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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Wetlander's Pick of the PostsAn offer they can’t refuse

The Economist – June 11, 2014
On June 2nd, Barack Obama announced that he wanted total emissions from American power stations to fall by 30% from 2005 levels in the next 15 years. This has (correctly) been interpreted as a potshot at the coal industry. States will have to come up with plans to meet specific emission-reduction targets; scrapping coal plants (and replacing them with gas-fired ones, say) is an obvious avenue to get there. For full blog post, click here.

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Salameanderby Peg Bostwick, ASWM

I don’t have to sell readers of this blog on the concept that restoration of wetlands can provide major benefits – often at a minimal cost compared to other options – whether your goal is storm surge protection, flood control, groundwater recharge, climate change adaptation, or pollutant reduction.  In some cases – especially where habitat improvement is needed – there is no other option.

However, restoration also frequently involves alteration of existing (although often degraded or altered) wetland systems and aquatic networks.  Not all restoration designs equally benefit all needs, and some can result in unintended consequences.  For these and related reasons, permits are often required through the §404 Program and/or state regulations – and that is a source of concern to many of those responsible for on-the-ground restoration work.

In short, wetland managers share goals but have different responsibilities – some are charged with ensuring protection of wetland resources, and others with maximizing acres of restoration in a minimum amount of time with very limited funds.

A very dedicated workgroup explored ways to improve restoration permitting during 2012-2013 in cooperation with an ASWM project funded by EPA.  As one component of this project, ASWM produced Permitting of Voluntary Wetland
Permitting of Voluntary Wetland Restoration: A HandbookRestoration: A Handbook to walk restoration practitioners through the regulatory requirements and to acknowledge the special considerations associated with voluntary restoration that should be addressed by regulators.  We hope that this document will be useful to those navigating these efforts, and that you will share it with those considering a restoration project.

The restoration workgroup also identified several difficult issues that were not addressed in the Handbook because they could not be resolved within the current regulatory framework.  These concerns are outlined in a separate white paper - Voluntary Restoration of Wetlands: Complex Issues in the Regulation of Restoration Projects.

Frankly, we did not anticipate any near term changes that would address the white paper issues, although we were and are sincere in our desire to continue to work on them.  So it was a surprise when the recently announced proposed rule on jurisdiction under the Clean Water Act was accompanied by an announcement of a new Interpretive Rule on exemptions under §404(f) of the Clean Water Act. This interpretive rule effectively announced that EPA and the Corps, together with NRCS, had identified a set of 56 NRCS Conservation Practice Standards (CPSs) that were determined to be “normal farming, ranching, or silvicultural practices” identified as “upland conservation practices” – and are thus interpreted as exempt from §404 permitting requirements.  A previous blog by ASWM Executive Director Jeanne Christie further discusses this rule.

The April 21 Federal Register notice of the rule included a request for comments during a period that has recently been extended – to July 7 – in response to numerous requests.  Discussions since April about how the new rule will be implemented, what it means exactly, and how it will be used have been multiple and mostly inconclusive. Not surprising, regulatory staff are concerned about the potential for adverse resource impacts, while farmers are concerned that it does not go far enough, or alternatively that it may signal increased regulation.

Here are some of the things that we think we know now about how this rule may/will impact wetland restoration efforts.

•   Because the rule applies only to ongoing farming, ranching, or silvicultural operations, we think that it does not apply to non-profit organizations, federal or state agencies, or other private landowners.  We are not sure what this means for partnerships between farmers and others.  What it may mean is that for some types of projects, one group is exempt while another may need a permit.

•   We believe it does not expand federal regulation of activities that have not been previously regulated under §404.

•   We think that some of the CPS’s listed as being exempt from permit requirements include actions that have previously been regulated under §404, including many actions authorized under NWP 27.   Exemption of these actions may confuse coordination between §404 and other federal programs (e.g. the Endangered Species Act) and between landowners and state dredge and fill programs that remain in place.

•   We think that some of the listed CPS’s will facilitate beneficial conservation activities, and that the exemption will clarify what can be done without unnecessary regulatory review under §404.

•   We also think that some of the actions will, without technical oversight or regulatory review, lead to adverse impacts or unintended resource consequences, and also set the stage for potential misuse.

In other words, the concerns being voiced about the Interpretive Rule are much the same as those articulated during our Workgroup discussions on permitting of voluntary restoration. However, the Interpretive Rule – and the current comment period – open at least one door to resolve some of these issues, if remaining concerns are addressed.

EPA and the Corps have indicated a willingness to further clarify the scope of the CPS’s that are exempted.  An MOA among the agencies calls for annual review of the practices, and allows for revisions as needed.  Comments submitted now can clean up the rough edges of the proposed process for implementing the Interpretive Rule, and result in a beneficial product for all parties – and most of all for wetland resources.  We urge informed stakeholders – regardless of your perspective on this issue – to review the Interpretive Rule and the list of Conservation Practice Standards, and to make specific comments to EPA and the Corps before the July 7 deadline.  Comments might address the following issues:

  • Are there some Practice Standards that should not be on the list – either because they are not used in aquatic areas or would not require a §404 (dredge and fill) permit; or because they are so broadly written that some level of regulatory review is essential?
  • Should defined limits be set for some CPS’s?   EPA has indicated that the “recapture provision” (§404(f)(2)) may limit exemptions where a project would result in a change in use, or in reduction of waters of the United States.  How and where should these limits be more clearly defined?  Can the standards be more clearly worded?
  • How do you suggest that landowners obtain needed technical assistance and otherwise assure compliance with the Conservation Practice Standards?  EPA has indicated that the rule is “self-implementing” – but many practice standards require technical know-how beyond abilities of typical landowners.
  • Can you suggest processes that might facilitate coordination among federal agencies, state agencies, landowners, nonprofit organizations and others in implementing the rule?
  • Should the National or the State conservation practice standards be used?  (EPA’s initial response is that the rule exempts practices as defined in the National standards.)   Could use of State Conservation Practice Standards for the exempt practices help to provide coordination through State Technical Committees or otherwise alleviate concerns?

Links to additional information are included below.  Please share your expertise to assist EPA and the Corps in making the Interpretive Rule into a truly effective but protective means of facilitating valuable wetland restoration and natural resource conservation.

We also encourage you to use the ASWM Restoration Handbook and the associated White Paper as references regarding the concerns of both regulators and practitioners. And, although revisions may be needed regarding new interpretation of exemptions, we hope that you also find the Restoration Handbook to be a useful resource when planning new restoration activities.

More information:

For a copy of Permitting for Voluntary Wetland Restoration: A Handbook, click here.

For a copy of the white paper, Voluntary Restoration of Wetlands: Complex Issues in the Regulation of Restoration Projects, click here.

Information regarding the Interpretive Rule on Agricultural Exemptions:

  • For a discussion of the Rule in a previous blog by ASWM Executive Director Jeanne Christie, click here.
  • For a copy of the rule, click here.
  • For a list of the covered Conservation Practice Standards, click here.
  • For more information from EPA on the rule, click here.
  • For a copy of the Federal Register notice including information regarding comments, click here.

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Wetlander's Pick of the PostsCan U.S. eliminate invasive species by eating them?

By Ramit Plushnick-Masti – The Washington Post – May 25, 2014
It seems like a simple proposition: American lakes, rivers and offshore waters are filling up with destructive fish and crustaceans originally from other parts of the world, and many of them are potential sources of food.
So why not control these invasive populations by getting people to eat them? For full story, click here.

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