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.

concept and constraints

I spent much of this afternoon reviewing documents for a proposed small stream restoration project. Although my task is primarily endangered species review for a project that was designed by others several years ago and is now approaching construction, it's always enjoyable to see how others worked through their thought process; especially when I know some of the people involved. I really enjoy the conceptual design end, and this project is fairly elegant.

The concept report discusses four alternatives, all of which were reviewed by various technical folks as well as state and federal agencies and a local NGO. They range from a no action alternative to one that would attempt to put hydrology all the way back to pre-disturbance conditions, as nearly as possible.

That extreme build alternative is of course rarely viable. In this case it would flood large areas at high tide, including adjacent landowners not involved in the project. It would render large areas unusable for their present purposes, which would probably cost the support of landowners who are currently cooperating with the project. In short, it would most likely result in the death of the project because the economic and social costs would not be politically viable.

Instead, an alternative is moving forward that partially restores hydrology, but limits the inundation area. This meets the primary project goals of improving sensitive species habitat, improving sediment transport and water quality, and keeping flooding within acceptable limits. It would actually reduce precipitation related flooding by increasing channel width and storage area. It's more expensive, but still feasible.

This is the elegant part. The design accomplishes all of the project goals, which can be a challenge when some of them aren't necessarily mutually compatible. I'm impressed because the designers managed to restore enough of the ecological processes to allow the watershed to function with minimal long-term maintenance while keeping enough political support to be permitted and built; it's one of those permit processes, under Section 7 of the Endangered Species Act, that I'm currently working on.

The downside is that, as so often happens, there are areas in the upper watershed which are slated for future development and are outside the influence of the project team. So depending on how those places are designed and built, there's a risk of a restored stream increasing in function and quality for a while, and then slowly degrading in different ways as upstream watershed runoff rates and sedimentation increase and water quality input decreases.

Short of controlling an entire watershed, which is quite rare, I'm not really sure how to protect against this. I've seen a few examples of conservation easements being put in place early to buffer streams, but when upstream lands are privately owned, the stars really need to align for this to happen, it needs to somehow be in the interest of those landowners to cooperate. If there are a few larger landowners and all of them agree, it can work. If an area is already subdivided and there are hundreds of owners, the challenges multiply.