I've assembled a non-exhaustive, non-representative sample of stories in the ecosystem services world (broadly defined) from this year that promise to be important in 2014. Here they are - what are yours?
2013 was a year chock full of hotspots of ecosystem services projects and controversy - like the debates in the UK over the country's new habitat mitigation market - but among them, Louisiana stands out. Dubbed "the Himalayas of ecosystem services," there's been more than enough to report on there. There's the very beginnings of RESTORE Act implementation, for starters. The Act will take all the cash BP gets fined in its civil trial and put it towards comprehensive wetland restoration and sediment diversion projects across the Gulf. It's a windfall for the region, and state agencies and conservationists there want to spend the money wisely, knowing what they get for their investment. They've written a raft of plans on how to proceed, and ES feature prominently as the objects of concern and the measures ($ and otherwise) of success. We'll see more projects coming online in 2014 and begin to see their effectiveness.
Speaking of BP's ongoing civil trial, there've been lawsuits left and right in Louisiana this year that revolve around what's the best way to do coastal restoration and who's to blame for the mess of wetland loss. As arguments came to their final stage in BP's ongoing civil trial, the southeastern Louisiana levee board that was created after Katrina to deal with systemic wetland loss in the area drew on some arcane French-era law on levees to launch a multi-billion dollar lawsuit against oil/gas companies for the part their canals have played in destroying wetlands. That drew the outrage of the state's Coastal Protection and Restoration Authority, who says, no, the Army Corps of Engineers and their levees on the Mississippi are to blame. Gov. Jindal had John Barry - the levee board member who advocated for the lawsuit - sacked while CPRA went ahead with its own lawsuit against the corps. The different lawsuits are not just indicative of differing opinions of who's to blame - the corps or the resource extraction industry - but of what's the best way to do restoration: fill in old oil/gas canals, or breach levees to divert sediment to form new land?
If billion dollar plans and lawsuits weren't enough, New Orleans was named one of the Rockefeller Foundation's 100 resilient cities. NOLA will get a "Chief Resilience Officer" funded by Rockefeller and the city will also be the test site for some new software made by the same company that makes data mining tools for the CIA that will help the new CRO figure out what investments in resilience will be most likely to payoff.
In fact, this year we learned that about half of all federal spending that could be defined as related to ES is on tools for mapping, monitoring, and modelling ES. In the Gulf (and for several other places around the world), The Nature Conservancy and partners have put together a slick interactive tool that lets users visualize different investment options for restoration. ES monitoring is moving to automation at the same time that folks are figuring out how to build new maps and models. The Forest Service runs several experimental "smart forests" that collect lots of data on many different environmental indicators, and they (and many other resource agencies) are also (infamously) exploring the use of drone technology to manage forest fires. There's a growing number of tools for measuring and managing ES, and these tools have become fundamental to the ES paradigm (see a great special issue on them in the new journal Ecosystem Services here). Watch for new efforts at big data analysis and ES in the coming year.
2013 saw yet more institutions organizing business and government around seeing environmental degradation as a matter of nature's benefits not having an economic value. That's not to say these new fora and panels actually did anything about the very issues on which they pontificated. I'm thinking here about November's first World Forum on Natural Capital, which was essentially more a feel-good pep talk for corporate leaders and less a hashing out of actionable tasks. It didn't go uncontested and in 2014 we should expect to see the same sort of opposition that we've see for carbon as business leaders aim to price any and all other ES. In December, the new Intergovernmental Panel on Biodiversity and Ecosystem Services convened in Turkey to finalize their first work plan. It's been years in the making and we'll see in 2014 how it starts to get implemented.
The story that most fell under the radar this year was the White House's executive order on climate change adaptation and resilience. This year, about 30 federal agencies developed their first-ever set of plans for how they intend to respond to climate change in their operations and outreach. The EO goes a step further and calls on all agencies to revamp their programs to make it easier to fund projects that are meant to support resilience, for agencies like Interior to manage their lands for resilience, for agencies to develop data and tools for recognizing resilience, and for agencies to plan for climate change risk. All these have the potential to be driving significant work in the coming year and beyond.
The story that wasn't was the US Supreme Court's ruling that appears to constrain regulators' flexibility in determining appropriate compensation for wetland and stream impacts under the Clean Water Act. It's not yet clear whether it'll actually turn out to be problematic. Meanwhile, EPA and ACOE are finally getting around to clarifying what wetlands and streams are within their ambit, a move that environmentalists have long fought for in the legislative sphere. As the draft guidance currently stands, it could bring in millions of dollars more in compensation work yearly because it expands what counts as a water of the US.
The single best piece out there this year on ES was Paul Voosen's history of ES as told through Gretchen Daily, Peter Kareiva, and Michael Soule. He does a brillant job showing how even if it looks like it from 30,000 feet not every conservationist is on board with the project of valuing nature, and he ties this in with an on the ground look at ES "modelling sausage." If you haven't read it yet, go do it now. The runner-up is SciAm's recent piece characterizing the paradigms and debates in wetland restoration today, with a major focus on differing opinions on how to do work in the Gulf.
So what did I miss?
Showing posts with label regulation. Show all posts
Showing posts with label regulation. Show all posts
Tuesday, December 31, 2013
Tuesday, October 8, 2013
Scaling up? Difficulties in the prioritization, selection, and evaluation of restoration sites for Oregon's ecosystem services market
I gave a talk today at the World Conference on Ecological Restoration here in Madison, WI. It's a take on how restoration sites in the Oregon wetland mitigation market are planned for, chosen, and evaluated, and ends with a discussion of what the case may suggest for other markets. It's something I've addressed in other ways, to other audiences, here, here and here. Oh, and here and here, too! My argument in the talk is that efforts to concentrate on watershed needs and processes may not be so easily implemented when it comes to mitigation markets, though that's likely to differ from region to region. Below you can find the slides and text.
Scaling up? SER 2013 presentation - Eric Nost from ericnost
Thanks for coming. I’ll be sharing just a slice of some recent research which is part of a larger NSF-funded project on stream mitigation banking here in the US.
The message I hope yall can take home today is this: efforts to concentrate on watershed needs and processes in ensuring greater ecological returns from restoration may not be so easily implemented when it comes to mitigation markets. Outcomes are likely to differ from region to region, however. PES promoters regularly call for spatially-explicit approaches to restoration, but on the ground their efforts run into resistance from the entrepreneurs at the heart of these markets. Their concerns are both economic and ecological.
I’ll make the argument by taking us through how restoration sites in the Oregon market are planned for, chosen, and evaluated, ending with a discussion of what the case may suggest for other markets.
We’ll start here. Welcome to the HML restoration site in exurban PDX.
It’s one site in a regional market for aquatic ecosystem services, providing several. The wetland you see stores and delays water, for instance, mitigating flood impacts for downstream homes.
The stream, OTOH, provides habitat for salmon that migrate into the foothills of the Coast Range.
And so on January 25, 2012, the Oregon Department of State Lands (DSL) authorized the sale of mitigation credits representing this salmon habitat to the Tualatin Hills Parks and Recreation Department (THPRD). Now, it’s absolutely worth taking just a second to make sure we’re on the same page about how mitigation markets work. In US markets for wetland and stream ecosystems, federal environmental regulatory agencies – ACOE, EPA, in conjunction with state agencies like DSL - permit developers to compensate for unavoidable resource degradation by paying entrepreneurs (or, “mitigation bankers”) who speculatively restore ecosystems. At HML, DSL is the banker, but usually it is private industry.
DSL did not sell the Half Mile Lane (HML) property itself to THPRD. Instead, it sold credits - measures of both the quality and quantity of habitat created after the agency replaced a culvert and performed other restoration there.
THPRD wanted these credits so it could tell regulators that it had adequately compensated for a trail bridge it is building that will degrade habitat elsewhere in the watershed.
The idea is to ensure some kind/degree of equivalence between resource impact and resource restored, in order to accomplish a no net loss of function and acreage. This is the art and science of assessment.
HML is operated by DSL, but it is a testing grounds for the WP, TNC and other cons developing what they see as more rigorous assessment methods and protocols for Oregon’s market and beyond. HML embodies 3 big moves in market-based environmental governance. While it’d be nice to go through all of them, given the growing number of calls for watershed approaches to how sites are chosen and evaluated - here at the conference, for instance - I want to focus on this last point. We can chat later about any of them.
Indeed, mapping and modelling landscape interactions at existing and possible restoration sites is increasingly recognized as an important component of site evaluation. The idea is that a site like HML’s ES are spatially dependent, or contextual - relative to what’s going on up and down the watershed. Think of it like this: if you restore a wetland in the middle of nowhere and no one’s around to benefit from how it retains flood waters, does it provide an ES? For many, the answer is no.
The international think-tank for ecosystem services accounting, TEEB, for instance, note that the specific provision of services depends on the site. The work of the wetland at HML to store and delay water matters because there are homes in the 100 year floodplain downstream that benefit.
Cons bio and head of NCP, Gretchen Daily concurs. She calls for focusing on the right places in the landscape that leverage high ecological returns on investments.
HML’s position, for instance, allows it to slow down and cycle the increased runoff from logging, quarrying operations.
Such calls from conservationists have in fact made it into policy. In 2008, ACOE and EPA put out a new rulemaking formalizing many aspects of the mitigation market nationally. The rule called for states and regions to implement strategic approaches to restoration siting, rather than sites being chosen opportunistically, in reference to cost or availability or interest..
And to bring it back to DSL, the value of a wetland means its opportunity to provide an ecological function/service based on where it is.
So not only is landscape ecological assessment and prioritization on the minds of conservationists and of official interest to the feds, it’s central to DSL, and in the rules in OR. But it’s one thing to be on the books and another to be in force on the ground. The question is: how does restoration siting actually play out in OR?
There are three moments to it, but they are moments that put the interests of regs and cons against those of private entrepreneurs. In the short-term, at least, entrepreneurs’ work is made difficult in 3 ways by regs and cons’ new metrics and approaches. In the rest of this talk I’ll walk us through these 3 moments and 3 difficulties to siting.
In the first moment, ecologically-trained consultants to bankers work in the office with several online mapping utilities to gage how ecological processes occur across the landscape and affect the site where bankers have chosen to do restoration.
Here’s one of the key mapping utilities consultants use, called Oregon Explorer. Hydric soils are the orange/yellow, but we also see the 100 year floodplain downstream of the HML. Consultants have to answer questions about landscape context by using OE to, for instance, draw a 2 mile radius circle around the site to see how many other similar habitats the site is connected to in the area, or what sources of ecological stress are nearby, like the quarry. The key point here is that the assessment of a banker’s site is relational to the site’s surroundings – but these are things which the banker has no or little control over.
Whatever their score, bankers then have to take their numbers to the agencies and staff judge the offsite stressors and risks consultants find in their assessment, approving, modifying, or denying an entrepreneur’s choice of where to do restoration.
Agencies also categorize wetlands. Some kinds of wetlands in the landscape mosaic are more market-worthy than others. For instance, DSL has written farmed floodplain wetland sites off the map in a recent rule. Based on a series of reports on long-term success and failure, DSL doesn’t think they restore a lot of the storm water retention services that the wetlands in urban areas - where the majority of impacts are - provide. They didn’t meet watershed needs. In the rule, a farmed wetland is seen as not hydrologically degraded and so restoring it wouldn’t bring back hydrological functions. Bankers disagree on ecological grounds: these kinds of wetlands have been tilled, tiled, and plowed. They think those are precisely the sites that need to be restored in the landscape.
Now, when bankers finally do get their bank approved, they get credits to sell. What non-profit conservationists want to see happen in the market is that when a banker brings a site to the market, the amount of credits they can sell would depend in large part on the location of their project.
These are “priority areas” - habitat sites mapped by state environmental agencies, and collated by TNC.
The idea is that if they were doing restoration in a priority area bankers would get the full amount of credits they normally would and receive less if they were not in a priority area. But potentially restorable properties in priority areas are on average slightly more expensive than elsewhere, and this could cut into bankers’ profits. Perhaps more crucially, it drastically cuts into their potential range of sites to choose from, when finding a site tends to be more luck than anything anyway. And bankers also wonder how priority areas were chosen, often noting that their sites have plenty to offer as important.
The point is that this sort of watershed plan, something called for in the 2008 federal rule, makes some places obviously more valuable than others to do restoration, and that’s a big shift. It may make the market more like any other traditional market, but now working outside a priority may not earn bankers as many credits as it would have. To be clear, this isn’t yet implemented, but it’s very much on the table because of the federal rule.
So we can start wrapping up. We can pull out 3 points of difficulty in the market:
1) The priorities aren’t necessarily what bankers see as priorities, and even the idea of prioritizing is limiting, at least right now, in comparison with current practice.
2 The categorization of wetlands in the landscape isn’t how bankers would address watershed needs..
3)They’re asked to account for offsite processes they have little control over
Because of all this, bankers are hesitant about starting new projects. No private entrepreneur has done a project with the new landscape focused metrics and rules yet.
But this isn’t simply because bankers don’t get the gospel of landscape ecology. Bankers’ considerations are both economic and ecological - it’s sometimes bad for business, sometimes not what they see as the right ecological priority. So how have regs and cons been able to put forth such a strong vision of their own in the first place? Markets around the country vary and a lot of discretion about which watershed plans to choose and metrics to use is left to regional, district, or state staff. In a place like OR, with strong institutional momentum behind planning/zoning, regulators are more willing to make and point at maps and say, do resto here. With better data collection and availability, they’re also just more able to. Regs and cons’ ability to come out with a strong plan very much reflects the Oregon context..
The conclusion to takeaway is that in spite of calls from TEEB, Gretchen Daily, and others, efforts on the ground to improve the assessment and consideration of watershed/landscape needs in restoration run into resistance when implemented in restoration markets. The causes stem from both differing economic and ecological viewpoints, but this resistance will differ from place to place. What’s implied is that in some places, there may be other approaches to addressing watershed needs within a compensatory mitigation framework that are more effective than relying on private entrepreneurs, who have economic and ecological hesitations. We don’t have to look any further than HML - DSL’s own bank - for an example, and similar approaches exist nationally. But that’s going to have to be the topic of another talk.
Wednesday, September 4, 2013
A look at RESTORE Act implementation
What would you do if you had about a billion dollars for ecological restoration?
That's exactly what the Gulf Coast Ecosystem Restoration Council (or, Council) is trying to figure out. That's no easy task given that the Council is a powerhouse, high-level government entity composed of the five Gulf Coast governors and six executive branch Cabinet members (think secretaries of Agriculture, Interior, Homeland Security, Commerce, EPA administrator, etc.)The Council came into being when President Obama signed the RESTORE Act last year. That Act put 80% of the Clean Water Act fines BP and Transocean are going to pay for the 2010 Deepwater Horizon spill into the hands of the Council. It's the largest pot of money for restoration in the US ever.
Question is, how do you even go about spending that much money in a time when any sort of surplus in government hands seems like the work of a divine hand, and so usually gets cannibalized in the ritual sacrifices that follow? [Update: the sequester is already taking a 5% toll on RESTORE Act funds] Well, this Council has a comprehensive plan. More accurately, as of late last week the Council has put out their initial comprehensive plan that describes the principles for how it will distribute money to various Gulf Coast restoration projects and programs. I had the chance to read it; here are my initial reactions:
1. "The decisions made pursuant to the Plan will be based on the best available science, and this Plan will evolve over time to incorporate new science, information, and changing conditions. The Council will coordinate with the scientific community to improve decision-making." (5)It's a living, breathing document. It's meant to change over time, as funding levels and priorities change, but also with new science. Whether scientists can tell them what they want or need to hear, is of course another question.
2. No one actually knows how much money there is, since so much of it is tied to pending litigation. The number could go up past 10 billion when BP pays up.
3. The plan doesn't actually spell out how the Council will fund anything, nor what it would most like to fund. A funding strategy and priorities list come later.
4. "Storm risk, land loss, depletion of natural resources, compromised water quality and quantity, and sea-level rise are imperiling coastal communities’ natural defenses and ability to respond to natural and man-made disruptions." (4) It's clear that the Council sees ecosystem health as fundamental to community health, though no necessarily vice versa, and that this means a weaker ability to adapt to future climate and other disasters.
5. Scientists do seem to have gotten across the point that restoring species alone, on postage-stamp size sites is not the best approach to restoration. "The Council recognizes that upland, estuarine, and marine habitats are intrinsically connected, and will promote ecosystem-based and landscape-scale restoration without regard to geographic location within the Gulf Coast region." The planners apparently see themselves as immune to geographic bias and politics, and there's some good landscape ecology here.
6. It only comes up once, but it's unclear what the role of the private sector is here. However, much ado is made about coordinating with other efforts, in general: "The Council will encourage partnerships and welcome additional public and private financial and technical support to maximize outcomes and impacts. Such partnerships will add value through integration of public and private sector skills, knowledge, and expertise" (7) There are a growing number of voluntary restoration projects in the works, not to mention talk of linking up with California's cap and trade scheme for wetland blue carbon credits, and how to coordinate these market sector activities with a federal plan will be worth watching.
7. You don't spend a billion dollars and not have anything to show for it. "The Council recognizes the importance of measuring outcomes and impacts in order to achieve tangible results and ensure that funds are invested in a meaningful way." (7) There's an opening here for ecosystem services accounting, but we'll have to wait and see.
8. The money quote from the whole thing is the Council's definition of ecosystem restoration. That's kinda what they're about anyway:
"All activities, projects, methods, and procedures appropriate to enhance the health and resilience of the Gulf Coast ecosystem, as measured in terms of the physical, biological, or chemical properties of the ecosystem, or the services it provides, and to strengthen its ability to support the diverse economies, communities, and cultures of the region. It includes activity that initiates or accelerates the recovery of an ecosystem with respect to its health, integrity, and sustainability. It also includes protecting and conserving ecosystems so they can continue to reduce impacts from tropical storms and other disasters, support robust economies, and assist in mitigating and adapting to the impacts of climate change (per Executive Order 13554)."
There's a lot going on here! What is restoration? Well, it's not just bulldozers and backhoes, it's methods and procedures. In other words, it's science and technical expertise just as much as it is new wetlands. Watch for this to become controversial, with conservationists claiming that not enough money is being spent on the ground in actual projects. What's the goal? Health, resilience, and mitigation of climate impacts. It's not clear to me that there isn't potentially a huge tradeoff between the ecosystem health and ability to mitigate climate impacts, but we'll see. How do you get there? You initiate or accelerate recover, or you protect and conserve. And finally, how do you measure it all? Straight out of the CWA, it's physical, biological, or chemical properties. Or, ecosystem services.
9. The last point is, again, the Council won't be just drawing on existing marine and wetland science, and they won't just be incorporating the best available science as it hits the presses, they're producing it. The sense is that there's a lot yet to figure out yet in the planning, technical assistance, and implementation phases of restoration, and that the Council is more than ready to dish out money to "evaluation and establishment of monitoring requirements and methods to report outcomes and impacts; and measurement, evaluation, and reporting of outcomes and impacts of restoration activities." (15) The question will be, what kind of science is the Council interested in funding?
That's exactly what the Gulf Coast Ecosystem Restoration Council (or, Council) is trying to figure out. That's no easy task given that the Council is a powerhouse, high-level government entity composed of the five Gulf Coast governors and six executive branch Cabinet members (think secretaries of Agriculture, Interior, Homeland Security, Commerce, EPA administrator, etc.)The Council came into being when President Obama signed the RESTORE Act last year. That Act put 80% of the Clean Water Act fines BP and Transocean are going to pay for the 2010 Deepwater Horizon spill into the hands of the Council. It's the largest pot of money for restoration in the US ever.
Question is, how do you even go about spending that much money in a time when any sort of surplus in government hands seems like the work of a divine hand, and so usually gets cannibalized in the ritual sacrifices that follow? [Update: the sequester is already taking a 5% toll on RESTORE Act funds] Well, this Council has a comprehensive plan. More accurately, as of late last week the Council has put out their initial comprehensive plan that describes the principles for how it will distribute money to various Gulf Coast restoration projects and programs. I had the chance to read it; here are my initial reactions:
1. "The decisions made pursuant to the Plan will be based on the best available science, and this Plan will evolve over time to incorporate new science, information, and changing conditions. The Council will coordinate with the scientific community to improve decision-making." (5)It's a living, breathing document. It's meant to change over time, as funding levels and priorities change, but also with new science. Whether scientists can tell them what they want or need to hear, is of course another question.
2. No one actually knows how much money there is, since so much of it is tied to pending litigation. The number could go up past 10 billion when BP pays up.
3. The plan doesn't actually spell out how the Council will fund anything, nor what it would most like to fund. A funding strategy and priorities list come later.
4. "Storm risk, land loss, depletion of natural resources, compromised water quality and quantity, and sea-level rise are imperiling coastal communities’ natural defenses and ability to respond to natural and man-made disruptions." (4) It's clear that the Council sees ecosystem health as fundamental to community health, though no necessarily vice versa, and that this means a weaker ability to adapt to future climate and other disasters.
5. Scientists do seem to have gotten across the point that restoring species alone, on postage-stamp size sites is not the best approach to restoration. "The Council recognizes that upland, estuarine, and marine habitats are intrinsically connected, and will promote ecosystem-based and landscape-scale restoration without regard to geographic location within the Gulf Coast region." The planners apparently see themselves as immune to geographic bias and politics, and there's some good landscape ecology here.
6. It only comes up once, but it's unclear what the role of the private sector is here. However, much ado is made about coordinating with other efforts, in general: "The Council will encourage partnerships and welcome additional public and private financial and technical support to maximize outcomes and impacts. Such partnerships will add value through integration of public and private sector skills, knowledge, and expertise" (7) There are a growing number of voluntary restoration projects in the works, not to mention talk of linking up with California's cap and trade scheme for wetland blue carbon credits, and how to coordinate these market sector activities with a federal plan will be worth watching.
7. You don't spend a billion dollars and not have anything to show for it. "The Council recognizes the importance of measuring outcomes and impacts in order to achieve tangible results and ensure that funds are invested in a meaningful way." (7) There's an opening here for ecosystem services accounting, but we'll have to wait and see.
8. The money quote from the whole thing is the Council's definition of ecosystem restoration. That's kinda what they're about anyway:
"All activities, projects, methods, and procedures appropriate to enhance the health and resilience of the Gulf Coast ecosystem, as measured in terms of the physical, biological, or chemical properties of the ecosystem, or the services it provides, and to strengthen its ability to support the diverse economies, communities, and cultures of the region. It includes activity that initiates or accelerates the recovery of an ecosystem with respect to its health, integrity, and sustainability. It also includes protecting and conserving ecosystems so they can continue to reduce impacts from tropical storms and other disasters, support robust economies, and assist in mitigating and adapting to the impacts of climate change (per Executive Order 13554)."
There's a lot going on here! What is restoration? Well, it's not just bulldozers and backhoes, it's methods and procedures. In other words, it's science and technical expertise just as much as it is new wetlands. Watch for this to become controversial, with conservationists claiming that not enough money is being spent on the ground in actual projects. What's the goal? Health, resilience, and mitigation of climate impacts. It's not clear to me that there isn't potentially a huge tradeoff between the ecosystem health and ability to mitigate climate impacts, but we'll see. How do you get there? You initiate or accelerate recover, or you protect and conserve. And finally, how do you measure it all? Straight out of the CWA, it's physical, biological, or chemical properties. Or, ecosystem services.
9. The last point is, again, the Council won't be just drawing on existing marine and wetland science, and they won't just be incorporating the best available science as it hits the presses, they're producing it. The sense is that there's a lot yet to figure out yet in the planning, technical assistance, and implementation phases of restoration, and that the Council is more than ready to dish out money to "evaluation and establishment of monitoring requirements and methods to report outcomes and impacts; and measurement, evaluation, and reporting of outcomes and impacts of restoration activities." (15) The question will be, what kind of science is the Council interested in funding?
Friday, June 28, 2013
Restoring climatized ecosystem services for the market: Part 2
In my earlier post I asked whether and how regulators might respond to the effects of climate change by changing how they ask industry to do environmental restoration as compensation. This week's events provide a good opportunity to follow-up briefly:
1. Obama's climate speech. Not only was this the biggest occasion upon which he's said anything about his plans for mitigating climate change, he also laid out a strategy for responding to the effects. The point? Adaptation is finally on the table in a big way at the federal level.
2. The SCOTUS ruling on Koontz. You can find good analyses here, there, and over yonder. In short, the case was about a landowner who wanted to turn some wetlands into a shopping mall (sound familiar?), but the local authorities wanted him to dump some cash into area conservation efforts as a condition of him paving those wetlands over. The court was unclear on the merits of this specific case, but ruled that asking for money can constitute an unconstitutional taking of property. At any rate, the points to keep in mind here are: 1. the impact on existing wetland and stream compensation practice is uncertain; time will tell; 2. As Kagan argued in her dissent - and which others have duly noted - part of this uncertainty means that that local regulators will be hesitant to condition developers' permits for fear of litigation. Given that most interest in adapting to "climatized" ecosystem services in the US so far has come from local level action, what we might see then is local regulators less willing/able to ask developers to do forms of restoration or compensation that are more than they would otherwise get away with asking for. Concretely: if Local Water Management District X were to say to Developer Y that climate change could mean Y's postage-stamp wetland restoration will fail and so it should pay into an area-wide restoration fund, does it have a takings claim on the basis that such predictions about the effects of future climate change on one particular parcel are uncertain and therefore excessive? Here again we raise the question of how science can and will interface with law.
So, to put this week's two big environmental law new stories side by side, let's ask: if the feds are getting serious about climate planning, to what extent can they see and account for what so many claim is at the core of a changing climate (and ecosystem services) - localized hydrological impacts?
1. Obama's climate speech. Not only was this the biggest occasion upon which he's said anything about his plans for mitigating climate change, he also laid out a strategy for responding to the effects. The point? Adaptation is finally on the table in a big way at the federal level.
2. The SCOTUS ruling on Koontz. You can find good analyses here, there, and over yonder. In short, the case was about a landowner who wanted to turn some wetlands into a shopping mall (sound familiar?), but the local authorities wanted him to dump some cash into area conservation efforts as a condition of him paving those wetlands over. The court was unclear on the merits of this specific case, but ruled that asking for money can constitute an unconstitutional taking of property. At any rate, the points to keep in mind here are: 1. the impact on existing wetland and stream compensation practice is uncertain; time will tell; 2. As Kagan argued in her dissent - and which others have duly noted - part of this uncertainty means that that local regulators will be hesitant to condition developers' permits for fear of litigation. Given that most interest in adapting to "climatized" ecosystem services in the US so far has come from local level action, what we might see then is local regulators less willing/able to ask developers to do forms of restoration or compensation that are more than they would otherwise get away with asking for. Concretely: if Local Water Management District X were to say to Developer Y that climate change could mean Y's postage-stamp wetland restoration will fail and so it should pay into an area-wide restoration fund, does it have a takings claim on the basis that such predictions about the effects of future climate change on one particular parcel are uncertain and therefore excessive? Here again we raise the question of how science can and will interface with law.
So, to put this week's two big environmental law new stories side by side, let's ask: if the feds are getting serious about climate planning, to what extent can they see and account for what so many claim is at the core of a changing climate (and ecosystem services) - localized hydrological impacts?
Thursday, March 28, 2013
Restoring climatized ecosystem services for the market: Part 1
In the foothills of the Cascades in western Oregon, a landowner contracts with a local firm that will restore a stream that runs through her property. Among other things, they'll plant trees to shade the stream during those cloudless Oregon summer days and the restoration company will throw some logs in there to create habitat for salmon and other creatures. The trees might take 20 years to grow to the point where they're really shading the stream, but the logs will work more quickly. The landowner restores the stream with the help of payments from a local water utility that is under state and federal pressure to mitigate for the impact its effluent has on stream temperature, and consequently the salmon that like the water cool.
All the while, snowmelt from the Cascades is becoming more erratic and there's less of it, both of which spell trouble for the salmon. Because the snow has melted earlier in spring, the fall low stream flows are inching their way closer to the high temperatures of summer. The trees might cool things down a bit, but they won't be very tall for several more years. The trees may also soak up carbon dioxide and mitigate climate change in the first place, but what are 600 stems going to do for this particular watershed? These ecosystem services are what I call climatized. In short, this one attempt - on the part of a landowner and regulators - to deal with a local water temperature issue is confounded by the regionalized effects of climate change at the same time that the effort has the possibility to be part of a global solution.
 |
| Salmon are a big deal in Oregon |
There is certainly a literature on climate change, ecosystem services, restoration. I want to pull out three key points: 1) we really don't know how successful restoration is at developing ecosystem function; 2) changing climates will intensify ecosystem processes and make them more variable, dynamic; 3) climate change is global, but its effects are variegated - some places will fare better than others.
The question is how regulators like those in the scenario can deal with this. For starters, stream services - be it water temperature regulation, surface water storage, or sediment transport - are going to change over time as increased rainfall intensity and shifts in snowmelt timings and quantity reshape streams. In markets or payment schemes for stream restoration - where a landowner like the one we opened with gets paid by a local water utility - what happens when the service the landowner was supposed to provide no longer exists or does not function in the same way anymore because drought and higher temperatures killed off her trees? Can regulators practice adaptive management - going back and revisiting restoration projects and ask land managers to adapt them to the climate du jour? Or can regulators ask for "future-proof" designs that are meant to be resilient over time?
 |
| Newly planted trees at a stream restoration project that provides temperature offsets. |
In the no camp, I only want to point out that any sort of planning for future ecological conditions always presents a challenge because it leaves agencies open to litigation from those who will say, "you can't ask us to do that." In much the same way that agencies are more or less limited in what offsite factors - think upstream sedimentation - they can ask restorationists to account for, they will be constrained in asking land managers to think about the future. These markets are mitigation markets, where restorationists are supposed to provide "ecological uplift" in a similar kind and degree of impact elsewhere, like when a landowner plants riparian trees to cool streams that have been warmed by effluent from a municipal wastewater plant. And so as long as the landowner can cool the same amount of kcals/day of water that the plant is adding to the system, they are ok. Whether they also provide salmon habitat, refugia for climate affected species, etc., is another question. Subsidy payment schemes may have different, potentially more encompassing, criteria. Moreover, as practitioners know, incorporating "ecosystem services" into official regulatory practice is not an easy project. It's not a straightforward term, and it's not in any statute, and it can become another thing restorationists would point to and say, "what is that and why do we have to do it?"
What it all comes back to is that already existing markets in ecosystem services may or may not be responsive to climate change. At this point, you might be thinking, "this sounds like a lot of 'depends'!" That's my point. The ways that regulators are going to respond to climate effects in markets for streams, wetlands, species, etc. is going to depend on: 1) what level of government they're working in. Federal authorities may have powers that local governments don't - and vice versa; 2) it'll depend on where they're working - Oregon environmental agencies have had different institutional responses to emerging issues like climate than, say, Texas. I'll take up this spatial/scalar unevenness of regulation in more detail in my next post.
Sunday, July 15, 2012
Lucky lizards: the Texas Conservation Plan
In a previous post, I talked about how landmanagers and developers can now trade USFWS-certified credits representing the conservation of threatened, but not yet ESA-listed, species habitat. I gave a fictional example of a southern Oregon farmer, John Johnson, getting credit for planting habitat for the red-bearded Jackson County song lark. I pointed to a recent FWS rule allowing for these sorts of schemes, but beyond the tale of Farmer John and some related Clean Water Act-focused pre-compliance mitigation projects, I was in short supply of real world examples.
Then I heard about Texas's Dune Sagebrush Lizard (DSL). I'm trying to sift through a recent report from Ecosystem Marketplace on efforts to protect the DSL before the FWS lists it. About a year ago, the Texas Legislature authorized the Comptroller of Public Accounts to establish and oversee pre-compliance species habitat conservation programs, better known as Candidate Conservation Agreements with Assurances (CCAAs). What the heck is a Comptroller of Public Accounts, you ask? The Comptroller's mission is to "Keep Texas First" by watching and responding to federal regulations that harm Texas businesses. Indeed, the stated goal of the legislation, Senate Bill 1, was to balance conservation with Texas's economic needs, and in the case of the DSL, that means the Texas Oil and Gas Association and ranchers. The TCP's steering committee is more or less stacked with those who have interests in either developing oil and gas wells or raising livestock in the DSL's native habitat.
On behalf of the group, Comptroller Susan Combs wrote in during the public comment period on the TCP. She wrote that listing the DSL - with little science available to justify such a move - would come at the expense of Texas's biggest oil producing region: "I am emphatically against the FWS listing the DSL as an endangered species as there is not yet enough scientific data to support such a determination. We do not yet have baseline population data for the species." Either way, Texas was ready for the feds, and that was the impetus for the TCP: "However, it was absolutely critical that our state be prepared for a possible listing decision for the DSL." Coombs ends by suggesting that the TCP could be a model nationally for FWS.
Ultimately, because of the TCP, FWS decided not to list the DSL as endangered. FWS decided against listing after finding something like 88% of the DSL's habitat, including the energy-rich Permian basin in Texas, would be under some form of protection. Here's how the TCP works: landowners can choose to enroll, confidentially, in the TCP by deciding what practices they would like to do, including managing grazing or removing invasive brush. Indeed, "most of the conservation practices called for in the TCP are already common agricultural practice." Landowners can also drop out at anytime. However, the plan does require oil and gas developers to mitigate for DSL impacts.
This is where the credits come in. Oil and gas companies can contract with landowners to enhance DSL habitat or they can even contribute to species tracking efforts. I'm not sure who goes about making sure that the energy firms' impacts square with what benefits the ranchers bring - measurement and enforcement certainly weren't prominent features in anything I read from the Comptroller. They are in the Plan itself, however, as the Ecosystem Marketplace article's author, Jemma Denny, notes. She draws out some of the big difficulties with the TCP. No one really knows much about what the lizard needs, which gives the TCP steering committee leeway in being loose about what it requires itself to do. First, unlike other species banking schemes, long-term conservation easements aren't required. Second, there really aren't any specific "Conservation Measures" that link up impacts with benefits to ensure no net loss mitigation. No one knows how many lizards can be saved by removing invasive brush or restoring habitat at old drilling pads. Ultimately, the TCP, especially the trading mitigation credits part, is really a shot in the dark.
But here's what I'm bringing it back to: In my previous post on pre-compliance banking I got a little philosophical - I pondered what CCAAs mean for environmental governance. One of the things I noted in particular was that pre-compliance banking didn't really mean regulatory relief for agencies - they'd likely still have to be drawn into verifying some measure of habitat. And those making habitat impacts would still be under some sort of pressure from the feds. To be overly vulgar about it, in pre-compliance banking FWS is still holding a gun to impacters' heads: you've got to comply, ESA listing or no, or take your chances.
After reading up on the DSL, I think my rough conclusions need nuancing. What the TCP shows us about pre-regulatory banking is, in general, that context is important. It matters that the DSL lives in a state where rich energy companies hold a lot of sway and where the state government is distrustful of federal regulation. More specifically, TCP shows us that regulatory relief is always a matter of relief for whom? For the oil and gas companies, for sure, if they can get away with what looks to be a framework for spotty conservation. It's relief even for the FWS, if they don't have to go through the hassle of a listing, and don't care about upholding rigorous conservation measures. Instead, I wonder what developers' and agencies' relief dumps off on to in the end? Whether the lizards can get relief from fracking is the real question.
Then I heard about Texas's Dune Sagebrush Lizard (DSL). I'm trying to sift through a recent report from Ecosystem Marketplace on efforts to protect the DSL before the FWS lists it. About a year ago, the Texas Legislature authorized the Comptroller of Public Accounts to establish and oversee pre-compliance species habitat conservation programs, better known as Candidate Conservation Agreements with Assurances (CCAAs). What the heck is a Comptroller of Public Accounts, you ask? The Comptroller's mission is to "Keep Texas First" by watching and responding to federal regulations that harm Texas businesses. Indeed, the stated goal of the legislation, Senate Bill 1, was to balance conservation with Texas's economic needs, and in the case of the DSL, that means the Texas Oil and Gas Association and ranchers. The TCP's steering committee is more or less stacked with those who have interests in either developing oil and gas wells or raising livestock in the DSL's native habitat.
On behalf of the group, Comptroller Susan Combs wrote in during the public comment period on the TCP. She wrote that listing the DSL - with little science available to justify such a move - would come at the expense of Texas's biggest oil producing region: "I am emphatically against the FWS listing the DSL as an endangered species as there is not yet enough scientific data to support such a determination. We do not yet have baseline population data for the species." Either way, Texas was ready for the feds, and that was the impetus for the TCP: "However, it was absolutely critical that our state be prepared for a possible listing decision for the DSL." Coombs ends by suggesting that the TCP could be a model nationally for FWS.
Ultimately, because of the TCP, FWS decided not to list the DSL as endangered. FWS decided against listing after finding something like 88% of the DSL's habitat, including the energy-rich Permian basin in Texas, would be under some form of protection. Here's how the TCP works: landowners can choose to enroll, confidentially, in the TCP by deciding what practices they would like to do, including managing grazing or removing invasive brush. Indeed, "most of the conservation practices called for in the TCP are already common agricultural practice." Landowners can also drop out at anytime. However, the plan does require oil and gas developers to mitigate for DSL impacts.
This is where the credits come in. Oil and gas companies can contract with landowners to enhance DSL habitat or they can even contribute to species tracking efforts. I'm not sure who goes about making sure that the energy firms' impacts square with what benefits the ranchers bring - measurement and enforcement certainly weren't prominent features in anything I read from the Comptroller. They are in the Plan itself, however, as the Ecosystem Marketplace article's author, Jemma Denny, notes. She draws out some of the big difficulties with the TCP. No one really knows much about what the lizard needs, which gives the TCP steering committee leeway in being loose about what it requires itself to do. First, unlike other species banking schemes, long-term conservation easements aren't required. Second, there really aren't any specific "Conservation Measures" that link up impacts with benefits to ensure no net loss mitigation. No one knows how many lizards can be saved by removing invasive brush or restoring habitat at old drilling pads. Ultimately, the TCP, especially the trading mitigation credits part, is really a shot in the dark.
But here's what I'm bringing it back to: In my previous post on pre-compliance banking I got a little philosophical - I pondered what CCAAs mean for environmental governance. One of the things I noted in particular was that pre-compliance banking didn't really mean regulatory relief for agencies - they'd likely still have to be drawn into verifying some measure of habitat. And those making habitat impacts would still be under some sort of pressure from the feds. To be overly vulgar about it, in pre-compliance banking FWS is still holding a gun to impacters' heads: you've got to comply, ESA listing or no, or take your chances.
After reading up on the DSL, I think my rough conclusions need nuancing. What the TCP shows us about pre-regulatory banking is, in general, that context is important. It matters that the DSL lives in a state where rich energy companies hold a lot of sway and where the state government is distrustful of federal regulation. More specifically, TCP shows us that regulatory relief is always a matter of relief for whom? For the oil and gas companies, for sure, if they can get away with what looks to be a framework for spotty conservation. It's relief even for the FWS, if they don't have to go through the hassle of a listing, and don't care about upholding rigorous conservation measures. Instead, I wonder what developers' and agencies' relief dumps off on to in the end? Whether the lizards can get relief from fracking is the real question.
Sunday, June 10, 2012
Risky business: pre-compliance mitigation in habitat and water quality
Imagine you are a landowner in, say, southwestern Oregon. Turns out that on your land lives the rare red-bearded Jackson County song lark (a bird that I made up. Threatened species always have the best names, don't they? Some folk may be partial to charismatic megafauna, but I'm a fan of what I guess you could call eccentric microspecies.) The bird's not yet regulated under the US Endangered Species Act - it's just a candidate - but it might
be listed soon if the WildEarth Guardians' lawsuit goes through. You're inclined to
protect it anyway and guess what, USFWS is going to let you restore more of its habitat and then sell credits to developers elsewhere who are destroying its habitat.
The basic idea behind the concept of pre-compliance mitigation is to provide land managers with incentives to do conservation and to encourage developers (a name I use generically for anyone making a habitat impact) to fund that work. In a PowerPoint, Alice Appleton from the new-ish USDA Office of Environmental Markets names ESA pre-compliance trading as one of 4 or 5 conservation markets already existing in the US (others being Clean Water Act 404 wetland/stream banking, TMDL water quality trading, listed species banking, and carbon offsets). In the presentation Appleton suggests ecosystem markets like ESA banking can be useful for:
The idea of creating or restoring habitat for endangered species, as one might do with wetlands for wetland mitigation banks, has been around for a while. However, on the ground projects seem to exist only in California, and just recently in Oregon. A lot, but certainly not all, of these seem to be for fish, especially salmon (see especially Salmon Safe and the Willamette Partnership's "tri-fecta" of incentives). Becca Madsen notes that ESA banking is likely to be a top issue for mitigators in 2012 because of Interior's agreement, in the face of lawsuits like the one mentioned above, to list over 200 species - what the New York Times calls the biggest change in ESA enforcement since the early 90s (spotted owl times). Pre-compliance could come out of that court settlement in a large way as developers realize the costs of having to deal with the new listings.
The thought of providing land managers with relief from water quality (nutrients, e.g.) regulation has been around since at least 2005-6, but for all I know, longer. Last summer USDA and EPA drafted a "certainty framework" that outlines what pre-compliance conservation might look like for water quality standards. It's not clear what the main driver would be, though one could guess it would be TMDLs. As with most water quality programs, it's up to the states to figure out specifics. and there are two state-level programs that I've heard of: Minnesota's and Michigan's. Michigan's is older, pre-dating the framework. However, the sense I get of the Michigan program is that it is less about reducing farmers' liabilities from water quality nutrient/temperature/sediment regs like a TMDL as much as it: 1) reduces liabilities from other rules on for instance pesticide handling; 2) is basically a good practices certification program like GAP. Apparently you can also buy a t-shirt with the program's logo. Minnesota's seems to be more of a relief program where farmers get "immunity" from the state's water quality standards by performing certain conservation activities. These activities are not yet set, but technical advisory committees will be forming them soon.
But here's a true point: what's ultimately fascinating about pre-compliance banking is that at the same time it represents some form of "regulatory relief" for develoers, and thus a supposed withdrawal of government from the business of mandating conservation (as it "mandated" firm-specific tech controls on water quality before allowing water quality trading), pre-compliance banking is also a re-assertion of agency involvement. Of course anyone familiar with mitigation in the US knows that it's all about agencies' regulatory drivers. Yet in this case, the regulatory driver doesn't yet exist. The temporal dimension here is key: a new kind of ecosystem governance is emerging that is done on the basis of what might happen in the future. And this uncertainty, I think, is what makes pre-compliance mitigation tricky, for three reasons. First, it involves agency staff in determining what they think would count as mitigation activity and then enforcing the verification of those activities and outcomes. Second, listing a species is a long and unsure process rife with lawsuits and lobbying. Related, and third - as some agency officials argue, the goal of pre-compliance mitigation is to allow trading in credits in habitat for potentially listed species, so that those species ultimately don't have to be listed. But as a developer, does it pay to engage in voluntarily conserving a species that might not actually be listed, especially if other firms buy credits and build up the species population? We might ask the same for farmers' efforts to reduce runoff - won't others improve water quality enough? In the end the question is: what's more risky or worth the time - lobbying to prevent a listing, letting others choose to buy credits, or buying a credit/doing mitigation yourself?
These are the sort of dilemmas that developers, land managers, and agencies will have to answer going forward.
----
Note: This pre-compliance conservation is different, though related, from the similarly named conservation compliance. Conservation compliance is the requirement that farmers take certain measures to prevent soil erosion, protect habitat, save wetlands, etc. in exchange for receiving government subsidies. It's become a cornerstone of debate in this year's Farm Bill - direct subsidies to farms are likely on their way out, replaced by subsidizing crop insurance, but conservation compliance hasn't been attached to insurance subsidies yet. In both pre-compliance conservation and conservation compliance, however, the basic idea is to encourage voluntary conservation. Of course there is always some form of coercion lurking in the background (we'll regulate it soon anyway/do it or you won't get your money...)
The basic idea behind the concept of pre-compliance mitigation is to provide land managers with incentives to do conservation and to encourage developers (a name I use generically for anyone making a habitat impact) to fund that work. In a PowerPoint, Alice Appleton from the new-ish USDA Office of Environmental Markets names ESA pre-compliance trading as one of 4 or 5 conservation markets already existing in the US (others being Clean Water Act 404 wetland/stream banking, TMDL water quality trading, listed species banking, and carbon offsets). In the presentation Appleton suggests ecosystem markets like ESA banking can be useful for:
- Compensating landowners for the ecosystem services they provide on their private lands
- Investing private funds in natural infrastructure
- Reducing societal costs of regulatory compliance
- Encouraging innovation
- Improving the effectiveness of practices
- …bringing real, verifiable conservation to scale
The idea of creating or restoring habitat for endangered species, as one might do with wetlands for wetland mitigation banks, has been around for a while. However, on the ground projects seem to exist only in California, and just recently in Oregon. A lot, but certainly not all, of these seem to be for fish, especially salmon (see especially Salmon Safe and the Willamette Partnership's "tri-fecta" of incentives). Becca Madsen notes that ESA banking is likely to be a top issue for mitigators in 2012 because of Interior's agreement, in the face of lawsuits like the one mentioned above, to list over 200 species - what the New York Times calls the biggest change in ESA enforcement since the early 90s (spotted owl times). Pre-compliance could come out of that court settlement in a large way as developers realize the costs of having to deal with the new listings.
The thought of providing land managers with relief from water quality (nutrients, e.g.) regulation has been around since at least 2005-6, but for all I know, longer. Last summer USDA and EPA drafted a "certainty framework" that outlines what pre-compliance conservation might look like for water quality standards. It's not clear what the main driver would be, though one could guess it would be TMDLs. As with most water quality programs, it's up to the states to figure out specifics. and there are two state-level programs that I've heard of: Minnesota's and Michigan's. Michigan's is older, pre-dating the framework. However, the sense I get of the Michigan program is that it is less about reducing farmers' liabilities from water quality nutrient/temperature/sediment regs like a TMDL as much as it: 1) reduces liabilities from other rules on for instance pesticide handling; 2) is basically a good practices certification program like GAP. Apparently you can also buy a t-shirt with the program's logo. Minnesota's seems to be more of a relief program where farmers get "immunity" from the state's water quality standards by performing certain conservation activities. These activities are not yet set, but technical advisory committees will be forming them soon.
But here's a true point: what's ultimately fascinating about pre-compliance banking is that at the same time it represents some form of "regulatory relief" for develoers, and thus a supposed withdrawal of government from the business of mandating conservation (as it "mandated" firm-specific tech controls on water quality before allowing water quality trading), pre-compliance banking is also a re-assertion of agency involvement. Of course anyone familiar with mitigation in the US knows that it's all about agencies' regulatory drivers. Yet in this case, the regulatory driver doesn't yet exist. The temporal dimension here is key: a new kind of ecosystem governance is emerging that is done on the basis of what might happen in the future. And this uncertainty, I think, is what makes pre-compliance mitigation tricky, for three reasons. First, it involves agency staff in determining what they think would count as mitigation activity and then enforcing the verification of those activities and outcomes. Second, listing a species is a long and unsure process rife with lawsuits and lobbying. Related, and third - as some agency officials argue, the goal of pre-compliance mitigation is to allow trading in credits in habitat for potentially listed species, so that those species ultimately don't have to be listed. But as a developer, does it pay to engage in voluntarily conserving a species that might not actually be listed, especially if other firms buy credits and build up the species population? We might ask the same for farmers' efforts to reduce runoff - won't others improve water quality enough? In the end the question is: what's more risky or worth the time - lobbying to prevent a listing, letting others choose to buy credits, or buying a credit/doing mitigation yourself?
These are the sort of dilemmas that developers, land managers, and agencies will have to answer going forward.
----
Note: This pre-compliance conservation is different, though related, from the similarly named conservation compliance. Conservation compliance is the requirement that farmers take certain measures to prevent soil erosion, protect habitat, save wetlands, etc. in exchange for receiving government subsidies. It's become a cornerstone of debate in this year's Farm Bill - direct subsidies to farms are likely on their way out, replaced by subsidizing crop insurance, but conservation compliance hasn't been attached to insurance subsidies yet. In both pre-compliance conservation and conservation compliance, however, the basic idea is to encourage voluntary conservation. Of course there is always some form of coercion lurking in the background (we'll regulate it soon anyway/do it or you won't get your money...)
Subscribe to:
Posts (Atom)