The County Council is completing the General Section of the CAO update. This section covers Mitigation, Reasonable Use Exception, and Nonconforming Use. The latter two are pretty straight forward legal issues, mitigation is not.
Mitigation is defined as causing something to be less harmful or severe; conceptually
it feels good. In its regulatory usage, it means providing compensation for harmful actions or the replication of something which has been destroyed.
It’s easy to check off a box, approve a mitigation plan, and feel the problem is solved. But, the reality of implementing a plan is complex and exceptionally difficult when replacing biological and physical functions. Maintaining wetland functions, for instance, is one of the most difficult mitigation activities.
Each wetland is a unique feature, whose presence is due to factors such as topography, soil type, vegetation, and micro-climate characteristics. Even small scale wetlands are very complex systems which provide a variety of valuable functions through physical, biological, and biochemical activities, but they can be functionally overwhelmed by inputs as well as physical damage.
Determinants of success or failure of mitigation involves nurturing and monitoring for many years. Human nature and our regulatory system do not lend themselves to a long term commitment of cultivation or compliance when dynamic systems are involved.
Mitigation provides an excuse to permit injury to a valuable function, pardoning ourselves for the deed and expecting the impossible result of No Net Loss. This may satisfy an applicant and the regulators, but as guiding policy the result will be cumulative loss of irreplaceable values and beneficial functions throughout our county.
The best policy is to avoid the impact in the first place. It is easier to avoid a problem than to solve it. I personally prefer the medical dictum: “First, do no harm.”