Archive for the ‘wetlands’ Tag

What the Quack?   3 comments

Believe it or not, the most successful wildlife conservation programs have been conducted by non-governmental agencies and private-public partnerships.

The success of the Wetlands Reserve program, Ducks Unlimited, Trout Unlimited, and the North American Waterfowl Management Plan (NAWMP) demonstrates that this approach works well. These programs take advantage of the economic and social value people place on the presence of wetlands. Under the NAWMP, the federal government offers grants and matching funds to local and regional groups to purchase conservation easements on privately-owned wetlands, restore drained former wetlands, and enhance existing wetlands.

This type of system does not discourage landowners from having wetlands on their property; it encourages them to maintain them.

“Not only do nonregulatory programs produce real results where regulatory programs fail, they are also more cost effective. Under the Wetland Reserve Program and the North American Waterfowl Management Program, the federal government spends less than $1,000 per acre restoring wetlands. Yet [Clean Water Act] Section 404 mitigation costs the federal government nearly $4,000 per acre.” (Jonathan Adler, Director of Environmental Studies at the Competitive Enterprise Institute)

A program that is voluntary and non-regulatory could promote the same type of success story for endangered species … if it existed.

Again, Congress has power to make changes in this area. They delegated their authority to the Department of the Interior when they wrote the Endangered Species Act. They also control the purse strings for funding the US Fish and Wildlife Service. There are some common sense approaches that Congress could take to rein in this agency to its constitutional limits.

Demand that Department of Interior agencies employ sound, objective and unbiased science in the determination of harm to a species and in which species are placed on the list. Insist upon a recognition that there are economic consequences to their decision-making process and the actions it engenders. While it may be desirable to recover every endangered species to population levels they had on some point in history, it is really not possible. Realistically, not every single member of an endangered species can be saved, but ESA protects rare subspecies of abundant species as well as rare species. They even include distinct geographical populations. This broad definition makes it possible for government agencies and their employees to identify any creature as a species, subspecies, or geographical population if it suits their purposes for listing it as “endangered” or “threatened.” Of course this has devastating consequences for affected humans.

We also have to be honest here. Instead of using limited financial resources to protect the most valuable and biologically diverse species, the federal government wastes funds to protect species that have the support of special interest groups or political favor. The gray wolf is one example. They’ve never been endangered in Alaska. In fact, they almost crashed the population of moose in Interior Alaska in the 1990s, but the State of Alaska had to fight a lengthy court battle to gain the right to trap and hunt wolves to reduce the population and protect another species. The status of the gray wolf in Alaska was never in question. There were too many in some areas. The issue revolved around the vocal opposition of certain environmental (not conservation) groups to the State of Alaska permitting a small culling of wolf numbers. Congress and the federal government should prioritize the risks that face American species and focus the limited resources on the greatest risks of extinction first, rather than respond to politics.

According to the ESA, the Department of the Interior’s decisions on listings and delistings supposedly are made on the “best available scientific and commercial data.” But more often, these decisions are made on questionable scientific data that have had no independent peer review. Reform of the ESA should include the requirement that all listings, delistings, and evaluations of conservation plans be based on the most sound, objective, and peer-reviewed scientific information available. Those scientific findings should be open to public scrutiny. A framework should separate scientific fact-finding aspects from decision-making aspects; otherwise, the science on which federal policy makers rely to make their decisions will continue to be driven by the balance of power among special interests or political motives. A rational examination of the total costs and benefits of protecting one particular endangered species versus another, and of instituting various recovery plans, must be performed to ensure that Americans get the most significant environmental benefit from the resources invested.

By the way, these recommendations are all processes already at work in state wildlife management and in non-government wildlife protection agencies such as Ducks Unlimited.

Why not use procedures that are already working?

Identifying the Problems with the Clean Water Act   Leave a comment

The Corps of Engineers and the EPA have a history of heavy-handed and arbitrary enforcement of the Clean Water Act. I’m familiar with a lot of this through contacts with small miners operating here in Alaska. Contrary to the plain language of the act and past agency practice, the EPA claims it has authority under Section 404(c) to, at any time, revoke existing “dredge and fill” permits issued by the Corps under Section 404(a).

First, you have to understand that the cost of a wetlands permit is prohibitive, averaging 788 days and $271,596 for an individual permit and 313 days and $28,915 for a nationwide permit. This doesn’t include costs of mitigation or design changes. It’s estimated that over $1.7 BILLION is spent each year by the private and public sectors obtaining wetlands permits.

Second, under the EPA’s interpretation of its “veto” power, permit holders rarely receive a final permit. They remain in regulatory limbo, frustrated by an uncertainty that discourages productive investment and threatens property rights.

Third, the EPA frequently overrides the Corps’ enforcement decisions, prosecuting landowners for Clean Water Act violations—even when the Corps has determined that no violation exists. This activity sometimes occurs at the state level, where, for example, a state issues a Clean Water Act permit through an EPA-approved delegated program, only to have that permit unilaterally revoked or modified by the EPA via a process called “over-filing.” Such unilateral revocation is unacceptable: Innocent citizens should not be made to suffer because of inter-agency disputes.

Perhaps the most insidious use of federal power under the Clean Water Act involves the Corps’ and EPA’s increasing use of “warning letters,” “cease and desist” directives, and compliance orders to browbeat small landowners into submission. Using the threat of ruinous civil fines and criminal prosecution, these agencies rely on intimidation to compel landowner action without a hearing or proof of violation. This practice discourages investment while unfairly constraining the reasonable use of land. Here in Alaska, the EPA has ruled that placer miners must achieve drinking water quality in their effluent before release into a “navigable stream”. The problem with this is that Alaskan streams rarely are drinking water quality in the absence of placer mining. Many of our streams are glacier-fed, meaning they are muddy and mineral-laden. Pay no attention to the natural conditions. We only want drinking-water quality effluent from that muddy stream.

Finally, the Clean Water Act’s citizen lawsuit provision is flawed. A virtual cottage industry exists where opportunistic litigants bring imaginary or exaggerated claims in court against an individual or small business in hopes that the risk of enormous fines will precipitate a lucrative settlement, delay or run up the cost of a disfavored project or simply cause the project not to be built by driving the developer out of business. These types of “nuisance” suits provide no environmental benefit while stymieing economic growth.

By any other name, this would be considered tyranny. When we see this sort of behavior in other countries, we call it what it is — dictatorial rule, human rights violation. Yet, we seem blissfully unaware of it in our own country until it happens to us.

When Dry Land is Called Wet   3 comments

The Army Corps of Engineers and the EPA have a history of exceeding their authority under the Clean Water Act. Some of this history is attributable to ambiguity in the law, but most is the result of willful overreach. According to the U.S. General Accounting Office (GAO), local districts of the Corps “differ in how they interpret and apply the federal regulations when determining what wetlands and other waters fall within the [Clean Water Act’s] jurisdiction.” The GAO reports that even Corps officials working in the same office disagree on the scope of the CWA and that “three different district staff” would likely make “three different assessments” as to whether a particular water feature is subject to the act.

This ambiguity is no accident.

Federal enforcement practices differ from district to district because “‘the definitions used to make jurisdictional determinations are deliberately left vague. Consequently, federal officials are able to assert the broadest possible interpretation of Clean Water Act jurisdiction on a case-by-case basis so as to avoid any challenge to their regulatory authority.

Examples of vague regulatory definitions abound. While the Clean Water Act prohibits unauthorized discharges of pollutants into “navigable waters,” the Corps and the EPA have extended their enforcement of the act to non-navigable waters, such as “streams (including ephemeral streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds” and any wetlands adjacent thereto. Federal regulations define “wetlands” as those areas “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”

This definition of “wetland”7 is so broad that it encompasses areas that are wet only “for one to two weeks per year.”  In other words, a “wetland” may be mostly dry land. Under this definition, approximately 100,000,000 (100 million) acres of wetlands are located in the Lower 48 states—an area the size of California.  Approximately 75% of these wetlands are located on private land. With half of its territory covered by wetlands, Alaska has the largest wetland acreage. We’re known for our mountains, but whatever isn’t vertical is underlain by permafrost soil. So, even though the northern half of the state is a subarctic desert in terms of moisture fall, what moisture we get collects on the surface of the land, thus meeting the definition of a “wetland”. That means that 174,683,900 of our 403,247,700 acres (174 million or 403 million acres) are deemed wetlands by the US Fish and Wildlife Service. Consequently, development in Alaska is extremely difficult and expensive and often not permitted by the federal government, even on private and state-owned lands. Florida is next in designation with 11 million acres, then Louisiana with 8.8 million), Minnesota with 8.7 million, and Texas with 7.6 million.

The Corps and the EPA have interpreted the term “discharge” to include the mere movement of soil in the same area without any addition of material. Contrary to ordinary use and common sense, “adjacent” becomes “neighboring” (which might mean miles away) and “tributary” includes “swales” and “storm drains.” These excessively broad definitions jeopardize economic vitality. By allowing regulators almost unfettered discretion to interpret the law, the CWA forces businesses and individual property owners to operate under a cloud of uncertainty.

The prospect of regulatory takings under the CWA is difficult to predict, a development that discourages investment because it renders private property protection ambiguous. These broad definitions have sparked such egregious agency overreach that the U.S. Supreme Court has, on two separate occasions, intervened on behalf of private property owners.

  • In 2001, the High Court held that the Corps and the EPA could not regulate isolated, non-navigable water bodies and emphasized that there are statutory and constitutional limits to the scope of the Clean Water Act. The Court also affirmed that regulation of local land and water use was the primary responsibility and right of state and local governments. The ruling suggested that management of natural resources should be conducted on a site- and situation-specific basis.
  • Likewise, in 2006, the Court reiterated that the Corps and the EPA could not rely on a boundless interpretation of the act and regulate all water bodies with any sort of hydrological connection to “navigable waters.”

These rulings did not dissuade the Corps or the EPA from their goals. More recently, the Corps has tried to scale back the long-standing farm exemption for prior converted croplands—an exemption that covers 53 million acres—without utilizing the formal rule-making process. The Corps also asserts that it can now regulate upland drainage ditches as “navigable waters” under its Nationwide Permit Program—an expansion of regulatory power that could affect almost every development project in the country.

But these efforts to enlarge the CWA’s regulatory scope pale in comparison to the expansion of the act contained in a new EPA and Army Corps of Engineers agency guidance document entitled “Guidance Regarding Identification of Waters Protected by the Clean Water Act.” This guidance asserts federal control over virtually all waters in the United States. Indeed, this putative reach is so broad that the agencies refuse to categorically exclude even artificial ponds and swimming pools from federal regulation.  It is undoubtedly the largest expansion of power ever proposed by a federal agency.

This has already been sent to the Office of Management and Budget (OMB) for approval.

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