The Trump administration’s plans to remove federal oversight from some streams and wetlands will leave those waterways without protection in some of the Bay watershed states, while increasing the regulatory burden on others, officials and conservationists say . . . .
In-Lieu Fee (ILF) mitigation is one of the three primary mechanisms—along with mitigation banks and permittee responsible mitigation—that permittees can use to satisfy compensatory mitigation requirements. Through an ILF program, a permittee may satisfy their legal obligations under the 2008 Compensatory Mitigation Rule by purchasing credits from the program “sponsor”—a government or non-profit natural resources management entity—who then uses the funds to restore, enhance, or protect wetlands and streams.
Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.
“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”
The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.
“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.
Awardees were recognized for their individual achievements in six categories:
Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.
Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.
Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.
State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.
Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.
Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.
Ramsar Convention event presages 13th conference of parties
Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.
The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”
The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.
Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.
Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.
After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.
The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.
As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.
The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.
Aiding China in coming to grips with country’s excessive pollution
In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.
ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.
Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.
ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.
Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.
Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.
Field Notes: ELI on the scene in flooded Ohio, polluted Gulf
In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.
Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.
In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.
On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.
Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.
A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.
After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.
Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.
To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.
Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.
Latest flock of National Wetlands Awards winners.
For over seven years, ELI’s Gulf of Mexico team has been working to provide information to stakeholders about the restoration and recovery processes put in place after the oil spill. This includes the Gulf Coast Ecosystem Restoration Council founded by the RESTORE Act, which is set to receive almost $1.6 billion.
Last fall, the council announced that it was seeking public comment on a proposal to “approve implementation funding for the Robinson Preserve Wetlands Restoration project” in Florida. If approved, the council will allocate $1.8 million in RESTORE Act funds to implement the project, including a “reallocat[ion of] $470,910 from planning [funds] to implementation.” The project will restore 118 acres of habitat, including coastal upland, wetland, and open water habitats in the Tampa Bay Watershed.
How is the council able to reallocate nearly a half-million dollars in planning costs to implementation activities? The answer lies, in part, in its use of a mechanism intended to make environmental compliance more efficient: “adoption” of an existing environmental review document. When planning funds for the Robinson Preserve project were first allocated in 2015, it was expected that part of those funds would be used for “any needed environmental compliance activities,” including conformity with the National Environmental Policy Act. Since then, the council has identified and is proposing to adopt an existing NEPA document prepared by the project’s sponsor, the National Oceanic and Atmospheric Administration, in 2015: a programmatic environmental impact statement addressing a range of restoration types. If the council’s current proposal is approved, the funds that were originally allocated for planning will be reallocated to implementation.
There are mechanisms available under NEPA to help make the process more efficient, including the adoption of an existing EA or EIS. NEPA allows a federal agency to adopt an existing document (or portion of it), even if prepared by a different agency, “provided that the statement or portion thereof meets the standards for an adequate statement.” In cases where “the actions covered by the original [EIS or EA] and the proposed action are substantially the same,” the agency is not required to recirculate the document for comment prior to adopting it as final.
Here, the council notes that “NOAA has determined that the specific implementation activities for which funding is being sought [for the Robinson Preserve project] are fully covered by [the existing] programmatic EIS, and therefore no further NEPA review would be needed.” If the current proposal is approved, the project can be implemented on an expedited basis and there will be additional money available for on-the-ground restoration activities.
This is not the first time the council has adopted existing NEPA documents to expedite implementation of a restoration project. Earlier this year, the council announced that it approved implementation funding for the Palm River Restoration Project in Florida, including the reallocation of $87,750 from planning to implementation. To do so, council staff worked with EPA, the Corps of Engineers, and the state of Florida “to identify an existing EA and associated environmental compliance documentation that could be used to support council approval of implementation funding for Palm River.”
The corps had prepared the existing documentation when it issued a general permit for aquatic habitat restoration, establishment, and enhancement activities. The council similarly adopted an existing EA to expedite and increase implementation funding for its 2016 Apalachicola Bay Oyster Project.
As the pace of restoration in the gulf increases in the coming years, there are likely to be further opportunities for the council and other restoration programs (e.g., the natural resource damage assessment process) to identify existing NEPA documents that satisfy compliance requirements in whole or in part. This could lead to expediting restoration projects and possibly directing more funds to restoration implementation.
ELI’s Gulf of Mexico team has released two papers related to expediting restoration projects: “Fast-Tracking ‘Good’ Restoration Projects in the Gulf of Mexico” (February 2017) and “Fast-Tracking Restoration: Addressing Resource Constraints in Federal Agencies” (December 2017). We are continuing to work on this issue in 2018 and hope to further contribute to the dialogue on this important topic.
More bog for the buck.
Conservationists honored with Wetlands Awards.
ELI is a leader in research and capacity building in the area of in-lieu fee mitigation. This page contains resources from past ELI reports, webinars, and workshops on in-lieu fee mitigation. Check back for updates on upcoming webinars and reports. Click here to return to the Wetland's Program homepage.
Improving In-Lieu Fee Program Implementation Guides
Since 1993, FEMA’s Hazard Mitigation Grant Program has funded the acquisition of over 55,000 flood-damaged properties. Under FEMA’s acquisition programs, once properties are purchased following a disaster, existing structures must be removed and the land must be dedicated to open space, recreational, or wetland management uses. These properties can offer opportunities to restore and permanently protect natural habitats and help conserve biodiversity, while also providing community amenities and improving resilience.
Paris Agreement: ELI presidents attend historic climate summit to participate in side events embracing legal aspects to accord
ELI presidents at Paris side events to promote legal aspects.