manifesto

Not surprisingly, with a new Governor in office in California and the essentially dysfunctional condition of the State government that Jerry Brown has just inherited, there's a lot of speculation about change. A lot of the early attention will of course be focused on fiscal matters. A little later, there are some things related to environmental regulatory policy that could be revisited as well. Today I'll throw a few ideas out there to start, and will probably revisit this from time to time.

California led the nation in imposing strict environmental regulation. The downside of that is that being among the first, we didn't get a few things quite right because we were breaking new ground. There's also a matter of timing: Many of the regs were written in the 1970s, when a command-and-control approach was standard. That's shifted over time. Especially over the last few years, there's been a lot of talk at the federal level about communication and collaboration, among agencies and among stakeholders. California, for the most part, has not kept up with this paradigm shift.

Here are my first few suggestions for things to revisit.

Wetlands: At present, California has multiple agencies regulating wetlands, each with it's own definitions. The Regional Water Quality Control Boards take their authority from the Porter-Cologne Act, and issue 401 Water Quality Certifications. The Department of Fish and Game has Streambank Alteration Agreements, not really a permit, and not strictly about wetlands, instead covering the actual stream channel or, depending on who is interpreting, sometimes bordering riparian areas. Finally, the Coastal Commission and the Bay Conservation and Development Commission get in on the act within their jurisdictions; the former uses a rigid one-parameter approach to delineating wetlands.

There was an attempt a few years ago, led by the RWQCB, to agree on one wetland definition. That seems to have quietly faded away, at least I've heard nothing of it recently. Perhaps that's just as well, because several of the alternatives being floated would have created a brand new definition, one that, like the existing state definitions, has very little to do with science. That would have only made things worse.

I'd go further. I'd consolidate wetland regulation under one agency, probably the RWQCB. The other agencies could enforce the regs within their jurisdiction, but otherwise they'd act as commenting agencies, as in the federal system. I'd use a three parameter method to define wetlands, preferably the same as the federal definition, using the Corps of Engineers 1987 manual and the appropriate regional guidance, with one key difference: With no need to be limited by the interstate commerce regs of the federal government, jurisdiction could extend to all wetlands which met the test, not only those functionally connected to navigable waterways. That would mean that an isolated vernal pool would be protected, as long as it had all three parameters (hydrology, hydric oils, and wetland vegetation). Simple, predictable, consistent. Do away with ambiguity, and there's no excuse not to know where the lines are.

There are two reasons I'd do away with the state's variations of a one parameter approach. First, it has little basis in science. The state often classifies areas as wetlands which don't function as wetlands, including fog-belt pastures which have a few patches of wetland plants mixed in with upland annual grasses, and which perhaps pond up for a day or two after exceptionally heavy rains. Almost all of the time, these places function as upland.

Second, and perhaps more importantly, a one parameter approach tends to force mitigation into extreme upland locations, places which don't have any of the parameters. This means trying to create wetlands in places which don't have hydric soils or a historic wetland seed bank, or appropriate hydrology. Forcing a wetland into where it shouldn't be, basically digging a hole in upland, is a good way to fail. Mitigation should instead attempt to restore lost functions of places that were once wetland. Let's say a wetland was drained by ditching, so it still has hydric soils and a seed bank, but it no longer has the appropriate hydrology. Plug the ditch, the wetland is back. No need to wait decades for hydric soils to form. All too often this logical approach, with it's higher probability of success, would be rejected by state agencies because in their view, the degraded pasture already qualifies as wetland.

Protected Species: California has a "fully protected species" act which pre-dates the state and federal Endangered Species Acts. It's a perfect example of well-meaning regulations that were out on the cutting edge... in their day. Some of the nine covered species are now protected by the ESA and CESA, but a few aren't; because we now know they're pretty common. However, the fully protected species regs remain on the books, even though they're now redundant.

The reason this matters is that those regs pre-date the concept of incidental take. In practice, that means DFG has no mechanism to issue a permit that would, for example, allow management of habitat for these species. Let's use prescribed fire as an example. Burn grassland habitat that's being encroached upon by coyote brush, and maybe a few individual animals are killed or injured, but in the long run the population thrives because habitat is improved. Without fire, the coyote brush continues to encroach, until eventually there is no more grassland habitat, and the population completely disappears.

Some of the best DFG biologists support repeal of the fully protected species regs, but they're allegedly still intact because a few environmental groups continue to resist. This is misguided, because it's demonstrably harming at least a few species to maintain this archaic system. I also feel that laws are pointless if they're unenforceable, and this one certainly qualifies.

On a more general note, I'd like to find ways to encourage more flexibility in agency thinking, to allow more independent judgement. For example, there are policies which make perfect sense in southern California or in the central valley, but which are counterproductive in the cooler and wetter north coast or in certain mountain regions. Yet the regs are typically enforced rigidly and mindlessly, in a one size fits all approach. In what is arguably the most ecologically diverse state in the continental U.S., that just doesn't make sense. The same prescriptions can't possibly be effective in deserts and temperate rain forests, at sea level and above timber line.

These are just a few of the more obvious examples. The present system has a lot of inertia, and it won't change overnight. Pointing out a few ideas, a few ways to do things better, is just the first step.