ELI Report
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue

Wetland Woes: Institute publishes a series of guides on improving the restoration of vital aquatic ecosystems in the U.S.

Wetlands perform irreplaceable ecosystem services, from improving water quality, preventing shoreline erosion, to providing habitat for threatened and endangered species. Since 1990, the Clean Water Act’s Section 404 program has aimed to achieve a “no net loss” of aquatic ecosystems in the United States. Any project that will result in fill or disturbance to a wetland or stream—for example, constructing a neighborhood or a store, or building a road or bridge—must obtain a permit from the U.S. Army Corps of Engineers. To issue that permit, the Corps must first determine that any potential impacts have been avoided or minimized as much as possible. And for the unavoidable impacts that remain, developers must then offset them through restoration activities.

This practice of offsetting the remaining impacts is called compensatory mitigation. Permittees restore any lost acres and functions by conducting projects to restore, rehabilitate, establish, or enhance wetlands, streams, and other aquatic resources. Permittees can either implement these activities on their own, or pay a mitigation bank or in-lieu fee (ILF) program to offset impacts on their behalf—an option called third-party compensatory mitigation.

Many are surprised to learn that compensatory mitigation is a multi-billion dollar market. Under these programs, tens of thousands of wetlands and streams are restored each year. ELI has been studying the compensatory mitigation program for decades, producing numerous resources designed to improve the implementation of the program.

In August 2021, the Institute released a series of comprehensive guides in partnership with the Institute for Biodiversity Law and Policy at Stetson University College of Law on improving implementation of ILF programs—one of two third-party compensatory mitigation options. The guides cover some of the most challenging components of ILF program implementation identified through extensive research and interviews with ILF programs and other stakeholders. They help address a number of perennial problems by identifying specific challenges, providing detailed recommendations on ways to meet these challenges, and highlighting case studies to illustrate effective approaches.

Each of the four guides explores a regulatory requirement that programs need to fulfill. One is “full-cost accounting”—regulations stipulate that ILF providers must set fees in a way that proactively anticipates and accounts for all costs associated with mitigation. Many programs face challenges in determining these costs, due in part to a lack of information on what costs to include and how to estimate them.

Another guide addresses common delays in project approval processes, which are required for third-party mitigation options like ILF programs. A third guide covers long-term management, a practice in which ILF programs are required to sustain mitigation projects in perpetuity once completed. The report covers strategies for the effective planning and implementation that these long-term sites require.

Finally, a fourth guide provides information on what to expect from programmatic audits, which help provide confidence to regulators, purchasers, and the public that a given ILF program is meeting its requirements and successfully offsetting permitted impacts. The report includes guidance on what information programs should include in their program instruments, model language for audit provisions, and how programs can prepare for such audits.

ILF programs account for close to 20 percent of the nation’s compensatory mitigation. Together with other third-party options, ILF programs oversee some of the nation’s largest, most ecologically valuable sites. ELI continues to work closely with compensatory mitigation practitioners and regulators to research best practices and strengthen the protection of U.S. wetlands, streams, and aquatic ecosystems.

Report on high-seas regulations provides input to UN treaty

The vast majority of the world’s oceans, including the high seas and deep seabed, are areas beyond national jurisdiction—meaning no one nation holds sole authority. As advances in technology open up possibilities for commercial activities in the high seas, concern is growing that these areas will experience rapid industrialization. One way to ensure that development is conducted in an environmentally sustainable manner is to establish regulatory procedures for ocean industries.

The United Nations draft agreement for the protection of marine biodiversity in areas beyond national jurisdiction, or the UN BBNJ treaty, aims to do just that. The treaty proposes to, among other things, implement requirements for developers to conduct environmental impact assessments (EIA) on proposed industrial facilities in the high seas so that the significant biodiversity of these areas will be protected. But as the treaty itself moves beyond initial development to implementation of EIA and other protections, practitioners around the world remain wondering: “How can we ensure that EIA is done effectively once the BBNJ language is signed into international law?”

In December 2021, ELI published Implementation of EIA in Areas Beyond National Jurisdiction Under the UN BBNJ Agreement: Next Steps in EIA Guidelines, a report to help illuminate the practitioner’s perspective to the UN BBNJ process. The report synthesizes the discussions of a working group convened by ELI, composed of more than 25 senior officials with expertise in international law and ocean policy, environmental management, and EIA.

The document, authored by ELI Visiting Scholar Patience Whitten as part of the Institute’s Blue Growth Law and Governance Initiative, identifies key challenges to the successful implementation of an EIA regime as proposed under the UN draft agreement, and provides input to further the goals of the treaty.

ELI is developing this work as part of a multi-year research and collaboration effort to ensure a meaningful implementation of EIA principles in the high seas.

Clearinghouse connects communities with pro bono legal services

In February, ELI launched its Pro Bono Clearinghouse, an initiative that connects communities experiencing environmental injustices with attorneys who can provide pro bono legal services. ELI’s Pro Bono Clearinghouse is a venue for sharing opportunities and identifying expertise to support communities with pressing environmental problems. The Clearinghouse works to ensure that communities with viable environmental legal matters get the representation they need—whether in a courtroom, in front of an agency, or in a more facilitative or consultative fashion.

Environmental clinics are forced to turn down countless cases each year due to a lack of resources. At the Clearinghouse, clinics, partner NGOs, or ELI staff post a community’s request for a pro bono attorney with the right qualifications and notify environmental lawyers about ongoing pro bono opportunities. Law clinics can also create postings to find local counsel or legal support on specialized issues to expand internal capacity. Attorneys can in turn search for opportunities that match with their time availability, legal expertise, and jurisdiction of practice.

All attorneys who are ELI members can opt in to access the Clearinghouse and posted matters. Each attorney is required to review the available courses from the ELI Continuing Legal Education on Community Lawyering for Environmental Justice program, an ongoing series of training sessions provided in conjunction with the Clearinghouse. The classes enable attorneys opting into the platform to gain skills in community lawyering, a key practice in meaningful EJ-oriented pro bono work. Community lawyering centers on prioritizing the needs of communities and collaborating with individuals and groups as facilitative partners.

Law firms with ELI membership can opt in to the Clearinghouse, and non-lawyers and students are encouraged to contribute research, writing, scientific expertise, and other skills in conjunction with pro bono attorneys. All clinics and communities that post matters can also access the Clearinghouse to reach thousands of environmental practitioners within ELI’s network and collaborating partners.

The Clearinghouse partners with groups including the American Bar Association’s Section of Environment, Energy, and Resources, the American College of Environmental Lawyers, the Environmental Protection Network, and the Chesapeake Legal Alliance. The Clearinghouse also partners with two world-class, community-focused nonprofits: the Anthropocene Alliance, the country’s largest coalition of communities on the frontline of environmental justice, and the Thriving Earth Exchange, which connects communities with pro bono scientists.

Law clinics in the United States and around the world are welcome to join. Lawyers, law students, environmental experts, and advocates may connect with the Clearinghouse at probono@eli.org and at eli.org/probono.

Institute Published Guide on Restoring Wetlands

ELI Report
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue

ELI at COP26 

In the face of growing climate litigation, Institute educates judges with the science needed to decide crucial cases

While ELI names Washington, DC, as its home base, the Institute’s policy analysis and educational programming spans the globe. This fall, its efforts reached Glasgow, Scotland, where staff engaged at COP26, the United Nations annual climate summit. ELI hosted and engaged in a number of events, sharing insights on how to strengthen regulation and build the law and policy toolkit for achieving climate solutions.

As part of the summit’s events, the Institute’s Climate Judiciary Program hosted a reception on November 5 to call attention to the critical role of the judiciary in climate action. Despite an increasing number of climate-related cases worldwide, many judiciaries lack a fundamental understanding of the climate science and impacts underpinning these proceedings. CJP is the only project in the world that provides the climate science information and education judges need to make reasoned and appropriate decisions in climate cases.

Held at the Merchant’s House of Glasgow, the historic site of an over 400-year old organization,
the event shared the importance of judicial education on climate science to an international audience. Over 50 attendees joined, including leading environmental judges from around the world, influential climate scientists, leaders of NGOs and foundations, and high-level officials from the government.

On the same day, ELI also hosted a roundtable on ensuring compliance with climate regimes as part of Climate Law and Governance Day, an event co-hosted by the University of Glasgow, University of Cambridge, and University of Strathclyde. The conference gathered the global climate law and governance community to discuss challenges and solutions for implementing the Paris Agreement and other climate obligations.

ELI’s roundtable was chaired by Associate Vice President of Research and Policy Sandra Nichols Thiam and Visiting Scholar Paul Hanle. Speakers included Vice President of Programs and Publications John Pendergrass and Environmental Justice Staff Attorney Arielle King, among other top scholars, judges, and scientists. The group discussed how climate science can inform questions that arise in climate litigation, and how to bridge the gap between science and justice.

On November 6, Associate Vice President Sandra Nichols Thiam also spoke on a panel as part of the half-day event, Climate Change Legislation, Litigation, and the Rule of Law, hosted at the University of Strathclyde. Nichols Thiam spoke on the importance of capacity-building for legal actors and ELI’s experience educating judges, including recent efforts with CJP.

Beyond speaking engagements, ELI staff also attended events held by C2ES, EARTHx, and the Global Judicial Institute for the Environment, and engaged with youth activists and leaders in the climate and environmental justice movements.

ELI’s mission to make law work for people, places, and the planet fills a critical niche in strengthening governance around the world. A U.S. organization with a global presence, ELI continues to collaborate internationally to advance climate and justice solutions.

Bridging governance between countries to protect wetlands

Environmental policies typically do not cross national borders, even when the need for conservation does. One example of this transboundary challenge is the Laguna Madre wetlands, which extends 400 miles from Texas to the state of Tamaulipas in Mexico.

According to the U.S. National Park Service, Laguna Madre is “perhaps one of the most overlooked natural wonders in North America.” The wetland provides critical habitat for threatened and endangered species, including migratory birds between North and South America. But adequate management of this natural wonder is uniquely complicated, in part because Laguna Madre is politically divided between the United States and Mexico.

In November, the Laguna Madre Initiative, ELI’s Ocean Program, and Texas A&M University at Galveston hosted a weeklong seminar to develop a binational agenda for the sustainable use and conservation of Laguna Madre. The project builds on ELI’s experience in restoration in the Gulf of Mexico, as well as the expertise of ELI Visiting Scholar Enrique Sanjurjo. As a former program officer for the Gulf of California at World Wildlife Fund, Sanjurjo worked with partners in the United States and Mexico to create and implement marine protected areas, strengthen small-scale fisheries governance, and protect wildlife.

By convening partners from both sides of the border, the initiative aims to develop an innovative regulatory framework for binational ecosystem governance. The seminar featured presentations from U.S. academics, NGO partners, and government employees, including staff at the National Park Service, the National Oceanic and Atmospheric Administration, and the Texas Park Service.

Representatives from NGOs and the government in Mexico also presented, including officials from Mexico’s National Institute of Fisheries, National Commission on Natural Protected Areas, and the Tamaulipas State Chamber of Industry. Attendees from both countries arrived from academia, government, NGOs, and law.

A roundtable with fishers from the Gulf of Mexico underlined the seminar’s focus on achieving connectivity between all aspects of the Laguna Madre: ecosystems, wildlife, and people. With an eye toward establishing long-term links between policymakers, scientists, and communities, the seminar accomplished important initial steps in facilitating cross-boundary environmental governance in the area.

Local government network helps address compliance needs

When local governments puzzle over a federal environmental requirement, or need help finding resources to prevent pollution, they can turn to the Local Government Environmental Assistance Network. One of EPA’s Compliance Assistance Centers, LGEAN is a “first-stop shop” for municipal government staff and elected officials who need information on environmental management, planning, funding, and federal regulations.

Since May 2020, ELI has managed the network under a cooperative agreement with EPA. The Institute revamped the official website (lgean.net), which provides updated information and resources for local governments, and launched a new podcast and webinar series.

Notable offerings include a half-day Small Community Drinking Water Financing online workshop in November. Small and very small community drinking water systems comprise 80 percent of all community water systems, yet they often face infrastructure barriers to achieving drinking water standards. The event featured EPA officials and financing experts from the Environmental Finance Center at the University of North Carolina at Chapel Hill, who presented strategies for planning, funding, and financing to reach compliance.

LGEAN also hosted a webinar on the use of the federal Toxic Release Inventory’s data for local and tribal governments in October. The webinar detailed responsibilities governments may have in reporting hazardous materials to the TRI, as well as opportunities to leverage TRI data to stay apprised of facilities that may release potentially toxic chemicals. LGEAN’s podcast series covers topics from lead abatement to solid waste.

The network’s offerings are guided by its Project Advisory Committee, composed of leaders from major associations of local officials. They include experts from the Institute of Tribal Environmental Professionals, National Association of Counties, International City/County Management Association, Rural Communities Assistance Partnership, and International Municipal Lawyers Association.

Also represented on the committee are the Environmental Council of States, Local Governments for Sustainability-ICLEI, Solid Waste Association of North America, National Rural Waters Association, Water Environment Federation, Association of Clean Water Administrators, American Water Works Association, Environmental Law and Policy Center, and National Association of Clean Air Agencies, as well as representatives from Yale University School of Medicine and New York University School of Law.

Local and tribal governments can use the LGEAN website, provide feedback through the survey and “Ask LGEAN” feature on the website, follow LGEAN on social media channels, and participate in programs.

ELI Points to Litigation at Glasglow Climate Conference

ELI Report
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue

National Wetlands Awards Digitally recognizing five exemplary stewards of country’s natural history and heritage

ELI’s National Wetlands Awards are presented annually to individuals who have excelled in wetlands protection, restoration, and education. The winners are selected by a committee composed of experts from around the country, including representatives from each federal supporting agency, the conservation and business communities, and state and local governments.

What is usually a moving ceremony held on Capitol Hill was instead conducted digitally this year.

Full descriptions of each award winner are at www.elinwa.org.

Award for Business Leadership. Russell J. Furnari is the manager of environmental policy enterprise for Public Service Enterprise Group and serves as chairman of the New Jersey Corporate Wetlands Restoration Partnership. The NJCWRP is a unique public-private collaborative focused on restoring, preserving, enhancing, and protecting aquatic habitats throughout New Jersey.

Through Russ’s leadership and commitment, the partnership has experienced extraordinary success and is considered a model for similar groups across the nation. Since its inception in 2003, NJCWRP has raised more than one million dollars in contributions and pledges of in-kind services from its corporate partners, NGOs, and academia. NJCWRP’s projects are located throughout New Jersey and have aided in the preservation of more than 724 acres and 35 stream miles.

One project, the Upper Wallkill Watershed Riparian Restoration and Floodplain Reforestation Initiative, aims to restore a degraded section of the Wallkill river while educating the next generation of students engaged in environmental protection. With the help of 200 middle and high school students, the first phase of the project resulted in the restoration of 4.5 acres of habitat and improved surface water quality. When completed, the entire project has the potential to restore more than 60 acres of vital habitat.

According to his supporters, Russ’s work building partnerships among diverse interests, identifying and successfully generating funding, and guiding projects through myriad approval processes have been critical to NJCWRP’s success. Russ exemplifies the importance of having strong support from the business community in helping to sustain and enhance wetlands and the environment for the future.

Award for Youth Leadership. Sonja Michaluk is a research scientist, writer, environmental educator, and founder of a genetics and microbiology lab. At 17 years old, Sonja has been a certified water monitor since she was six and has advocated on behalf of wetlands since she was 11.

Between 2014 and 2020, Sonja contributed to the preservation of over 50 acres of ecologically sensitive wetlands and wildlife corridors in central New Jersey. Her data also helped minimize the impacts of a natural gas pipeline. These research results, submitted to the New Jersey Department of Environmental Protection, as well as Sonja’s testimony to the Federal Energy Regulatory Commission, helped save 1,800 trees and mitigated damage to waterways.

Sonja has been honored for her work locally and internationally. She was called a “Force of Nature” by Friends of Hopewell Valley Open Space, served as a keynote speaker at The Alliance for Watershed Education’s River Days event, and has been praised by the New Jersey Senate and General Assembly and acknowledged by the New Jersey governor. Before the pandemic, she was flown to Sweden to represent the United States at World Water Week and at a climate change symposium. Her research has been published in the Encyclopedia Britannica, and she has presented at numerous conferences and was featured in films about climate change and the environment.

Sonja’s supporters say her familiarity with freshwater ecology and the ease with which she explains scientific concepts to others make her an effective teacher. She has been educating the public about wetlands conservation and water monitoring for over ten years.

Sonja’s current work includes a project to preserve 200 acres of threatened wetlands and old growth forest in Princeton, New Jersey, in collaboration with Ridgeview Conservancy and the Watershed Institute.

Award for Wetlands Program Development. Lauren Driscoll has been committed to wetlands conservation and restoration for more than 25 years.

Lauren has managed the wetlands program at the Washington State Department of Ecology since 2005. In her position, she advances the agency’s role in the protection of wetland resources throughout the state. This includes ensuring statewide consistency in implementation of the Clean Water Act Section 401 water quality certifications for wetlands, developing and delivering technical tools and science-based guidance, and providing expert technical assistance to local wetland regulators. Lauren also mentors wetland technical staff across the state and secures grants for wetlands program activities.

Lauren’s expertise in wetland policy and mitigation has substantially strengthened the state’s work in these areas. She played a major role in establishing the state’s wetland bank certification program, and continues to provide oversight for Washington’s wetlands compliance and wetland banking programs.

Lauren’s work often serves as a model for other programs across the country. For example, she oversaw the development of Washington’s first EPA-approved Wetland Program Plan, a six-year strategy that formalizes program development and provides a longer-term vision for the state’s wetland management. Washington’s approach to the plan inspired several other states. Similarly, Lauren worked with the state’s interagency Voluntary Stewardship Program committee to create a coordinated and comprehensive statewide stewardship approach that serves as a national model.

Lauren has worked tirelessly to not only strengthen wetlands protection in her own state but also to actively engage in national planning and decision-making. These efforts include coordinating the state’s response to several federal rulemakings, such as the Navigable Waters Protection Rule.

Lauren’s supporters describe her as a skilled communicator who can bridge the gap between policymakers and scientists, and engage with an often diverse and divisive state legislature. Through her outstanding communication and leadership, Lauren has managed to keep the wetlands program intact by demonstrating its importance even during lean economic times.

Her dedication and expertise have earned her the respect of colleagues across the country.

Award for Local Stewardship. Wenley Ferguson has spent the last 31 years working for Save The Bay, an environmental nonprofit organization in Providence, Rhode Island, where she now serves as director of habitat restoration.

Throughout her career, Wenley has partnered with federal, state, and local entities to advance projects that restore and enhance coastal and estuarine habitats and improve community resilience, working tirelessly to bring projects from conception to implementation and adaptive management.

Wenley is a leader in identifying and assessing climate change impacts to coastal wetlands within Rhode Island and southeastern Massachusetts. She is also an expert in advancing new and emerging restoration and management approaches in the southern New England region.

Wenley and her Save The Bay colleagues were the first to identify the drowning of otherwise healthy coastal marshes in Rhode Island due to sea level rise. Using a monitoring and assessment program developed by Save The Bay and state partners, two of these marshes were identified as especially vulnerable to accelerated rising waters. Wenley worked tirelessly with local, state, and federal partners to restore the drowning marshes and build their resiliency to climate change.

As a leader in her organization and community, Wenley is involved in all facets of coastal restoration projects. She is consistently on the ground assessing project success, adaptively managing projects, developing community engagement and outreach strategies, and supporting student researchers. Active in local education, Wenley has also led volunteer teams to engage local communities and advocates about the importance of conserving marsh migration corridors. She collaborates with local researchers and has contributed to several peer-reviewed publications related to coastal marsh conditions and restoration.

Award for Promoting Awareness. Xavier Cortada is an artist and professor of practice in the University of Miami’s Department of Art and Art History. For 15 years, Xavier has creatively harnessed the power of art to motivate fellow Miami-Dade County residents to learn about, conserve, and restore mangrove wetlands.

Xavier’s highly innovative eco-art projects include a volunteering project that encouraged neighbors to build up climate change resiliency by growing salt-tolerant mangroves in their yards. He also created the nation’s first underwater homeowner’s association to address the threat of rising seas and saltwater intrusion into a community’s freshwater aquifer.

One of Xavier’s most notable eco-art initiatives is the Reclamation Project, which aimed to engage “eco-emissaries” in rebuilding ecosystems above and below the waterline. Volunteers installed meticulously arranged grids of mangrove propagules in water-filled cups in the street-facing windows of local restaurants and shops. Passersby, intrigued by the displays, often asked for more information or read the accompanying information about mangroves. When the propagules matured, volunteers replanted them in a community ritual reclaiming the water’s edge for nature.

Xavier repeated the project annually for six years, reaching roughly 200,000 people. To date, the project has engaged over 10,000 volunteer participants, helping to restore 25 acres of coastal habitat.

After 2012, the Miami-Dade County community assumed responsibility for the project. It continues today through volunteers at the Frost Science Museum, in public schools county-wide, and in communities across Florida and beyond who have emulated Xavier’s project.

Newest Winners of ELI’S National Wetlands Awards.

Improving Compensatory Mitigation Project Review Through Best Practices
Rebecca Kihslinger - Environmental Law Institute
Environmental Law Institute
Current Issue
Rebecca Kihslinger

Healthy wetlands and streams benefit our environment and economy in a number of important ways, from providing habitat for wildlife and fisheries, to improving water quality, to providing flood protection.

The Clean Water Act requires permits for impacts to aquatic resources and that permitted impacts be compensated for by offsetting them. Each year, thousands of acres of wetlands and streams are restored, enhanced, and protected to satisfy the act’s compensatory mitigation requirements. The estimated market value of the compensatory mitigation program is between $1-2 billion annually.

The success of these projects relies on a robust review and approval process that ensures that the protections in federal regulations are implemented in practice on the ground and that compensation projects effectively offset permitted impacts. Currently, however, the review and approval process can often be lengthy, sometimes greatly exceeding the regulatory time lines. ELI conducted research to understand the reasons for these delays, with the goal of identifying best practices and efficiencies that could continue to produce quality results.

Approximately 70 percent of compensatory mitigation annually is accomplished via third-party mitigation, i.e. mitigation banks and in-lieu fee programs. These entities assume responsibility for designing and constructing the actual compensation projects and the liability for ensuring project success in place of the permittee.

Designing quality third-party compensatory mitigation projects can present complex issues requiring good site selection, thorough understanding of aquatic resource functions, and a well-grounded, interdisciplinary use of science. In 2008, EPA and the Corps of Engineers issued federal regulations that, among other things, promoted timely decisions on third-party mitigation activities. The 2008 rule established time lines for project review and approval for banks and in-lieu fee programs. It also defined an Interagency Review Team process. The IRT provides a framework for close collaboration among the Corps, other federal agencies with overlapping regulatory authorities, and state and tribal regulators and resource agencies in the review, approval, and oversight of banks and ILF programs.

Although the rule generally improved and regularized the review and approval process, mitigation providers indicate that the process can take up to several years for a project and can impose significant costs and delays in the implementation and availability of quality mitigation options. ELI’s new report Improving Compensatory Mitigation Project Review identifies a number of challenges in the implementation of review and approval — from both the agencies’ and providers’ points of view — as well as best practices that may improve future implementation.

The report found that there are still a number of recurring substantive issues. Review and approval of banks and in-lieu fee programs and projects often exceeds the regulatory timeframe, but delays often occur due to known causes — some of which, like poor communication, lack of templates, lack of project management strategies, and data gaps, can be addressed with governmental process and management improvements.

The report also found the IRT process is very effective at evaluating complex compensatory mitigation actions requiring interdisciplinary review, but it could be improved with little or moderate investment. Strategies include proactive scheduling and organization of IRT meetings; better use of remote meeting techniques; regularly scheduled meetings to address policy issues apart from individual project review; and advance scheduling of opportunities for site visits to facilitate easy coordination among providers and government field staff.

Efficiencies in the review process can be gained via project management tools applied to the review process, such as detailed schedules with tracking tools; best management practices to aid providers on project submissions; and additional training on the regulatory process and substantive issues. Finally, standard operating procedures and templates make it easier for providers and IRTs to achieve a common understanding and can result in timely project approvals.

In preparing the report, ELI worked with a panel of experts to conduct a wide-ranging analysis of the review and approval processes applied to mitigation banks and in-lieu fee programs and projects across the country.

For decades, ELI has been the leading research institution to evaluate compensatory mitigation required to offset adverse impacts to wetlands — beginning with the first national study of third-party mitigation in 1993 and continuing to this day.

Improving Compensatory Mitigation Project Review Through Best Practices.

Wetlands Efforts Meld Science and the Law
Rebecca Kihslinger - Environmental Law Institute
Environmental Law Institute
Current Issue
Parent Article
Rebecca Kihslinger

Wetlands conservation has been a signature program for ELI since its very first decade. In 1977, with support from the Fish & Wildlife Service, ELI convened the first National Wetland Symposium, bringing together 700 wetlands scientists, managers, lawyers, and conservationists. And for nearly 40 years following until the Institute regretfully pulled the plug for financial reasons, ELI’s respected National Wetlands Newsletter served as the touchstone publication for the field, with influential and intensely practical articles on wetlands science, law, management, and governance.

In addition to NWN, ELI wetland books and reports have shaped the field in profound ways. Jon Kusler’s Our National Wetland Heritage: A Protection Guidebook, released in 1983, was one of ELI’s most-purchased books, and was succeeded by a well-regarded second edition in 1996 (with NWN Editor Teresa Opheim doing the update).

ELI’s first-ever study of all the nation’s wetland mitigation banks in 1993 became its most widely disseminated research report; it has led to a continuing series of influential studies on wetland banking and fee-based mitigation programs over the following 25 years.

The Institute’s work during this period included creation of databases and inventories of these programs, led by Science Policy Analyst Jessica Wilkinson. ELI’s pioneering work on compensatory mitigation influenced findings by a National Academy of Sciences panel that led to the 2008 Corps-EPA rule putting compensatory mechanisms on a firm scientific and legal footing.

Much of ELI’s wetlands work has had a state and local focus, including studies of the likely impacts on state programs of changes in definitions of Waters of the United States under the federal Clean Water Act, which has come to be relied on by all parties.

ELI’s numerous wetland and stream mitigation studies and training courses continue under the leadership of Senior Science and Policy Analyst Rebecca Kihslinger, and the Institute continues to collaborate with states and academic organizations on restoration priority setting and the role of wetlands in climate adaptation, often with foundation support.

“As climate change and regulatory uncertainty threaten the protection of vital habitats,” notes Kihslinger, “the timely research and comprehensive training programs offered by ELI promote policies and innovative approaches that preserve wetlands function and maintain crucial ecosystem services for all communities.”

In 1989, ELI launched a program to recognize excellence in wetlands conservation. The National Wetlands Awards, now in their 30th year, recognize individual achievement in landowner stewardship, science, governmental innovation, education, and other categories. Presented with modest support from federal wetlands agencies, and held on Capitol Hill, this event celebrates the contributions of conservationists, teachers, and others. Keynote speakers have included the late Senator John McCain of Arizona and New Mexico Senator Tom Udall.

ELI’s other work on water resources in the United States has focused on policy and regulatory gaps. In the early 1980s, Institute staff led by Tim Henderson produced work on state groundwater protection laws. In the 1990s and 2000s, ELI prepared comprehensive inventories of all state nonpoint source protection laws. In these same years the Institute worked on green infrastructure and ways to address older sewer systems.

More recently, ELI has aimed at connecting water quantity, water conservation, and water quality, including an influential partnership with the Alliance for Water Efficiency and River Network, known as Net Blue. Adam Schempp has directed a long-standing series of training courses and workshops for state regulators dealing with impaired waters, and related courses on data management and monitoring, with support from EPA. These intensive courses involve state-to-state peer learning and networking.

ELI Report
Anna Beeman - Environmental Law Institute
Environmental Law Institute
Current Issue

National Wetlands Awards ELI honors eight conservationists; Grumbles cites resource as U.S. natural history, climate future

The annual National Wetlands Awards celebrated its 30th anniversary on May 7 in Washington, D.C., by honoring eight conservationists who are fighting to enhance this dwindling resource.

Keynote speaker Ben Grumbles, secretary at the Maryland Department of the Environment, said that not only do wetlands help tell the natural history of the United States, they also have a role in climate mitigation.

This year’s ceremony included the 30th Anniversary Lifetime Achievement Award, presented to Richard Barker Grant for his 47 years in wetlands preservation and his leadership of the Narrow River Preservation Association. Grant has led local residents in monitoring 14 sites along the river for four water-quality metrics. The program now has 28 years of data.

In presenting the Business Leadership Award, Fred Wagner of Venable LLP, said, “Greg Sutter makes conservation work with business.” Sutter serves as vice president and general manager of Westervelt Ecological Services, and has over 40 years of experience in mitigation and restoration planning and implementation in Northern California.

NOAA’s Nicole LeBoeuf presented the Conservation and Restoration Award to Joel Gerwein. Gerwein has spent much of his career working for the California State Coastal Conservancy on the northern California Coast, with a focus on Humboldt Bay. His projects have protected or restored over 1,000 acres of coastal habitats in the bay ecosystem, and has helped recover habitat for fish species such as Coho and Chinook salmon.

Robert Thomas, recipient of the Education and Outreach Award, is an academic as well as a business and environmental community liaison. His work in environmental communication was honored by Emily Biondi of the Federal Highway Administration. Thomas is a professor at Loyola University as well as founding director of the Louisiana Nature Center. Noting that Louisiana has lost coastal wetlands the size of Delaware, he hoped environmental solutions will be the result of open and honest communication, coupled with trust and integrity, among stakeholders.

“Tom and Mary Beth Magenau have fused sustainability within their business and land,” according to the Forest Service’s Kristin Bail. The Magenaus, who received the Landowner Stewardship Award, conducted a 19-year-long project for Chesapeake Bay restoration in partnership with the Anne Arundel County Watershed Restoration Program. Recognizing that their business relies on a healthy aquatic environment, they transformed their property into a stormwater wetland that has reduced 70 percent of untreated sediment that would otherwise flow directly into the Bay.

The Fish and Wildlife Service’s Martha Balis-Larsen presented the Science Research Award to Robert Gearheart, who dedicated his 44-year career to understanding biogeochemical cycles of wetland systems, and how those processes can be leveraged to transform waste into a resource. He is a founding designer of the Arcata Marsh and Wildlife Sanctuary in California that serves as a wastewater treatment plant, a recreation area, and a wildlife sanctuary.

Angela Waupochick, a hydrologist with the Stockbridge-Munsee Community Band of Mohican Indians in Wisconsin received the State, Tribal, and Local Program Development Award. EPA’s Lee Forsgren honored Waupochick’s contributions to wetlands and waterway conservation projects on tribal lands. Her team of three professionals has developed the first web-based story map that showcases successful water-related projects across the reservation and highlights the history of the tribe and its connection to water resources.


Meeting judicial need for facts in climate-related court cases

ELI has launched a program to provide judges balanced, informative training and materials on climate science and related concepts and the methods that are essential to understanding evidence in climate-related legal disputes. The Climate Judiciary Project, led by Senior Attorney Sandra Nichols Thiam and Visiting Scholar Paul Hanle, provides resources that will help jurists throughout the world ensure good governance and a sound legal process, informed by the facts.

The project stems from the growing need for basic science to inform climate litigation. Climate cases have grown to span across multiple types of legal disputes, such as public nuisance, liability, and administrative decisionmaking.

At the global symposium on “Judiciary and the Environment” in 2018, several sitting judges expressed interest in such an education program. With an increasing number of climate cases on the horizon, they recognized that a scientifically grounded judiciary is crucial in order to preside over cases in the face of a changing climate.

In New York and Washington, ELI initiated a pilot effort to conduct seminars on judicial climate science education. In collaboration with the American Association for the Advancement of Science and the Federal Judicial Center, judges participated in seminars in preparation for judging the validity of scientific arguments in climate change court cases. More specifically, the program featured seminars that discussed the relevant climate science, the degrees of uncertainty and acceptance of climate science among the informed climate science community, and the consensus among recognized experts in the field.

In the long term, Thiam and Hanle aim to develop a science-based curriculum institutionalized in federal and state judicial training, in addition to continue conducting seminars for judges. Using feedback from the pilot seminars, the Climate Judiciary Project will continue to test, develop, and execute programs to fit the needs of the judiciary in this emerging field of cases.


Dual sessions bring together implementers of CWA programs

ELI has long worked with the agencies tasked with restoring and protecting water quality. In late May, the Institute hosted nearly 250 water quality professionals from 49 states, 15 tribes, all 5 inhabited territories, the District of Columbia, all 10 EPA regions, and EPA headquarters for the 11th annual National Training Workshop for CWA 303(d) Listing & TMDL Staff and the second biennial National Water Quality Data Management Training Workshop. The two events were held simultaneously at the National Conservation Training Center in Shepherdstown, West Virginia, each a product of a cooperative agreement between ELI and EPA.

ELI designs these training programs with the help of state, tribal, territorial, and EPA staff to equip participants with the knowledge, contacts, and tools needed to continually improve their implementation of the Clean Water Act.

This year, the agendas for both programs focused on tools and strategies for communicating water quality information to colleagues, legislators, partners, and the public, and effectively engaging others in this work. Some of the session topics included interactive mapping, the new How’s My Waterway app, using the ATTAINS database, open source tools, mobile data entry, citizen science, storytelling, engaging the public in planning, and the opportunities and challenges associated with continous sensor data.

In addition to developing the expertise of long-established professionals in the field, the training workshops sought to quickly acclimate newer staff to various aspects of water quality data management and the CWA 303(d) program, by offering sessions such as a freshman orientation and an introduction to the Integrated Reporting process. Both training workshops included hands-on, technical sessions and group discussions.

The three-day intensive dual session also was designed to enhance the network of professionals through face-to-face introductions across states, tribes, and territories and with EPA staff. Part of each agenda was dedicated to small-group meetings among participants from each EPA region.

Conservationists receive ELI National Wetlands Awards.

Everglades Author Would Back Kids
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
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Everglades Author Would Back Kids

The survivors of the horrible massacre at the high school in Parkland, Florida, have created a national movement in favor of measures to reduce gun violence. Firearms kill roughly as many Americans as does pollution and thus represent an equivalent threat to public health.

In bringing their message to the nation’s capital in a huge demonstration in March, with sibling gatherings around the country, they were consciously following in the tradition of their school’s namesake. Before Rachel Carson, before Aldo Leopold, there was Marjory Stoneman Douglas. “In the history of the American environmental movement, there have been few more remarkable figures,” according to the Independent. She was a prolific freelance writer — a staple of the Saturday Evening Post’s fiction lineup during the Depression — and earlier one of the vanguard of female journalists of a muckraking bent who began to come on board early in the last century (think Ida Tarbell).

It was relatively late in life, in 1947, that she published The Everglades: River of Grass, a great example of branding that burned into the public consciousness that this was a treasure, not a swamp that had to be drained for development. She was eventually bestowed the sobriquet “Empress of the Everglades” and became beloved by conservationists and dreaded by industry.

Douglas campaigned for environmental protection generally and for Everglades protection specifically for the rest of her long life — she died in 1998 at the age of 108. The massacre survivors who led the march in Washington were born a few years later.

Her famous book was a project that began from an assignment for a series of works on American rivers. She researched the Miami River and found it had its source in the Everglades. The publisher permitted her to change her scope, and she spent the years of World War II crisscrossing the huge wetland, gathering information.

It was during this research that she came to realize that the water in the Everglades was a huge southward flow emanating from Lake Okeechobee and flowing to the Gulf of Florida. That gave her the famous title. Then she penned her signature line to open the book: “There are no other Everglades in the world.”

Fifty years later the Christian Science Monitor would comment, “Today her book is not only a classic of environmental literature, it also reads like a blueprint for what conservationists are hailing as the most extensive environmental restoration project ever undertaken anywhere in the world.”

From her arrival in South Florida, it is safe to say that Douglas was horrified by what she saw happening. Before World War I, Miami was an outpost of 5,000 people. But even then sugar cane farmers and ranchers were burning down the Everglades to make way for their exploitation of what Douglas came to realize was the source of drinking water for the burgeoning city and the rest of growing South Florida. Her evocative language shamed the businessmen for their rapaciousness and galvanized the public to protect the wetland, although that is still a project very much in progress.

Hired by the Miami Herald in 1915 to write the society column, her third day on the job she wrote about suffrage. She also took on the Ku Klux Klan. “She wrote whatever the hell she wanted to write about,” says biographer Jack E. Davis. The Washington Post enumerates columns “shaming her readers for not knowing that Florida was still running a slavery-like convict-leasing program and demanding the creation of a public welfare office for the protection of children.”

As the Post puts it, “Douglas had a reputation for relentlessly challenging politicians and powerful political interests even on issues that seemed like lost causes at the time.” The paper calls that “a description that almost eerily parallels the efforts of the teenagers leading the charge today.” Of the survivors’ efforts, the Post quoted a former journalist for the Tampa Bay Times who was among the last to interview the late activist: “I would bet my soul that Mrs. Douglas would not only approve, but applaud,” said Jeff Klinkenberg.

Douglas, like the kids, had her experience lobbying Florida legislators, in her case for suffrage — an occasion she likened to talking to “dead mackerel.” But her constant crusade on all fronts to protect her beloved wetland was eventually rewarded by some measures mitigating the harm and attempts at restoration.

The effort to protect the River of Grass is far from over. The high school in Parkland was built on land reclaimed from the Everglades, an irony that bothered the great lady and serves to illustrate the difficulties in preserving this national treasure. There are no other Everglades in the world.

Benefits of Regulations Far Exceeded Costs During Obama Era

The White House Office of Management and Budget on Friday evening [February 23] released its annual report on the costs and benefits of federal regulations, showing that the benefits of major Obama-era rules far exceeded the costs.

The report found the annual benefits of major federal regulations from 2006 to 2016 were between $219 billion and $695 billion, while the annual costs were between $59 billion and $88 billion.

The findings are at odds with the Trump administration’s push to roll back a host of Obama-era environmental rules.

Public interest groups were quick to accuse OMB of burying the report because it undercut the administration’s deregulatory agenda.

“They released it on a Friday evening while Congress was on recess and nobody was really paying attention in Washington,” said James Goodwin, senior policy analyst with the Center for Progressive Reform.

“For most normal people, this report is good news,” Goodwin said. “It basically says that all the regulations the Obama administration put out had huge net benefits.

“For the Trump administration, it’s bad news because they have to say something nice about the Obama administration, which they’re loathe to do.” . . .

The report “directly contradicts, rather than supports, the push to roll back protections in virtually every sector,” [Public Citizen’s Amit] Narang said.

E&E News


“We’ve spent 40 years putting together an apparatus to protect public health and the environment from a lot of different pollutants. . . . [EPA Administrator Scott Pruitt] is pulling that whole apparatus down.”

— William D. Ruckelshaus as quoted in the Washington Post

A World of Environmental Progress

Down Under should have an environmental agency, experts are saying. “Australia needs an independent national agency charged with safeguarding the environment and delivering effective climate policy,” according to The Conversation blog, which cites “a new campaign . . . by a coalition of environmental, legal, and medical NGOs.”

The huge nation, modeled after Great Britain and the United States, surprisingly has been taking care of environmental protection in an ad hoc manner, unlike her progenitors.

“The proposal would involve establishing a high-level Commonwealth Environment Commission that would be responsible for commonwealth strategic environmental instruments, in much the same way that the Reserve Bank is in charge of economic levers such as interest rates.

“The new CEC would manage a nationally coordinated system of environmental data collection, monitoring, auditing, and reporting, the conduct of environmental inquiries of a strategic nature, and the provision of strategic advice to the commonwealth government on environmental matters, either upon request or at its own initiative. The necessary outcomes would then be delivered by government and ministers via a newly created National Environmental Protection Authority.”

Chile protects 4,000-mile coastline with marine reserves. The government in Santiago has passed legislation to protect its famous ocean border, according to the St. Kitts & Nevis Observor. President Michele Bachelet signed the law that creates a string of natural preserves.

“President Bachelet . . . said that Chile needed to establish the basis on which it would conserve its marine territory for the future,” the newspaper reported. “Who we are and who we can be, is inevitably tied up with our 6,400-kilometre coast,” Bachelet said. “This is why it is so important to understand that the sea is vital for our national development.”

The newpaper reports that the legislation “will increase the area of sea under Chilean state protection from 4.3 percent to 42.4 percent, and protect marine life in around 1.4 million square kilometres of sea.”

A new Afghan law would impose the death penalty for major pollution offenses, according to Tolo News. Other environmental crimes will result in serious jail time. “President Ashraf Ghani has issued a decree on the environmental law, stating any person found guilty of committing major pollution-related crimes can face between 16 and 20 years in prison,” the newspaper reports.

The legislation also places the onus on inspectors, who can face fines and prison time for failing to enforce the law, “while an offender whose actions have led to the death of a person can get the death penalty.”

The newspaper notes that “members of the public and health experts have welcomed the enforcement of this law and said that the high levels of pollution, especially in Kabul, has resulted in a marked increased in illnesses.”

The right to a healthy and sustainable environment is vital, a press release from Human Rights Watch, Earthjustice, Amnesty International, and the Center for International Environmental Law claims. The release calls for adoption of an internationally recognized right to ensure “a life of dignity. Clean water, air, and soils, and diverse ecosystems are indispensable for people to lead healthy lives. More generally, the right also protects the civic space needed for individuals to engage in dialogue on environmental policy.”

School’s namesake would have supported gun activists.