"Improper" Tree Hazard Assessments?

The Summer 2020 issue of FSEEE Forest News argues that the Forest Service improperly uses tree hazard assessments to justify closing public lands.

Based on the article, it appears that FS spokespeople have not always done a good job communicating the reason for post-fire closure areas.  There are many reasons to close areas post-fire, but tree risk assessments by themselves would probably not justify backcountry trail closures. 

The FS Field Guide for Hazard Tree Identification and Mitigation cited in the article applies a numerical probability assessment to hazards by scoring Failure Indicators and adding these with Damage Potential to obtain a numerical Hazard Rating.   This methodology would be familiar to any arborist and follows standard arboriculture practices.  If there are dead or damaged trees around developed FS facilities or campgrounds than clearly there would be a high Hazard Rating and it would make sense to close those areas until the hazard can be mitigated.  But applying this same methodology to backcountry trails would result in scores that are relatively low because of the sparse or nonexistent targets for the hazard trees. So on this point the Forest News article is correct: hazard trees alone do not justify backcountry forest closures.

However, there are other hazards in recently burned areas besides dead trees, including active restoration/revegetation projects, burned-out root systems, unstable soils, potential debris flows, and obscured or impassable trails.  It may make sense to close these areas to the public until trails can be repaired or ongoing restoration work is completed.  

Carbon offset controversy

 

https://carbon180.medium.com/in-search-of-carbon-removal-offsets-42abf71b3ccc

https://forestpolicypub.com/2020/12/10/bloomberg-green-on-the-nature-conservancy-and-meaningless-carbon-offsets/

Proposed Changes to Regulations Implementing the Endangered Species Act

Reference: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html



Regulations for Listing Species and Designating Critical Habitat

Economic Impacts: "the Services will continue to make determinations based solely on biological considerations. However, there may be circumstances where referencing economic, or other impacts may be informative to the public"

Foreseeable Future: use definition set forth in 2009, where foreseeable "extends only so far into the future as theServices can reasonably determine that the conditions potentially posing a danger of extinction ... are probable."

Delisting species: clarifies that the standard for listing or delisting is the same. Important because FWS does not have to "demonstrate that all of the recovery plan criteria had been met before" delisting. Because: Section 4(a)(1) of the Act provides the Secretary `shall' consider the five statutory factors when determining whether a species is endangered, and section 4(c) makes clear that a decision to delist `shall be made in accordance' with the same five factors.”

Not Prudent Determinations: FWS may decide not to designate critical habitat when it is “not prudent”. Currently this can only occur under two circumstances, but the change would allow the Service more discretion. "We anticipate that not-prudent determinations would continue to be rare." This is an effort to avoid lawsuits.

Designating Unoccupied Areas: clarify that the service can do so "When a critical habitat designation limited to geographical areas occupied would (1) be inadequate to ensure the conservation of the species, or (2) result in less-efficient conservation for the species." Further, "In order for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable likelihood that the area will contribute to the conservation of the species....Because the only regulatory effect of a designation of critical habitat is the requirement that federal agencies avoid authorizing, funding, or undertaking actions that may destroy or adversely modify such habitat, the likelihood that an area will contribute to conservation is, in most cases, greater for public lands and lands for which such federal actions can be reasonably anticipated than for other types of land."



Regulations for Prohibitions to Threatened Wildlife and Plants

(This proposed revision has received the most comments on regulations.gov)

Summary: for newly listed species, there would be no legal penalty for “take” of threatened species. Section 7 consultation would still be required. This change would reduce the potential legal liability of APS, while not lessoning our consultation requirements.

“Currently, there are species-specific protective regulations for threatened wildlife in subpart D of part 17, but the Service has not adopted any species-specific protective regulations for plants. The proposed regulations would not affect the consultation obligations of Federal agencies pursuant to section 7 of the Act. Species listed or reclassified as a threatened species after the effective date of this rule would have protective regulations only if the Service promulgates a species-specific rule (also referred to as a special rule).”

This proposed change brings the USFWS regulations in line with the NMFS.


Section 7 Interagency Cooperation

“Nothing in these proposed revisions to the regulations is intended to require that any previous consultations under section 7(a)(2) of the Act be reevaluated….The Services anticipate that the proposed changes, if finalized, will improve and clarify interagency consultation, and make it more efficient and consistent, without compromising conservation of listed species.”

Destruction or Adverse Modification of Critical Habitat: This is a determination that is similar to a determination of Jeopardy for the species as a whole. For clarity, USFWS proposes adding the phrase “as a whole” to the current definition of Destruction or Adverse Modification: “`Destruction or adverse modification' means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for the conservation of a listed species.”

The intent is that, “while an action may result in adverse effects to critical habitat within the action area, those effects may not necessarily rise to the level of destruction or adverse modification to the designated critical habitat. In adding the phrase “as a whole” to the proposed revised definition, we intend to clearly indicate that the final destruction or adverse modification determination is made at the scale of the entire critical habitat designation…..Just as the determination of jeopardy under section 7(a)(2) of the Act is made at the scale of the entire listed entity, a determination of destruction or adverse modification is made at the scale of the entire critical habitat designation.”

In each biological opinion, the determination regarding destruction or adverse modification is made by evaluating the effects of the proposed action on the species in light of the overall status of the species, the baseline conditions within the action area and any cumulative effects occurring within the action area.

Effects of the Action: “Confusion regarding application of terms has resulted in time being spent determining how to categorize an effect, rather than simply determining what the effects are regardless of category…. We collapsed the various concepts of direct and indirect effects, and the effects of interrelated and interdependent actions, into the new definition that the effects of the action include all effects caused by the proposed action.”

“The revised definition notes that these effects include “the effects of other activities that are caused by the proposed action.” It includes a distinction between the word “action” which refers to the action proposed to be authorized, funded, or carried out, in whole or in part, by the Federal agency and brought in for consultation with the Services, and “activity” or “activities,” which refer to those activities that are caused by the proposed action but are not included in the proposed action. Under the current definition, these activities would have been considered under either “indirect effects” or “interrelated” or “interdependent” activities. An effect or activity is caused by the proposed action when two tests are satisfied: First, the effect or activity would not occur but for the proposed action, and second, the effect or activity is reasonably certain to occur. “

“Under the first of these two tests, if an effect or activity would occur regardless of whether the proposed action goes forward, then that effect or activity would not satisfy the “but for” test and would not be considered an effect of the action.”

“As a practical matter, application of the “reasonable certainty” standard is done in the following sequential manner in light of the best available scientific and commercial data to determine if incidental take is anticipated: (1) A determination is made regarding whether a listed species is present within the area affected by the proposed Federal action; (2) if so, then a determination is made regarding whether the listed species would be exposed to stressors caused by the proposed action (e.g., noise, light, ground disturbance); and (3) if so, a determination is made regarding whether the listed species' biological response to that exposure corresponds to the statutory and regulatory definitions of take (i.e., kill, wound, capture, harm, etc.). Applied in this way, the “reasonable certainty” standard does not require a guarantee that a take will result, rather, only that the Services establish a rational basis for a finding of take.”

Environmental Baseline: The Services propose a stand-alone definition for “environmental baseline” as referenced in the discussion above in the proposed revised definition for “effects of the action.” The definition for environmental baseline retains its current wording. Moving it to a stand-alone definition clarifies that the environmental baseline is a separate consideration that sets the stage for analyzing the effects of the proposed action on the listed species and critical habitat within the action area by providing the foundation upon which to build the analysis of the effects of the action under consultation.

“It has sometimes been challenging for the Services and Federal agencies to determine the appropriate baseline for those consultations involving ongoing agency actions. The complexities presented in these consultations include issues such as: What constitutes an “ongoing” action; if an ongoing action is changed, is the incremental change in the ongoing action the only focus of the consultation or is the entire action or some other subset reviewed; is the effects analysis different if the ongoing action has never been the subject of consultation as compared to if there is a current biological opinion for the ongoing action; if a change is made to an ongoing action that lessens, but does not eliminate, the harmful impact to listed species or critical habitat, is that by definition a “beneficial action”; and can a “beneficial action” ever jeopardize listed species or destroy or adversely modify critical habitat. Further, the Services request comments as to whether the following language would address these issues: “Environmental baseline is the state of the world absent the action under review and includes the past, present and ongoing impacts of all past and ongoing Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions in the action area which are contemporaneous with the consultation in process. Ongoing means impacts or actions that would continue in the absence of the action under review.””

Programmatic Consultation: “used to evaluate the effects of multiple actions anticipated within a particular geographic area; or to evaluate Federal agency programs that guide implementation of the agency's future actions by establishing standards, guidelines, or governing criteria to which future actions will adhere.”

Applicability: USFWS proposes to add language clarifying that consultation is not required when a proposed action will not negatively affect listed species or critical habitat in any real, or measurable, significant way; or that are beyond the jurisdictional control of the consulting agencies.

Biological Opinions: “USFWS proposes that the Service may adopt all or part of a Federal agency's initiation package or the Services' analyses and findings that are required to issue a permit under section 10(a) of the Act in its biological opinion. This provision would allow the Services to utilize portions of these documents in the development of our biological opinion to improve efficiency in the consultation process and reduce duplicative efforts. Adoption or incorporation by reference is typically done during consultations, and this provision codifies that approach.”

Expedited Consultation: “ Informal consultation has been an available optional process for 30 years and is most often utilized to address proposed actions that are not likely to adversely affect listed species or critical habitat. In contrast, expedited consultations are a new process and likely involve proposed actions that would otherwise go through the regular formal consultation process and require an incidental take statement. This consultation process is proposed to provide an efficient means to complete formal consultation on projects ranging from those that have a minimal impact, to those projects with a potentially broad range of effects that are known and predictable, but that are unlikely to cause jeopardy or destruction or adverse modification. “

Reinitiation of Consultation: “We propose to clarify that the duty to reinitiate does not apply to an existing programmatic land management plan prepared pursuant to the Federal Land Policy Management Act (FLPMA) or the National Forest Management Act (NFMA). when a new species is listed or new critical habitat is designated. In contrast, specific on-the-ground actions that implement the plan are subject to their own section 7 consultations if those actions may affect listed species or critical habitat.”

Wetland, Stream, and Species Mitigation Banks

With the November 3, 2015 Presidential Memorandum "Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment," mitigation banking has been getting more press.

Back in 2008 the US Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) issued the 2008 Compensatory Mitigation Rule governing compensatory mitigation for activities authorized by Corps permits.  Each division of USACE has published Regional Compensatory Mitigation and Monitoring Guidelines.

Mitigation banks are restoration and conservation sites that preserve, enhance, or create important ecological functions that may be impacted elsewhere.  For example, since 2008 wetland banks can invest in the for-profit creation of new wetlands; developers can purchase credits in the bank to mitigate any impacted wetlands in the same watershed as the proposed development.

There are now over 2000 mitigation banks in the U.S.

USACE  runs the RIBITS website, which is their Regulatory in-lieu fee and bank information tracking system.

This map from RIBITS shows the distribution of mitigation banks in the continental U.S.  Some USAE districts already have dozens to hundreds of banks in operation, whereas some, such as the Albuquerque USACE district, have none.

This figure, courtesy of Kevin Janni, shows the distribution of mitigation banks and HUC watersheds in Texas for the Fort Worth and Galveston USACE districts.  Each bank may only be used to offset development within the same watershed.  Due to differing application processes and timelines for different USACE district, some districts have many more banks than others.

Mitigation banks are evaluated based on the quality of the wetlands created, using rapid assessments such as NMRAM.

The 2016 Mitigation Banking Conference will be held in Texas, May 10-13.

NEPA Impacts Now Require Mitigation

President Obama has recently issued an important new Memorandum directing Federal agencies to employ mitigation banks to offset impacts to natural resources.

The directive re-emphasizes that agencies should seek to avoid any negative environmental impacts first, then minimize impacts, and finally, only seek compensatory offsets for harm that still occurs if necessary.  Within the limits of existing law, agencies should set ‘no net loss’ and ‘net benefit’ goals that apply to more natural resources.   (CEQ Blog Post)

The following analysis of the impacts of this memorandum are from the law office of Holland and Hart:

"We have entered a new regime in federal natural resource management, one that brings to mind Aldo Leopold’s observation that “Conservation . . . is a positive exercise of skill and insight, not merely a negative exercise of abstinence or caution.” In time, we will have a better sense of what the new regime will mean in practical terms. For now, the natural resource community will want to focus on the various agencies’ efforts to implement the directives. Across the federal government, for months to come, new rules and policies will be under development with implications for an enormous range of decisions affecting natural resources “that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.”

These directives deserve considerable attention from those active in the natural resource law and policy arenas. There are new rules of the road for resource agency decisions subject to NEPA review, and they may significantly influence implementation of ESA and other resource protection laws. Federal resource planning efforts will likely change to include substantial consideration of “net gain/no net loss” benchmarks. Most fundamentally, the new directives seem likely to change the transactional environment facing developers seeking federal approvals for: infrastructure projects; energy, water, and mineral development; or other activities potentially impacting federal natural resources.

Agencies’ permitting and compliance decisions involve significant elements of subjectivity and uncertainty. The permitting process is often defined by bargaining over the allocation of risk between an agency wary of potentially unforeseen resource impacts and a developer or resource user wary of potentially unforeseen costs or delays. The Presidential and DOI directives can be seen as ratifying and calling for even greater effort by resource agencies to minimize or eliminate the risk of unforeseen impacts on natural resources. In effect, the agencies are being told to bargain harder, demand greater assurances, and accept little or no risk of adverse impacts when rendering decisions potentially affecting natural resources.

The directives raise the bar, but are not entirely one-sided. They encourage agencies to promote conservation banking, stewardship contracts, and other financial-incentive-based tools that generate “credits” that developers can use to offset adverse impacts of proposed projects. The internal logic of the directives appears to be that the new, higher standards for resource mitigation—net gain, or at least no net loss—are realistically achievable because any project’s unavoidable adverse impacts can be offset with conservation credits.

The agencies’ mandate to bargain harder will create difficulties for almost all resource users. To begin with, baseline resource information often lacks the empirical certainty that would make it obvious how to get to a net gain or no net loss. And what is a “net gain”? How big must that be? More challenging, the directives call for “durability” in mitigation, meaning that the quantitative and qualitative relationship of impact to compensation should endure so long as the impact continues. But natural resources change over time. Even resources that once seemed static are now recognized to be mobile as temperature, precipitation, fire, and other variables change across the landscape. The new directives will particularly frustrate those resource users who are not inclined to anticipate nor internalize within their project planning and business judgments the agencies’ resource management goals. Whatever the agencies were bargaining for yesterday, they’ll soon be bargaining for more.

There is something encouraging here for those resource users who approach the regulatory environment with a transactional mindset. The directives’ embrace of compensatory mitigation means that, once the directives have had time to be incorporated into agency procedures, there should be a predictable regulatory “solution” for a project potentially posing the risk of adverse resource impacts. In theory, the ultimate decision about whether - and on what terms - to approve a permit or other authorization should be somewhat less vulnerable to an agency official’s reluctance to countenance unavoidable adverse resource impacts. This is particularly so if the agencies do, in fact, embrace the use of mitigation banks and other credit-generating tools.

The other potential winners from the directives will be private investors in mitigation banks and similar financial structures that produce resource “credits” to exchange for impacts. 

Juridicational Wetlands

 The Clean Water Act (CWA) regulates all of the "navigable" water bodies in the U.S.  The precise definition of navigable waters is important for specifying what impacts may or may not be allowed to the Waters Of The United States (WOTUS).  However, since the inception of the CWA, numerous Supreme Court cases have challenged the definition of WOTUS.  On May 27, 2015, the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) issuing a new definition of WOTUS.  While the new definition is already the subject of numerous lawsuits, it is now the new basis of the CWA.

Graphic from SWCA, The Wire.

So what does the new definition say?  Well, it is pretty straight-forward.  There are just 8 possible cases:  

1. traditional navigable waters

2. interstate waters

3. territorial seas

4. impoundments (of 1 - 3 above and 5 below)

5. tributaries

6. adjacent waters

7. five special groups of similarly situated waters

8. case-specific significant nexus waters  

For more information, see this excellent article in SWCA's The Wire.

Coal-tar sealants contain PAH

source: "Pollution Prevention and Management Strategies for Polycyclic Aromatic Hydrocarbons in the New York/New Jersey Harbor" by the New York Academy of Sciences

An interesting debate has arisen over an emerging contaminant of concern, PolyAromatic Hydrocarbons, or PAHs. These compounds are produced whenever organic materials are heated in the absence of oxygen and water. This can occur whenever combustion is incomplete, such as smoky campfires, flickering candles, incense sticks, cigarettes, poorly functioning gasoline and diesel combustion engines, forest fires, and charcoal and tar production. PAHs form a large and diverse family of compounds, some of which are known to be potent genotoxic carcinogens.

Regulators are cracking down, but they don't know where to turn first, because these compounds are ubiquitous in modern, industrialized, civilization. Washington State and Washington DC have become two of the first areas in the US to begin taking action by banning coal-tar sealants. These sealants are typically applied to parking lots and driveways to make them black and pretty, and they also contain high levels of PAHs.

But are driveway sealants really the culprit? The coal-tar sealant industry points out that some shampoo bottles contain as much PAH as 100 acres of sealed parking lot. Indeed, a basic understanding of aromatic chemistry indicates that these compounds should be extremely water insoluble; they are most hazardous when they are volatilized in fires and the soot is inhaled. So the debate continues, with both industry, government, and citizen action groups trying to make sense of the science.

A Mississippi River Wetland National Park?

http://www.osu.edu/news/newsitem3123

Need for closure OR Indecisive

I had thought that disagreement over Evolutionary Theory or Global Warming could be reinterpreted as an opportunity to engage other curious minds. As science becomes more egalitarian and open, more and more interested, educated citizens will join the debate. If science can learn with them (collaborative, constructivist model of knowledge), rather than teach toward them (defiency model of education in which learners need to be filled up with knowledge) we could realize a great opportunity.

However, not all arguers are open to persuasion. In complex, competing-message environments today some people pick their opinions first. Kruglanski has described a personality scale of closure/openess in decision-making. (Kruglanski, 1993)


Experiment
He asked:

Which phrases do you agree with?

I find that a well ordered life with regular hours suits my temperament.
I feel uncomfortable when I don't understand the reason why an event occurred in my life.
I don't like to go into a situation without knowing what I can expect from it.
When I am confused about an important issue, I feel very upset.
I usually make important decisions quickly and confidently
I don't like to be with people who are capable of unexpected actions.
I dislike it when a person's statement could mean many different things
I'd rather know bad news than stay in a state of uncertainty.

OR

When I go shopping, I have difficulty deciding exactly what it is that I want.
I tend to put off making important decisions until the last possible moment
I would describe myself as indecisive.
My personal space is usually messy and disorganized
I tend to struggle with most decisions


Kruglanski, A. W., Webster, D. M., & Klem, A. (1993). Motivated resistance and openness to persuasion in the presence or absence of prior information. Journal of Personality and Social Psychology, 65 (5), 861-876

"Brawling Over Mammography"

An interesting debate about the problem of false-positives in medical testing. Obviously, everyone wants to be tested "just in case", but a sensible policy would favor plausibility testing; everyone is not equally likely to have every disease. This article from the February 19, 2010 issue of Science, details the situation surrounding the release of a report by the U.S. Preventive Services Task Force that ran afoul of political accusations of "medical rationing". For women age 40-49 years with no other risk factors, the odds that a positive mammogram is actually due to cancer, rather than a false-positive test, is only about 2%. In other words, for every one breast cancer detection, 50 women are told that they have tested positive on their mammogram.

A Question of Trust

The comments section at the bottom of this July 1 Nature Editorial "A Question of Trust" speak more eloquently to the problem of public perception of climate change science than the editorial itself. Even here, now, at this citadel of learning and knowledge, evidence and peer-review falter before the teeming comment section questioners.

My favorite comment is from the "graduate student" who claims to have an algorithm that, when applied to climate models, disproves every one he's tried it on. And he's even shown it to his advisor, who agrees that this secret algorithm is right, and all peer-reviewed published climate models are hogwash. Genius. Pure, rhetorical genius. What possible response can there be to this kind of nugatory argument?

Accountability, Transparency, Scientists and Government

The FDA has promulgated a series of Recommended Daily Allowances (RDA) based on the proprietary review of scientists in the National Academies. The justification for these RDA values are not even available at a large institution such as Ohio State University. Because of this opacity, a large number of people have gravitated to interesting or promising parascientific ideas about the role of vitamins in nutrition. For example, many question the food pyramid's focus on carbohydrates. (Westin A Price) Others argue that the RDA for Vitamin C should be increased by a factor of 10. (Linus Pauling) Or that many health problems can be explained by a deficiency in, for example, iodine. Other groups question whether too much cholesterol is bad, whether too much salt is unhealthy. Much of the creative critiques of establishment medicine is based on rigorous research and reasonably open communication, although usually not entirely peer-reviewed. This gray literature is, however, limited compared to scientific publications. Yet when the scientific process is not transparent, it looses the inherent advantage of demonstrative accountability.

In 1998 Congress broadened the Freedom of Information Act (FOIA) to specify that all government funded science should be shared and freely available to the public. Dr. Sheila Jasanoff, a professor of Science, Technology, and Policy at Harvard University, has recently written an excellent primer in the May 7 2010 issue of Science on her perspective of how climate science measures up; "Policy Forum: Science and Society: Testing Time for Climate Science."

She describes the "Three-Body Problem" as consisting of individuals, reliable bodies of knowledge, and procedures. The individual scientist or expert must be held to high standards of honesty and integrity. In science, peer review partly serves this purpose. Reliable bodies of knowledge create scientific knowledge. Scientific advisory committees translate scientific findings into policy-relevant forms: individual members' impartiality and sound judgment is critical. Under the Federal Advisory Committee Act (FACA) (Public Law 92–463), scientific advisory committees must be fairly balanced and, in the absence of special circumstances, committee meetings and records are presumed to be open to the public.

science policy blogs
http://bigthink.com/blogs/age-of-engagement
http://climateprogress.org/2010/04/28/im-speaking-at-harvard-friday-on-science-blogging/