ignores the reality that most streams and waterways in our beautiful state are under constant threat from our modern, ever expanding society.

The issue of preserving existing streams and waterways is especially pressing in Northern Kentucky. For example, the Northern Kentucky Health Department’s Master Health Plan identifies surface water quality as a priority public health issue.
Our streams are under almost constant attack from industrial and household chemical pollution, pesticide and herbicide runoff, littering, deteriorating and inadequate municipal sewers, and malfunctioning septic systems were all identified as threats to the public health of our waterways.

Preservation of high quality waterways is a highly valuable tool that is readily available in Kentucky, and all too often ignored by the regulatory community. Preservation of unpolluted waterways and streams should be priority in our society, and preservation should be given a higher value by the Corps in assessing compensatory mitigation credits.

Preservation of existing high quality resources must be rewarded to provide an economic incentive for preservation. Without providing an economic incentive for preservation (and the many protections afforded by the federal compensatory mitigation program), it is likely that these valuable resources will be degraded sometime in the future. I wish it wasn’t that way, but our country is based on consumption of new resources and it is often far easier to develop a new area rather than develop in an area which is already impacted by our modern society.

Whether it is conservation of energy or preservation of water resources, I strongly urge the regulatory community to re-think their position and attitude towards preservation of streams and waterways. It is long past time to put preservation of steams and waterways on equal footing with mitigation projects that restore, rehabilitate, enhance, or establish streams. Let us work together and provide economic incentives to Kentuckians to save our high quality streams and waterways in the Commonwealth before they disappear.


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