Wetlander's Pick of the PostsNew Trout Unlimited report documents importance of small streams to clean water and fishing in America

Angling Trade – June 30, 2014
A new report from Trout Unlimited details the importance of small seasonal streams across America to the overall health of the country’s rivers, its fish and fishing opportunity, and it asks anglers to take action to protect these waters by contacting their members of Congress and telling lawmakers to keep the Clean Water Act intact. Rising to the Challenge: How Anglers Can Respond to Threats to Fishing in America is a brief report and a call to action for all who fish in the United States. Trout Unlimited scientists mapped how small streams influence historic native trout and salmon habitat in 16 states. Legislation in both the U.S. House of Representatives and the Senate would halt a rulemaking process that would restore protections to small “intermittent and ephemeral” headwater streams under the Clean Water Act. For full article
, click here. To download the report, click here.

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View from the blog-o-sphereFiscal conservatives should love wetlands

By David Jenkins and Steve Ellis – The Hill Blog – June 2, 2014
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers recently announced a proposal to clarify the scope of the Clean Water Act with respect to wetlands and other key watershed features. It has instantly met with howls of opposition by development interests, property rights groups, the American Farm Bureau, and a number of lawmakers. For full blog post,
click here.

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Warmth has at long last reached southern Maine. The memories of a long cold winter linger, however, and this past week the local newspaper ran a story on a current run on firewood in anticipation of next year. We’re ahead of the trend since we generally order firewood two years ahead of time. Ours is already stacked and ready for the coming winter season under a large and remarkably ugly grey tent. Another newspaper article during the winter alerted my husband to the enhanced efficiency and improved air
quality achieved by burning dry wood versus wet wood. Initially he proposed to build something a little more aesthetically pleasing, but he learned that any permanent structure above a certain size required a pricey architectural drawing with the application. Hence the ugly and enormous grey tent. However, I anticipate the chipmunks, snakes, mice, and other small animals that winter over in the woodpile will be very happy with the new arrangement.

Welcome to summer!

Jeanne Christie
Executive Director

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View from the blog-o-sphereEncouraging Investments in Wetland and Water Quality Improvements on Private Property through Low-Interest Loans

By Glenn Barnes – Environmental Finance Blog – March 13, 2014
Restoration and protection of wetlands is one of the four core elements of a wetland program, as defined by the U.S. Environmental Protection Agency. Some restoration and protection takes place through wetland regulatory activities, such as during the 401 certification of a development project that disturbs a wetland. In other cases, wetland restoration and protection is voluntary—restoring and protecting the wetland is not tied to a specific regulatory activity but is desired to achieve overall water quality goals. If that wetland is on public land, the unit of government that owns the land can, if funds are available, protect it. But what about wetlands and other water quality features that are on private property? How can a unit of government encourage the voluntary protection of those crucial water quality features? For full blog post, click here.

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Wetlander's Pick of the PostsCan the Port Authority Save the Planet?

By Ted Steinberg – The New York Times – June 16, 2014
This has been a bad year for the Port Authority of New York and New Jersey, with scandals over a bridge closure and, most recently, a shady real estate deal. But the authority has a chance at redemption, if it is willing to move beyond its traditional mandate. Its model of interstate cooperation could do much more than prevent traffic jams; it could also play the leading role in managing the ecological health of the Hudson River estuary, and serve as an example for other coastal cities around the world facing complex environmental problems in a time of climate change. For full opinion, click here.

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By Marla J. Stelk, Policy Analyst, ASWM

Northern Spotted OwlI have been involved in climate change discussions since the mid-90s when I helped coordinate what I think was the first climate change conference at the National Oceanic and Atmospheric Administration in Boulder, Colorado. At the time, scientists were already warning us about the potential impacts from climate change but not very many folks were listening. Those who were listening were fairly skeptical if not in outright disbelief. Most of the country was still arguing about the Spotted Owl – climate change seemed to be too theoretical and too far off in the future to take very seriously. Saving the rainforests and endangered species were the popular causes of the day.

As the Project Leader for ASWM’s Wetland Restoration grant over the past year, I have found myself in the middle of a debate over wetland restoration best practices. Central to this debate is the question – how do we define “success”? What I am finding is that an individual’s answer may be highly subjective. Do we value preservation and “native” species? Or do we focus on functions and ecosystem benefits? It depends on your priorities. But the debate has also clarified for me the significant role that climate change has made to natural resource management perspectives and the level of complexity that it has thrown into an already incredibly complex science.

On a very basic level, climate change has underscored the essential need to work on a broader spatial and temporal scale when considering natural resource management policies and projects. Scientists were arguably already moving in that direction – although they are often confined by state and local policies and regulations that end at the governing boundary. Federal policies like the Clean Water Act should theoretically help us develop a broader national perspective and strategy regarding the importance of wetlands and clean water and their vital contribution to human well-being. Sadly, that perspective has gotten drowned out by the debate over clarifying jurisdictional boundaries.

Climate change, however, continues to challenge our need to define boundaries – be it state lines, regulatory frameworks, jurisdiction, local ordinances – even science. It is accelerating the reality of “change” – something most humans are intensely uncomfortable with. The new concept of “novel ecosystems” has many seasoned ecological restoration professionals at odds with each other – but I think it has prompted an overdue and incredibly important discussion. The term “novel” is perhaps used inappropriately. It suggests that new ecosystems have developed, when in reality it is actually describing the natural process of evolution. Invasive species management is a core element in discussions regarding novel ecosystems and those who embrace the concept are looking at ways in which invasive species may actually contribute to ecosystems. This is a very hotly contested theory to be sure.

California Drought Dry Riverbed 2009But climate change is causing habitats to shift north, and the animals that depend on them to move along with them if they are able. It is altering our natural environment in fundamental ways – from extensive droughts, to water contamination from stormwater runoff, to loss of coastlines, to rapid species extinctions. And it’s happening in our own communities and to the flora and fauna that we have grown accustomed to over the past 100 years. Climate change has arrived and unfortunately we are ill prepared.

So how do we define “success” if the “new normal” is change? If we are restoring to a “reference wetland”, what happens in 25 years when the climate no longer supports that reference wetland habitat? How do we manage for change? How do we even manage our “wilderness” areas including national parks when those habitats and climates are changing? Have we boxed ourselves in with boundaries and ideals for restoration based on historic conditions?

Fortunately, there have been some efforts to develop more cooperative interstate agreements to deal with some of these issues, such as the new Bay restoration pact signed by Governors of Maryland, Pennsylvania, Virginia and Delaware. And the National Wildlife Federation just produced a handbook on “Climate-Smart Conservation: Putting Adaptation Principles into Practice” which should be a required reading for anyone working in natural resource management and/or policy.

I believe that we are going to have to challenge ourselves to think outside of the box more than ever before. We are going to have to evolve professionally much more quickly if we want to keep up to pace with a rapidly changing climate. We will have to manage more holistically, commit more capacity toward monitoring, develop an adaptive regulatory framework and develop more fluid and robust ways for different agencies to work together toward common goals. And for Peat’s Sake, we’re going to have to work together and embrace our interdependence with each other and with nature.

Lotus Flower“We don’t wait until we overcome our self-centeredness before engaging with the world; addressing the suffering of the wider world is how we overcome our self-centeredness. Contrary to a common way of understanding the bodhisattva path, bodhisattvas don’t defer their own perfect enlightenment in order to help others; helping others is how they perfect their enlightenment. We awaken from our own self-suffering into a world full of suffering, with the realization I am not separate from that world.” – David Loy, Buddhist teacher and author and board member of Ecological Buddhism.

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Wetlander's Pick of the PostsNature: the ultimate innovator in agricultural systems

By Cehvonne Reynolds – CGIAR – June 5, 2014
Sources of novelty and innovation are key to building resilience in socio-ecological systems. “Nature” is the ultimate innovator and we only have to examine adaptations that have evolved in response to complex problems to realise that it is a decisive and creative force. However, we often tend to overlook sources of innovation provided by natural ecosystems. For full blog post, click here.

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View from the blog-o-sphereA new approach to climate politics: forget the climate

By Alison Smith – Friends of the Earth – April 4, 2014
Despite 20 years of urgent warnings from scientists, crowned by the latest IPCC report, there is still no sign of a realistic plan of action to limit climate change. Politicians won’t do anything without public support. But it seems that shouting about the dangers just makes people put their fingers in their ears. The debate is dominated by doom and gloom, and by those who argue that climate action is a costly burden that we can’t afford. But maybe we’ve got the whole thing the wrong way round. Maybe we should stop banging on about the climate and start talking about the health and well-being benefits we’re missing out on. For full blog post, click here.

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In May 2014 Illinois Farmers Insurance Company made headlines around the country when it sued almost 200 towns in the Chicago area for failing to do more to prevent damages linked to climate change. The suit argues that towns know that climate change is happening and should do more to address flooding.  This case and others like it are being watched with considerable interest by local governments across the country.  It has implications for individual insurance policy holders as well since there is speculation that this lawsuit is part of a larger strategy by Farmers parent company — Zurich Insurance Group—to avoid paying out for future climate change related losses worldwide.

Local governments and others are watching the case.  It is likely that there will be more and more lawsuits similar to this in the future from insurance companies and others in response to the changes wrought by a changing climate, and in particular the predicted increase in the intensity and frequency of natural hazard events such as floods, hurricanes, and drought.

The Association of State Wetland Manger’s Associate Director,  Dr. Jon Kusler Esq. has recently finished a draft report: “Government Liability and Climate Change: Selected Legal Issues.”

The paper examines the following legal issues:

  1. Are governmental units potentially liable for failing to consider climate change in their policies and activities?  If so, under what legal theories?
  2. Are governments potentially liable for tightly regulating development in flood hazard areas with flooding caused by or worsened by climate change?
  3. If governments are potentially liable in either situation, how can they reduce potential liability?

The 36 page report includes the following summary and recommendations:

No court has yet held a governmental unit liable for failure to reflect climate change in its programs with resulting increased flood damages to private property. However courts have widely held governments liable in cases involving more traditional flooding and erosion for increasing flood damages on upstream, downstream or adjacent lands.  And, successful suits with climate-change elements or based primarily
on climate change where flooding and damages caused by government actions or inactions are increased or would not ordinarily occur maybe expected in the coming years. This is particularly true where scientific studies quantify climate change and increases in the frequency and intensity of flooding.

To reduce flood damages from climate change, governments can strengthen their floodplain regulations including revised floodplain maps, increased flood proofing elevations, and broadened floodways and coastal high velocity areas. However, some of these regulations will likely be challenged by private landowners as a taking of private property without payment of just compensation. Based upon the broad support courts to date have given to more traditional floodplain regulations and the growing scientific contentious concerning climate change,  courts are likely to uphold restrictive climate-change related regulations.

Looking to the future, climate-related natural hazards will be increasingly quantified, foreseeable and predictable with improved computer models and global and regional monitoring. As this occurs, governments may be held liable for flooding in areas which have not previously flooded and/or for exacerbating existing flood problems. Governments need to be particularly careful with their policies for areas behind dikes, dams, and levees where catastrophic losses may occur if design frequencies are exceeded and the legal doctrine of “strict liability” may apply.

All levels of government may be sued under common law or Constitution theories for causing or exacerbating climate-related flood problems but local governments are particularly vulnerable as they design and operate stormwater systems and undertake other activities (construction of dams, levees, fills, ditches, culverts, highway construction) where they may increase flooding and erosion on some private lands while reducing it on others. Their failure to take into account climate change may be considered by a court to be “unreasonable” and “negligent” conduct, particularly where there is a high concentration of risk factors.

To reduce potential liability based upon claims of negligence (“unreasonable” conduct) or other legal theories (“nuisance”, “trespass”, etc.) governments should reflect climate change in their policies and programs and take measures to address climate change. These actions would not only reduce the potential for successful climate change-related suits but also the potential for litigation based on more traditional types of flooding and erosion.  They could do so with confidence that courts will uphold such regulations although courts in a small number of cases have held more traditional regulations which deny all economic use of land a taking of private property without payment of just compensation.  Governments can take a variety of measures to reduce the potential for courts to hold that tight regulations adopted to reduce climate change-related flooding are a taking.

The full report can be found here and comments on the draft report will be accepted through July 30. If you have questions or would like to provide comments on the report please contact Jon Kusler at jon.kusler@aswm.org.

The bottom line is that all levels of government should be cognizant of the challenging  balancing act needed to protect human health and safety while remaining sensitive to private property rights concerns.  The report includes specific actions government can take to achieve that balancing act in ways that will be legally defensible.  In addition there is a rapidly growing body of information available to assist communities in responding to climate change and developing fair, defensible policies based on sound science.

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View from the blog-o-sphereSafeguarding Louisiana’s Coastline

By Russel L. Honoré – The New York Times Opinion – May, 28, 2014
After decades of watching our state being ravaged to support the nation’s oil and gas addiction, the people of Louisiana have had enough. Last summer, an independent government authority responsible for flood protection for the New Orleans area sued more than 90 oil and gas companies for damaging coastal marshes that protect the city. The Southeast Louisiana Flood Protection Authority East didn’t specify the damages it sought. But the cost of rebuilding and protecting the state’s coastal marshlands has been estimated at roughly $50 billion. For full opinion, click here.

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