(Posted by Erik Michelson.)
After centuries of unregulated wetland filling, land clearing, and shoreline modification, over the course of the past several decades, federal, state, and local regulations have been put in place ostensibly to reverse the trend of the declining health of the country’s waterways. As a rule, these have taken the form of a sequence of three options: “avoid, minimize, mitigate.” So, in the context of a development project, impacts to wetlands or trees in the critical area buffer should be avoided if at all possible, and if not avoided, minimized. Any impacts that do occur, should either be mitigated, or offset, preferably on the same site where they originally occurred, but if not there, somewhere else in the same jurisdiction.
The merits of this system can be debated, particularly the stringency with which the avoidance and minimization lines are upheld (or not), but at least in terms of metrics (e.g., acres of non-tidal wetlands) this method has a rigidity that allows politicians and bureaucrats to proudly declare “no net loss” of resources.
But what if, in the context of restoration, one’s intention is to increase the ecosystem benefits of a project without doing it in precisely the 1 to 1, in-kind ratio demanded by a strict metrics-based accounting? What if, on the way towards restoration, it becomes necessary to actually violate the letter of the law?
Turns out these aren’t just hypothetical questions. Certain stream and wetland restoration methods that have been studied by the University of Maryland have been shown to have the capacity to trap and treat sediment and nutrients, and create high quality habitat for wildlife. These projects involve permanently connecting eroded or incised streams to their surrounding floodplains. In virtually all cases, this involves temporary impacts to streams or adjacent wetlands with the goal of enhancing and improving the quality of the overall resource, both in terms of the metrics of record, but also in terms of less tangible factors, such as increasing fish spawning habitat. Nevertheless, the regulatory comments on these projects come back as though they were development projects, impacting natural resources so that a Wal-Mart parking lot could be built upon them, rather than capping old agricultural sediments trapped in a stream valley with a rich, biodiverse wetland so that they can no longer wash down to tidewater with each rain event.
Additional evidence that our current regulatory framework is more properly aimed at slowing the decline of the resource, rather than facilitating its recovery, could not be clearer than in the case of rare, threatened, and endangered plants. Any entry level gardener can go to Home Depot or the nursery down the street and buy a suite of noxious, invasive plants, such as English ivy or purple loosefstrife to drop into their flower beds and colonize the surrounding woods and wetlands. But, heaven forbid you want to try to bring back a rare, threatened, or endangered native plant species. Should you be so enterprising as to try, you will need a permit from the Maryland Department of Natural Resources (DNR) just to possess or transport them. Best not to bother even trying to “re-introduce” them. DNR currently has no guidelines or standards in place to review such permits. The system is turned on its head.
At its worst, a purely metrics-based regulatory approach can actually harm the resource that it is intended to protect. Take the case of the South River. As mitigation for damage done to tidal wetlands as part of a bridge construction project, the Maryland State Highway Administration (SHA) was required by the Maryland Department of the Environment (MDE) to create tidal wetlands elsewhere in the watershed. On its face, it seems reasonable enough. The trouble is, the tidal wetlands that were disturbed as a result of the bridge crossing were only there because over the past century or so, agricultural sediments, rich in nutrients, washed into the open water of the river, filled it in, and became colonized with invasive phragmites reed. So, in order to compensate for disturbing an acre of farm mud in the river, the chief regulatory agency, despite the objection of a number of other regulatory partners and the South River Federation, required SHA to dump more fill and stone along the shoreline at South River Farm Park so that they could declare “no net loss” of wetlands. Meanwhile, we’ve lost an acre of shallow water fish habitat and several thousand feet of intertidal beach habitat, where horseshoe crabs and terrapins could nest. A better solution was on the table, but the regulators forced SHA back to the drawing board to spend more taxpayer money on an inferior design that was worse for the South River.
Current, federal efforts, led by the Environmental Protection Agency, requiring that the pieces for Chesapeake Bay recovery be put in place by 2025 make these issues all the more salient. Even with unlimited funding and complete local support, neither of which exists, reaching Bay clean-up goals is a stretch in that timeframe. Without a regulatory apparatus that can move smoothly between development and restoration review, and expedite and evolve its understanding of the latter, it will be impossible.