02 September 2020
The EPA is proposing to list a metal finishing company in Franklinville, Gloucester County, as a Superfund site.
The EPA is proposing to list a metal finishing company in Franklinville, Gloucester County, as a Superfund site.
A century of oil extraction has failed to yield the promised social and economic dividends, while compromising local water resources.
More intense rains and farm field drainage systems that have become highly efficient at pulling water off the landscape have led to growing devastation in the Minnesota River.
West Kentucky farmer Judy Wilson says her family is a bit of a sundry bunch.
Salt marshes along the entire West Coast could disappear by 2110, according to a new study.
A neighbor in a posh neighborhood along Biscayne Bay recorded a confrontation with renowned architect Bernardo Fort-Brescia as a landscape crew cleared protected mangroves from his $5 million property in the wake of Hurricane Irma.
Opinion | CONTRIBUTING OP-ED WRITER
Trump’s Sellout of American Heritage
Timothy Egan OCT. 13, 2017
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An aerial view of a landscape in the Bristol Bay watershed. Credit Paul Colangelo
The last runs of heavenly wild salmon are trickling in this month, the buttery coho with flesh the color of fall foliage. After that, we’ll have to settle for mostly farmed and frozen fish until next spring — no substitute for the real deal.
We can count on this seasonal miracle, healthy fish returning to their birthplaces and then on to the dinner table, so long as the fragile balance of nature remains intact. But with a president who is going after clean air, clean water and the world’s most valuable wild salmon fishery, the fate of creation and all the myriad wonders within it is at stake.
I use “creation” as an appeal to creationists to look at what your president is doing to Eden, or what’s left of it. I also want to appeal to economic nationalists. For the U.S.A. has the greatest home for sockeye salmon on the planet in Alaska’s Bristol Bay. The Trump administration is putting it at risk in order to aid a foreign mining conglomerate.
This American carnage is led by a man whose job is to protect the natural world within our borders, the E.P.A. administrator, Scott Pruitt. As you may have heard, he has sealed himself off from the public with a $25,000 phone security system and an 18-member security detail. It took a court order to pry loose some of the details of his meetings. No surprise, he holds daily lap-dog sessions with the companies he is supposed to regulate.
Pruitt is the swamp, the only wetland the Trump administration wants to protect. He serves the oil, chemical and mining interests that propped him up when he was attorney general of Oklahoma. He now runs the oil, chemical and mining protection agency out of Washington, with our money. You would never guess that this toady in a suit works for us.
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The environment, the American West and politics.
The Cancer in the Constitution
The Trump Fog Machine
In Rome, a Visit With the Anti-Trump
How the Far Right Came to Love Hippie Food
The Week the Earth Stood Still
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Biologist in a warming land 4 minutes ago
I am a scientist. Words like “diabolical,” “maniacal,” “loathsome,” are foreign to my vocabulary. Yet, the actions of the repugnant man in...
Newt Baker 4 minutes ago
"I use “creation” as an appeal to creationists to look at what your president is doing to Eden, or what’s left of it."There is no point in...
james jordan 20 minutes ago
Tim,You write the truth. The Trump administration keeps bragging about all of the good they have done in 9 months. Their idea of making the...
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Look around. The catastrophic wildfires that are sweeping through iconic landscapes in Northern California and carpet-bombing entire neighborhoods are a glimpse into an early future in the West. Hurricanes, rolling in one after the other, are swamping cities. Every month brings a new high temperature record.
Until this year, the American response was in tune with the rest of the world — to try to do something to fix this overheated globe of ours.
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In announcing this week that President Trump intends to spite all the other nations and gut President Barack Obama’s signature effort to curb greenhouse gas emissions, Pruitt framed the move as the end of the “war on coal.” Now comes the war on the planet and public health.
Amid the hourly calamities of a White House that is forced to treat its chief occupant like a toddler, it’s easy to forget that Trump is doing real damage to things that all of us share.
So, that’s politics, right? To the victor go the spoils. He’s simply rolling back onerous regulations, as promised, and sticking it to the global elites on climate change. Well, no.
Your party affiliation will not protect you from the chemicals sprayed on strawberries — shown to cause brain damage to children — which Trump will allow to remain in the food chain. Living in a red state will not keep warming oceans from rising ever higher when the latest 500-year storm hits your region. Being a Trump supporter does not protect your favorite stream from the toxic discharge of a power plant into a public waterway.
All of the above are potential consequences of more than 50 environmental rules that Trump has tried to kill since he took office.
National monuments — not the Confederate kind that Trump wants to preserve, but special places protected in somewhat the same way as national parks — are also in his sights. These are unique landscapes set aside for their cultural, historical or scenic splendor. Trump could shrink 10 of them — another sellout of American heritage.
In Alaska, he is going against the will of the people to target Bristol Bay. Half the world’s wild sockeye come from this magical place, a bounty that supports 14,000 jobs. Alaskans are a cantankerous bunch who can’t agree on much of anything. Yet they voted by an overwhelming margin in 2014 to protect Bristol Bay from a gold and copper mine that could generate 10 billion tons of toxic waste.
And unlike big food producers in the heartland, the Bristol Bay salmon industry is not propped up by subsidies, chemicals or compromised politicians. The fish need only clean water and healthy oceans. That’s why the E.P.A. had earlier concluded that the proposed Pebble mine could have a “catastrophic” impact on the bay.
Trump’s men are rolling over for the gold mine. Just hours after Pruitt met with the mine’s corporate leadership, Trump reversed E.P.A. protection, as CNN reported this week. If you’re surprised that wild salmon would be sacrificed for precious metal, remember that one of Trump’s few passions is for gold-plated bathroom fixtures.
This Saturday, Oct. 14, in Monaco, He Qiaonv will announce the first step in a $1.5 billion plan that may represent the largest-ever personal philanthropic commitment to wildlife conservation.
The number isn’t the only thing that’s surprising about the announcement. The source might equally raise eyebrows: The donation isn’t coming from a known Western conservationist like Paul Allen, but from a landscape planner-turned-environmental steward who’s based in Beijing.
Madame He represents a new wave of self-made Chinese philanthropists unafraid to spend; her seven-year pledge stands at more than a third of her current $3.6 billion net worth, according to the Bloomberg Billionaires Index.
“[China is] pivoting to a new narrative in record speed,” said Tom Kaplan, founder and chairman of Panthera, the leading wild cat conservation organization and He’s first international partner. “Their [global] reputation has suffered by being viewed as the scourge of the elephant and tiger—and they want to reverse this.”
As part of their partnership, He’s namesake Beijing Qiaonv Foundation (BQF) is pledging $20 million toward Chinese snow leopard and other projects at Panthera—significant for an organization whose annual operating budget hovers around $14 million. And doubly significant given that threatened cats in China had yet to be put under such a bright spotlight as, say, lions in Africa.
With the emergence of Chinese leadership in this area, Kaplan says Qiaonv’s pledge stands to change the face of cat conservation forever. “One day this event may be seen as a watershed.”
Private Wealth, Public Commitments
In China, domestic private conservation work still requires the collaboration of the government, as private landownership—and therefore, privately managed nature reserves—are not allowed under Chinese law. But under Xi Jinping’s leadership, these private-public partnerships are becoming possible.
Xi has emerged as an unlikely environmental leader after the U.S. dropped out of the Paris climate accord. Skeptics may think of this as rhetoric aimed at filling a political gap, but he has already made moves by banning the illegal ivory trade by the end of 2017, putting forth a long-term proposal to eliminate gasoline-powered cars, and creating the country’s first tiger and Amur leopard reserve near the Russian border. It’s one of 30 to 50 new conservation zones the government has promised by 2020.
All this stands in sharp contrast with other realities in China: Combating air pollution, the most visible sign of China’s environmental issues, continues to be a work in progress. And the country is still a major proponent of coal, despite cuts to its overall energy consumption.
But change is underway. “When the Chinese government decides to do something, they do it,” Kathryn Sheridan, CEO of a Brussels-based sustainability communications consultancy, told Reuters. “It’s not the talking shop that we see in Europe.”
Kaplan likens this moment in Chinese history to 19th century America, when the U.S. was making the move from rural to industrial society. “The water and air were being polluted in the rush for economic growth, and wildlife was obliterated—we nearly destroyed our own national symbol, the bald eagle,” he explained. “No nation has a monopoly on virtue, but it is also true that we can learn from history. The Chinese are experts at precisely that.”
Madame He agrees that the collaboration of China’s ultra-rich with their government marks a turning point for the country. “The public awareness of environmental protection is gradually increasing in China,” she told Bloomberg.
From Landscaper to Global Conservationist
Madame He’s affinity for the environment is what drove her into landscaping and resource management in the first place. But her vision for how she could contribute toward the greater good of the planet has evolved over time.
“At the very beginning, the dream of our business was to build 100 of the most beautiful parks in 100 cities of China,” said He of Beijing Orient Landscape Co., the company she built from scratch and continues to oversee as chairman. What she found along the way were polluted water systems and depleted urban ecology.
In 2012 she founded Beijing Qiaonv Foundation with the goal of resolving some of the world’s most pressing environmental issues. Among her priorities were establishing key conservation areas within her home country; identifying native species in the greatest need of protection; and lobbying the government, partnering with international organizations, and supporting domestic NGOs to create meaningful change that could impact global biodiversity and carbon dioxide levels.
As He put it, “We believe that protecting China is to protect the whole Earth.”
Private investments like hers matter. As we see happening now in the U.S., official Chinese priorities could easily shift, unraveling or putting a halt to progress that was quickly made. Partnerships with global players such as Kaplan and Bill Gates, who has worked with He through the China Global Philanthropy Institute (CGPI), mean that He’s fundraising commitments are being given extra measures of accountability. Just as important, they’re also being given a proven toolkit with which to succeed.
A Training Kit Imported From the West
With 79 projects already underway in 26 provinces—including everything from Asian elephant conservation to wetland protection—BQF didn’t need international validation or support to start making a difference. But at last year’s East-West Sustainability Summit in Honolulu, which was convened in partnership with CGPI, He shared a table with some of the world’s biggest players in conservation, including Nicole Mollo, the executive director of environmental philanthropy at the Recanati-Kaplan Foundation, the Panthera founder’s private organization.
“Things [in China] are changing under the global radar,” said Mollo, who went on to broker the partnership between Panthera and BQF, helping to establish both the financial scope and environmental goals that the partnership would support. “They have the will and frankly they have the resources—what they are missing is a middle tier of expertise. They don’t know what it means to manage a protected area, to train a ranger, or to work with communities and livestock.”
That’s why the partnership with Panthera marks a meaningful shift in He’s work: With the organization’s help, BQF will create and staff two protected snow leopard reserves that will serve as pilot areas and can be scaled over time, while simultaneously underwriting a wildlife management training program for Chinese conservationists. Then she’ll turn her attention to building hundreds of urban classrooms where “hundreds of millions of people can visit and learn” about conservation.
Big Goals, Big Impact
Even if He only accomplishes a quarter of what she sets out to do with her $1.5 billion pledge, she stands to make a massive impact.
In some ways, she already has. While the $20 million contribution to Panthera matches the commitments made by several global figureheads—Mohammed bin Zayed, the crown prince of Abu Dhabi—a 10-figure pledge is “unheard of.” That’s according to Mollo, who has facilitated some of the largest recorded contributions to conservation organizations over her years at the African Parks Foundation and the Wildlife Conservation Society.
She said the largest donation she’s seen on record was a $65 million commitment over 10 years; pledges in the hundreds of millions, like Gates’s recent $5 billion pledge to his health care- and education-focused foundation, are generally made to universities, hospitals, or cultural institutions with naming opportunities attached to them. In the conservation world? It’s not something she’d ever seen before. To wit, a spokesperson for the National Audubon Society confirmed that the organization’s recent “large donations” have rarely reached the seven-figure level—and its largest contributions have come from groups like the MacArthur Foundation rather than individuals.
Added Mollo, “I would be the first one to bash China for what they’ve done wrong, but that strategy will not get us anywhere. And when they put their money where their mouth is, it is our job to support them.”
In 1966, an ecologist at the University of Washington named Robert Paine removed all the ochre starfish from a short stretch of Pacific shoreline on Washington’s Olympic Peninsula. The absence of the predator had a dramatic effect on its ecosystem. In less than a year, a diverse tidal environment collapsed into a monoculture of mussels because the starfish was no longer around to eat them.
By keeping mussel numbers down, the starfish had allowed many other species to thrive, from seaweed to sponges. Paine’s research led to the well-known concept of keystone species: The idea that some species in an ecosystem have prevailing traits — in this case preying on mussels — whose importance is far greater than the dominant traits of other species in that ecosystem.
Now, a half-century later, researchers are taking the study of traits much farther, with some scientists concluding that understanding the function of species can tell us more about ecosystems than knowing which species are present — a concept known as functional diversity. This idea is not merely academic, as scientists say that understanding functional diversity can play an important role in shaping conservation programs to enhance biodiversity and preserve or restore ecosystems.
“The trait perspective is very powerful,” says Jonathan Lefcheck, a researcher at the Bigelow Marine Lab in East Boothbay, Maine who studies functional diversity in marine environments. “Some species in an ecosystem are redundant, and some species are very powerful.”
Much about the concept is also unknown. One case study is taking place along the Mekong River, a 2,700-mile waterway that serves as a vital fishery for millions of people in Southeast Asia. While the fishery is healthy now, widespread changes in the ecosystem — including the proposed construction of numerous dams and the development of riparian forests and wetlands — could mean that key fish species might not be around to carry out important functions, such as keeping prey numbers in check or recycling nutrients.
“There is simply no understanding of how the construction of a dam today, and another five years from now, and another in 10 years — all in the same river basin — will impact the biodiversity and push it past a point of no return, where large scale species extinctions are imminent,” said Leo Saenz, director of eco-hydrology for Conservation International.
So a team of ecologists from Conservation International is trying to determine which roles various species in the Mekong fill that are critical to perpetuating a healthy ecosystem. Those species might be predators like the giant snakehead, which helps control other fish populations so they don’t become too numerous, or thick groves of mangrove forests in shallow areas that provide a nursery for a wide variety of fish species. Models can then predict the best way to protect these key species and ensure a healthy river over the long term.
“Ecosystem resilience is an important part of what we aim to maintain, both for the interest of biodiversity conservation and for the maintenance of the ecosystem services that nature provides,” says Trond Larsen, a biologist who heads Conservation International’s Rapid Assessment Program for biodiversity.
Some scientists now compare knowing which species are present in an ecosystem to knowing only which parts of a car are present. Functional trait ecology is a deeper dive into ecosystem dynamics to help understand how the parts come together to create a natural environment that runs smoothly, like a well-tuned automobile, thus enabling a more focused protection of the vital parts that keep it going.
“Say you have two habitats with 10 different species in each,” explains Marc Cadotte, a professor of Urban Forest Conservation and Biology at the University of Toronto. “Yet, they might not be comparable at all if in one of those habitats eight of those 10 species are similar and redundant, while in the other habitat, all 10 species are unique from one other. We need alternative measures for biodiversity that tell us something about the niche differences, trait differences, how species are interacting, and how they are using resources. Functional diversity and phylogenetic diversity are meant to capture that.”
Phylogenetic diversity refers to species that have few or no close relatives and that are very different from other species, which may mean that they can contribute in very different ways to an ecosystem. Protecting phylogenetic diversity, then, is part of protecting important functions. The distinctive pearl bubble coral is one example, as it provides shelter to shrimp, an important food for the highly endangered hawksbill turtle.
Better understanding these aspects of ecosystems is a game-changer for the conservation of biodiversity. The Indo-West Pacific region, between the east coast of Africa and South Asia, has the highest diversity of life in the world’s oceans. But many species there, such as damselfishes and butterfly fishes, have a lot of overlap with other species in terms of traits — somewhat similar body sizes, similar habitats and habits, how and where they school, etc. That means they may have a narrower range of traits that may be important for ecosystem function.
“In the Galapagos, on the other hand, there are fewer species, but each of those species is doing something much different than the others,” says Lefcheck, who worked on research looking at functional diversity there. “If you were prioritizing your conservation efforts, you might focus on the Galapagos. Even though it doesn’t have as much biodiversity in the traditional sense, it has a much greater diversity of form and function.”
“Functional diversity is incredibly difficult to determine,” says Larsen of Conservation International, “but generating an improved understanding of the relationship between species and their functional diversity is key to understanding and mitigating impacts or threats from development.” His organization works to protect tuna and sharks, for example, because these predators help maintain a healthy and balanced ecosystem by keeping numbers of prey from growing too large and by culling the sick and the weak.
In a recent study in the journal Nature, researchers say that focusing on species function and evolutionary heritage can narrow the focus on what needs to be protected most urgently. “Biodiversity conservation has mostly focused on species, but some species may offer much more critical or unique functions or evolutionary heritage than others — something current conservation planning does not readily address,” says Walter Jetz, a professor of ecology and evolutionary biology at Yale University.
The researchers noted that 26 percent of the world’s bird and mammal species are not included in protected reserves. Focusing on the most important traits and evolutionary heritage of those species would allow conservationists to narrow their protection of critical biodiversity with just a 5 percent increase in protected areas, and would be far less costly than trying to protect them all, the Nature study shows.
As traits are better understood in ecosystems, Lefcheck says, it allows tweaking and management of ecosystems for certain outcomes. “You could choose to conserve the species that are very different than others that might lead to changes in the ecosystem that could be considered beneficial,” he says. That has potential for fisheries management, for example. “When I tell someone, ‘This species has been around for 2.6 million years,’ that’s very esoteric in a way,” says Lefcheck. “But if I can say, ‘This large-bodied species produces a lot of biomass, and it can crop down invasive algae, and it plays a high-functioning and critical role in the ecosystem,’ you might want to protect species that have that trait.”
Such is the case with parrotfish and surgeonfish — “reef-grazers” that eat algae and keep coral reefs healthy. Because of these key traits, the government of Belize has enacted a law to protect these two species.
Understanding traits also can enhance ecosystem restoration projects. While building a new oyster aquaculture fishery can provide a commercial harvest, “we also know that oysters provide a lot of other services,” says Lefcheck. “They filter the water. They provide nooks and crannies for small fish and invertebrates to live in, and they are fish food for the tasty things we like to catch and to put on the dinner table. Where is the optimum placement of this restoration to enhance the variety of services we get from the oysters beyond just having the reefs there?”
The benefits of understanding functional diversity can go well beyond ecosystem restoration. In Toronto, for example, green (plant-covered) roofs are required on most new commercial buildings to help cool the city and reduce storm water runoff. A monoculture of grass called sedum is used. In studies, though, Cadotte and colleagues have found that if grass species that are distantly related and dissimilar are used in the mix, they have different traits that provide more shade for the soil and help the roof keep the building cooler. This mix also reduces stormwater runoff by about 20 percent.
The formal study of functional traits can be traced back to the 1990s, when ecologist David Tilman at the University of Minnesota did research on grasslands. He found that those regions with more species diversity did better during a drought, and only a few of the grasses resistant to drought were needed. Later, he and his colleagues discovered that the presence of some grasses with certain traits, such as an ability to fix nitrogen, was more important than overall species diversity.
Researchers in Jena, Germany established the Jena Experiment to follow up on this work. They found that there are plants, such as wild tobacco, that emit “messenger molecules” when they are under assault by herbivores to attract predators from miles away that eat their enemies. This trait not only benefits the tobacco, but other species in the neighboring plant community.
Experts say these findings could also help agriculture rely less on pesticides by understanding the right mix of plants to maximize predator defenses. “Varying the expression of just a few genes in a few individuals can have large protective effects for the whole field,” says Meredith Schuman, a researcher on the Jena Experiment at the Max Planck Institute for Chemical Ecology. “It’s an economically tenable way to recover the lost benefits of biodiversity for the vast expanses of land that have already been converted from natural, biodiverse habitats into agricultural monocultures.”
These new approaches to ecology show how limited the science has been. Many researchers welcome the change. “Ecology has moved from counting species to accounting for species,” says Cadotte.
Jim Robbins is a veteran journalist based in Helena, Montana. He has written for the New York Times, Conde Nast Traveler, and numerous other publications. His latest book, The Wonder of Birds: What they Tell Us about the World, Ourselves and a Better Future, is due out in May.
by Neena Satija, The Texas Tribune and Reveal, Kiah Collier, The Texas Tribune, and Al Shaw, ProPublica, October 12, 2017
When Jeremy Boutor moved to a master-planned community in Houston’s booming energy corridor, he saw it as idyllic.
Lakes on Eldridge boasted waterfalls, jogging trails and a clubhouse. It was upscale, secure and close to the office. A bus even picked up his two young sons in front of their house and took them to a nearby international school.
“This neighborhood was a paradise,” said Boutor, who moved to Houston from Paris two years ago after his employer, a French-based energy company, asked him to relocate.
Then, Hurricane Harvey changed everything.
As the downpours began and Boutor studied maps flashing on his TV screen, he realized that his home wasn’t at risk of flooding just because of record rainfall; it was also located inside one of two massive reservoirs that had been built west of Houston decades ago to protect the city.
Boutor ended up with more than a foot of water in his house and was forced to wade out of his home in knee-deep water with his 10-year-old son clinging to his back.
He and his neighbors are now coming to terms with the fact that in big enough rainstorms, their neighborhoods are actually designed to flood. And nobody told them about it.
When the U.S. Army Corps of Engineers built the two reservoirs known as Addicks and Barker on what was then mostly empty prairie, their chief goal was to protect the center of the city, 20 miles downstream.
The vast basins are dry most of the time, dotted with wooded parks and sports fields, and are contained on their western boundaries by large, earthen dams. During rainstorms, floodwater accumulates behind those dams in areas known as “flood pools” and backs up to the east; how far it goes depends on how big the rainstorm is and where it hits.
That system worked well when the reservoirs were surrounded by prairie and rice fields. But in recent decades, development has encroached from all sides. Today, about 14,000 homes are located inside them. During Harvey, when more floodwater accumulated behind the dams than ever before, 5,138 of those homes flooded.
Subdivisions built within the Addicks and Barker Reservoirs stayed flooded for days as the Army Corps of Engineers gradually released water down Buffalo Bayou.
Grand ParkwayAddicks ReservoirBarker ReservoirBuffalo BayouSubdivisions that contain homes within reservoirsThe Army Corps gradually released Harvey's floodwaters from Addicks and Barker down Buffalo Bayou to the GulfEdge of reservoirEdge of government-owned landBuffalo Bayou watershedTo Downtown Houston →
Some local government officials, like Harris County Commissioner Steve Radack, say they’ve warned residents for years about the risks of living in or around the reservoirs during town halls and other public events.
“It is very difficult to make people believe the unbelievable,” Radack said. “No one ever believed the reservoirs would fill.”
Harris County Judge Ed Emmett, the county’s top elected official, said residents must know they live in the reservoirs — the dams, he said, are right there.
“You’ve got a group that bought homes if not in, then on the very edge of reservoirs behind the dams, so that's pretty obvious,” Emmett said.
But it’s clear after Harvey that it wasn’t obvious to a lot of people. None of the more than half a dozen residents interviewed by The Texas Tribune and ProPublica after the floods say they knew they were living inside Addicks or Barker — many of their neighborhoods are several miles away from the dams.
Several local officials — including Houston’s “flood czar” and a neighboring county executive — said they had no idea the neighborhoods had been built inside the flood pools. Several real estate agents said they didn’t realize they were selling homes inside the pools.
“When I started to rent this house, nobody told me,” Boutor said. “Even the insurance company told me that it was not a flooding area.”
But critics say those officials and developers had to know they were putting people and property at risk.
“They had full knowledge. They knew exactly what they were doing,” said Phil Bedient, a professor of engineering at Rice University who studies flooding in the Houston area. “It’s a huge geopolitical mistake. How are they going to fix it?”
The question of who’s to blame has reignited long-simmering tensions between Harris County and the city of Houston.
In recent interviews, Emmett, the county judge, claimed that the city regulates development inside the reservoirs. But the city’s “flood czar,” Stephen Costello, called that “outrageous” and said the county plays a role, too.
Ultimately, all of them blame Congress. For more than a decade, the U.S. Army Corps of Engineers has identified a number of major needs for Addicks and Barker — including a comprehensive study of how development affects the reservoirs — but hasn’t gotten enough funding to address all the issues.
No matter whose fault it is, Fort Bend County Judge Robert Hebert — who has a portion of Barker Reservoir in his jurisdiction — said “you can’t take all that developed property off that land. It’s there. Whether it should have been allowed to be built the way it did ... that wasn’t on my watch.”
But now that the homes and streets are there — instead of the prairieland that used to absorb rainwater — scientists, along with Harris County and federal officials, say they are sending more runoff into the reservoirs during heavy storms. That means the reservoirs are getting fuller with each big rain event, threatening not just neighborhoods inside the reservoirs but the integrity of the earthen dams, too. The dams have been considered at risk of failure for years.
As Addicks and Barker reached historic levels during Harvey, the Army Corps sent an unprecedented torrent of floodwater downstream to ease the stress on dams. That caused thousands of additional homes to flood — homes that the reservoirs were initially built to protect.
Ed Taravella, a longtime Houston developer, said he hasn’t seen any credible studies showing that development has sent more runoff into the reservoirs. “Things people say are largely anecdotal,” he said.
Jeremy Boutor at his flood-damaged rental home in one of the neighborhoods flooded in Addicks Reservoir in Houston on Tuesday, Sept. 12, 2017. (Michael Stravato/The Texas Tribune)
But scientists say the impact of replacing prairie with pavement is clear: More water ends up in the reservoirs, rather than being absorbed into the ground. The Army Corps has said as much for years.
“As development continues, we’re going to see more water coming to the reservoirs,” Richard Long, who oversees Addicks and Barker for the agency, told The Texas Tribune and ProPublica last year. “It means we have a harder job to do.”
Long added that the Army Corps doesn’t have the power to control development on land the agency doesn’t own.
“That would require the act of politicians, and they’ve chosen not to do it,” Long said.
For at least six years, the Army Corps has sought $3 million to study the risks that development poses to the reservoirs, but Congress hasn’t approved it — and no local government agreed to sponsor the study until recently. Last week, Texas officials asked Congress to provide $10 billion for a variety of Army Corps projects as part of Harvey recovery efforts.
The Army Corps is now referring media inquiries to the U.S. Department of Justice as it faces mounting lawsuits from residents who live upstream and downstream of the reservoirs. Some also are suing the city and county.
Local officials like Hebert said they never considered the possibility that the reservoirs would hold so much water — until Harvey set national records by dropping up to 50 inches of rain in parts of southeast Texas.
“To be perfectly honest with you, nobody had ever discussed with me the risk of inundation to the degree we had,” he said. “I was vaguely aware that if we got high enough, we could get water in those streets ... It was just something that was incomprehensible.”
He said he still considers it a “unique event” and doesn’t think it’s likely those homes will flood again any time soon.
Before Harvey, the neighborhoods inside the reservoirs had been some of the most desirable places to live in Houston. In Boutor’s subdivision, home prices range from $300,000 to $1.5 million.
But for Boutor, Lakes on Eldridge is not so desirable anymore.
“I don’t want to stay in this community,” he said. “I have to go far away from these reservoirs.”
“Nobody’s in charge”
It’s not clear when local officials became aware of the true risk of building homes within the reservoir basins. Alan Potok, who was assistant director of the Harris County Flood Control District until 2014, said that discussion began after some big floods in the 1990s that pushed water higher than ever before in the reservoirs.
The flooding didn’t reach neighborhoods, but “everybody knew it was going to happen” eventually, Potok said.
Potok pointed out that some of the subdivisions were built in the 1970s, before Harris County had floodplain maps. But many appeared more recently — even after officials recognized that the reservoirs had dodged a bullet during 2001’s Tropical Storm Allison.
Allison dropped almost 40 inches of rain in five days and devastated large areas of Houston — but luckily, district officials wrote in a 2003 report, most of the rain didn’t fall over the reservoirs, or “the damage could have been worse.”
“If the intense rainfall ... had occurred over Barker and Addicks Reservoirs, record flood heights exceeding previous records by five to eight feet would have occurred,” the report said.
The report estimated that as much as 2,000 acres of private land inside the reservoirs — much of it already filled with homes — would have flooded.
But nothing changed. At least 4,000 more homes have been built inside the reservoirs since Allison, according to a Tribune/ProPublica analysis of appraisal data.
Thousands of homes are wedged between government land and the maximum height of Addicks and Barker Reservoirs.
Army Corps of Engineers data shows subdivisions just beyond the edge of federal government land stayed flooded after Harvey’s rains. The maps at left, based on data from Sept. 16 after flood waters largely receded, show damaged subdivisions just beyond government-owned land. At right, those subdivisions on Sept. 3, days after Harvey's floodwaters filled reservoirs nearly to capacity.
Structure damaged in Harvey
Flooding on Sept. 16 Flooding on Sept. 3
2000 ft.Edge of reservoirTwin Lakes SubdivisionGovernment-owned land
2000 ft.Edge of reservoirTwin Lakes SubdivisionGovernment-owned land
2000 ft.Edge of reservoirLakes On Eldridge SubdivisionGovernment-owned land
2000 ft.Edge of reservoirLakes On Eldridge SubdivisionGovernment-owned land
2000 ft.Edge of reservoirKelliwood Greens SubdivisionGovernment-owned land
2000 ft.Edge of reservoirKelliwood Greens SubdivisionGovernment-owned land
By 2015, the flood control district had issued a warning in a new report that concluded: “Addicks Reservoir does not have the capacity to accept additional runoff anticipated from land development activities.”
That report went to both Harris County and the Texas Water Development Board. Still, development hasn’t stopped, although Harris County recently adopted slightly stronger flood mitigation rules in the area.
The finger-pointing over who allowed that development was going on long before Harvey. And there is certainly plenty of blame to go around.
You could start with the Army Corps, which bought only about 24,500 acres back when it built Addicks and Barker in the 1940s — even though the agency knew at the time that about 8,000 more acres could actually flood in a large enough rainstorm.
“There was only cattle, hay crops and a few rice crops out there at the time,” Long, the Army Corps’ reservoir overseer, said in 2016.
So if private property flooded, it wouldn’t be a big deal.
But Houston kept growing, from less than 400,000 people in 1940 to more than 2 million today. And the areas that had been intended for flood control — the reservoir basins and the fringes of Buffalo Bayou downstream — became desirable land for developers.
In an interview last year, Long said the Army Corps has little to no control over development and that its hands have been tied by local politicians and other factors — including the whims of various presidents and congresses with differing views on how much land the government should own and who controls the Army Corps budget.
If the agency could go back and start over, knowing what it knows now, “our battle lines would definitely be different,” he said.
Hebert, the Fort Bend County judge, said he can’t believe the Corps didn’t buy more land back when it built the projects. In the ‘40s, he said the county bought land for the reservoirs for just $12 an acre, or $170 per acre in today’s dollars.
“We can’t cry over spilled milk right now,” Hebert said. “But a lot of folks have tears, and a lot of milk has been spilled.”
Others say the Army Corps doesn’t deserve the brunt of the blame. After all, local officials are the ones who allowed development on all that non-government-owned land.
Those local officials are now engaged in an intense round of deflection and blame games.
“It’s too easy to look back and say ‘shoulda, woulda, coulda,’” said Emmett, the Harris County judge. “We need to find out what everybody’s role was and then make sure this kind of thing doesn’t happen going forward.”
Emmett said because the reservoirs are inside the city of Houston’s jurisdiction, the city — not Harris County — is responsible for approving “plats” that clear the way for constructing new neighborhoods.
“That’s an outrageous statement,” said Costello, the city’s “flood czar,” who said that Harris County has to approve the plats for new construction, too.
Should the city have rejected the initial plats and stopped the development before it started?
“I don’t have a response to that question, and I won’t respond to that question,” Costello said.
An engineer who used to the work for the Army Corps’ Galveston District and often discloses that he “made a good living working with developers,” Costello said he wasn’t aware the reservoir “flood pools” were that large until a few weeks ago, when he first saw a copy of an Army Corps operating manual.
All the deflection makes it clear to Bedient, the Rice University engineering professor, that local government policies need to change.
“It should be treated as a regional flood problem. The city doesn’t talk to the county. The county certainly doesn’t know how to deal with the Corps of Engineers ... Nobody’s in charge,” he said.
“Nobody looks at a plat”
Harris County officials may not have realized the true risks of development around and inside the reservoirs until Tropical Storm Allison. But there is evidence that officials in neighboring Fort Bend County were worried a lot earlier.
Back in the 1990s, when development in Barker Reservoir was really ramping up, Larry Dunbar remembers getting a call from Fort Bend County officials.
Dunbar, an engineer and lawyer who has long consulted on water issues, said officials told him they felt uncomfortable allowing so much development in the reservoirs’ flood pool. So he gave them a few options, he said.
“One option was, don’t allow any development there. And it was like, well, politically we probably can’t do that,” Dunbar remembered. “So I said, another option is, make all the developers elevate the homes above the design pool” — the land behind the dams the Army Corps knew it might have to flood. Dunbar said county officials told him “that may not be practical.”
In the end, over significant opposition from developers, the county agreed to put a one-sentence disclosure of possible “controlled inundation” for plots of land in neighborhoods inside Barker. But the sentence was buried in the plat documents, which are not typically shown to homebuyers.
“It’s not like waving a big red flag,” Dunbar conceded, but it was better than nothing.
Dunbar and a colleague recently filed a class action lawsuit against the Army Corps on behalf of a resident who lives inside Barker’s flood pool.
Hebert, the county judge, said he’s not even sure those small notices on the plats are legal. Anything that could cause property values to drop — and a disclosure that a house is inside a reservoir would fit that category — is a possible governmental “taking” of private property without compensating landowners.
“In my opinion, that was the right thing to do,” Hebert said. But “I think we’re subject to being sued by the property owners.”
By all accounts, neither Harris County nor the city of Houston has required such a disclosure, but Radack, the Harris County commissioner, said he thinks “there should be every kind of disclosure known to man.”
Asked why the county hasn’t done so during his three decades in office, Radack scoffed and pointed to what he considers a more meaningful move by the county: It requires anyone building there to elevate homes six inches higher than Fort Bend County’s regulations.
“Nobody looks at a plat,” he said. “Nobody knows where to go to even see a plat.”
Selling the reservoirs as amenities
Officials didn’t simply sit back and let development occur inside the reservoirs. They actually encouraged it through other key actions — including the construction of a third highway loop around the city that would skirt the western edges of both of the emergency lakes.
Talk about building the Grand Parkway began decades ago, back in the 1980s. Some described the Parkway as visionary because it anticipated Houston’s rapid growth. When completed in 2021, the new loop will be large enough to fit the state of Rhode Island inside of it.
But proponents of sustainable development — including the environmental group Sierra Club, which sued to try to stop its construction — said the Parkway would encourage more suburban sprawl and wetland loss and would worsen flooding problems.
Several years after Allison flooded large swaths of Houston, it was time to build a crucial western segment of the giant loop, known as Segment E. During the litigation, the Sierra Club obtained documents that showed the Army Corps and state agencies also were worried about paving over more wetlands that could absorb floodwaters in the Addicks and Barker watersheds.
Development encroaching on the north side of Addicks Reservoir in Houston on Sept 7, 2016. (Michael Stravato/The Texas Tribune)
The documents included emails from Long, the Corps’ reservoir overseer, who wrote that constructing a new segment of the parkway “further compounds issues and problems that already exist with Addicks and Barker.” Even with flood mitigation, he said, “negative impacts will occur to the reservoirs.”
But Long was overruled by another Corps official, who concluded, “No impacts to the Addicks and Barker Reservoirs are expected.” That conclusion wound up in the Army Corps' final permit allowing Segment E to be built.
The court documents show that the Texas Commission on Environmental Quality, the state’s environmental regulatory agency, also expressed concerns about that segment of the highway, writing that “permeable surface [prairie and wetlands] loss will contribute to flooding problems” and that “flooding impacts need to be addressed.” Other state and federal agencies, including the U.S. Environmental Protection Agency, raised similar concerns.
The Army Corps received more than 70 requests to hold a public hearing about the project but decided not to. “It is unlikely that new information would be gained by holding a public hearing. Therefore a public hearing will not be held,” the agency wrote in documents made public in the lawsuit.
Houston lawyer Jim Blackburn, who filed the suit on behalf of the Sierra Club, said the documents made clear that the Army Corps “prioritized building the Grand Parkway over fixing the issue with Addicks and Barker development.”
“This is not dumb, bad planning,” he said. “This is very well-thought-out, bad planning.”
Segment E spurred more growth in what’s called the Energy Corridor, a narrow sliver of land along Interstate 10 located smack in the middle of the Addicks and Barker reservoirs.
For people moving into the area, the reservoirs aren’t billed as a disadvantage or threat. Quite the opposite.
In 2001, the Texas Legislature created The Energy Corridor Management District to oversee and promote growth in the area. It touted the reservoirs as “two of the largest unspoiled natural areas of any metropolitan region in the U.S.” — and the parks and sports fields within them as amenities that support an “active, healthy lifestyle.”
Nowhere on its website does the district mention flood risks.
A spokesman for the district declined an interview request, saying it is “more concerned now with getting life and business back to normal and then pursuing our master plan vision for the District that is guiding our efforts to make a more livable, walkable/bikeable and connected place.”
“The District also does not deal with development regulations, which is the City of Houston's purview,” he added.
No end to development
Local officials say it’s too late to go back and tear up all of the development in the reservoirs. But they’re divided on what should be done now that Harvey has exposed the flood dangers.
Hebert said he’s not sure what can be done to restrict further development in Barker. Because Fort Bend County doesn’t have zoning power, it could try to buy out homes in the reservoir, but that would cost hundreds of millions of dollars; the average value of the 3,000 homes that flooded is $360,000, Hebert said.
And he’s not sure drastic measures are needed. “There were woolly mammoths roaming around the last time that we had rain like this,” he said.
Meanwhile, Harris County has taken some steps. Last year, officials strengthened flood control regulations for developments inside and near Addicks and Barker reservoirs that are within county boundaries.
For the first time ever, some new developments will have to put in detention ponds, which temporarily hold water and then slowly discharge it into nearby streams. They’ll also have to install some form of “retention” that can store the water more permanently. That way, excess water won’t end up in the reservoirs during big storms.
Emmett has also called for more changes to development regulation, though it’s unclear what that would involve. “We need to start over,” he said, “and look at everything.”
Bedient, the Rice University engineering professor, said those regulations will help, but they’re too little, too late. He said the only thing that can really help solve the problem is to build a long-discussed third reservoir upstream of Addicks and Barker to hold excess floodwater.
County and city officials have called loudly for such a project, which would cost at least $300 million, to be funded as part of a federal Harvey recovery package. U.S. Rep. Michael McCaul, a Republican whose district includes part of the greater Houston region, also is championing the project.
But it’s still not clear exactly where a new reservoir would be located. When Potok was assistant director of the Harris County Flood Control District, he tried to get landowners to the table, but “when push came to shove, quite frankly, everybody had to give up something,” he recalled. The effort stalled and hasn’t been revived.
Emmett said he thinks it's a good idea, but he’s not sure there’s enough undeveloped land left for a new reservoir. “What's in [that land] now?’” he said. “You could have whole subdivisions already built.’”
Meanwhile, there’s no indication that development in the area will slow — even after Harvey.
Houston Realtor-broker Sam Chaudhry, who also serves on the government affairs committee of the Texas Association of Realtors, said he’s decided not to sell homes in neighborhoods inside the reservoirs anymore.
And he said he would never have sold homes there in the first place if he had known about the risks — information he said the city and Army Corps knew but “didn't disclose.”
“I found that out from TV, actually,” he said. “I was like, are you kidding me?”
But he’s probably the exception. For-sale signs proliferate in flood-ravaged neighborhoods inside the reservoirs. Chaudhry said many of them will be snapped up by “an army of investors.”
One five-bedroom home in Lakes on Eldridge, the same subdivision where Jeremy Boutor lives, was listed for $678,000 about two weeks before it flooded during Harvey.
The seller’s agent, Moira Holden, tried to put a positive spin on things when she updated the online listing that decreased the asking price by $10,000. “Unfortunately this stunning home did flood and is being refurbished to the highest spec!” it says. “Fabulous chance to choose your finishes!”
When asked if she would disclose to potential buyers that the home was inside Addicks Reservoir, Holden didn't have a clear answer. “I will obviously disclose whatever we are required to disclose,” she said, pointing out that the home wasn't in a floodplain. “I would hope that the buyer's Realtor would do their due diligence on that.”
Edna Meyer-Nelson, a developer who calls herself a “sixth-generation Houstonian,” said she didn’t know that the shopping center she recently bought was in Addicks Reservoir. She said the development didn’t flood during Harvey but that she’d be willing to submit to stricter building regulations as long as everyone else buys in, too.
“We’re filling up everything with cement, and then we expect [the water] to go somewhere,” she said. “There’s nowhere for the water to go. We need to build more retention ponds.”
But she resisted the idea that development inside the reservoirs needs to stop or slow down.
“We’re going to cover every inch of the land that we can cover,” she said. “I think we need to get more ingenious, but I don’t think we need to stop.”
ProPublica and the Texas Tribune are looking into home buyouts after Hurricane Harvey. Has your home flooded repeatedly, and have you volunteered for a buyout? E-mail email@example.com.
Map sources: US Army Corps of Engineers, Texas Water Development Board, FEMA, Harris County Appraisal District, Fort Bend Central Appraisal District, USGS Orthoimagery. Note: Our graphics do not capture peak flooding between August 26 and Sept. 2 because the Army Corps only posted inundation data beginning on Sept. 3.
Freelance writer and photographer
October 11, 2017 — It is still cool in the morning as Spots gets ready to start work. Calm and confident, the imposing 10-year old light brown Kangal is leading a herd of goats into a pasture. “He is always excited to go out with the goats,” says Tyapa Toivo, small livestock manager at the Cheetah Conservation Fund (CCF).
In this part of north-central Namibia, the goats graze every day on the same land where leopards, cheetahs and jackals also live. But the goats are safe with Spots. He watches over them intensely, and if a predator approaches, he barks loudly and places himself between the herd and the threatening animal. This is usually sufficient to scare the predator away. “Our goats go out every day and we have cheetah roaming around, but I have never experienced losses from a cheetah,” says Toivo. “They know that this herd of goats is with a dog, so they don’t bother coming any closer.”
Spots is a livestock guard dog, and like others around the world, his job is to protect domestic animals against native predators — and so reduce humans’ perceived need to kill the predators. It’s just one way in which dogs have been enlisted to help protect threatened and endangered species around the world.
Cheetahs, the fastest land animals on earth, are struggling in the race against extinction. Once found throughout Africa and in much of Asia and numbering around 100,000 animals in 1900, cheetahs are now persisting in only 9 percent of their historic range. The global population is now estimated at about 7,100 animals. Namibia is part of the home range of the world’s largest subpopulation, numbering around 3,940.
Due to conflicts with more powerful predators such as lions and hyenas, which kill cheetahs’ cubs and steal their prey, most cheetahs live outside protected reserves and parks, including on farmland. There they face other dangers. Because they live close to humans raising cows, sheep and goats, cheetahs are often held responsible for livestock losses, and Namibian farmers have felt they had no other option but to kill the big cats to protect their herd. It is estimated that between 1980 and 1990 nearly 10,000 cheetahs were lost that way, according to CCF. Convinced that farmers and predators could co-exist, CCF turned to man’s best friend to reduce conflicts between farmers and big cats.
Kanga puppies and goats spend timing getting used to each other early in the training process. Photo courtesy of Isabelle Groc
Since 1994, the organization has been placing Anatolian shepherd and Kangal dogs on farms across Namibia to protect livestock against predators. The goats that Spots is watching over belong to the CCF’s model farm, which has been set up to show farmers that livestock and wildlife can live in harmony with improved herd management and the use of guard dogs.
CCF raises and trains puppies at its headquarters in Otjiwarongo, two to three hours north of the capital city of Windhoek. At a young age, the dogs are placed in pens to live and bond with goats. Before long they are ready to start protecting goats on a farm. Since its beginning, CCF has placed nearly 600 dogs on farms and currently has 160 working dogs across the country.
According to Laurie Marker, CCF’s founder and executive director, livestock losses have been reduced by 80 to 100 percent on farms with guard dogs. “I picked [Anatolian shepherds] because they are independent thinkers,” she says. “They don’t need to be told by humans what to do. They are way smarter.”
The ancient qualities of working dogs are becoming increasingly valued as dogs are recruited to solve a variety of modern-day conservation challenges.
Heidi Parker, a staff scientist with the Dog Genome Project at the National Institutes of Health, says Anatolian shepherds are great for this job. “This is a very old breed, probably one of the first types of dogs that people started creating,” she says. Anatolian shepherds go back to a time when canines were working animals rather than pets. “Dogs were originally designed with jobs, they can still do jobs, and they are happy to learn new jobs,” Parker says.
The ancient qualities of working dogs are becoming increasingly valued as dogs are recruited to solve a variety of modern-day conservation challenges.
At CCF, Levi, like Spots, is a working dog, but his job is different. Handler Quentin de Jager is harnessing the powerful sense of smell of the two-year old Belgian Malinois/German shepherd cross to find cheetah scat.
De Jager brought Levi from South Africa, where the dog had been trained to respond to the scent of rhino horn in an effort to fight widespread poaching by literally sniffing out contraband. “Dogs were the most effective tool we had against anti-poaching even with all the technology we have today,” says De Jager. “Nothing compares to what the dogs are capable of.”
A dog’s reward for successful sleuthing? Playtime with a red bouncy ball. Photo courtesy of Isabelle Groc
In the field De Jager says the word “Soek,” the search command in Afrikaans. Levi runs around looking for cheetah scat; once he finds it, he is rewarded with a ball to fetch. Cheetah researchers in turn are rewarded with knowledge they can use to determine how many cheetah are in an area, how they are distributed, and their health, diet and stress levels. Scat can also tell them whether cheetahs are responsible for eating livestock on farmland, which can ultimately help reduce human-wildlife conflict.
No Job Too Big
Far from Africa, in Washington state, Conservation Canines, a nonprofit organization affiliated with the University of Washington’s Center for Conservation Biology, has been training dogs to track down the scat of rare and elusive species for the past 20 years.
“There is almost unlimited use for the dogs,” says Heath Smith, Conservation Canines’ instructor and field operations manager. “So far there hasn’t been a project too big for the dogs.”
K9 Jack searches for whale scat in the Salish Sea. Photo courtesy of Conservation Canines
The organization’s 20 detection dogs are helping at-risk species all over the world, on land and water. In Nepal and Vietnam they have searched for pangolin scat, which provides a genetic fingerprint that makes it possible to track illegal shipments of pangolins to the regions in which the animals were captured and so home in on criminals. In Puget Sound they have tracked down scat from southern resident killer whales that researchers used to identify pregnant animals and assess the role of physiological stress in reproductive problems.
Other Conservation Canine dogs have located the elusive Oregon spotted frog in British Columbia’s wetlands and found carcasses from birds and bats struck by turbine blades as part of a study of impacts of wind farms on wildlife. One worked downtown Seattle, sniffing for PCBs so researchers could find and fix leaks contaminating nearby waterways. Another tracked scat of the rare ocellated lizard in a region of Provence where the reptile was thought to be extirpated.
“More people are realizing dogs can do this and that is a viable way to provide a lot of data quickly over large areas,” says Smith.
Researchers collect scat detected by a Conservation Canine working dog. Photo courtesy of Isabelle Groc
Unlike the specialized livestock guard dogs of Namibia, a specific breed is not required to do the jobs these dogs are assigned. Instead, Smith rescues energetic, unwanted dogs from shelters and redirects their insatiable play drive to the search mission. “We are looking for dogs that can problem solve and think for themselves,” he says.
While the dogs catch onto their jobs relatively quickly, the people involved with the canines often require more training. Smith says it takes two years to train a handler, and he also educates researchers about working with dogs.
“A lot of studies are designed for human surveyors, and the researchers want to put the dogs into that formula,” says Smith. “They think of a dog as a super human who is going to detect everything.” But each situation has variables, such as the direction of the wind, that affect the dog’s ability to perform the job. “It is a different world for the dog.”
“The dogs are not a silver bullet. They are a part of an integrated system that goes along with good livestock management.” – Laurie Marker
In Namibia, farmers who receive guard dogs are trained to develop and implement predator-friendly livestock management techniques on their land, including the establishment of calving seasons to make it easier to monitor animals at vulnerable life stages and the use of calving enclosures called kraals. that help protect newborns from predators. Farmers are also taught how to take care of the dogs and monitor their performance on a daily basis. Over 5,000 farmers have been trained at the CCF’s model farm, says Marker.
“The dogs are not a silver bullet. They are a part of an integrated system that goes along with good livestock management,” she says. “The dog plays a role, the farmer plays a role, predators are not the enemy.”
A big question loomed at the Supreme Court today as the justices heard arguments over which court — federal appeals courts or district courts — would handle challenges to the Obama administration's contentious Waters of the U.S. rule.
Should the Clean Water Act be interpreted functionally or literally?
Led by the National Association of Manufacturers (NAM), the petitioners contend that challenges belong in district courts because the rule doesn't fall under specific categories for which the Clean Water Act grants appellate court review.
But the government argues against a literal interpretation of the law and says challenges belong in appeals courts, where review would be more efficient.
The case is far from a slam-dunk for either side, but justices seemed more inclined to side with the industry group. Of the court's liberal wing, Justice Stephen Breyer had the most difficulty in reconciling the government's position with the text of the Clean Water Act.
"I am rather stuck," he said.
The Obama administration's rule — also known by its acronym, WOTUS, and as the Clean Water Rule — attempts to clarify which isolated wetlands and streams receive automatic protection under the Clean Water Act. U.S. EPA and the Army Corps of Engineers issued the joint rule in 2015.
Dozens of parties sued over WOTUS in both appeals and district courts. In January, the Supreme Court agreed to take up a petition by NAM asking it to decide the correct legal venue.
The Supreme Court's decision on the issue will determine where challenges to future Clean Water Act rules play out. The choice of court also affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.
At issue is the Clean Water Act section containing the law's judicial review provisions. The law stipulates that appeals courts have jurisdiction over challenges to "any effluent limitation or other limitation," as well as permit approvals or denials. Other legal disputes go to district courts.
NAM, states opposed to WOTUS, farm and business groups, and a coalition of environmental organizations all believe that lawsuits belong in district courts. They argue WOTUS is a definitional rule that itself does not impose any discharge limitations or approve any permits.
The law is "precise" in what disputes go to district court, NAM attorney Timothy Bishop told the justices today.
The Trump administration, the Natural Resources Defense Council and the National Wildlife Federation, on the other hand, argue that challenges fall within the purview of appeals courts because the rule established the boundaries of the Clean Water Act's ban on pollutant discharges and EPA's permitting authority.
Rachel Kovner, assistant to the solicitor general, today argued that, because the government cannot issue an effluent limitation without first defining the scope of standards, the rule necessarily functions as a limitation under the law.
Sending WOTUS to appeals courts would promote judicial efficiency, the government also argues. "The provision should be interpreted to avoid irrational bifurcation," Kovner said.
Justice Sonia Sotomayor called the government's position that the rule qualified as a limitation "attractive," "simple" and "certainly no more complex" than NAM's argument.
And she noted that challengers to the rule have specifically argued that the rule is "limiting" their activities.
Breyer, though, said that he had trouble with the government's position because Congress spelled out the types of limitations that would be subject to appeals court review. WOTUS does not fall into those categories, he said.
If lawmakers intended all rules to go to appeals courts, Breyer said, "why did they bother writing this stuff?"
Justice Ruth Bader Ginsburg, too, said she understood the textual arguments. She also noted that the Clean Water Act is different from the Clean Air Act, which stipulates that legal challenges to national rules automatically go to appeals courts.
"That's what's missing here," she said.
Chief Justice John Roberts seemed to sway between the practical effects of where the legal battle plays out and the plain text of the statute.
On the one hand, he raised concerns about the expediency of having multiple district courts around the country parse through the thousands of pages that make up the administrative record. "And then the court of appeals would do it again all over," he said.
"You would agree that it's inefficient, won't you?" he asked NAM's Bishop.
But later, the chief justice said it seemed "more natural" to read the Clean Water Rule as defining where limitations apply rather than actually imposing a limit.
And he wondered what effect having legal challenges play out in appeals court would have on future enforcement actions taken under the Clean Water Rule.
Would a "farmer in Kansas" be able to challenge the definition of WOTUS on his property during an enforcement action? Or would he be told that it's too late because it is past the 120-day statute of limitations for filing actions in appeals courts?
Justice Neil Gorsuch, for whom this was his first environmental case at the high court, was relatively quiet throughout the hourlong arguments.
During the last few minutes, he told Kovner, the government attorney, that she had made a "pretty interesting argument" on efficiency — until, that is, Roberts raised the concerns about future enforcement cases.
"If we're going to be in district court anyway [for enforcement], what's the efficiency gain?" he asked.
Will case be mooted?
Underneath all the legal arguments about the function and text of the Clean Water Act is a lurking issue: Could the whole case become moot?
The Trump administration is in the midst of replacing the Clean Water Rule with a version that will likely protect fewer bodies of water. Just last week, the administration wrapped up a public comment on the first step in that process, a rule that would completely repeal the Obama-era rule.
Earlier this year, the Supreme Court rejected a request by the Trump administration to hold the case in abeyance while it decides what to do with the rule. Legal experts posited then that justices believed the jurisdictional question would be important no matter what happens to the rule.
But Ginsburg and Sotomayor today both raised the issue of mootness.
"Is it possible this case will be mooted this term?" Sotomayor asked.
Both the Justice Department and NAM today urged the Supreme Court to decide the case.
Eric Murphy, Ohio's state solicitor, who argued today on behalf of states, said too much money has already been spent on litigating which court the rule belongs in — money that would have been better spent on arguing the merits of the Clean Water Rule.
"We should establish clear jurisdictional rules," he said.
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It's a shocking image.
Lots of hippos, some lying on their sides, others completely belly up, but all mysteriously dead and partially submerged in a lake in Namibia. What confuses locals even more is how quickly it happened.
The first hippo was spotted on October 1, said the acting director of Namibia's Ministry of Environment and Tourism, Johnson Ndokosho. Since then, at least 100 have turned up dead in the western region of Bwabwata National Park, which sits in a northeastern Namibian strip, sandwiched between Angola and Botswana.
BREAKING NEWS: Over 50 hippos found dead in Bwabwata
— New Era Newspaper (@NewEraNewspaper) October 6, 2017
"It had not broken out for a while," said Ndokosho. Early theories for the massive die off are centered around previous die offs caused by a lethal bacteria with a household name.
"We suspect that they died because of anthrax but we are yet to confirm this," said the ministry official in a phone interview. He emphasized that, while tests are ongoing, preventing anthrax poisoning is difficult.
"There's not much we can do," said Ndokosho. "We can't move the wildlife."
Several water buffaloes have also reportedly turned up dead. But because the dead hippos are in a remote part of the park, far from livestock operations, there isn't much potential for the disease to spread, Ndokosho said.
In 2004, as many as 200 hippos died from a deadly anthrax outbreak in Uganda. It took researchers months before an official diagnosis was reached, and at least 10 people died after eating contaminated hippo meat.
WHERE DID IT COME FROM?
Anthrax illness is caused by the bacteria Bacillus anthracis, which is thought to naturally come into contact with wildlife when water recedes. While anthrax is known infamously as a potential biological weapon, the bacteria naturally occur in the soil, where they can lay unnoticed for decades.
According to the Centers for Disease Control, the bacteria produce spores that can become "activated" when they enter a living organism. From there, the bacteria multiply and spread throughout the body, causing severe illness, and, if left untreated, death.
In an interview with regional outlet the New Era, Colgar Sikopo, the director of Namibia's parks and wildlife division, blamed the outbreak on lower than normal river levels that may have exposed the deadly patches of soil.
The ministry is warning locals not to eat meat from dead animals in the region, and hippo carcasses are being burned in an attempt to prevent the disease from spreading.
"We're concerned that animals are dying, but we're not worried about the [overall health of the] population," said Ndokosho. As a species, hippos are listed as "vulnerable" by the International Union for the Conservation of Nature, and an estimated 3,300 live in and around Namibia.
Bwabwata sits just north of the Okavango Delta, the largest freshwater wetland in southern Africa, which supports an abundant array of wildlife. (Learn how National Geographic is helping build long-term sustainability in the Okavango.)
Investigations are still ongoing, and this article will be updated as more details are released.
Deciphering dueling analyses of clean water regulations
Kevin J. Boyle1, Matthew J. Kotchen2, V. Kerry Smith3
1Virginia Tech, Blacksburg, VA 24060, USA.
2Yale University, New Haven, CT 06520, USA.
3Arizona State University, Tempe, AZ 85281, USA.
See all authors and affiliations
Science 06 Oct 2017:
Vol. 358, Issue 6359, pp. 49-50
Figures & Data
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Despite evidence, benefits of policies to protect wetlands have been ignored. Coastal waterway and marshland along the Georgia Sea Islands, USA, is shown.
PHOTO: EDWIN REMSBERG/GETTY IMAGES
Government agencies are often required to conduct benefit-cost analyses for major regulatory actions (1). When benefit-cost analysis is consistent with best practices, it provides a systematic and science-based approach for informing policy and regulatory decisions. It has been particularly important for health and environmental regulations. Yet the wide disparity between the quantified benefits in two recent and conflicting regulatory impact analyses (RIAs) related to the U.S. Clean Water Act (CWA) has the potential to undermine the credibility of agencies' benefit-cost analyses. It also highlights the need for a more systematic protocol that ensures the information base is adequate and appropriately applied to support agency analyses and public decision-making. This includes applications in the context of the CWA, which is the focus of an 11 October hearing in the U.S. Supreme Court.
In 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE) issued the waters of the United States (WOTUS) rule, which sought to update and clarify which waters are subject to CWA provisions (2). The key issue was the extent of connectivity between navigable waterways and different types of upstream water bodies, including wetlands. The effect of the 2015 WOTUS rule was to expand coverage of the CWA. Whereas supporters of the rule contend that it is consistent with the CWA and related Supreme Court decisions, critics argue that it represents regulatory overreach by the Obama administration. Presently, the 2015 WOTUS rule is not being implemented because of a court-ordered stay based on questions about which courts have jurisdiction to hear WOTUS challenges. The upcoming Supreme Court hearing is scheduled to begin oral arguments on this case.
In the meantime, in February 2017, President Trump issued an Executive Order that called for a “review” of the 2015 WOTUS rule (3). Then, in June 2017, the EPA and ACOE proposed a new rule that would rescind the Obama administration's WOTUS rule (4). The 2017 proposed rule, which is making its way through the rule-making process, would imply that the jurisdictions and associated connected waterways added by the 2015 rule would no longer be subject to the CWA.
Both rules have been subject to benefit-cost analysis by EPA and ACOE as part of the RIAs (5, 6). Both RIAs deal with what is ostensibly the same set of changes in water-related resources, but in opposite directions. This means that the categories of costs and benefits are reversed in the two analyses, but they can be interpreted in roughly the same way. From the perspective of the 2015 WOTUS rule, the two analyses come to starkly different economic conclusions. The cost estimates remain unchanged, but the quantified benefits in 2017 decrease by almost 90%. The difference stems from a decision in the 2017 RIA to exclude wetlands-related benefits—which the same agencies concluded 2 years earlier ranged from $300 million to $500 million per year. The effect is an overturning of the initial finding that the benefits exceed the costs of implementing the 2015 WOTUS rule.
Without endorsing the specific findings of the 2015 RIA, we find no defensible or consistent basis provided by the agencies for the decision to exclude what amounts to the largest category of benefits from the 2017 RIA. We believe it is important to highlight the implications of the 2017 decision to designate wetlands-related benefits as unquantified, which is inconsistent with best practices for conducting benefit-cost analysis.
The 2017 RIA does not quantify wetland-related benefits because the studies used to estimate these benefits were judged to be too old, having all been conducted prior to 2000. The stated reasons for their exclusion are as follows: Older studies introduce uncertainty because public attitudes toward nature protection may have changed; the studies may not have used the most recent methodological approaches; and the limited number of studies make it difficult to validate the estimates. The 2017 RIA also argues that more recent studies are not available.
It is important to note, however, that the 2017 RIA does not apply a consistent criterion for when studies are considered “too old” to produce reliable benefit estimates. If either the date when data were collected or when a study was published is the standard for inclusion or exclusion (i.e., prior to 2000 in this case), then the standard should be applied uniformly. Yet the benefit measures retained in the 2017 RIA for point sources of pollution are based on data collected in 1983 and published in 1993 (7). Thus, if the stated exclusion rule were applied consistently, this would imply no quantification of benefits for any categories of water-quality effects. But this is incompatible with decades of scientific research on the estimates of economic benefits for water-quality improvements and on the connectivity of streams and wetlands to downstream waterways (8). Importantly, assuming all or most benefits are unquantifiable, and thus implicitly assigning $0 for excluded benefits, undermines the usefulness of conducting a benefit-cost analysis.
The age of studies alone is not a defensible criterion for excluding categories of economic benefits. RIAs related to environmental quality should take advantage of all the credible information available using state-of-the-art benefit-transfer methods to calibrate existing value estimates to meet the needs of each new rule (9). In addition, although the agencies note an absence of recent wetland valuation studies, our review of the literature uncovered at least 10 studies published since 2000 that could be considered for expanding the body of knowledge on wetland values [see supplementary materials (SM)].
The 2017 RIA correctly notes that methods to measure economic values for changes in environmental quality have advanced over the last three-plus decades (9). However, the decision pertaining to wetlands-related benefits is inconsistent with best practices within the current economics literature. Before studies are excluded from consideration, best practice requires documentation that either they did not use methods that would meet contemporary standards or that estimates could not be adjusted to reflect uncertainty based on newer research. The 2017 RIA did not provide such documentation, and well-established methods for conducting benefit-cost analysis suggest that whenever possible, best estimates should be presented along with a description of the uncertainties (10, 11).
We also find the logic for excluding wetland-related benefits inconsistent with empirical evidence. The 2017 RIA asserts that public attitudes toward nature protection may have changed. This is important because attitudes are often used to gauge public support for environmental policies (12) and the credibility of estimates for willingness-to-pay as the basis for economic benefits (13). Based on data from the widely used and publicly available General Social Survey (see SM), the figure shows the trend since 1973 in U.S. public opinion about spending to improve and protect the environment. These data show no evidence to suggest that preferences for nature protection have declined. The percentage of Americans who think spending on the environment is “too little” or “about right” has been very stable, averaging 89% since 1986. Moreover, the percentage of Americans who think that pollution in rivers, lakes, and streams is at least somewhat dangerous also has remained very stable and over 90% since data collection began in 1993 (see fig. S2) (14).
The discrepancy between the 2015 and 2017 RIAs from the same government agencies serves as a call to action for an agency-research community partnership to produce relevant and credible information on benefit and cost measures for environmental policies. There are two challenges. One involves a process that ensures there will be studies that quantify economic values for a consistently defined set of environmental services. In addition, there is the need for a framework to organize the collection and maintenance of benefit estimates from these studies. Unfortunately, the incentives for academic researchers to conduct and publish applied studies are weak because new methods and questions tend to be favored in the peer-reviewed publication process. But, importantly, to systematically measure environmental benefits and update them for use in RIAs, high-quality applied studies need to be conducted at periodic intervals through time.
In market economies, consistent records of exchanges provide an important component of the information required to update important economic indicators, such as the consumer price index (CPI). This index is used, for example, to adjust retirement benefits and allowances for poverty alleviation. There is also a clear protocol for how data are collected and used to construct the CPI index. There are no such analogs in terms of a systematic process that ensures the primary research is conducted to maintain measures of environmental benefits over time. The development and refinement of comparable protocols with systematic data collection should emerge as a research priority to provide improved methods for the EPA and other agencies that rely on credible RIAs to support rule making and policy decisions.
These needs are particularly compelling for decision-making on policies related to the endowment of key natural resources we will leave for future generations, such as services provided by water quality in rivers and streams. More generally, careful benefit-cost analyses, supported by adequate data on both benefits and costs, create incentives for policy-makers to focus on the key question: If the benefits exceed the costs of an action, what are the issues that might justify inaction? Although there may be reasonable answers, far less justification is needed for inaction when the costs exceed the benefits.
Beyond an economics perspective, inconsistencies in the benefit estimates between the 2015 and 2017 RIAs may also factor into challenges to the Trump administration's proposed rescission of the 2015 WOTUS. Questions are sure to arise about whether this proposed rule satisfies a “reasoned explanation” precedent or constitutes an “arbitrary or capricious” decision according to the Administrative Procedure Act (15). In the meantime, future changes to the definition of U.S. waters subject to the CWA may depend on a horserace between cases currently before the courts and the Trump administration's timeline to carry out its rule-making.
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