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.

Monday, October 6, 2014

A Zombie Looks at Five

When my son was a baby, he was so full of energy, I just wished he could talk.  He started talking - seriously talking - at two, but our conversations were short and not substantial...obviously.  At three, he started talking constantly, from the moment he awoke to the minute he fell asleep, but his thoughts were dedicated to Batman, Spiderman, and Iron Man.  At four, he started exploring, taking an interest in fishing and hiking, asking questions like, "What comes after outer space?" and "Why do people make cemeteries?" and asked about words like "genetics" and "gravity" and "architecture."

At five, he is plowing the hard fields.  "Dad, I don't want to die." "Dad, why did my dog have to die?"  He is fascinated by bones, the skeleton of anything and everything, including zombies.  When I told him recently that, "Zombies aren't real.  People can't come back from being dead,"  he simply answered, "Jesus came back.  He was in the cemetery behind the big stone, and then he was back. But I know Jesus isn't a zombie. I learned it in Chapel."

Well played, five year old.

I'm challenged by the Berzerker of five year olds who is constantly pushing his boundaries of what can and cannot be understood - the problem with that being that he doesn't have the life experience to understand it, even if he receives what he believes is a suitable answer to his query.   I taught him the parable of The Good Samaritan and he asked if the characters "were real people."  I explained, well, it was a story that Jesus was an example.  That was followed by an obtuse conversation about "Daddy, what's an example?"  When I zoomed back out and told him that the parable is an example of something that happens every day, he was horrified, and I felt awful. "People are too busy to help every day?"

He somehow engaged me in a conversation about Native Americans, and hung me up with, "Where do they live now?"  I explained forced relocation in as gentle of terms as I could summon.  Of course, he asked "Why don't they come back to their home?" and I told him the truth, "They have nowhere to go, buddy."   Hank munched on his snack (he eats almost nothing), pausing with a full mouth to say, "When I grow up, I will build a thousand of beds in my house and I will make all the food, so the Namericans can have a place to live and some food."

Lest any of you think I am singing the praises of my wonder child, we've had to revisit the "reincarnation" issue repeatedly, particularly after he told his classmates that if their pets die, he can bring them back to life "With My Science."  Of course, such talk is....frowned Christian Preschool.  Because I am a bad parent and possibly a bad person, I reinforced his behavior by letting him watch the "It's Alive!" scene from the 1931 Frankenstein film.

Five will be interesting.   The oldest in his preschool, he'll enter kindergarten in a K-8 private school next year.  He has two girlfriends, one of whom he has already kissed (!!!!).  He's on the small side, but strong and fast enough to be passable at most sports, I think.   All this is a way of saying that it's impossible to predict what he might do in the next year.  Everything he does and learns is so fast and so much farther ahead than he was just days before that it's all we can do to keep up with him.

Sunday, October 5, 2014

First Virginia Sunday Hunt for Deer in 115+ years Initiated....Towns Not Burned Down, Civilians Still Safe, Report to Work on Monday

It was astonishing this morning to watch the feed of the Facebook group "Legalize Virginia Sunday Hunting for All."  I'm not sure anyone actually killed a deer.  All I saw were pictures of tree stands, sunrises, compound bows, crossbows, and long bows.  And the word "Thanks."  Thanks primarily to the group's de facto head Matt O'Brien, but thanks to everyone who called their legislators, wrote emails, kept up to date on slanderous and untrue editorial articles ghost-written by the opposition to a free day in the woods.

What was notable, in addition to the complete lack of police or media reports of conflicts with this army of hunters across the Commonwealth, was the lack of attention paid by our staunch opposition. Several organizations  claimed to be so pointedly concerned about public safety - the safety of all Virginians, they said - that they had to spend thousands of dollars (often, based in government-funded offices like the Virginia Horse Council) warning legislators and the public of this imminent travesty - of skies blackened with arrows, dog walkers whalloped by crossbow bolts, and pedestrians (because uninvited pedestrians always need to be walking across private, posted property at 6:15am, right?) gored by expanding hunting points.

After many years and tens of thousands of dollars spent lobbying against a landowner's right to harvest game on his or her own property on Sunday, these organizations lost.  And they lost loudly, predicting, as one dullard legislator did, volleys of arrows from "powerful enough bows" zinging across property lines throughout the Commonwealth.  So with all this grave concern for other users of private property (why are other people using private property without permission while the owner and his or her family and friends are legally hunting?), surely these organizations took to the airwaves and the internet to warn the collective public about the killer arrows coming from hidden treestands throughout the Commonwealth today.  Right?  Because all of the commotion, the fake newspaper articles written by lobbyists, the complaints from "non-hunters" whose names could never be verified, and the anti-hunters in general, this commotion, it had to be real - coming from a real place of fear.   So, let's see the public warnings that these groups (the unique alliance of anti-hunters, anti-farmers, farm lobbyists, and hound lobbyists...good luck figuring that out) obviously must have been publishing to make sure the quite certain menace of private land Sunday hunting does not injure or maim any person or non-game animal:

Humane Society of Virginia (HSUS - VA) website - news page:  No update on Sunday hunting

HSUS-VA Facebook Page - Recently Deleted before Sunday hunting began

Virginia Farm Bureau website  - news page:  No update on Sunday hunting

Virginia Farm Bureau Facebook Page - No update on Sunday hunting

Virginia Hunting Dog Alliance - news page:  No update on Sunday hunting

Virginia Horse Council -news page:  No update on Sunday hunting

Virginia Horse Council Facebook page - No update on Sunday hunting

Just Say No to Sunday Hunting in Virginia Facebook page - No update on Sunday hunting

Wow.  All the publications, the phone calls, the automatically generated email messages from anti-hunters in other states....all of that combined reflected what these organizations told legislators was a very legitimate fear of public safety, not at all a war of ideas or rights for "who gets to use the woods on Sunday."

And yet, they are silent.  They are silent because they know there is no public menace.  They are silent because they know that bringing their losing issue up again will just invite those who dare to think for themselves to dig up their dire predictions of bloody horror, and compare them to the idyllic peace that was, and is still, Sunday in Virginia.