Managing in a Regulatory Climate

Many years ago when someone or a group felt that something about a lake was not right, they organized and changed it. Lake level was lowered, sediment was scraped, herbicides were applied, shorelines were bulkheaded, and so on. Many of these actions were appropriate, but many were not and most have impacts to other aspects of lake ecology that were not being considered or mitigated. In some cases the results were disastrous, not curing the targeted problem and making things worse in other ways. The dawn of ecological thinking and the incorporation of such thought into government resulted in many environmental laws, starting in the 1960s and peaking in the 1970s, with follow up ever since. Many environmental agencies were created, some completely new (the federal EPA) and others altered to redirect their mission (the federal USACE). State agencies underwent similar formation or transformation. The basic premise was that we needed to regulate how we treated the environment to avoid catastrophes while “fixing” perceived problems.

It is good that we have such agencies and the laws and regulations that guide them, but like most institutions over time, the mission is sometimes perverted or focus is lost. Incremental adjustments to regulations or changes in definitions create unforeseen consequences for legitimate activities. People use the system as a weapon instead of a tool. Agendas get created, processes become more complicated, and it becomes harder to manage. Lake management is suffering from just such a progression.

The fundamental problem with permitting systems is that they are managed by regulatory agencies with little or no obligation to solve a problem. Permits are not applied for because it is a fun thing to do; we request permits because we want to solve a problem. It is rare to have a regulatory staffer say “Oh, I see your problem. And I understand why you want to do what you have laid out in this application. There are a few issues we have to address, but let me see if I can find a way to make this work…” Instead, the regulator views his/her job as preventing environmental damage, not solving an existing environmental problem. If, after a frustrating process of submission, hearings, delays, and revisions,  you give up trying to solve the problem, that is just as good as the agency issuing a denial. The permit system has been upheld. The potential risks from the proposed action have been averted. It doesn’t matter to the regulator that the problem has not been solved.

If someone is advancing a clearly detrimental request, say asking to fill a cove of a public lake full of endangered species to build a supermarket accessible by boat, all to make a few bucks, it is pretty easy to rule that out. But most requests have merit and raise management issues that need attention. What happens when the request is to control an invasive species known to reduce biodiversity, one that will impact some of the endangered species in that same lake, but the options for control may do some temporary harm to the lake? This is a balancing act, but one in which the actual problem may be given very limited consideration. After all, no state in New England (or anywhere for that matter) has a law saying that if an invasive species is found it must be addressed, but most states do have a law that says you can’t harm a protected species or damage wetlands, of which lakes are usually considered to be a category.

Any action that reduces the invasive species may be rejected under current regulatory systems if it is perceived as being harmful to some interest of an applicable law, such as taking individuals of an endangered species, and the burden of proof is on the applicant. The regulatory agency is under no obligation to properly justify its assumptions at that stage (you would have to go to court for that) and can require all sorts of studies of the applicant before rendering a final decision, which may still be unfavorable. And if the applicant gives up and the invasive species eliminates some endangered species in the lake? Apparently that is acceptable, as opposed to losing some of the endangered population in the process of eliminating and invasive species and saving the endangered species in the long run!

The problem is twofold: 1) Lack of big picture thinking by agency staffers, partly attributable to having limited background in aquatic ecology and lake management, and 2) Vesting authority in a regulatory process without any obligation to solve the problems that result in requests for permits. Both of these are solvable, but appear to require political intervention; scientific logic and economic sense are just not getting the job done these days.

Zebra mussels killed this mollusk

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