Friday, October 31, 2014

Public Comment - Sunday Hunting in Western Maryland

Conservationist Supports Sunday Hunting in Western Maryland as Proposed

My name is River Mud.  I have hunted in Maryland, including the Maryland counties under this proposal, for the greatest part of 20 years.  I also have hiked, kayaked, and walked my dog in this region, all during hunting season, without feeling unsafe due to hunters' presence.  I have worked in private lands conservation and habitat enhancement for almost 20 years, and I fully support the pending proposal for less restrictive Sunday hunting. 

More than 10 years after Maryland's first Sunday hunt, opponents still can't say exactly what's wrong with the massively successful policy.    There are not even anecdotal tales, let alone confirmed instances or law enforcement reports, of any known conflicts between hunters and non-hunters on public or private lands during a Sunday hunt.    Not even one.  Not in eleven years!  (Cue: unfounded, several year-old allegations of Sunday hunting conflicts....3....2....1.....) The opposition to Sunday hunting is about two things: unfounded fear, and a desire to control what others do in the wee hours in the dead of winter.  As a Maryland taxpayer and a conservationist, I find those two things quite odd, and certainly not  good bases for creating public policy.

The "Safety" Opposition:  Statistics are clear:  there are no Sunday-specific landowner conflicts - as landowners must give written permission to hunt in Maryland (and if the property is posted, riders and hikers must obtain permission as well).   There are no Sunday-specific safety issues, as hunting season (and preponderance of hunters in the field) occurs largely occurs during the times of year when most non-hunters are not outdoor in significant numbers.  44 states have Sunday hunting, and hunting accidents (largely only injuring the hunter perpetrating the accident) are no more prevalent there than they are in states without Sunday hunting. 

The "Exclusive Use of the Woods" Opposition:  As I sit in the goose blind or tree stand in January, windchills in the single digits, I keep an eye out for hikers, for dog walkers, for kayakers.  Those people, arguably more sane in their choice of free time activity, are settled in for a warm morning on the couch with friends and family.    They simply are not outdoors.  No one is riding a horse on state property on a Sunday when there is a foot of snow on the ground.  But bow hunters are there.  No one is kayaking the Potomac as the ice floes break and cartwheel downstream.  But duck hunters are there.  No one is walking their dog in blinding snow in a state forest, temperatures at dawn hovering at 0.  But grouse hunters are there.

The "Increased Poacher/Trespasser" Opposition.  If poachers exist on private lands, they should be arrested.  By Maryland law, anyone outside the immediate family of the landowner who is hunting private land without explicit written permission of the landowner is poaching - and a poacher.   The argument that Sunday hunting will lead to Sunday poaching is a spurious one - as poachers already operate on Sundays - the winter woods, fields, and waters free of the watchful eyes of legal hunters.  No data from the 44 states with Sunday hunting shows that game violations of any type have increased as a result of Sunday hunting.

The "Raining Bullets" Opposition.  It is illegal to shoot a squirrel with a pellet gun on Sunday.  However it is not illegal to detonate explosives, fire a banned, fully automatic machine gun all day, shoot hundreds of rifle, handgun, or shotgun rounds into the edge of the forest during target practice, or really any other type of shooting that isn't focused "at" a game species.  A successful deer hunt in Maryland ends with one shot fired.  A successful goose hunt? One or two shots fired.  A successful bow hunt? One arrow.  The likelihood of having a full, successful harvest?  Less than 25% on any given day.  So cue up those machine guns, but no Red Ryders allowed.  This is Sunday in Maryland.

The "Day of Rest for Wildlife" Opposition.   Several years ago, I took a beautiful photograph of a bald eagle killing a bufflehead duck on a Sunday.  It reminded me that wildlife doesn't get a day off until each animal dies.  Nearly a century ago, wildlife biologists (and I am one) put to rest the parochial notion that wildlife need or receive a "day of rest."  Disease, starvation, and predators all abound on Sundays.  Cars still hit deer on Sundays.  The "day of rest" concept is nonsensical and not based in fact. 

In conclusion, Sunday hunting is safe and it is equitable.  Sportsmen, the conservationists who contribute the most in volunteer time and in money to the state's natural resources should not be excluded from the woods, fields, and waters on Sundays because of unfounded fears that have been statistically disproven in every state that keeps wildlife law enforcement and hunting safety and fatality data.    If conflicts occur on private land, it means that someone is not where they are supposed to be - a reality for which criminal and civil penalties already exist, and must be enforced.  If conflicts ever do occur on public land, users should absolutely mediate a solution to ensure the incident isn't repeated.  

Why opponents of Sunday hunting keep insisting that these dire predictions are inevitable, and are only related to Sunday hunting, is perplexing.   The facts are apparent - Maryland's Sunday hunting ban was a clear violation of law.  Providing Sunday hunting access is a sensitive topic and must be handled thoughtfully, as it has been in Maryland over the last 11 years.   As a life-long conservationist and career wildlife habitat ecologist, I applaud Maryland DNR for this proposal on Sunday hunting and the long and thoughtful process by which it was brought about. 

2014 Bow Hunt II - The Art of Overthinking It

Having not seen a single deer at my first "genius" bowhunting spot in the swamp (beaver dam crossing), and having listened to an army of them behind and uphill of me during my last hunt,  I crafted up a hide behind a two-trunked poplar tree between two draws, near the top of the hill.

Once again, I hiked in, no lights, no moon.  Unlike my last hunt, I didn't hear a single deer before sunrise.  7am passed.  8am passed.  At almost 9am, I saw my first deer, stepping carefully through the swamp - a healthy 6-point buck.  He got on top of the beaver dam and slowly ambled his way across it, having to hurdle the two logs I hid behind during my last hunt.  I could have killed him with a rock!

Had I been there.

No, I was up at my genius new hideout, so as soon as I saw him crossing the dam, I stalked him down through the woods and finally got to about 40 yards.  Unfortunately, he stayed hidden on my side of the swamp, never providing an open shot, and angled away from me.   I took several deep breaths.   That excitement was worth getting up for, there's no doubt about it.  I was thinking about checking my phone when I heard a deer walking above and behind me - it was the 6 point - rooting around in the leaves about 5 yards downhill from the Genius New Hideout....where I was not sitting.   I was sitting, facing the opposite direction, about 25 yards downhill from the animal.  I slowly turned, and he saw me and flew out of there.  Hmph.

About three minutes later, I heard more hooves moving and thought, "He's coming back! He's coming back!"  Finally, after two years of walking around in these woods, I am noticing that the white oaks grow in nearly a straight/diagonal line across the slope, allowing the deer to check each one as they pass through.  Both the Swamp Log Hideout and the Genius New Hideout are within 5 yards of that trail.  If only I could sit still in one of those locations.

The deer coming into the area looked to be the same size as the 6-point, but I only saw pieces of him.  He stepped behind a big poplar and I could tell he would keep walking.  I shouldered the crossbow and when his head cleared, he was still foraging in the leaves.  Breathe in, breathe out.  18 yards, maybe 20.  So easy.  As I was about to shoot, he raised his head, displaying two 6" 18 month old buck, not the 3 1/2 year old I'd just seen there.   I exhaled, which he heard, and he ran off.  I'm glad I didn't use a buck tag on such a small male.

And that was it - the wind picked up and the deer bedded down completely.  Soon, I plan to hang a stand in that area to allow me to draw a bow or shoulder a crossbow without being worried about what the deer see.  I'll probably also build a more formal ground blind to hunt in a cross wind.

All in all, another great morning.  I think success is coming soon.

Tuesday, October 28, 2014

Back to the Woods - 2014 Bow Hunt I

2014 has been a lot of work.  I received a substantial raise right before the new year, and then was promoted in September 2014.   A lot has gone on, and my time outdoors has suffered pretty substantially.   So finally in early October, I got out to bow hunt an area swamp.

As I started down the hill, total darkness, no lights, a deer smelled me and gave out an alarm cry.  I heard them running all over.  I arrived at my pre-destined ground hunting spot a few minutes later, and waited.   The spot was at the end of a beaver dam that deer used to cross the swamp - hiding on the ground between two fallen trees.  There were always tons of tracks in the pre-season, so I figured it would be easy.   Having not hunted the spot in a year, I really had no idea.

Hello, poacher.  Found this while
scouting in July 2013.  Still here in
October 2014.  Guess the guy
hasn't been back. 
The deer were moving heavily on a trail above me, overlooking the swamp.  I heard dozens.  As the sun came up, I didn't see a single deer in the swamp itself, but was entertained by the wood ducks and beavers, all hard at work.  To my flank, three small does were eating white oak acorns.  I had no shot, and one of them was constantly looking right at me.  By 20 minutes after sunrise, the deer had stopped moving.  I never saw a buck, and never saw a large doe.

At one point before dawn, a deer was behind me, sending alarm calls to the deer in front of me.   The deer in front of me also sent out the call.  It was so dark that I couldn't see either of them - they must have smelled me.  I really hate hunting in a tree, but it might be required here.  

At 8:00 I put myself together and went to work.  I learned a lot, and I'll be back.

Thursday, October 23, 2014

On the Clean Water Act's Birthday, I Remember the King William Reservoir

One of my favorite places on earth - the Mattaponi River in eastern Virginia.
The US EPA gave someone permission to turn it into a 1,500 acre lake.
Photo:  Alliance for the Chesapeake Bay

Habitat partners everywhere are celebrating the Clean Water Act's birthday publicly.  It's a great thing, and CWA is a great law.   Its application, though, has been a bit inconsistent over the years, a point which is not lost on the apparent majority of conservationists and a large minority of Democrats and liberals regarding the pending New Rule for Waters of the US.   Some of the most environmentally liberal local jurisdictions in the country, in fact, are publicly opposing the pending Rule.

Me?  I  wish it hadn't come to this.  I wish the Migratory Bird Rule was still intact - that the Missouri Coteau had federal protection from draining and from the farming of virgin prairie.  But that's all done now.  EPA failed to negotiate a settlement with a Chicago area sewer authority, and the federal agency was taken behind the woodshed when the case arrived at the US Supreme Court - the Court never even bothered to tackle constitutionality, finding significant statutory flaw in EPA's policy.

KW Reservoir site, from
Virginia Places
But I remember the King William Reservoir.  In the headwaters of the Mattaponi River, a sacred river on which I've paddled and fish most of my life, lie a great many things.  Last known populations of several endangered species.  Pre-Columbian sacred Native American burial grounds.  Current Mattaponi Tribal lands.   And the most lush and productive tidal freshwater beds I have seen in 40 years on this earth.

In those places, many years ago, the City of Newport News proposed to flood - up to 70 feet deep - over 600 acres, then 400 acres, of this special river.   It would have been the single largest loss of wetlands and streams ever permitted by the US EPA.   And the US Army Corps of Engineers happily granted permits for the project, without any objection from EPA (an agency that currently threatens to veto Corps permits for things as trivial as voluntary stream restoration projects).

Unfortunately for the EPA, a local group of stinky hippies called the "Friends of the Mattaponi" joined into a lawsuit with the Mattaponi tribe under the moniker of "Alliance to Save the Mattaponi", and in fact, a federal judge found that the King William Reservoir federal permits were  issued based on "arbitrary and capricious"standards - aka an "abuse of discretion." Specifically, the judge found that the EPA did not exert enough material interest or input in the project to warrant their lack of intervention.  And why would they was just the largest destruction of wetlands ever permitted by the Clean Water Act?! No biggie.  Part of the federal judge's logic was obviously that EPA had vetoed permits for other less destructive reservoir projects in the adjacent county to the south.  Ouch.

So, when the judge's decision came down, clearly the EPA realized the error of its ways, right? No! In fact, they appealed the judge's decision to the federal circuit court!!!!!  EPA felt so strongly that they should be able to allow the largest single destruction of wetlands in CWA history that they appealed it! When asked by reporters about EPA's support of the massively damaging project, their project manager Randy Pomponio said the nearly 1,600 acre bathtub was, "the direction we want these folks to go," when compared to a 1980s concept that was 50% larger.  You read that right, folks.  The largest permitted wetland destruction ever authorized under the Clean Water Act was "the direction (EPA) want(s) these folks to go."   

That's right - the same agency currently begging for a Presidential Rule on expanding its legal authority wanted to fight all the way to the Supreme Court - again (they're currently 2 of 9 for CWA cases, as I mentioned in my last post) - for their right to do whatever they want with whatever water they want.    Luckily and unceremoniously, AG Eric Holder saw to it that EPA's appeal was quietly withdrawn just a few weeks later.   

Until that last sentence, you were probably thinking that this case was in the 1970s, or early 1980s.  But that "Eric Holder" thing....yeah....this federal court decision happened in 2009.

The same federal agency who has never been able to balance the books on the loss of federal wetlands and streams, the same federal agency who is currently begging Congress and the public to approve a massive increase (they tell us conservationists) in federal waters jurisdiction...yeah...those same folks.

In fact, a recent blog article by EPA's Randy Pomponio (the same guy in charge of EPA's work on King William Reservoir just 5 years ago) discusses how badly the New Rule is needed:

The proposed rule ..... is designed to clear the confusion and provide a more definitive explanation.
This is critical because the health of our larger water bodies – our rivers, lakes, bays and coastal waters depends on the network of streams and wetlands where they begin.  

Well, I'd argue that the health of our larger water bodies is also dependent upon EPA not letting people flood them with 70 vertical feet of water, behind a huge dam. Ironically, EPA's New Rule for Waters of the US won't stop them from going along with another project of this type in another river (or, you  know, allowing coal companies to fill in mountain streams with toxic fill, or letting natural gas companies pump glycols into our groundwater...but I digress). The Clean Water Act didn't deter EPA, in fact, from allowing this behemoth of a project to attempt to destroy this beautiful, sacred place.  If it were not for local activists, this special place on earth would be gone by now, slowly flooding up to its new depth (deep enough for the world's largest cargo ships to float in it!).  But for the mean time, it appears as if the sacred Mattaponi is safe, still teeming with waterfowl, with menhaden and herring, with descendents of the people who arrived here three thousand years ago, with children fishing in boats.  I hope it remains so for my son and for his children.

Sacred tribal lands of the Mattaponi.  Photo: Sacred Land Film Project

Misunderstanding Ecological Engineering

Recently, I was working in the garden with my five year old son.  He craned his neck to look up at the Black Mammoth Sunflower he had planted as a seed four months prior, now past full bloom and developing the characteristic striped, swelling seeds - but many were missing already.  He had picked a peculiar spot in a raised bed, so I did my part and planted a few dozen more sunflower seeds around.  You know, just in case.   "Daddy, why are all the seeds on the ground?"  I explained to him, "Well, buddy, the squirrels have been climbing up the plant and eating them."  He looked at me impetulantly, "But you said the sunflower seeds are for the birds."  

Yeah, he had me.  I responded, "Well, they're for whatever animal gets them first, I guess."  His irritation was sustained and he repeated, "But my sunflower was for birds.  Not other animals."  I then presented him with a choice - to 1) cut and dry the seed head, and toss the dried seeds out for birds in the winter, when they are truly needed, 2) cut down the plant and dry it for burning in the fire pit so "no other animals could get it," or 3) to let it be, knowing that my young son's sole interest in growing that plant (a reasonable, achievable one at that) would be completely unfulfilled. 

He chose to let nature - such as it is in a backyard garden in an 80 year old neighborhood in a city of 700,000 people - take its course.  Days later, all of the seeds were gone, split seed coats littering the garden and sidewalk, along with squirrel, rabbit, and raccoon droppings, and I cut the plant down entirely to begin to make room for winter cover crops.  Goldfinches flitted about the other varieties of sunflowers, but my son's plant did not fulfill what he believed was its highest and best use - providing food  for our local birds.   Our collective choice was to grow out that small sunflower patch this summer, and I weeded the garden to make sure the sunflowers could dominate the area.  That choice was what we refer to as "ecological engineering."  Something lived and something died.

Every weed I pulled signified that I was selecting (or engineering) the potential value of the sunflowers over the potential value of the weeds.  A great example is the extensive number of poison ivy seedlings that I pulled.  For those who are unaware, poison ivy can intake a preposterous amount of carbon dioxide - thriving near highways and urban centers.   The poison ivy berry is very nutritious to wildlife, as well, though the plant is very much a gardener's nuisance to those of us who are allergic to it.   Likewise, the sunflower can thrive in poor soils in urban areas, and is known to uptake high amounts of metals from urban soils - that's a great thing.  And the seeds' value to wildlife is known to even toddlers.   But at the tiny scale of my garden plot, I was subconsciously making the decision that the human-calculated benefits of growing sunflowers outweighed the benefits of growing poison ivy.  Nearby, my neighbors faithfully mow their extensive lawn, ensuring that natural succession of wildflowers, shrubs, and trees never takes place in the footprint of that yard.  Again, that is a decision of assigning value to a piece of space on earth - not only what that space currently is, but what its highest value might be.  At a larger landscape level, we call this the valuation of ecosystem services, and its technical application is ecological engineering - how are those desirable ecosystem processes kept in motion, or placed in motion?  Even a toddler can understand the concept and its relative importance, and I believe that most high school biology students could grasp the broad impacts of these land use decisions on natural systems.

As I drive to work through southeastern Baltimore, I'm confronted with a landscape of pavement interrupted only by thin, stream valley parks.   These valleys, filled in 300 years ago for farming, then utilized as the pathway for sewer lines 100 years ago, and now currently a sluiceway for urban trash, bodies, and illicit sewage discharges, stretch for dozens if not hundreds of miles in Baltimore alone.  In Maryland, parkland trees are sacred, and so herbicide and management are generally not used.  And why would they be? This landscape of Norway Maples, Chinese Money Trees and Japanese Knotweed are "natural" landscapes, are they not? More importantly, the trees, many of them 80-100 years old now, are falling dramatically with each passing winter, as they are overwhelmed by English Ivy, Japanese Kudzu, Japanese Porcelainberry, and all sorts of other invasive plants that destroy existing trees and prevent young trees from growing at all.   They cover the ground, preventing germination of new native trees, and many invasives exude soil toxins to stop germination as well.  In short, the urban forests are dying now. 

The park agencies' absolute failure to protect this thin veil of urban "forest" from complete destruction tends to occur because making the decision over what species to manage or eliminate, at what cost, and toward what end goal, has turned out to be a difficult one.  It's not an easy decision to choose (or engineer) which functions of a highly disturbed ecosystem like an urban valley - or a backyard garden - will be preserved, modified, or eliminated.  However, as the now oft-repeated tale of National Park Service's 12 year delay to make a decision to remove invasive Burmese pythons from the Everglades National Park  shows us clearly, not making a decision about future ecological services of a degrading or degraded habitat is still very much a decision to "engineer" the ecosystem.  Why is this so?

Disequilibrium, a mathematical process documented at many temporal and spatial scales in highly disturbed wildlife habitats, is not a linear process.  In fact, disequilibrium and its partners degradation and entropy may not even be exponential functions, as they tumble out of control toward a dystopian conclusion we've not yet seen in most cases.  Disequilibrium exists because numerous environmental parameters are in decline in the same time and space, while simultaneously, parameters viewed negatively by human society are rising arbitrarily, without controls, and with an unknown end.  Failing to address or engineer this multivariate imbalance is a decision about ecological services, just as much as a decision to somehow intervene in and attempt to "repair" the disequilibrium might be.

Harvested oak forest "healing itself" into a gum thicket
Making a preservationist standpoint that a system in spatio-temporal disequilibrium, dissonance, chaos, or entropy (and those things are not the same) can heal itself is a childish idea not rooted in very basic science.  In urban and suburban systems that have lost up to 90% of their biodiversity, are 50-90% paved, feature water pollution deadly to many animals, and are covered with invasive plants from all over the world, there's no real mechanical or structural framework for anything to "heal itself" using natural forces and a perceived advantage of "time, which doesn't cost anything."  If the disequilibrium were to suddenly move in reverse of its own accord (a mathematical impossibility), to what condition would the urban habitat "heal itself?"  The virgin Chestnut-Oak forests of 1606? Swamps thick with Baldcypress and buttonbush?  Above is a picture of a former oak forest that "healed itself" into a 20-year old thicket of sweetgum trees roughly 30 feet tall and two feet apart.  Hint: it's not the same.  It will never grow back into an oak forest, an oak-hickory forest, or even an oak-pine forest.  This forest - its soil, trees, and hydrology - have fundamentally changed from what once was.

Some recent papers have been published in the environmental science world that decry humans' decisions to make land use decisions in urban habitats because they represent "ecological engineering."  Ironically, one such paper was published in the journal of Ecological Engineering.  These papers state that ongoing efforts to "restore" ecosystems in disturbed areas fall short of restoring pre-European colonization ecologies (of which we have no data), and instead, only restore certain ecological services or functions to these landscapes.   Even worse, these writings claim, the ecosystem functions targeted for restoration are human-valued, such as clean water, fish ecology, and migratory birds.  Can you imagine! The horror! 

We're led to believe in these articles that the alternative - to "leave nature alone," will magically bring back prehistoric ecosystems in prime health.  Of course, there's little to no evidence of that type of passive restoration working.   They say "stop the source of water pollution - that will save the stream downhill!" as human populations swell and as conventional stormwater techniques are only designed to treat the flows and pollutants carried by the smallest measured storms, not damaging hurricanes or nor'easters. 

When did we become afraid of decisions?  When did we become afraid of engineering?  While it's impossible to design our way out of environmental problems we've created without understanding and addressing the cost - that we may, in fact, never fully retrieve what we once had - deciding to preserve a monotypic maple forest with a ditch running through it is an ecological engineering decision.  Soon enough, the maples will fall under the weight of invasive vines, and invasive shrubs and vines underneath will ensure that no new trees grow.   This is ecological engineering.

Monday, October 20, 2014

Rapanos' Legacy and the proposed New Rule for Waters of the US.

This pile of human sewage leads to a farm ditch.  Behind the barn is a pile of
chicken manure, also draining to the nearby ditch.  EPA's New Rule exempts
this obvious water pollution from federal regulation.
I guess that's "science based."
On December 2, 2008, the EPA issued a memorandum after getting kicked in the teeth by the US Supreme Court in the Rapanos v. United States decision.  Some background:  in the case, John Rapanos, a decidedly "bad human being," had filled 22 acres of isolated Michigan wetlands that were connected by systems of ditches, pipes, and gullies to a navigable stream over 20 miles away.   Rapanos should have been imprisoned by the state of Michigan for this wetland filling, but he was not.   That left the US EPA to step in, federally prosecuting and fining John Rapanos to the tune of millions of dollars.  It would seem that Rapanos is a bristly curmudgeon, and as such, he had his attorneys push the issue all the way to the US Supreme Court, where he emerged victorious - a major loss, in precedent, for environmental protection.

Coal fill in mountain streams, allowed without mitigation
by US EPA until 2010.  Now still allowed,
with stream mitigation. Would still be allowed
under the New Rule.  Very scientific.

You see, the Clean Water Act, the law which required the US EPA to clean up all of this nation's waters by 1984 at the very latest,  focused on two major issues:  1) regulating point source pollutants (usually pipes) to interstate bodies of waters or watersheds, and 2) regulating nonpoint source pollutants, including fill dirt, that enter wetlands or navigable waterways that hydrologically lead to interstate bodies of water.   The US EPA has been fairly successful at regulating, though not eliminating, point source pollution, such as sewage discharges, factory outfalls, and power plant effluents.  However, nonpoint source pollution has remained largely unregulated.  Of its four main sources:  filling in wetlands/waters, nonpoint stormwater discharge, nonpoint septic discharge, and nonpoint farm runoff, only one (filling in wetlands/waters) is consistently regulated across the country, and many projects fall below mitigation thresholds - lost forever because engineers adjusted a wetland impact to be 43,559 square feet (no mitigation) instead of 43,560 (mitigation required); or changed stream impacts to be 1,499.5 linear feet (no mitigation) instead of 1,500 linear feet (mitigation required).  So much for science-based environmental protection.

If this neighborhood ditch stays wet for more than three weeks
of the growing season, US EPA currently regulates
it as an "intermittent stream."  The New Rule would also
regulate this ditch.  Science based?
So, back to the New Rule for Waters of the US, largely designed to offset the losses in (interpreted) federal jurisdiction that occurred  as a result of the repeated SCOTUS trouncings that EPA has received.   The EPA promises to conservative lawmakers that the gains in water quality protection are simply "clarifications" and "will not be significant."  Yet, communications released to water quality advocates promise that "2/3 of the nation's waterways are currently federally unprotected" - implying that this would be resolved by the New Rule.  Now, I'm no mathematician, but in what world is a 300% increase in watershed protection "not significant?"  Whether I'm a trout fisherman, a condo developer, an anti-development activist, or a stream restoration practitioner, that sure sounds significant to me.  

Second, the EPA promises that the New Rule, in its final language, will be "science based."   Meanwhile, they promise that current exemptions for pollutant-laden farm ditches, the single largest source of nonpoint water pollution in this nation, "will remain in place."   In what world can a law be passed to continue to exempt the country's largest single source of water pollution, while being "science based?" EPA's position on this is acutely anti-scientific - and they need to admit that. 

Looks like a roadside ditch next to a gas station, right?
Nope!  The cattails provide sufficient indicators for vegetation,
soil, and hydrology indicative of a "federal wetland" per
the 1987 Corps of Engineers Wetland Manual.
This definition would continue under the New Rule. 
Third, and most notably, the primary issue with the New Rule is the same issue that caused the escalation of Rapanos, of Carabel, of SWANCC, of Sackett (unanimous SCOTUS finding against EPA), and soon, of Foster v. United States (currently in US District Court).  That issue is that the US EPA is the agency in charge.  In forty years, the agency has argued for their interpretation of provisions of the Clean Water Act nine times to the Supreme Court.  They have lost seven of those nine cases.   In each loss, precedent-setting, nationwide losses in clean water protections resulted, which could have been avoided by negotiating settlements with the permittees.   But EPA isn't big on negotiating with their customers.   Well, sort of, I mean, let's not forget the 20 years of mountaintop removal they allowed with 2-page permits (ending in 2010), or the ongoing exemption of farm runoff into streams, or their "canceling" of their research project on the impact of hydraulic fracturing on groundwater and surface water resources.   Those things all happened, and they keep happening.

If you still believe EPA's tome that Rapanos and Carabel were legal "flukes" that certainly won't arise again, and you're not interested in following Foster v. United States (S WV Dist 2:14-cv-16744), just read page 12 of the EPA's memo on Rapanos.  It asserts that even though ditches aren't jurisdictional through Section 404 of the Clean Water Act, EPA employees should investigate whether the ditches, often concrete, alongside a highway, should be regulated under other sections of the Clean Water Act, namely sections 311 (haz mat liability) and 402 (stormwater).   What?

If you were a federal judge, and saw the EPA attempt that maneuver in a legal brief, how do you think you'd react? 

The New Rule for the Waters of the US, which President Obama has vowed to sign in its current language and to which he has publicly stated that he will reject modifications or edits, makes good EPA-mandated actions like stream restoration harder, and EPA-permitted real estate development in wetlands no harder at all. It's simply an accounting exercise, as it's been for decades. The EPA will still approve 99% of completed permits that arrive on their desk, despite the larger amount of wetland and stream impacts under the New Rule.  The mitigation ratios will continue to not provide sufficient offsets, and "No Net Loss," will continue to be an unfulfilled dream.  And of course, what we'll all be waiting for is the inevitable federal trial that will likely gut the New Rule as unconstitutional within eight  years of its enactment.  What other parts of the Clean Water Act will be deemed "unconstitutional" in that majority decision?  I don't want to find out.

 EPA's losses at the Supreme Court are our losses, and Presidential Rules won't protect EPA from itself on that front.  If we want to ever enjoy clean water again in this country, let's not blindly give EPA more non-scientific, non-legally based authority that will inevitably be used to gut another section of the Clean Water Act when EPA attorneys aggressively appeal each of their cases to the Supreme Court.  It's a bad, bad business plan.   

Thursday, October 9, 2014

Blackfish - A Hunting Biologist's View On Captive Whales

I eat meat.  I participate in activities, for work (biological sampling) and fun (hunting and fishing) in which animals inevitably die. Well, sometimes.  I don't like suffering, and I don't enjoy the fact that animals die.  But that moral weight is overcome by the value I personally feel as a result of those activities.   As a wildlife biologist, I understand that the way humans have inhabited the world means a heirarchy of things and of organisms that is not natural, or at least not natural in the way that things were natural when Homo sapiens appeared 130,000 years ago.   Much of what we've destroyed or changed can't be put back exactly the way it was - at any scale.

That being said, the opportunity exists for right and wrong.  I finally watched the shockumentary "Blackfish," knowing full well what the filmmakers intended - to shock audiences into awareness of the strangeness and perhaps immorality of keeping marine mammals, namely whales, in captivity for entertainment (research is a secondary goal).   Keep in mind that I detest the animal rights crowd, and I'm not ashamed to shoot a duck in the face, or a deer right in the heart.

The crux of the plot is that the industry, notably SeaWorld, has engaged in an awful industry of catching wild whales, and then simultaneously willfully ignores the mental and physical health of the whales while placing human employees in undue danger of being mauled or killed, all in the name of entertainment.  I'm not saying that any of that is fact or isn't, but the aim of Blackfish is to demonstrate to the viewers that it's certainly the case.  To be fair, SeaWorld has released a response to Blackfish, and it can be viewed here.

So, let's look at what's real in the film, from a biologist's and hunter's point of view.

1.  Killer whale enclosures appear to be shamefully small and biologically insufficient.  Overcrowding in this scale of captivity seems to lead to what anyone with a biology background would expect - stress, injury, and aggression.  Knowing what I know about habitat needs, I doubt that any entertainment complex could realistically build a habitat "big enough" to healthily and ethically house multiple killer would be dozens or hundreds of acres in size.

2.  Killer whales die younger in captivity.   Allegedly, 70% of captive whales die before age 10.  Since killer whales are k-selected animals, it is unusual to have a high mortality rate early in the projected life span.   I can't speculate why this is so.

3.  Catching killer whales in the wild, for entertainment, is a really dumb idea.  Killer whales are apex predators.  They are long lived, with family bonds and long periods of parental attachment.   I completely understand that domestic reproduction isn't ample to supply the industry with whales.  I just don't care.  Stop catching the stupid whales.  Seriously. But the wild catch continues.  

4.  "Awareness Creates Activism" is a Failed Model for Engagement, and a Poor Excuse for Keeping Whales Captive.   Okay.  When it comes to conservation, awareness is far better than ignorance.  That being said,  awareness has a very insignificant relationship to activism, or what social scientists call "behavior change."   That relationship, small as it is, is described as the first stepping stone.  Crucial, but just a step.
The marine entertainment industry preaches, as they have since I was a boy, that they catch and keep whales to help create "ocean stewards" or some such silliness, out of the public.  Essentially, the model is that you pay $300 to take your family to the ocean theme park. You see the whales do some tricks, and that magically transforms you into a family of people who write their congressmen about whale conservation.  Of course, scientists know different.  Here's a few quick studies, one, two, three.   Creating an engaged steward of anything requires multiple steps or "touches," because people are rarely overwhelmed with passion for a topic in a way that is 1) sustainable and 2) creates long term action by the person.

The film Blackfish only interviews a half dozen people, all but one of whom seem highly opposed to keeping captive orcas.  It's not meant to be a balanced film for documentary purposes, I don't believe.  And there are likely mistakes and inaccuracies throughout the film that only industry insiders would know.  As a hunter and a biologist, I wasn't shocked and upset by the footage of injured whales (and trainers), but I was definitely disturbed by the quotes provided, however out of context, by marine entertainment industry spokespeople, absolutely lying (to cameras and/or microphones) about various issues related to orca captivity and trainer safety.   If there's no controversy - if captive whales are such a simple, good idea, why lie about it?   Coordinating lying efforts (see: NFL) mean only one thing:  someone is afraid of the impact that the truth might have.

I grew up swimming with dolphins, and while the childlike entertainment of a dolphin show is somewhat amusing, I've never felt like dolphin shows were a great use of those animals and their lives. I have pictures of the first one I attended, at the Baltimore Aquarium in 1988.  It basically seemed like the same dolphin show they put on when I took my son to that aquarium (and dolphin show) in 2010.   When we returned to the Aquarium in 2012, we didn't pay for the dolphin show, and we won't pay for it in the future.  Regardless of how many dolphin shows I've seen, and regardless of the fact that I work as a wildlife habitat ecologist for a living, I've never called or written an elected official about dolphin and whale issues.   I didn't publicly protest dolphin-killing tuna fishing when that was an issue in the 1990s.  None of that entertainment, despite my scientific training and conservation ethic, made me do anything about whale and dolphin welfare.   What about people without scientific welfare and a conservation ethic - are they truly better off for seeing a whale show?  Are they now "aware?"  Will they change their conservation/environmental behaviors?  Color me unconvinced.

I haven't taken my son to the circus, because I think how the circus treats animals would reflect (to my son) what I think the acceptable treatment of animals is.   I had been leaning toward, and now feel solid about, keeping that pattern up for future marine mammal shows.  If Hank wants to see whales, I'll save that $300 and use it on a whale watching tour.  I encourage readers to watch Blackfish for what it is - a slanted but heavily fact-based account of things that are being done wrong in our relationship with the earth's remaining killer whales.

Monday, October 6, 2014

A Zombie Looks at Five

When my son was a baby, he was so full of energy, I just wished he could talk.  He started talking - seriously talking - at two, but our conversations were short and not substantial...obviously.  At three, he started talking constantly, from the moment he awoke to the minute he fell asleep, but his thoughts were dedicated to Batman, Spiderman, and Iron Man.  At four, he started exploring, taking an interest in fishing and hiking, asking questions like, "What comes after outer space?" and "Why do people make cemeteries?" and asked about words like "genetics" and "gravity" and "architecture."

At five, he is plowing the hard fields.  "Dad, I don't want to die." "Dad, why did my dog have to die?"  He is fascinated by bones, the skeleton of anything and everything, including zombies.  When I told him recently that, "Zombies aren't real.  People can't come back from being dead,"  he simply answered, "Jesus came back.  He was in the cemetery behind the big stone, and then he was back. But I know Jesus isn't a zombie. I learned it in Chapel."

Well played, five year old.

I'm challenged by the Berzerker of five year olds who is constantly pushing his boundaries of what can and cannot be understood - the problem with that being that he doesn't have the life experience to understand it, even if he receives what he believes is a suitable answer to his query.   I taught him the parable of The Good Samaritan and he asked if the characters "were real people."  I explained, well, it was a story that Jesus was an example.  That was followed by an obtuse conversation about "Daddy, what's an example?"  When I zoomed back out and told him that the parable is an example of something that happens every day, he was horrified, and I felt awful. "People are too busy to help every day?"

He somehow engaged me in a conversation about Native Americans, and hung me up with, "Where do they live now?"  I explained forced relocation in as gentle of terms as I could summon.  Of course, he asked "Why don't they come back to their home?" and I told him the truth, "They have nowhere to go, buddy."   Hank munched on his snack (he eats almost nothing), pausing with a full mouth to say, "When I grow up, I will build a thousand of beds in my house and I will make all the food, so the Namericans can have a place to live and some food."

Lest any of you think I am singing the praises of my wonder child, we've had to revisit the "reincarnation" issue repeatedly, particularly after he told his classmates that if their pets die, he can bring them back to life "With My Science."  Of course, such talk is....frowned Christian Preschool.  Because I am a bad parent and possibly a bad person, I reinforced his behavior by letting him watch the "It's Alive!" scene from the 1931 Frankenstein film.

Five will be interesting.   The oldest in his preschool, he'll enter kindergarten in a K-8 private school next year.  He has two girlfriends, one of whom he has already kissed (!!!!).  He's on the small side, but strong and fast enough to be passable at most sports, I think.   All this is a way of saying that it's impossible to predict what he might do in the next year.  Everything he does and learns is so fast and so much farther ahead than he was just days before that it's all we can do to keep up with him.

Sunday, October 5, 2014

First Virginia Sunday Hunt for Deer in 115+ years Initiated....Towns Not Burned Down, Civilians Still Safe, Report to Work on Monday

It was astonishing this morning to watch the feed of the Facebook group "Legalize Virginia Sunday Hunting for All."  I'm not sure anyone actually killed a deer.  All I saw were pictures of tree stands, sunrises, compound bows, crossbows, and long bows.  And the word "Thanks."  Thanks primarily to the group's de facto head Matt O'Brien, but thanks to everyone who called their legislators, wrote emails, kept up to date on slanderous and untrue editorial articles ghost-written by the opposition to a free day in the woods.

What was notable, in addition to the complete lack of police or media reports of conflicts with this army of hunters across the Commonwealth, was the lack of attention paid by our staunch opposition. Several organizations  claimed to be so pointedly concerned about public safety - the safety of all Virginians, they said - that they had to spend thousands of dollars (often, based in government-funded offices like the Virginia Horse Council) warning legislators and the public of this imminent travesty - of skies blackened with arrows, dog walkers whalloped by crossbow bolts, and pedestrians (because uninvited pedestrians always need to be walking across private, posted property at 6:15am, right?) gored by expanding hunting points.

After many years and tens of thousands of dollars spent lobbying against a landowner's right to harvest game on his or her own property on Sunday, these organizations lost.  And they lost loudly, predicting, as one dullard legislator did, volleys of arrows from "powerful enough bows" zinging across property lines throughout the Commonwealth.  So with all this grave concern for other users of private property (why are other people using private property without permission while the owner and his or her family and friends are legally hunting?), surely these organizations took to the airwaves and the internet to warn the collective public about the killer arrows coming from hidden treestands throughout the Commonwealth today.  Right?  Because all of the commotion, the fake newspaper articles written by lobbyists, the complaints from "non-hunters" whose names could never be verified, and the anti-hunters in general, this commotion, it had to be real - coming from a real place of fear.   So, let's see the public warnings that these groups (the unique alliance of anti-hunters, anti-farmers, farm lobbyists, and hound lobbyists...good luck figuring that out) obviously must have been publishing to make sure the quite certain menace of private land Sunday hunting does not injure or maim any person or non-game animal:

Humane Society of Virginia (HSUS - VA) website - news page:  No update on Sunday hunting

HSUS-VA Facebook Page - Recently Deleted before Sunday hunting began

Virginia Farm Bureau website  - news page:  No update on Sunday hunting

Virginia Farm Bureau Facebook Page - No update on Sunday hunting

Virginia Hunting Dog Alliance - news page:  No update on Sunday hunting

Virginia Horse Council -news page:  No update on Sunday hunting

Virginia Horse Council Facebook page - No update on Sunday hunting

Just Say No to Sunday Hunting in Virginia Facebook page - No update on Sunday hunting

Wow.  All the publications, the phone calls, the automatically generated email messages from anti-hunters in other states....all of that combined reflected what these organizations told legislators was a very legitimate fear of public safety, not at all a war of ideas or rights for "who gets to use the woods on Sunday."

And yet, they are silent.  They are silent because they know there is no public menace.  They are silent because they know that bringing their losing issue up again will just invite those who dare to think for themselves to dig up their dire predictions of bloody horror, and compare them to the idyllic peace that was, and is still, Sunday in Virginia.