Association of State Wetland Managers - Protecting the Nation's Wetlands.

For Peats Sake LogoBy Marla J. Stelk, Policy Analyst, ASWM

In April of this year, Dr. Jon Kusler, Esq. (founder and former Executive Director of the Association of State Wetland Managers) – published a report titled “Government Liability and Climate Change: Selected Issues for Wetland and Floodplain Managers.”  As a local elected official, I was eager to read his report and provide a review via my blog, For Peat’s Sake.

There is broad scientific consensus (97%) that climate change is real and poses a significant risk to human, ecosystem and economic health (see “Consensus on consensus: a synthesis of consensus estimates on human-caused global warming” by John Cook et al). Federal, state, tribal and local agencies are actively working on decreasing the risk of climate change impacts, i.e., hurricanes, flooding, drought, water pollution, disease, etc. for communities nationwide. Most of these efforts, however, are novel and/or cmglobalexperimental and there is still a lot we don’t know about future climate change impacts. Innumerable different systems and players are affected in any climate change scenario which makes modeling and forecasting future scenarios extremely challenging. And as George E. P. Box once said, “all models are wrong, but some are useful.” So how do we decide how to invest our limited government financial resources – how do we weigh the risks?

This inability to deliver forecasts with 100% certainty has resulted in inaction by some communities who view the costs associated with risk reduction to be an unnecessary expense in an uncertain future – or for what they believe to be normal climate variations. But what many folks are not considering is the risks and associated costs of inaction. Nationwide, the cost of inaction has been immense. Billions of dollars have been spent on disaster recovery from climate induced natural hazards. In fact, the U.S. National Flood Insurance Program (NFIP) is currently $23 billion in debt and according to an article in e360 digest, “More than 2,100 properties across the U.S. enrolled in the NFIP have flooded and been rebuilt more than 10 times since 1978.” It goes on to say that “Those homes, known as “severe repetitive loss properties,” make up just 0.6 percent of federal flood insurance policies. But they account for 10.6 percent of the program’s claims — disasterfema093016totaling $5.5 billion in payments.” It is important to point out that this cost of inaction is funded by hard earned taxpayer money. Beyond the financial risks involved, there are legal implications that the majority of folks I have discussed climate change risk with have not even considered. That is why Dr. Kusler’s report is so timely and so critical.

As Kusler points out in his summary, “Looking to the future, climate-related and natural hazards will be increasingly quantified, foreseeable and predictable with improved computer models and global and regional monitoring. “ If it’s one thing humans are good at, it’s developing new and improved technology, so Dr. Kusler’s point is important. Governments who do not heed risk information and adequately prepare their communities may be sued for negligence. On the other hand, governments who do take actions to make their communities more resilient through activities such as tightening regulations on private property without payment of just compensation (i.e., a “takings” claim) may be equally subject to lawsuits.

Dr. Kusler’s report is a very digestible primer on legal theory and provides multiple case studies to illustrate each potential legal pitfall. To date, no government has been successfully sued for failing to consider climate change in its policies or regulations, but the possibility of a successful lawsuit in the next 10-20 years is entirely possible. Here are some of the reasons that Kusler provides in his report:

  1. houstonflood093016Flood, landslide, avalanche and other natural hazards including but not limited to those caused or contributed to by climate change are becoming increasingly “foreseeable” and “predictable.”
  2. Flood-related suits which are now quite common claiming that governments have increased flood, erosion, and related hazards on private lands in traditional, non-climate change contexts may be expanded to include climate change-related flooding and erosion as well.
  3. Advances are being made in the techniques available for reducing hazard losses including those from climate change-related flooding.
  4. Advances are being made in natural hazard modeling techniques available to establish causation, the reasonableness of conduct, and damages.
  5. Courts are making it increasingly difficult to establish the defenses of “act of God”, “contributory negligence” and “assumption of risk”.

The good news is that there are actions that can be taken immediately to not only provide better risk reduction for our communities, but that also reduce governmental liability. I don’t want to spoil the report before folks get a chance to read it for themselves, so I won’t outline them here, but Dr. Kusler provides several implementable recommendations that anyone involved in government policy and regulation should consider using. So For Peat’s Sake, I highly recommend reading Jon’s most recent report and taking the necessary steps to reduce your community’s risk and governmental liability.

Posted in climate change, climate change adaptation, environmental law, flooding, global warming, government, hurricanes, Land use planning, law, natural hazards, resiliency, sea level rise, wetlands legal | Leave a comment

wppOutdated FEMA Flood Maps Don’t Account For Climate Change

By Christopher Joyce – npr – September 15, 2016
The floods that hit Louisiana last month were caused by rainfall that was unlike anything seen there in centuries. Most of the southern part of the state was drenched with up to 2 or 3 inches in an hour. A total of 31 inches fell just northeast of Baton Rouge in about three days; 20 parishes were declared federal disaster areas. Climate scientists and flood managers suspect there could more like that to come — in Louisiana and in other parts of the country. For full story, click here.

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bos2Disasters And Biodiversity: Integrating The Environment Into Recovery And Reconstruction For A Resilient Tomorrow

By Anita Van Breda – The Huffington Post – September 6, 2016
The devastating floods in Louisiana and the wildfires in California are a sober reminder of climate change’s destructive path. We’re facing a harsh reality: frequent and extreme weather events are now the norm for more and more people here at home and abroad. As the number and scale of natural disasters around the globe increase, the connection between World Wildlife Fund’s environmental work, disasters and humanitarian action has never been more urgent. For full story, click here.

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final one againBy Melissa Mullineaux, Summer Intern, ASWM

I have been seeing a lot of cases of water contamination in the news lately from around the country and even around the world. In Russia, on September 7th, there was a report that the Daldykan River near the city of Norilsk had turned a deep burgundy or blood red color. It was reported by some residents who posted pictures of the river on their social media accounts; one in particular can be seen in the picture below. Sources were saying that residents were blaming a leaky slurry pipeline of the Norilsk Nickel plant located close to the river that may have been expelling a chemical pollution into the water.

pipline092316On September 20th, The Los Angeles Times reported on an ongoing issue affecting the Navajo Nation in Arizona and particularly in Shiprock, New Mexico. The article discusses an incident last year when runoff from a gold mine in Colorado, full of chemicals and heavy metals, ran into the Animas and San Juan rivers turning the water orange. Downstream, the polluted water contaminated vast amounts of the Navajo Nations’ farms, crops, and livestock functions. Some of the crops destroyed, like corn, are required for Navajo religious practices, so this has negatively affected them in more ways than just their livelihood. The chemicals have seeped into the ground soils and continue to cause havoc. With every rain fall comes a resurgence of the toxic pollution. The tribe remains dealing with intermittent access to water and now is experiencing some health problems to boot! Pictures of the orange water can be seen here and here.

Another mine, this time in Yellowknife, Canada, which operated between 1948 and 2004, emitted 20,000 tonnes of arsenic trioxide into the air which fell onto the surrounding ecosystem and into Pocket Lake located close by. According to the CBC News article “irreversible damage” was done to the soil and the water in the surrounding area.  Another instance in Prince Albert, Sask., Canada, a CBC News report on Aug 15th, discussed test outcomes after an oil spill showing results that exceed “national guidelines for protecting aquatic life.”

An article from the Washington Post on August 19th discusses “America’s most toxic Rivers” describing one river, the Passaic River in Newark, New Jersey, as a “noxious mess that floats dead fish and trash” and has signs telling people “not to eat the carcinogenic fish and crabs that come from it.” Another recent article outlines the many environmental issues, one after another, affecting Florida’s drinking water and beaches. And, yet another article that describes the economic and health issues the Crow Nation is dealing with in Montana due to their contaminated drinking water.

One of the most shocking articles I have come across is from the Milwaukee Journal Sentinel that discussed research released by the U.S. Geological Survey. The study indicated there were a large amount of skin and liver tumors in white sucker fish within the Milwaukee, Menomonee and Kinnickinnic rivers. The article states “the exact cause of the tumors is not known, but previous research has suggested that exposure to certain chemicals can cause liver tumors in fish, according to research published this week in the Journal of Fish Diseases.”

fishtumor0923162

Then there are all of the articles discussing recent instances of ground water contamination all over the globe, such as Texas that found 276 occurrences of groundwater contamination within the last year, and another article discussing a recent study that found “more than half of South Asia’s ground water [is] too contaminated to use!”  These are just SOME of the articles I have come across within this last month about toxic and contaminated drinking and ground water.

Gosh! It can all seem so overwhelming! And discouraging…

I keep reminding myself, however, that these are all reasons why it is important to look at what society can do to counter these tragic issues and look toward restoring water quality. Besides avoiding the occurrences of toxic contamination in the first place, it may be in our best interest to look at the importance of protecting and restoring wetlands as one option in reversing this problem. As many know, wetlands trap sediments and absorb pollutants such as heavy metals and toxins as well as excess nutrients that cause eutrophication.  They help clean water that may enter groundwater or drinking water supplies.

In fact, some cities in the U.S., such as Columbia, Missouri and San Francisco, CA have constructed artificial wetlands as part of their wastewater treatment infrastructure to filter water and sewer waste.  One can now find manuals and guides online to help design wetland wastewater systems. Perhaps people are beginning to grasp ahold of the importance of wetlands in preserving water quality. Maybe the word will get out that either protecting the wetlands we have left or putting more resources into constructing or restoring wetlands in pivotal areas around water sources can play a role in the future protection of potable water.

One piece of information that has turned my discouragement into hope is that there has already been progress made toward the improvement and preservation of wetlands in the U.S. In fact, according to the Natural Resource Conservation Service (NRCS) “the period between 1997 and 2007 was the first decade in modern history that saw an increase in palustrine and estuarine [P&E] wetlands (U.S. Department of Agriculture, 2012). Since 1997, the trend has been a gradual overall increase in P&E wetlands” (though they mention an exception in the “eastern third of the country” that is “still experiencing wetland loss”).

Some of this progress has been due to improved regulations and targeted initiatives to strengthen wetland programs and encourage wetland restoration. One such initiative, for example is EPA’s Enhancing State and Tribal Programs (ESTP) effort to provide technical and financial support to states and tribes to build their wetland programs so that they are able to better protect wetland resources across the country. Two ESTP core elements are particularly relevant to this discussion, which are wetland water quality standards and wetland monitoring and assessment.

Although I began this blog by highlighting some pretty discouraging information about the pollution of waters across the globe, there are also many uplifting aspects about this issue, such as the gradual increase in wetlands within the last two decades and the increased initiatives taken to further improve wetland quantity and quality. It is exciting to be a part of the solution and to know that the longer these programs are in place, the better things will get. Stay tuned for some more blogs from Counting Cattails so that you may follow me in my journey as an intern here at the Association of State Wetland Managers.

 

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bos2Be Prepared

By Patti Kay Wisniewski – EPA Blog: Healthy Waters in the Mid-Atlantic – September 8, 2016
September is National Preparedness Month – a time to take basic steps to improve our resilience and readiness for natural disasters and other emergencies. With the Atlantic hurricane season in full swing, we should all remember to plan with our families to be able to quickly and safely leave our homes when severe weather threatens.  We also take this time in September as a way to pay tribute to those who rush to the scenes of disasters like police and firefighters for their dedication to our safety and security. For full blog post, click here.

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wppBuilding equity, inclusiveness for low-income communities is key in climate resilience planning

By Shamar Bibbins – EPA BLog: Enviornmental Justice in Action – August 16, 2016
As a student organizer, I saw firsthand the lack of engagement with communities of color around key environmental issues. When I began working on climate change years later, I remained guided by a deep passion to ensure that people from historically underrepresented groups were included in efforts to advance climate solutions. For full blog post, click here.

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by Brenda Zollitsch, Policy Analyst, ASWM

ASWM’s program staff spend almost all of our time working to help others address wetland problems. ASWM gets requests every day to work on issues that range from permitting linear energy projects and improving wetlandproblems5assessment, mitigation and restoration practices to combatting invasive species and better understanding the effects of silviculture on coastal wetlands. At ASWM this initiates a process to sort out problems from causes and causes from solutions, so that we can make decisions about what options exist to address the root causes of problems under various circumstances.

Noted environmental policy scholar and practitioner Daniel Fiorino[1] from American University writes that environmental policy problems are “embedded in the public mind, interrelated and interdependent, affect societies at different levels of growth and transcend…boundaries.”  All of this is true for wetlands and we must address these issues wholistically to be effective in analyzing them and proposing viable policy options.  Often there are misperceptions about values of wetlands. Policies affecting wetlands are often connected with other pressing environmental and economic issues.  They affect various communities and demographic groups in uneven ways, and cross multiple local, county and state political boundaries.  Our recent national state wetland status and trends report also illustrates the vast diversity of program types, policies, and staffing levels that serve as the frontline of state wetland protection and conservation efforts.  For all of these reasons, working with partners to improve wetland policy and management approaches is a tall order.

introducephragmites0915163 Take, for example, the growing number of requests ASWM has received to address the topic of invasive species and wetlands. There is a wide range of invasive species with an even wider ranging number of impacts.   Let’s narrow the invasives issue to analyzing the problem of the spread of Phragmites into new areas. To analyze this issue effectively, we have to look at much more than treatment of individual sites.  We need to be looking at the root causes for why Phragmites is out competing native plants; otherwise, we are just applying a temporary bandaid and not a solution.  This analysis for Phragmites and other invasive species frequently points to a suite of approaches that (in combination) increase the likelihood of success.

The vastness of potential causes can be daunting.  In the case of Phragmites, we need to understand location-specific information, patterns of land use, plant adaptation and regeneration strategies, the extent of invasion in the region, and regulatory controls in place to address these different components.  On the larger scale, we need to be keeping in mind how that land is changing due to climate change, and local anthropogenic disturbance such as urban sprawl with its associated increases in imperviousness. In addition to the science and ecosystem dynamics of the issue, we also need to look at the social and economic contexts that bring about situations where Phragmites might invade a wetland.  Have there been local development pressures leading to soil disturbance creating conditions that enable Phragmites to become established?  Are there enough regulatory staff to make inspections of construction sites?  Are the state’s permits able to take these issues under consideration?  Does the state lead permitting actions or does the Corps?  Are cumulative impacts creating or compounding the problem?  Is the state government open to looking at the challenges of climate change and how climate may be impacting the spread of invasives in their region?  Is the state administration and legislature interested in addressing the larger issues?  Are invasive species on that state’s policy radar or better yet, their formal policy agenda?

As ASWM delves into these specific policy areas, we work with partners to provide a careful examination and definition of the problems we are addressing. To assist us in this process, ASWM consistently convenes national (or regional if the project is more limited in scope) working groups to help guide ASWM in this definitional process. When ASWM conducted a stream project a couple of years ago to collect and analyze information to assist states strengthen protections for streams, we worked with a national workgroup to identify the scope of the problem, the information we needed to collect to answer our specific research questions, and the measures for collecting the data we needed to answer those questions. The same has been true for an ongoing wetland restoration project, the previously mentioned state status and trends project and another project to improve access to high quality wetland training. By engaging a range of policy pipline6actors and other stakeholders in our work, focusing our projects around clear and defined issues, and committing to transparency and documentation of all these related decisions, we hope that ASWM’s products will have greater value to our members and the wetland community in general.

In 2017 ASWM is planning to take on new challenges. This includes one that will focus on improving state engagement of wetland permitting of linear energy transmission projects and another that will identify ways to increase the quantity and quality of integration between wetland and other water management programs. Thus we will once again begin the careful and critical process of defining the challenges, root causes, indicators, and alternatives.   We invite you to engage with us and to share your insights and resources.  This process is one of joint exploration and learning.  It is simultaneously one of the hardest and most rewarding activities we undertake at ASWM.  We couldn’t accomplish it without partners and we invite you along for the ride.

To learn more about ASWM’s projects, planning and processes, feel free to contact me at .

[1] Daniel J. Fiorino is the Director of the Center for Environmental Policy and Executive in Residence in the School of Public Affairs at American University

Posted in Association of State Wetland Managers, invasive species, Uncategorized, wetland impacts, wetlands | Tagged , , , , , | Leave a comment

wppThe Great Flood of 2016

Bayou Woman – August 20, 2016
With the sun shining for the second day in a row down in south Louisiana Friday, I loaded up my Cajun Reeboks, camera, spare clothes, and water and headed toward Baton Rouge. My intention was to go help Janet, a real mover and shaker from Denham Springs, LA. She had gotten involved with a shelter at a local junior high school. By Thursday night, officials from the local sheriff’s department informed them that this school was not an official shelter and that someone must have broken in. Well, that’s just craziness. They told her the shelter would be shut down Friday morning at 8 and everyone must find some place to go. Bear in mind that these people have only the clothes on their bodies, no vehicles, and many are disabled or mentally challenged. For full story, click here.

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bos2Five Years Later, The Elwha Reborn

By Amy Souers Kober – American Rivers – September 9, 2016
“It’s a shining light,” he says. “The success on the Elwha shows we can actually fix things.” Now that the dams are gone, Gussman, a resident of Sequim, WA has witnessed what he describes as the “rapid recovery of nature”  — the sediment that has moved downriver to restore the beach at the river’s mouth, to the plants and trees reclaiming land once drowned by reservoirs, to the salmon and other fish and wildlife rebounding. For full story, click here.

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cwlogoBy Jeanne Christie, Executive Director, ASWM

The recent flood in Louisiana has moved off the front page of the news in many areas of the country.  But recovery is just beginning for the people and communities where 150,000 homes were damaged by the flood.  An estimated 80% of these homes lacked flood insurance.  The price tag for recovery could reach $15 billion.  If so, it would be one of the costliest natural disasters in U.S. history.  For those of us who live far away from where the flooding occurred, it’s difficult to comprehend the extent of the flooding as well as the grief and exhaustion and hard work ahead for the people trying to recover.

In the wake of the flooding there have been a number of news stories describing how warmer air and water temperatures that are being recorded worldwide are likely to lead to more intense and frequent rainstorms.

There are opportunities to provide aid.  Some will donate money or supplies; some will assist with the recovery efforts.  Others will begin thinking about how to support actions to reduce the extent of the impact caused by such events in the future.

To do this, it is necessary to assess the usefulness of some of the tools that are available.  One tool that is extensively used is floodplain maps that identify areas at risk for flooding.  As noted above, the majority of flooded buildings were owned by people who had not purchased flood insurance.  Many were not in the floodplain. In fact according to a story in The Advocate, just three weeks before the flood, about 2,000 homes in the town of Central LA received letters letting them know they were no longer required to purchase flood insurance.  According to the story, the change was expected to save residents $2 million a year in flood insurance premiums.

legalissuesjon0416A number of risk-averse communities around the country are likely to take another look at flood insurance and floodplain maps and try to assess their options.  A starting point for understanding how the courts have treated floodplain mapping, both Federal Emergency Management Agency (FEMA) flood insurance maps, maps that anticipate climate change impact, a new publication by ASWM Associate Director Emeritus, Jon Kusler may prove useful.  Legal Issues in Upgrading Flood Maps to Reflect climate change, Other Changed Conditions provides information about some of the different kinds of floodplain maps that have been completed around the country and cites court cases that have addressed challenges to different basis for developing floodplain maps.  At the end of the nine-page document there are five recommendations for avoiding problems with flood mapping procedures and flood maps that incorporate climate change or other changed conditions:

  1. Follow statutory and ordinances procedures and other requirements.
  2. Incorporate the best information available.
  3. Over time, develop increasingly specific and quantified flood maps reflecting climate change and other changes in floodplain hydrology and hydraulics.
  4. Provide procedures for updating or making more specific flood elevations, velocities, erosive forces and other flood factors on a case-by-case basis.
  5. Request the legislature to endorse the maps and fact finding upon which the maps are based.

As the report points out, there are uncertainties in mapping floodplains.  So it is logical that risk averse communities will want to take action beyond proactive mapping of the floodplain. This may take a number of forms such as participating in FEMA’s Community Rating System (CRS)  which is a voluntary incentive program which encourages communities to take actions that exceed minimum National Flood Insurance Program requirements by reducing flood insurance premium rates for residents in communities by up to 45% by achieving the three goals of CRS.

  1. Reduce flood damage to insurable property;
  2. Strengthen and support the insurance aspects of the NFIP, and
  3. Encourage a comprehensive approach to floodplain management.

definitonsreportjon0416Protecting natural floodplains as open space and preserving and restoring natural shorelines are among the activities that can contribute to reducing flood insurance rates.  Flood storage is one of many benefits of restoring and protecting floodplains, shorelines and wetlands.  Another recent ASWM publication: Definition of Wetland, Floodplain, Riparian “Functions” and “Values” provides an overview of how the terminology and methods are used to identify and quantify the functions and values of these resources as well as some of the inherent strengths and weaknesses of different approaches.  The publication includes floodplain storage as a value/function of these aquatic systems. It highlights the importance of understanding what aspects of flood retention and storage are considered by various methods and which ones are ignored. It also describes a much larger suite of scientific and societal benefits derived from these resources as well as the importance of location. For example, a wetland/floodplain in or upstream of a town can provide substantive flood storage so that waters don’t flood residences.  However, if the floodplain is developed and the ‘storage’ replaced at a different location, it will no longer be located where it will reduce flood risks in that area.

The flooding in Louisiana this summer was unprecedented.  Communities will need to decide whether to ignore it because it is something that will not happen again, or as a harbinger of future challenges.  Following superstorm Sandy, the U.S. Army Corps published North Atlantic Coast Comprehensive Study: Resilient Adaptation to Increasing Risk: Emergency Costs (January 2015).

The resources described above and many others are available to allow communities to evaluate risks, weigh options, and move forward with plans to protect the health, safety and property of their residents.

 

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