ELI Report
Author
Rachel Jean-Baptiste - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

National Wetlands Awards Celebrating six champions of the country’s invaluable aquatic ecosystems and wildlife

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 others.

This year’s ceremony was held on May 16 at the rooftop of Beveridge & Diamond, PC, in Washington, D.C. Individuals from the Environmental Protection Agency, Fish and Wildlife Service, Baker Botts, Hogan Lovells, and ELI presented awards. One winner, Adam Davis, attended virtually.

Opening remarks were delivered by ELI President Jordan Diamond. Former ELI President John Cruden made remarks in memory of his former colleague the late Stephen Samuels, a retired Justice Department attorney and one of the government’s leading experts on the Clean Water Act and its wetlands program.

A recording of the ceremony, podcast interviews with the 2023 winners, and additional details are available here.

Award for Business Leadership. Adam Davis is a co-founder and managing partner at Ecosystem Investment Partners, which has restored over 48,000 acres of wetlands and 220 miles of streams since its founding in 2006. Adam is involved in all aspects of the business, from investor relations to project implementation to government affairs.

Adam has dedicated his career to aligning business interests with environmental outcomes, and he is an advocate for new types of public-private partnerships that support ecological restoration. For example, he led the effort for his firm to partner with the California Department of Water Resources on the largest tidal wetland restoration project in state history.

Adam and his wife, Sara, live in San Rafael, California. He has served on the board of the national industry trade association, the Ecological Restoration Business Association, and helped to create the California affiliate, CalERBA. Adam has a B.A. in Africana Studies from Cornell University.

Award for Promoting Awareness. Matt Hough is the manager of conservation programs for Kansas, at Ducks Unlimited, a position he accepted in 2017 after joining the organization six years earlier as a regional biologist.

In his current role, Matt heads DU’s conservation program for the state, supervising wildlife biology staff and overseeing the organization’s state budget and fundraising. Matt works with various partners in Kansas to deliver a diverse program of restoration, enhancement, protection, and acquisition projects. He has also been active in DU’s growing Ecosystem Services working group, especially focused on wetlands and their role in groundwater recharge and water efficiency.

Matt serves on the boards of both the Playa Lake Joint Venture and Kansas Alliance for Wetlands and Streams. Raised on a small beef cattle ranch in eastern Oklahoma, Matt graduated from Oklahoma State University with a bachelor’s in plant and soil science and a minor in range management. He received his master’s in wetland ecology, also at OSU. Matt and his partner live in Grand Island, Nebraska, with their new Pudelpointer puppy, Penny, and cat, Mia, where they enjoy entertaining friends, cooking, and fun in the outdoors.

Award for Program Development. Rebecca Swadek is the director of wetlands management at the New York City Department of Parks & Recreation. In this role, she provides strategic management and leadership for an interdisciplinary team focused on protecting and restoring over 60 miles of streams and 3,000 acres of tidal and freshwater wetlands on NYC’s parkland. She has taken a lead role in advising on the city’s first wetland mitigation bank—consulting on hundreds of projects impacting wetland resources, developing a public wetlands map for the city, and contributing to the restoration and protection of over 85 acres of wetlands.

Rebecca has co-authored eight agency reports related to wetland, watershed, and stream management and served as the lead author for the “Wetlands Management Framework for New York City," released in 2021 with the Natural Areas Conservancy. The framework serves as a 30-year roadmap for the protection, management, and restoration of New York City’s remaining wetlands.

Rebecca serves as a co-chair for the Ecology Team for the Bronx River Alliance and as a research associate for the Botanical Research Institute of Texas. Trained as a plant ecologist, Rebecca has over 15 years of experience in plant conservation, ecological restoration, and stormwater management in California, New York, and Texas.

Award for Local Stewardship. Scott Fisher serves as Director of ʻĀina (Land) Stewardship for the Hawaiʻi Land Trust (HILT), which encompasses 19,500 acres of protected land in Maui, Oʻahu, Kauaʻi and Hawaiʻi Island. He joined HILT in 2003 as project manager for the 277-acre Waihe’s Coastal Dunes and Wetlands Refuge. Since 2019, Scott has also worked as a consultant with the Mikajy (Restoration) project in Menabe Province, Madagascar.

Raised in Kula, Maui, Scott enlisted in the Marine Corps when he was 17 and served in the Gulf War. Scott’s first Ph.D. explored the dynamics of post-conflict recovery related to natural resource degradation among Pacific Island communities on the island of Bougainville in Papua New Guinea. From 2017-20 Scott was a visiting fellow at the University of Leicester, conducting research into the relationship between ecological restoration, ecosystem resilience, and paleoecology. Scott also holds graduate certificates in ecological restoration and sustainable agriculture.

Scott is currently enrolled in a Ph.D. program in earth and ocean science at the University of Southampton (UK), where he is studying how to optimize nature-based solutions to high-energy marine inundation events. On weekends, Scott enjoys working at his 4-acre ulu (breadfruit) farm on Maui.

Award for Scientific Research. Bingqing Liu is a research scientist and deputy director of the RESTORE Act Center of Excellence for Louisiana (LA-COE) at The Water Institute. Her cutting-edge and forward-thinking scientific research focuses on coastal wetland carbon modeling and remote sensing monitoring to examine the responses of coastal blue carbon habitats (e.g., black mangroves and marshes) to meteorological and climatic changes and restoration activities in Louisiana.

Over the past five years, she has worked tirelessly in the field of wetland habitat classification and wetland carbon capture from field research, remote sensing, and numerical modelling. As the deputy director of LA-COE, Bingqing administers a competitive grant process and provides the appropriate coordination and oversight to ensure the findings from funded projects can be implemented into Louisiana’s Coastal Master Plan, thereby allowing her to facilitate the translation of research findings into actionable measures and benefiting the broader public and communities that rely on healthy wetland ecosystems.

Award for Youth Leadership. Charlotte Michaluk, a high school student in Pennington, New Jersey, is passionate about protecting coastal wetlands from the spiraling effects of climate change through innovative cargo ship design.

Charlotte designed a ship hull coating inspired by shark skin that improves ship efficiency by reducing drag and biofouling, while simultaneously minimizing invasive species transport. She also developed a concept for a hybrid wind and fossil fuel powered cargo ship that cleans exhaust and improves seakeeping, while generating auxiliary propulsive power from wind energy. Her research has been presented at numerous conferences and recognized internationally. In addition, Charlotte has gathered and analyzed field data, worked with the New Jersey Department of Environmental Protection, and advocated at public hearings to preserve ecologically critical wetlands, habitats of exceptional significance, and wildlife corridors in Central New Jersey.

Charlotte has been recognized multiple times by the Environmental Protection Agency and was winner of the 2020 Department of Defense STEM Talent Award for her work on cargo ship design. Her sister, Sonja Michaluk, was an NWA recipient in 2021.

WOTUS v. SCOTUS

On May 25, the Supreme Court, ruling in Sackett v. EPA, sharply limited the scope of the federal Clean Water Act’s protection for the nation’s waters. The Court redefined the act’s coverage of “waters of the United States,” which has been hotly contested since the Court’s 2006 decision in Rapanos v. United States.

For nearly 50 years, the Environmental Law Institute has prepared authoritative research and analysis on federal, state, and tribal wetlands and water laws, and hosted workshops focused on legal and programmatic means for wetlands protection.

Visit this site, where we’ve compiled our observations of the Sackett decision and collected materials from ELI experts to help support states, tribes, and policymakers in this new legal context.

Six Conservationists Win National Wetlands Awards.

Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters
Author
Rebecca Kihslinger, Jim McElfish, Heather Luedke, Georgia Ray
Date Released
May 2023
The cover of a research report, titled "Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters"

Changes in the interpretation of Waters of the United States (WOTUS) resulting from judicial decisions or federal rulemaking place a substantial burden upon state and tribal regulators and legislators. States, in particular, must determine whether, and how, to keep up with shifting federal coverage by adopting and implementing protections for waters that are not protected by federal law.

National Wetlands Awards: Celebrating five champions of the country’s invaluable aquatic ecosystems and wildlife
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

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 others.

This year’s ceremony was held on May 19 at the National Academy of Sciences in Washington, D.C. Individuals from the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, USDA’s Forest Service, and ELI presented awards. One winner, Mark Laska, attended virtually. Opening remarks were delivered by ELI President Jordan Diamond, and further remarks were provided by Navis Bermudez, deputy assistant administrator for the EPA Office of Water. Full descriptions of each award winner are at www.eli.org/national-wetlands-awards.

Award for Wetlands Program Development. Mick Micacchion leads the wetland program at the Midwest Biodiversity Institute, a nonprofit dedicated to the research, monitoring and assessment, and restoration of aquatic resources.

Previously as a wetland ecologist with the Ohio Environmental Protection Agency, Mick conducted numerous studies on wetlands and developed assessment methods and mapping resources that helped the agency better regulate and protect wetland resources. As part of this work, he and several others at Ohio EPA met with representatives from a range of Ohio businesses, employees from other state agencies, and concerned citizens to develop the rules that comprise Ohio’s Wetland Water Quality Standards. The rules set up three categories of wetlands and specify in detail how each category of wetland is protected.

During this same period, Mick worked on developing and refining the assessment tools used to place wetlands in their appropriate categories based on measurable attributes. The assessment tools selected for development evaluated wetland habitats, floras, and faunas. The data resulting from the assessment tools is detailed enough to allow placement of the monitored wetlands into their appropriate categories reliably and consistently for Section 401 and isolated wetland reviews.

Mick was also the lead in creating the Amphibian Index of Biotic Integrity, monitoring hundreds of vernal pool wetlands across Ohio for its development. He also co-founded the Ohio Vernal Pool Network, which has been instrumental in increasing awareness and protection of vernal pools in Ohio, and has served as vice president of the Ohio Wetlands Association for the last nine years.

Mick’s leadership in the development of the AmphIBI and Ohio’s Wetland Water Quality Standards has helped guide the development of similar regulatory standards and programs in other states. His dedication has been demonstrated through dozens of research articles on wetlands and wetland-themed presentations to a variety of audiences across the country.

Award for Scientific Research. Dr. John White is an internationally renowned scientist who has contributed to the field of wetland research for almost three decades. He serves as the John & Catherine Day Professor of Oceanography and Coastal Sciences and the associate dean of research for Louisiana State University’s College of the Coast & Environment.

Over the course of his distinguished career, Dr. White has supervised 34 graduate students and has written over 125 peer-reviewed publications and book chapters focused on natural and anthropogenic impacts on nutrient and contaminant cycling in wetland and aquatic systems.

Dr. White has also actively supported public service and policy programs in the State of Louisiana and at the national level. He served as the wetland program chair for the Soil Science Society of America, the biogeochemistry program chair for the Society of Wetland Scientists, and worked on the Louisiana Governor’s Advisory Committee for the Coastal Master Plan. He currently sits on the Board of Scientific Counselors for EPA.

While his research spans diverse wetland ecosystems and locations, he is recognized for significant contributions to the understanding of the Florida Everglades and the Mississippi River Delta regions, two of the largest and most threatened wetland complexes on Earth. Dr. White’s research has informed practitioners and policymakers about the interplay between nitrogen and phosphorous loading. He has also produced one of the most compelling and thorough assessments of the impact of wetland erosion and submergence in coastal Louisiana on the global carbon cycle.

Dr. White has not only directly contributed knowledge to the fields of wetland science and policy, but has also mentored and inspired many.

Award for Local Stewardship. Zachariah Perry joined Reed College in 1999 as a grounds maintenance technician. He was tasked with creating a strategy to rehabilitate a centralized 28-acre degraded greenspace in the middle of campus known as Reed Canyon. The area was declared a wildlife refuge by the state of Oregon in 1913.

Zac drew from his formal education on botany, horticulture, and environmental science to lead teams of volunteers and students to remove barriers and obstacles to Reed Creek, Reed Lake, and the wetlands areas. His team strategically removed years of invasive plant material and reintroduced a wide array of native cover through innovative methods of propagation and cultivation. They have reintroduced close to a hundred thousand native plants and trees, many propagated by Zac from plants already growing in the canyon understory.

He has been responsible for managing all aspects of the restoration, which included removing a 70-year-old swimming pool and reconstructing the space into a fish ladder system designed to allow juvenile salmonids to access the headwaters of Crystal Springs Creek. Zac is credited with transforming an area that was considered a blight into a highly functional system—an impressive example of what urban restoration and community engagement can achieve.

Zac also leads educational tours for hundreds of local K-12 students, teachers, and interested Portlanders through his Canyon Outreach Program. His outreach strategy has led to a surge of interest in the canyon, and Zac has given numerous presentations at Reed College and at City of Portland events.

Zac teaches restoration ecology at Reed College and college-level classes at Portland State University. Now in charge of the Grounds and Maintenance departments at Reed College, Zac uses his expertise and partnerships to improve facilities operations over a 130-acre campus.

Award for Promoting Awareness. Dr. Jessica Hua ensures that her research is impactful in both the classroom and the community. She serves as principal investigator of the Hua Lab and Director of the Center for Integrated Watershed Studies at Binghamton University. In both roles, Dr. Hua seeks to integrate two fundamental missions: understanding the ecological and evolutionary consequences of human activities on wetland ecosystems, and communicating these findings at the local, state, national and international levels. The Hua Lab contributes insights into the conservation, restoration, and regulation of aquatic ecosystems and amphibians by studying their responses to disturbances, such as pollution, temperature shifts, and invasive species. In the fall of 2022, Dr. Hua’s lab group is transitioning to the University of Wisconsin-Madison, where the team will continue pursuing wetlands work.

Dr. Hua has established herself as a highly productive and influential scholar, mentor, and innovator in the field of ecotoxicology. Her research focuses on identifying the impacts of contaminants on natural communities. Despite the importance of this work, Dr. Hua knows that research has limited impact without the public’s knowledge and engagement, and strives to integrate her research into community activities and policy development.

As part of her team’s outreach efforts, Dr. Hua and her students developed a program called Wild Waders. The Wild Waders engage K-12 students, the general public, and people with disabilities in wetlands preservation. Since 2014, the Hua Lab has worked with local school districts, state agencies, local PBS stations, community groups, and science museums across upstate New York and Pennsylvania to educate and involve diverse audiences in wetlands preservation.

Award for Business Leadership. Dr. Mark Laska has more than 25 years of post-doctoral experience as an ecological restoration practitioner. Over 20 years ago, he founded Great Ecology, a pioneering ecological restoration consulting firm. Great Ecology focuses on improving the health and functionality of wetland, riparian, intertidal, and upland ecosystems, conducting more than 1,000 projects since 2001. Dr. Laska has performed or overseen wetland work and research in over 30 U.S. states, and internationally in Papua New Guinea, Costa Rica, Canada, and China.

Dr. Laska has delivered over 60 presentations on wetland damages, restoration, design, and mitigation at events around the world, including for the Society for Ecological Restoration, the National Mitigation and Ecosystem Banking Conference, Society for Toxicology and Chemistry, Wildlife Habitat Council, and Law Seminars International. He regularly presents to college students at his undergraduate alma mater, University of Colorado, Boulder, and at other universities around the country on ecological restoration, including designing and restoring highly functional wetland systems within rural and urban environments. Dr. Laska has authored or co-authored more than a dozen peer-reviewed papers and book chapters focused on, or with a nexus to, wetland restoration and mitigation. He has also authored numerous popular articles related to wetland functionality, restoration, and mitigation.

Dr. Laska brings implementable solutions to complicated ecological problems in wetland and coastal estuary systems. His projects have resulted in over 100,000 acres of wetlands that have been evaluated, created, enhanced, restored, or protected. A wide diversity of clients and projects has solidified his reputation as a fair scientist and impartial advocate.

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3

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
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

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
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

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
Author
Rebecca Kihslinger - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
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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.