News and Observer paddles new Neuse

It was a special pleasure to be here in Louisville, Kentucky for the 2018 National Mitigation and Environmental Banking Conference as the Raleigh News and Observer published an article about a recent paddle we took with the newspaper along the newly restored Neuse River.

Tomorrow at 2:00 I give a presentation of the project to our peers from around the country. So in the same week this wonderful project is receiving recognition in its hometown as a new eco-asset, it is being recognized as a significant national development in environmental public policy.

According to senior government officials here in Louisville, the role of dam removal for mitigation will be further emphasized in coming weeks based on the North Carolina efforts. Apparently, the chief regulator of mitigation, the Corps of Engineers, has drafted a national “Regulatory Guidance Letter,” formally authorizing and explicitly encouraging dam removal for mitigation.

It is good to know that Restoration Systems’ three dam removal projects — the only in the country for stream mitigation —  may soon have some company in other states. It is about time. Mitigation and dam removal are wonderful, positive endeavors and deserve to be inextricably linked in the public mind and environmental policy.

‘We’re going to have a different river.’ Without Milburnie Dam, the Neuse comes alive.

Dept of Interior to shift away from ‘project-by-project’ management

Interior Secretary Sally Jewell has unveiled the outlines of a new landscape-level mitigation strategy across millions of acres of federal land that she said is designed to take the department’s agencies away from narrowly focused project-by-project assessments. The mitigation strategy includes four key objectives the department will work to implement in the coming months in an effort to take a broader approach to managing public lands – landscape-level planning, banking, in-lieu fee arrangements and other mitigation tools.

Sage Grouse Rebellion: Will listing of two small birds limit oil drilling in the West?

Almost half the land west of the Mississippi belongs to the federal government, including 48% of California, 62% of Idaho and 81% of Nevada. No surprise that the Obama Administration wants to control more. But the result could be to suppress the country’s booming oil and gas developmentIn partnership with green activists, the Department of Interior may attempt one of the largest federal land grabs in modern times, using a familiar vehicle—the Endangered Species Act (ESA). A record 757 new species could be added to the protected list by 2018. The two species with the greatest impact on private development are range birds—the greater sage grouse and the lesser prairie chicken, both about the size of a barnyard chicken. The economic stakes are high because of the birds’ vast habitat.Interior is expected to decide sometime this month whether to list the lesser prairie chicken, which inhabits five western prairie states, as “threatened” under the Endangered Species Act. Meantime, the Bureau of Land Management and U.S. Forest Service are considering land-use amendments to protect the greater sage grouse, and to use proper Inflatable Packers for mining, which’d mitigate the landslides in the area. The sage grouse is found in 11 western states—California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. Most of the areas affected are federal lands routinely used for farming, ranching, mining, road building, water projects and oil and gas drilling.

NC Governor Calls for Removing Coal Ash Ponds from Waterways

As national attention remains focused on North Carolina in wake of Duke Energy’s coal ash spill into the Dan River, North Carolina’s Governor has now called on Duke Energy and North Carolina officials to address the long-term problem of coal ash storage throughout the state in the only way that will stop ongoing pollution and remove the risk of more spills: move the ash. “We’re pleased to see that Governor McCrory has recognized that removing toxic coal ash from the banks of our rivers and drinking reservoirs – the long-term solution that is working today in South Carolina – is the also right solution for North Carolina and our region,” said Frank Holleman, a senior attorney at the Southern Environmental Law Center.


New Home prepared for endangered American Burying Beetles

Oklahoma energy and construction companies now have another potential option for dealing with an endangered insect that has bugged operations in the state for years. For now, however, the companies still have no way to take advantage of the offering. The U.S. Fish and Wildlife Service this week approved the American Burying Beetle Conservation Bank. Operated by Edmond-based Common Ground Capital on 1,600 acres of Pittsburgh County, the conservation bank will provide a safe home for the beetle that has been listed as an endangered species since 1989.  “Conservation banking provides for a free market regulatory compliance solution,” Common Ground Capital owner Wayne Walker said. “They provide customers a lot of certainty that they are getting a competitive price on a regulatory system that’s proven.”
New rules still awaiting implementation are expected to require companies to obtain an “incidental take” permit for the beetle by purchasing conservation credits. But the rules have been delayed more than a year. The permit would remove the liability from killing or harming the beetles. “It’s not a perfect situation for us, but the American Burying Beetles situation has been pretty complex,” Walker said. “We now have part of the equation to enable a market here with our approved habitat. We’re a few months away from the ability to sell credits. We’re pretty close to having a much more improved situation than we’ve had for the last couple of years. It requires patience.”

Stream Banks – an Essential Tool to achieve No Net Loss

“Mitigation Banking” may be an difficult term but it’s proving to be an essential tool for improving and protecting wetlands, streams, and other aquatic resources impacted by development.  It will only grow in importance as America yearns for energy security, while continuing to embrace noble goals of “no net loss” of wetlands and “fishable and swimmable ” quality under the Clean Water Act. For starters, the word “mitigation” is confusing. It has a different meaning in the Clean Water Act (CWA) and aquatic resources context compared to mitigation under Clean Air Act and greenhouse gas programs, where it connotes reduction, even prevention of emissions. For CWA and aquatic impacts, it’s essentially about compensation – the actions permittees must take to pay for resulting “sins” of a project making its way through the regulatory process.This all underscores the most important principle for environmentalists and responsible regulators: “sequencing”. They may be willing to support compensatory mitigation if it’s the third and final step, the last resort, after step 1: practicable alternatives analysis and step 2: minimizing unavoidable impacts. Controversy surrounding the first step, when regulators challenge the purpose of a project and whether it really has to be in or near wetlands and other waters, creates a temptation to simply build first and ask forgiveness later. Regulators may also be tempted to skip or marginalize the second step, minimization, where permit applicants are expected to reduce environmental impacts by modifying project features, and go straight to mitigation. Environmentalists argue that deviations in sequencing, which put a priority on avoiding and minimizing harm, can lead to wheeling and dealing to enable unwise development.
Printed with permission of Ben Grumbles

Steering committee wants legislation to expand Florida DEP permitting authority to protect coastal wildlife

Threatened and endangered coastal species besides just sea turtles could receive state permitting protection under legislation likely to be requested in 2015. A state steering committee that was established in 2009 to develop an ambitious statewide Florida Beaches Habitat Conservation Plan said it will seek legislation even as federal approval of a plan to be proposed is sought in the coming year. The plan and legislation would extend Department of Environmental Protection permitting to gopher tortoises and two species of threatened and endangered shorebirds and five species beach mice. The plan would provide regulatory certainty for landowners and developers, steering committee members said during a meeting in Tallahassee.

Texas, drillers gear up for long-term battle over endangered species

HOUSTON — The state of Texas and other oil and gas industry supporters are advising energy companies to prepare for a decades-long fight over plant and animal conservation and the Endangered Species Act.
Next month, the U.S. Fish and Wildlife Service is expected to make a decision on whether to list the lesser prairie chicken, a species inhabiting prime drilling land in the Texas Panhandle, as threatened or endangered. Hagstrom Drilling and many other companies in the drilling and gas industry oppose that move and are hoping to win over FWS with their own protection plan as they successfully did with the dunes sagebrush lizard in the West Texas oil patch.
But the industry is being warned that the lesser prairie chicken is just the tip of an iceberg. The Texas Parks and Wildlife Department estimates that about 30 separate species in the state could be up for consideration next. David Blackmon, an industry adviser with FTI Consulting, said oil and gas companies could find themselves fighting cases involving as many as 250 individual species in the coming years. Just a handful of new ESA listings could seriously hamper drilling activity in Texas, he said.
“There will be a lot of litigation around it, and that’s never a productive way to spend money,” Blackmon said. “The requirements that come down with a listing can result in time delays in getting your work done … it can result in feasibility restrictions around mating seasons and migration seasons.”
In an interview, Blackmon pointed out the problems oil and gas companies have faced with meeting ESA requirements in the Rocky Mountains for the past 20 years. In California, “whole regions” have been designated off-limits to drillers due to ESA listings, he said.
Blackmon and others gave an impassioned plea to oil interests at a recent oil and gas prospects conference, urging companies to get ahead of the threat and develop a response strategy. They oppose listing the lesser prairie chicken, fearing that could bog down drillers in expensive conservation fees and litigation, burdens that may force smaller operators out of certain promising tight oil fields.
The state of Texas is also intervening. Last month, the office of the Texas Comptroller of Public Accounts launched an initiative to get state universities involved in researching dozens of contested species to determine if any future ESA listings are warranted. In an interview, Comptroller Susan Combs said the research grants on offer are a deliberate push to get ahead of future FWS reviews.
“What we’re trying to do is help Fish and Wildlife have more information upfront so that their decisions then are based on really good science,” she said.
Conservation groups say they are not backing down as they wait for FWS to consider the status of several more species that call Texas home. They are already fighting the lizard decision in the courts and are pushing firmly for the lesser prairie chicken to be listed.
“We’re in the middle of an extinction crisis, and there’s more and more people, and more and more development, and more and more fossil fuels, and less and less habitat,” said Tierra Curry, a senior scientist at the Center for Biological Diversity and who is involved in the effort to get FWS to move forward on listing considerations. “The number of endangered species is going to grow as we develop more and more habitat.”
Both sides see the dunes sagebrush lizard fight as round one of this conflict. Up for round two is next month’s lesser prairie chicken decision. That bird’s habitat covers five states and encompasses some of the most promising oil and gas real estate in the country, including the Texas Panhandle.
Adam Riggsbee, a principal at the Austin-based conservation firm RiverBank Ecosystems, said the forthcoming decision on the chicken’s status is the hottest topic in his industry.
“You sort of have the convergence of multiple interests in a high-stakes game here on the southern prairie,” he said. “You’ve got some of the biggest plays in the oil and gas industry right now in North America that could be affected by a listing of this bird, there’s no doubt about that.”
Riggsbee and others in his industry are critical of the plan being promoted by the Western Association of Fish and Wildlife Agencies (WAFWA that’s supported by oil and gas interests.
That group’s Range-wide Conservation Plan was recently submitted to FWS for consideration as an alternative to a listing. The plan is voluntary, so its organizers are scrambling to get as many industry stakeholders on board as quickly as possible to show the government that they are up to the task. A lesser prairie chicken listing would affect not only drilling but also pipeline construction, utility work and even the large Texas wind power industry, they say.
“It is very important to us that the interest of all of our members and at large the industry is represented in the way this plan is executed, put together and the way it moves forward hopefully to keep [the lesser prairie chicken] from being put on the endangered species list,” said Wayne Hughes, executive director of the Panhandle Producers & Royalty Owners Association, at the start of a December 2013 briefing on the WAFWA plan in Amarillo, Texas. He said getting the industry to buy in to the WAFWA plan — an arrangement similar to one in place for the dunes sagebrush lizard in the Permian Basin — is urgent “so that we can have a good faith show for the Fish and Wildlife Service.”
WAFWA’s plan would implement an incentive system for landowners to preserve and expand the lesser prairie chicken’s habitat, along with a credit system enabling off-site habitat conservation and the offsetting of negative impacts to the chicken’s rangeland on a 2-1 basis. It has already been endorsed by the Fish and Wildlife Service. FWS is now taking a closer look at a separate plan put forth by the American Habitat Center, a group formed from oil and gas interests along the lines of the Texas Habitat Conservation Foundation, which was founded by the industry to manage dunes sagebrush lizard habitat.
Comptroller Combs vigorously defends the habitat conservation foundation’s model, arguing that voluntary measures that emphasize control are key to winning over landowners and local oil and gas companies to species protections.
“Texas is 97 percent private land, so you sort of take your features where you find them,” she said. “This is a private-land state and people do want to be cooperative, but they are, as you well might imagine, suspicious of the federal government, and the federal government understands that, and they work through other entities and they get good, reliable partnerships.”
Private conservation bankers worry that there is too much flexibility built into the WAFWA plan in an effort to keep conservation efforts as cheap as possible. They support a conservation banking system that’s been a regular feature in habitat protection since 2003, instead of the more fluid, less permanent solution to protecting lesser prairie chicken habitat envisioned by WAFWA.
Wayne Walker of Common Ground Capital, a firm that’s been busy for two years identifying prime lesser prairie chicken habitat for conservation projects that can generate marketable credits, worries that WAFWA’s plan moves the government and industry away from proven habitat banking methods. The credit system WAFWA is proposing deals only with “term impacts,” he said, and does away with efforts to create permanently protected zones.
“Instead of having permanent offsets for impacts, which is what you normally do for species, we’re going to change those rules,” Walker said. “We’re going to create a whole new market and credit type that’s based on five- or ten-year credits, mostly five-year credits, and that, of course, cheapens the cost of conservation because you don’t have to have an easement on property, the endowment cost is less, and the belief is the industry will flock to this because it’s easier.”
Walker predicts that the industry will trade more affordable and flexible conservation efforts for greater risk of future litigation by outside environmental groups. Riggsbee agrees, arguing that lawsuits are almost certain if the Fish and Wildlife Service seems too willing to bend to the interests of landowners and developers over the interest of the lesser prairie chicken species.
“Unfortunately all indications would point to that they just picked what solutions were presented to them and that they are leaning toward accommodating,” he said. “Those particular solutions are full of legal uncertainties.”
Curry at the Center for Biological Diversity said her organization and others aligned with it oppose the voluntary approach that’s increasingly being promoted. That’s one reason they are attempting to force FWS to reverse course on the dunes sagebrush lizard.
“There has to be something legally binding in there somewhere that says we are not going to destroy the habitat of the species, and this isn’t present in a lot of the voluntary measures,” she said.
“There has to be some actual accountability in there somewhere,” Curry added.
The Center for Biological Diversity and its allies will press for action on the status of 252 other species the government has committed to reviewing as part of a settlement reached in 2011 between the center, Fish and Wildlife Service, and WildEarth Guardians, Curry said. Fish and Wildlife has until September 2016 to finish that work.
Those species have been waiting for reviews for decades, Curry said. She said the environmental groups’ legal actions against FWS are meant to compel that understaffed and underfunded agency to do the work that it is charged to do.
FTI Consulting’s Blackmon sees a larger role to stymie oil and gas development, using the Endangered Species Act as an effective tool to accomplishing this.
“These species were targeted by these groups because they exist in large numbers over large geographic areas, and a listing of them would have maximum negative impact on development,” he argued. “If you end up having to deal with 20 different species — some of which have seasonal restrictions, some of which have provisions [that] require you to perform biological surveys or to be set back so many thousand feet from a nest or a hole that a lizard lives in — then pretty soon you run out of time in the year or land on which to actually do any development, and that’s the whole goal, strategy that these groups are following under this law.”
Scientists believe the population of lesser prairie chickens has been in sharp decline over the past decade. Drought conditions in 2011 and 2012 were particularly hard on the bird.
Walker at Common Ground Capital said it’s important for the sake of the chicken’s survival that the right conservation model be put in place. He points to a cousin of that species as an example of how difficult protecting the lesser prairie chicken could be.
The Attwater’s prairie chicken is making its final stand at a small wildlife refuge managed by FWS about an hour west of this oil and gas capital. Closely related to the lesser prairie chicken, the Attwater’s chicken was one of the first species put under protection in accordance with ESA, but Fish and Wildlife is still struggling to figure out how to make the population viable without captive breeding.
Attwater’s chickens were decimated by hunting and the development of the Texas and Louisiana coastal plains. In 1900, the government estimated its population at about 1 million. Today, fewer than 60 call the refuge home, while a smaller number of Attwater’s prairie chickens are being kept alive as part of a captive breeding program. Fish and Wildlife officials believe strongly that captive breeding is the only thing keeping this bird from going the way of the passenger pigeon.
“Big, un-fragmented landscapes are what these birds need,” Walker said. “Back in the ’60s, ’70s and ’80s … there were some ranches that could have been bought, large ranches to be permanently protected, and a lot of scientists think if that would have been done, you would have enough landscape left to have a viable Attwater’s chicken. To some extent, we’re kind of repeating history here.”
Reprinted courtesy of Nathanial Gronewold, E&E reporter; published February 20, 2014


Curbing Agricultural Runoff that Pollutes the Gulf of Mexico

From the Wall Street Journal, February 19, 2014
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NEW MADISON, Ohio— Kevin Hollinger planted radishes and oats last fall in his corn and soybean fields, but he isn’t planning to harvest them. Instead, he is letting the crops die over the winter to improve the soil and keep fertilizer and other nutrients from running into nearby waterways. “I could hardly go to town without someone asking: ‘What’s that in your field?’ ” said Mr. Hollinger, a fourth-generation farmer. Helping to foot the bill for his experiment is a pilot program set to launch fully next month. Farmers in the Ohio River basin are being paid to make changes—from what they plant to how they handle manure—in an effort to minimize runoff that can cause hypoxia, or low oxygen levels, in waterways.
Nutrient runoff plays a role, nearly 1,000 miles downstream from Mr. Hollinger’s farm, in the formation of the so-called dead zone in the Gulf of Mexico—an area where fish and other aquatic life can’t survive and which is considered one of the nation’s biggest water-pollution problems. Shrinking the dead zone—which was most recently the size of Connecticut—has challenged regulators. Nutrients that flow down in the Mississippi River and end up in the Gulf come from hundreds of thousands of sources across more than a dozen states.

Read the whole article at

Forestry Management in Riparian Buffers

A Guide to Implementing Neuse River Basin and Tar-Pamlico River Basin Riparian Buffer Rules for Forest Management Activities was published by the NC Forest Service in July 2012 but worth re-reading or reading for the first time. The rules apply to perennial streams, intermittent streams, ponds, lakes, and estuaries located in either river basin. READ MORE at