Thursday, October 23, 2014

On the Clean Water Act's Birthday, I Remember the King William Reservoir

One of my favorite places on earth - the Mattaponi River in eastern Virginia.
The US EPA gave someone permission to turn it into a 1,500 acre lake.
Photo:  Alliance for the Chesapeake Bay

Habitat partners everywhere are celebrating the Clean Water Act's birthday publicly.  It's a great thing, and CWA is a great law.   Its application, though, has been a bit inconsistent over the years, a point which is not lost on the apparent majority of conservationists and a large minority of Democrats and liberals regarding the pending New Rule for Waters of the US.   Some of the most environmentally liberal local jurisdictions in the country, in fact, are publicly opposing the pending Rule.

Me?  I  wish it hadn't come to this.  I wish the Migratory Bird Rule was still intact - that the Missouri Coteau had federal protection from draining and from the farming of virgin prairie.  But that's all done now.  EPA failed to negotiate a settlement with a Chicago area sewer authority, and the federal agency was taken behind the woodshed when the case arrived at the US Supreme Court - the Court never even bothered to tackle constitutionality, finding significant statutory flaw in EPA's policy.

KW Reservoir site, from
Virginia Places
But I remember the King William Reservoir.  In the headwaters of the Mattaponi River, a sacred river on which I've paddled and fish most of my life, lie a great many things.  Last known populations of several endangered species.  Pre-Columbian sacred Native American burial grounds.  Current Mattaponi Tribal lands.   And the most lush and productive tidal freshwater beds I have seen in 40 years on this earth.

In those places, many years ago, the City of Newport News proposed to flood - up to 70 feet deep - over 600 acres, then 400 acres, of this special river.   It would have been the single largest loss of wetlands and streams ever permitted by the US EPA.   And the US Army Corps of Engineers happily granted permits for the project, without any objection from EPA (an agency that currently threatens to veto Corps permits for things as trivial as voluntary stream restoration projects).

Unfortunately for the EPA, a local group of stinky hippies called the "Friends of the Mattaponi" joined into a lawsuit with the Mattaponi tribe under the moniker of "Alliance to Save the Mattaponi", and in fact, a federal judge found that the King William Reservoir federal permits were  issued based on "arbitrary and capricious"standards - aka an "abuse of discretion." Specifically, the judge found that the EPA did not exert enough material interest or input in the project to warrant their lack of intervention.  And why would they was just the largest destruction of wetlands ever permitted by the Clean Water Act?! No biggie.  Part of the federal judge's logic was obviously that EPA had vetoed permits for other less destructive reservoir projects in the adjacent county to the south.  Ouch.

So, when the judge's decision came down, clearly the EPA realized the error of its ways, right? No! In fact, they appealed the judge's decision to the federal circuit court!!!!!  EPA felt so strongly that they should be able to allow the largest single destruction of wetlands in CWA history that they appealed it! When asked by reporters about EPA's support of the massively damaging project, their project manager Randy Pomponio said the nearly 1,600 acre bathtub was, "the direction we want these folks to go," when compared to a 1980s concept that was 50% larger.  You read that right, folks.  The largest permitted wetland destruction ever authorized under the Clean Water Act was "the direction (EPA) want(s) these folks to go."   

That's right - the same agency currently begging for a Presidential Rule on expanding its legal authority wanted to fight all the way to the Supreme Court - again (they're currently 2 of 9 for CWA cases, as I mentioned in my last post) - for their right to do whatever they want with whatever water they want.    Luckily and unceremoniously, AG Eric Holder saw to it that EPA's appeal was quietly withdrawn just a few weeks later.   

Until that last sentence, you were probably thinking that this case was in the 1970s, or early 1980s.  But that "Eric Holder" thing....yeah....this federal court decision happened in 2009.

The same federal agency who has never been able to balance the books on the loss of federal wetlands and streams, the same federal agency who is currently begging Congress and the public to approve a massive increase (they tell us conservationists) in federal waters jurisdiction...yeah...those same folks.

In fact, a recent blog article by EPA's Randy Pomponio (the same guy in charge of EPA's work on King William Reservoir just 5 years ago) discusses how badly the New Rule is needed:

The proposed rule ..... is designed to clear the confusion and provide a more definitive explanation.
This is critical because the health of our larger water bodies – our rivers, lakes, bays and coastal waters depends on the network of streams and wetlands where they begin.  

Well, I'd argue that the health of our larger water bodies is also dependent upon EPA not letting people flood them with 70 vertical feet of water, behind a huge dam. Ironically, EPA's New Rule for Waters of the US won't stop them from going along with another project of this type in another river (or, you  know, allowing coal companies to fill in mountain streams with toxic fill, or letting natural gas companies pump glycols into our groundwater...but I digress). The Clean Water Act didn't deter EPA, in fact, from allowing this behemoth of a project to attempt to destroy this beautiful, sacred place.  If it were not for local activists, this special place on earth would be gone by now, slowly flooding up to its new depth (deep enough for the world's largest cargo ships to float in it!).  But for the mean time, it appears as if the sacred Mattaponi is safe, still teeming with waterfowl, with menhaden and herring, with descendents of the people who arrived here three thousand years ago, with children fishing in boats.  I hope it remains so for my son and for his children.

Sacred tribal lands of the Mattaponi.  Photo: Sacred Land Film Project

Misunderstanding Ecological Engineering

Recently, I was working in the garden with my five year old son.  He craned his neck to look up at the Black Mammoth Sunflower he had planted as a seed four months prior, now past full bloom and developing the characteristic striped, swelling seeds - but many were missing already.  He had picked a peculiar spot in a raised bed, so I did my part and planted a few dozen more sunflower seeds around.  You know, just in case.   "Daddy, why are all the seeds on the ground?"  I explained to him, "Well, buddy, the squirrels have been climbing up the plant and eating them."  He looked at me impetulantly, "But you said the sunflower seeds are for the birds."  

Yeah, he had me.  I responded, "Well, they're for whatever animal gets them first, I guess."  His irritation was sustained and he repeated, "But my sunflower was for birds.  Not other animals."  I then presented him with a choice - to 1) cut and dry the seed head, and toss the dried seeds out for birds in the winter, when they are truly needed, 2) cut down the plant and dry it for burning in the fire pit so "no other animals could get it," or 3) to let it be, knowing that my young son's sole interest in growing that plant (a reasonable, achievable one at that) would be completely unfulfilled. 

He chose to let nature - such as it is in a backyard garden in an 80 year old neighborhood in a city of 700,000 people - take its course.  Days later, all of the seeds were gone, split seed coats littering the garden and sidewalk, along with squirrel, rabbit, and raccoon droppings, and I cut the plant down entirely to begin to make room for winter cover crops.  Goldfinches flitted about the other varieties of sunflowers, but my son's plant did not fulfill what he believed was its highest and best use - providing food  for our local birds.   Our collective choice was to grow out that small sunflower patch this summer, and I weeded the garden to make sure the sunflowers could dominate the area.  That choice was what we refer to as "ecological engineering."  Something lived and something died.

Every weed I pulled signified that I was selecting (or engineering) the potential value of the sunflowers over the potential value of the weeds.  A great example is the extensive number of poison ivy seedlings that I pulled.  For those who are unaware, poison ivy can intake a preposterous amount of carbon dioxide - thriving near highways and urban centers.   The poison ivy berry is very nutritious to wildlife, as well, though the plant is very much a gardener's nuisance to those of us who are allergic to it.   Likewise, the sunflower can thrive in poor soils in urban areas, and is known to uptake high amounts of metals from urban soils - that's a great thing.  And the seeds' value to wildlife is known to even toddlers.   But at the tiny scale of my garden plot, I was subconsciously making the decision that the human-calculated benefits of growing sunflowers outweighed the benefits of growing poison ivy.  Nearby, my neighbors faithfully mow their extensive lawn, ensuring that natural succession of wildflowers, shrubs, and trees never takes place in the footprint of that yard.  Again, that is a decision of assigning value to a piece of space on earth - not only what that space currently is, but what its highest value might be.  At a larger landscape level, we call this the valuation of ecosystem services, and its technical application is ecological engineering - how are those desirable ecosystem processes kept in motion, or placed in motion?  Even a toddler can understand the concept and its relative importance, and I believe that most high school biology students could grasp the broad impacts of these land use decisions on natural systems.

As I drive to work through southeastern Baltimore, I'm confronted with a landscape of pavement interrupted only by thin, stream valley parks.   These valleys, filled in 300 years ago for farming, then utilized as the pathway for sewer lines 100 years ago, and now currently a sluiceway for urban trash, bodies, and illicit sewage discharges, stretch for dozens if not hundreds of miles in Baltimore alone.  In Maryland, parkland trees are sacred, and so herbicide and management are generally not used.  And why would they be? This landscape of Norway Maples, Chinese Money Trees and Japanese Knotweed are "natural" landscapes, are they not? More importantly, the trees, many of them 80-100 years old now, are falling dramatically with each passing winter, as they are overwhelmed by English Ivy, Japanese Kudzu, Japanese Porcelainberry, and all sorts of other invasive plants that destroy existing trees and prevent young trees from growing at all.   They cover the ground, preventing germination of new native trees, and many invasives exude soil toxins to stop germination as well.  In short, the urban forests are dying now. 

The park agencies' absolute failure to protect this thin veil of urban "forest" from complete destruction tends to occur because making the decision over what species to manage or eliminate, at what cost, and toward what end goal, has turned out to be a difficult one.  It's not an easy decision to choose (or engineer) which functions of a highly disturbed ecosystem like an urban valley - or a backyard garden - will be preserved, modified, or eliminated.  However, as the now oft-repeated tale of National Park Service's 12 year delay to make a decision to remove invasive Burmese pythons from the Everglades National Park  shows us clearly, not making a decision about future ecological services of a degrading or degraded habitat is still very much a decision to "engineer" the ecosystem.  Why is this so?

Disequilibrium, a mathematical process documented at many temporal and spatial scales in highly disturbed wildlife habitats, is not a linear process.  In fact, disequilibrium and its partners degradation and entropy may not even be exponential functions, as they tumble out of control toward a dystopian conclusion we've not yet seen in most cases.  Disequilibrium exists because numerous environmental parameters are in decline in the same time and space, while simultaneously, parameters viewed negatively by human society are rising arbitrarily, without controls, and with an unknown end.  Failing to address or engineer this multivariate imbalance is a decision about ecological services, just as much as a decision to somehow intervene in and attempt to "repair" the disequilibrium might be.

Harvested oak forest "healing itself" into a gum thicket
Making a preservationist standpoint that a system in spatio-temporal disequilibrium, dissonance, chaos, or entropy (and those things are not the same) can heal itself is a childish idea not rooted in very basic science.  In urban and suburban systems that have lost up to 90% of their biodiversity, are 50-90% paved, feature water pollution deadly to many animals, and are covered with invasive plants from all over the world, there's no real mechanical or structural framework for anything to "heal itself" using natural forces and a perceived advantage of "time, which doesn't cost anything."  If the disequilibrium were to suddenly move in reverse of its own accord (a mathematical impossibility), to what condition would the urban habitat "heal itself?"  The virgin Chestnut-Oak forests of 1606? Swamps thick with Baldcypress and buttonbush?  Above is a picture of a former oak forest that "healed itself" into a 20-year old thicket of sweetgum trees roughly 30 feet tall and two feet apart.  Hint: it's not the same.  It will never grow back into an oak forest, an oak-hickory forest, or even an oak-pine forest.  This forest - its soil, trees, and hydrology - have fundamentally changed from what once was.

Some recent papers have been published in the environmental science world that decry humans' decisions to make land use decisions in urban habitats because they represent "ecological engineering."  Ironically, one such paper was published in the journal of Ecological Engineering.  These papers state that ongoing efforts to "restore" ecosystems in disturbed areas fall short of restoring pre-European colonization ecologies (of which we have no data), and instead, only restore certain ecological services or functions to these landscapes.   Even worse, these writings claim, the ecosystem functions targeted for restoration are human-valued, such as clean water, fish ecology, and migratory birds.  Can you imagine! The horror! 

We're led to believe in these articles that the alternative - to "leave nature alone," will magically bring back prehistoric ecosystems in prime health.  Of course, there's little to no evidence of that type of passive restoration working.   They say "stop the source of water pollution - that will save the stream downhill!" as human populations swell and as conventional stormwater techniques are only designed to treat the flows and pollutants carried by the smallest measured storms, not damaging hurricanes or nor'easters. 

When did we become afraid of decisions?  When did we become afraid of engineering?  While it's impossible to design our way out of environmental problems we've created without understanding and addressing the cost - that we may, in fact, never fully retrieve what we once had - deciding to preserve a monotypic maple forest with a ditch running through it is an ecological engineering decision.  Soon enough, the maples will fall under the weight of invasive vines, and invasive shrubs and vines underneath will ensure that no new trees grow.   This is ecological engineering.

Monday, October 20, 2014

Rapanos' Legacy and the proposed New Rule for Waters of the US.

This pile of human sewage leads to a farm ditch.  Behind the barn is a pile of
chicken manure, also draining to the nearby ditch.  EPA's New Rule exempts
this obvious water pollution from federal regulation.
I guess that's "science based."
On December 2, 2008, the EPA issued a memorandum after getting kicked in the teeth by the US Supreme Court in the Rapanos v. United States decision.  Some background:  in the case, John Rapanos, a decidedly "bad human being," had filled 22 acres of isolated Michigan wetlands that were connected by systems of ditches, pipes, and gullies to a navigable stream over 20 miles away.   Rapanos should have been imprisoned by the state of Michigan for this wetland filling, but he was not.   That left the US EPA to step in, federally prosecuting and fining John Rapanos to the tune of millions of dollars.  It would seem that Rapanos is a bristly curmudgeon, and as such, he had his attorneys push the issue all the way to the US Supreme Court, where he emerged victorious - a major loss, in precedent, for environmental protection.

Coal fill in mountain streams, allowed without mitigation
by US EPA until 2010.  Now still allowed,
with stream mitigation. Would still be allowed
under the New Rule.  Very scientific.

You see, the Clean Water Act, the law which required the US EPA to clean up all of this nation's waters by 1984 at the very latest,  focused on two major issues:  1) regulating point source pollutants (usually pipes) to interstate bodies of waters or watersheds, and 2) regulating nonpoint source pollutants, including fill dirt, that enter wetlands or navigable waterways that hydrologically lead to interstate bodies of water.   The US EPA has been fairly successful at regulating, though not eliminating, point source pollution, such as sewage discharges, factory outfalls, and power plant effluents.  However, nonpoint source pollution has remained largely unregulated.  Of its four main sources:  filling in wetlands/waters, nonpoint stormwater discharge, nonpoint septic discharge, and nonpoint farm runoff, only one (filling in wetlands/waters) is consistently regulated across the country, and many projects fall below mitigation thresholds - lost forever because engineers adjusted a wetland impact to be 43,559 square feet (no mitigation) instead of 43,560 (mitigation required); or changed stream impacts to be 1,499.5 linear feet (no mitigation) instead of 1,500 linear feet (mitigation required).  So much for science-based environmental protection.

If this neighborhood ditch stays wet for more than three weeks
of the growing season, US EPA currently regulates
it as an "intermittent stream."  The New Rule would also
regulate this ditch.  Science based?
So, back to the New Rule for Waters of the US, largely designed to offset the losses in (interpreted) federal jurisdiction that occurred  as a result of the repeated SCOTUS trouncings that EPA has received.   The EPA promises to conservative lawmakers that the gains in water quality protection are simply "clarifications" and "will not be significant."  Yet, communications released to water quality advocates promise that "2/3 of the nation's waterways are currently federally unprotected" - implying that this would be resolved by the New Rule.  Now, I'm no mathematician, but in what world is a 300% increase in watershed protection "not significant?"  Whether I'm a trout fisherman, a condo developer, an anti-development activist, or a stream restoration practitioner, that sure sounds significant to me.  

Second, the EPA promises that the New Rule, in its final language, will be "science based."   Meanwhile, they promise that current exemptions for pollutant-laden farm ditches, the single largest source of nonpoint water pollution in this nation, "will remain in place."   In what world can a law be passed to continue to exempt the country's largest single source of water pollution, while being "science based?" EPA's position on this is acutely anti-scientific - and they need to admit that. 

Looks like a roadside ditch next to a gas station, right?
Nope!  The cattails provide sufficient indicators for vegetation,
soil, and hydrology indicative of a "federal wetland" per
the 1987 Corps of Engineers Wetland Manual.
This definition would continue under the New Rule. 
Third, and most notably, the primary issue with the New Rule is the same issue that caused the escalation of Rapanos, of Carabel, of SWANCC, of Sackett (unanimous SCOTUS finding against EPA), and soon, of Foster v. United States (currently in US District Court).  That issue is that the US EPA is the agency in charge.  In forty years, the agency has argued for their interpretation of provisions of the Clean Water Act nine times to the Supreme Court.  They have lost seven of those nine cases.   In each loss, precedent-setting, nationwide losses in clean water protections resulted, which could have been avoided by negotiating settlements with the permittees.   But EPA isn't big on negotiating with their customers.   Well, sort of, I mean, let's not forget the 20 years of mountaintop removal they allowed with 2-page permits (ending in 2010), or the ongoing exemption of farm runoff into streams, or their "canceling" of their research project on the impact of hydraulic fracturing on groundwater and surface water resources.   Those things all happened, and they keep happening.

If you still believe EPA's tome that Rapanos and Carabel were legal "flukes" that certainly won't arise again, and you're not interested in following Foster v. United States (S WV Dist 2:14-cv-16744), just read page 12 of the EPA's memo on Rapanos.  It asserts that even though ditches aren't jurisdictional through Section 404 of the Clean Water Act, EPA employees should investigate whether the ditches, often concrete, alongside a highway, should be regulated under other sections of the Clean Water Act, namely sections 311 (haz mat liability) and 402 (stormwater).   What?

If you were a federal judge, and saw the EPA attempt that maneuver in a legal brief, how do you think you'd react? 

The New Rule for the Waters of the US, which President Obama has vowed to sign in its current language and to which he has publicly stated that he will reject modifications or edits, makes good EPA-mandated actions like stream restoration harder, and EPA-permitted real estate development in wetlands no harder at all. It's simply an accounting exercise, as it's been for decades. The EPA will still approve 99% of completed permits that arrive on their desk, despite the larger amount of wetland and stream impacts under the New Rule.  The mitigation ratios will continue to not provide sufficient offsets, and "No Net Loss," will continue to be an unfulfilled dream.  And of course, what we'll all be waiting for is the inevitable federal trial that will likely gut the New Rule as unconstitutional within eight  years of its enactment.  What other parts of the Clean Water Act will be deemed "unconstitutional" in that majority decision?  I don't want to find out.

 EPA's losses at the Supreme Court are our losses, and Presidential Rules won't protect EPA from itself on that front.  If we want to ever enjoy clean water again in this country, let's not blindly give EPA more non-scientific, non-legally based authority that will inevitably be used to gut another section of the Clean Water Act when EPA attorneys aggressively appeal each of their cases to the Supreme Court.  It's a bad, bad business plan.   

Thursday, October 9, 2014

Blackfish - A Hunting Biologist's View On Captive Whales

I eat meat.  I participate in activities, for work (biological sampling) and fun (hunting and fishing) in which animals inevitably die. Well, sometimes.  I don't like suffering, and I don't enjoy the fact that animals die.  But that moral weight is overcome by the value I personally feel as a result of those activities.   As a wildlife biologist, I understand that the way humans have inhabited the world means a heirarchy of things and of organisms that is not natural, or at least not natural in the way that things were natural when Homo sapiens appeared 130,000 years ago.   Much of what we've destroyed or changed can't be put back exactly the way it was - at any scale.

That being said, the opportunity exists for right and wrong.  I finally watched the shockumentary "Blackfish," knowing full well what the filmmakers intended - to shock audiences into awareness of the strangeness and perhaps immorality of keeping marine mammals, namely whales, in captivity for entertainment (research is a secondary goal).   Keep in mind that I detest the animal rights crowd, and I'm not ashamed to shoot a duck in the face, or a deer right in the heart.

The crux of the plot is that the industry, notably SeaWorld, has engaged in an awful industry of catching wild whales, and then simultaneously willfully ignores the mental and physical health of the whales while placing human employees in undue danger of being mauled or killed, all in the name of entertainment.  I'm not saying that any of that is fact or isn't, but the aim of Blackfish is to demonstrate to the viewers that it's certainly the case.  To be fair, SeaWorld has released a response to Blackfish, and it can be viewed here.

So, let's look at what's real in the film, from a biologist's and hunter's point of view.

1.  Killer whale enclosures appear to be shamefully small and biologically insufficient.  Overcrowding in this scale of captivity seems to lead to what anyone with a biology background would expect - stress, injury, and aggression.  Knowing what I know about habitat needs, I doubt that any entertainment complex could realistically build a habitat "big enough" to healthily and ethically house multiple killer would be dozens or hundreds of acres in size.

2.  Killer whales die younger in captivity.   Allegedly, 70% of captive whales die before age 10.  Since killer whales are k-selected animals, it is unusual to have a high mortality rate early in the projected life span.   I can't speculate why this is so.

3.  Catching killer whales in the wild, for entertainment, is a really dumb idea.  Killer whales are apex predators.  They are long lived, with family bonds and long periods of parental attachment.   I completely understand that domestic reproduction isn't ample to supply the industry with whales.  I just don't care.  Stop catching the stupid whales.  Seriously. But the wild catch continues.  

4.  "Awareness Creates Activism" is a Failed Model for Engagement, and a Poor Excuse for Keeping Whales Captive.   Okay.  When it comes to conservation, awareness is far better than ignorance.  That being said,  awareness has a very insignificant relationship to activism, or what social scientists call "behavior change."   That relationship, small as it is, is described as the first stepping stone.  Crucial, but just a step.
The marine entertainment industry preaches, as they have since I was a boy, that they catch and keep whales to help create "ocean stewards" or some such silliness, out of the public.  Essentially, the model is that you pay $300 to take your family to the ocean theme park. You see the whales do some tricks, and that magically transforms you into a family of people who write their congressmen about whale conservation.  Of course, scientists know different.  Here's a few quick studies, one, two, three.   Creating an engaged steward of anything requires multiple steps or "touches," because people are rarely overwhelmed with passion for a topic in a way that is 1) sustainable and 2) creates long term action by the person.

The film Blackfish only interviews a half dozen people, all but one of whom seem highly opposed to keeping captive orcas.  It's not meant to be a balanced film for documentary purposes, I don't believe.  And there are likely mistakes and inaccuracies throughout the film that only industry insiders would know.  As a hunter and a biologist, I wasn't shocked and upset by the footage of injured whales (and trainers), but I was definitely disturbed by the quotes provided, however out of context, by marine entertainment industry spokespeople, absolutely lying (to cameras and/or microphones) about various issues related to orca captivity and trainer safety.   If there's no controversy - if captive whales are such a simple, good idea, why lie about it?   Coordinating lying efforts (see: NFL) mean only one thing:  someone is afraid of the impact that the truth might have.

I grew up swimming with dolphins, and while the childlike entertainment of a dolphin show is somewhat amusing, I've never felt like dolphin shows were a great use of those animals and their lives. I have pictures of the first one I attended, at the Baltimore Aquarium in 1988.  It basically seemed like the same dolphin show they put on when I took my son to that aquarium (and dolphin show) in 2010.   When we returned to the Aquarium in 2012, we didn't pay for the dolphin show, and we won't pay for it in the future.  Regardless of how many dolphin shows I've seen, and regardless of the fact that I work as a wildlife habitat ecologist for a living, I've never called or written an elected official about dolphin and whale issues.   I didn't publicly protest dolphin-killing tuna fishing when that was an issue in the 1990s.  None of that entertainment, despite my scientific training and conservation ethic, made me do anything about whale and dolphin welfare.   What about people without scientific welfare and a conservation ethic - are they truly better off for seeing a whale show?  Are they now "aware?"  Will they change their conservation/environmental behaviors?  Color me unconvinced.

I haven't taken my son to the circus, because I think how the circus treats animals would reflect (to my son) what I think the acceptable treatment of animals is.   I had been leaning toward, and now feel solid about, keeping that pattern up for future marine mammal shows.  If Hank wants to see whales, I'll save that $300 and use it on a whale watching tour.  I encourage readers to watch Blackfish for what it is - a slanted but heavily fact-based account of things that are being done wrong in our relationship with the earth's remaining killer whales.