The rights of Nature, a concept recognised by several courts, legislatures and international governance institutions, is being promoted by some non-governmental organisations, scientists, attorneys, Indigenous peoples, local communities, and others. In this article we propose a Universal Declaration of the Rights of Wetlands, consistent with the 1982 World Charter for Nature. Recognition of these rights supports the provision of ecosystem services essential to human well-being and to other life on Earth. Further, such rights could reinforce efforts to reduce wetland loss and deterioration, thereby slowing climate destabilisation and biodiversity declines. Because world scientists have warned that biodiversity loss, ecosystem degradation and climate destabilisation, which intensify wetland loss, constitute global emergencies, new approaches are required to ensure that wetlands are protected and their benefits to people sustained. The proposed Universal Declaration of the Rights of Wetlands states that wetlands possess rights to: exist; their ecologically determined location in the landscape; natural, connected and sustainable hydrological regimes; ecologically sustainable climatic conditions; naturally occurring biodiversity; regeneration and restoration; integrity of structure, function and evolutionary processes; fulfil natural ecological roles in the Earth’s processes; and be free from pollution and degradation. Recognition of these rights is seen as an essential step in efforts to stop wetland loss and deterioration.

In 2008, after prompting by the U.S. Congress, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) issued a regulation governing compensatory mitigation under the Clean Water Act (CWA). The agencies’ primary goal was to improve the effectiveness of mitigation projects to offset the impacts of filling wetlands and streams. The 2008 Compensatory Mitigation Rule was also designed to level the playing field for the three types of mitigation providers: mitigation banks, in-lieu fee (ILF) programs, and permittee-responsible mitigation.

After a decade of experience with this regulation, it is appropriate to reflect on its implementation. Although much has been written about mitigation banks, less attention (in the literature at least) has been paid to ILF programs and permittee-responsible mitigation. This Comment focuses on ILF programs.

The Trump administration has proposed replacing the Clean Water Rule, a 2015 regulation that defined the statutory term "waters ofthe United States" to clarify the geographic jurisdiction of the Clean Water Act. Since its promulgation, the Clean Water Rule has been subjected to numerous judicial challenges. We submitted an amici curiae brief to the United States Court of Appeals for the Sixth Circuit, explaining why the Clean Water Rule, and its definition of "waters of the United States," is scientifically sound. The definition of "waters of the United States" is a legal determination informed by science. The best available science supports the Clean Water Rule’s categorical treatment of tributaries because compelling scientific evidence demonstrates that tributaries significantly affect the chemical, physical, and biological integrity of traditional navigable waters (primary waters). Similarly, the best available science supports the Clean Water Rule’s categorical treatment of adjacent waters based on geographic proximity. Compelling scientific evidence demonstrates that waters within 100 ft of an ordinary high water mark (OHWM) significantly affect the chemical, physical, and biological integrity of primary waters, as do waters within 100-year floodplains and waters within 1500 ft of high tide lines of tidally influenced primary waters or OHWMs of the Great Lakes. This review article is adapted from that amici brief.