ENVIRONMENTAL IMPACT MITIGATION UNDER THE CLEAN WATER ACT AND THE NATIONAL ENVIRONMENTAL POLICY ACT: THE CASE OF TWO FORKS DAM1

ABSTRACT: The role of environmental mitigation in permitting decisions under Section 404 of the Clean Water Act and the National Environmental Policy Act is examined, addressing the extent to which compensatory mitigation is acceptable. The role of mitigation is examined both generically and specifically: first in the requirements of the Clean Water Act and NEPA, and then in the case study of the proposed Two Forks Dam. In both cases, the paper describes dual purposes of environmental protection legislation and mitigation: to protect the biophysical environment and maintain associated human values. Mitigation is found to be sometimes necessary and acceptable as compensation for unavoidable impacts of project development. However, the Two Forks case exemplifies that compensatory mitigation has also been employed as a mechanism to facilitate project development when practicable alternatives entailing less environmental impact are available. Acceptance of compensatory mitigation in such cases violates both the Guidelines of the Clean Water Act and the intent of that Act and NEPA to protect the biophysical environment and human welfare. A recent memorandum of agreement between the Corps and the EPA clarifies this policy, and suggests that permit applications which rely on compensatory mitigation when impacts are available may be denied.     

The eclipse of NEPA as Environmental Policy

Previous evaluations of the National Environmental Policy Act (NEPA) have focused on the effectiveness of its procedural requirements in improving the quality of decision making with respect to environmental matters. Subsequent growth of other environmental regulation and the changing role of Environmental Impact Statements in the decision-making process should also be considered. The many federal and state environmental laws passed in the 1970s have, by defining the nature and acceptability of environmental impact and prohibiting unacceptable impacts, superseded the substantive role of NEPA in environmental protection. Although the EIS continues to serve as a focus for public debate regarding proposed government actions, such debates usually center around social or economic rather than environmental issues. NEPA has thus been superseded by other environmental laws, and its role in the decision-making process today has little relation to its earlier environmental significance.     

Guidelines and Techniques for Improving the NEPA Process

/ The Council on Environmental Quality's (CEQ's) principal aims in implementing the National Environmental Policy Act (NEPA) are (1) to reduce paperwork, (2) to avoid delay, and most importantly (3) to produce better decisions that protect, restore, and enhance the environment. This paper presents four strategies for improving the NEPA process along with tools that can be used to implement each strategy. The tools include guidelines for project management and problem definition, tips for acquiring existing information and identifying issues of public concern, worksheets on how to identify and analyze potential impacts on resources, ideas for enhancing NEPA documents, and a NEPA process checklist. The tools can be used at various stages of the NEPA process and provide a toolbox of guidelines and techniques to improve implementation of the NEPA process by focusing the pertinent information for decisionmakers and stakeholders. KEY WORDS: National Environmental Policy Act; NEPA; Environmental impact assessment; Ecosystem management     

Environmental Impact Assessment Under the National Environmental Policy Act and the Protocol on Environmental Protection to the Antarctic Treaty

US government actions undertaken in Antarctica are subject to the requirements of both the Protocol and the US National Environmental Policy Act (NEPA). There are differences in the scope and intent of the Protocol and NEPA; however, both require environmental impact assessment (EIA) as part of the planning process for proposed actions that have the potential for environmental impacts. In this paper we describe the two instruments and highlight key similarities and differences with particular attention to EIA. Through this comparison of the EIA requirements of NEPA and the Protocol, we show how the requirements of each can be used in concert to provide enhanced environmental protection for the antarctic environment. NEPA applies only to actions of the US government; therefore, because NEPA includes certain desirable attributes that have been refined and clarified through numerous court cases, and because the Protocol is just entering implementation internationally, some recommendations are made for strengthening the procedural requirements of the Protocol for activities undertaken by all Parties in Antarctica. The Protocol gives clear and strong guidance for protection of specific, valued antarctic environmental resources including intrinsic wilderness and aesthetic values, and the value of Antarctica as an area for scientific research. That guidance requires a higher standard of environmental protection for Antarctica than is required in other parts of the world. This paper shows that taken together NEPA and the Protocol call for closer examination of proposed actions and a more rigorous consideration of environmental impacts than either would alone. Three areas are identified where the EIA provisions of the Protocol could be strengthened to improve its effectiveness. First, the thresholds defined by the Protocol need to be clarified. Specifically, the meanings of the terms “minor” and “transitory” are not clear in the context of the Protocol. The use of “or” in the phrase “minor or transitory” further confuses the meaning. Second, cumulative impact assessment is called for by the Protocol but is not defined. A clear definition could reduce the chance that cumulative impacts would be given inadequate consideration. Finally, the public has limited opportunities to comment on or influence the preparation of initial or comprehensive environmental evaluations. Experience has shown that public input to environmental documents has a considerable influence on agency decision making and the quality of EIA that agencies perform.     

Terrestrial perturbation experiments for environmental assessment

The National Environmental Policy Act of 1969 (NEPA) was initially interpreted as requiring full disclosure of the environmental impact of a federal action. Because of the limitations of time, money, and manpower, the requirement that all impacts be considered has led to superficial analysis of many important impacts. Data collection has largely been limited to the enumeration of species because this information can be applied to the analysis of any problem. The President's Council on Environment Quality (CEQ) has provided a solution to this problem by reinterpreting NEPA as requiring analysis of those impacts that have significant bearing on decision making. Because assessment resources can now be concentrated on a few critical issues, it should be possible to perform field perturbation experiments to provide direct evidence of the effects of a specific mixture of pollutants or physical disturbances on the specific receiving ecosystem. Techniques are described for field simulation of gaseous and particulate air pollution, polluted rain, soil pollutants, disturbance of the soil, and disturbance of wildlife. These techniques are discussed in terms of their realism, cost, and the restrictions that they place on the measurement of ecological parameters. Development and use of these field perturbation techniques should greatly improve the accuracy of predictive assessments and further our understanding of ecosystem processes.Research sponsored by the Office of Health and Environmental Research, U.S. Department of Energy, under contract W-7405-eng-26 with Union Carbide Corporation.Publication No. 1816, Environmental Sciences Division, ORNL.     

An evaluation paradigm for cumulative impact analysis

Cumulative impact analysis is examined from a conceptual decision-making perspective, focusing on its implicit and explicit purposes as suggested within the policy and procedures for environmental impact analysis of the National Environmental Policy Act of 1969 (NEPA) and its implementing regulations. In this article it is also linked to different evaluation and decision-making conventions, contrasting a regulatory context with a comprehensive planning framework. The specific problems that make the application of cumulative impact analysis a virtually intractable evaluation requirement are discussed in connection with the federal regulation of wetlands uses. The relatively familiar US Army Corps of Engineers' (the Corps) permit program, in conjunction with the Environmental Protection Agency's (EPA) responsibilities in managing its share of the Section 404 regulatory program requirements, is used throughout as the realistic context for highlighting certain pragmatic evaluation aspects of cumulative impact assessment.To understand the purposes of cumulative impact analysis (CIA), a key distinction must be made between the implied comprehensive and multiobjective evaluation purposes of CIA, promoted through the principles and policies contained in NEPA, and the more commonly conducted and limited assessment of cumulative effects (ACE), which focuses largely on the ecological effects of human actions. Based on current evaluation practices within the Corps' and EPA's permit programs, it is shown that the commonly used screening approach to regulating wetlands uses is not compatible with the purposes of CIA, nor is the environmental impact statement (EIS) an appropriate vehicle for evaluating the variety of objectives and trade-offs needed as part of CIA. A heuristic model that incorporates the basic elements of CIA is developed, including the idea of trade-offs among social, economic, and environmental protection goals carried out within the context of environmental carrying capacity.     

Use of value functions in environmental decisions

Value functions are devices that allow discrete analyses of environmental impacts to be reconciled to a single quantitative scale of preference. The values obtained can then be weighted and combined into measures of the relative desirability of policy alternatives. However, for this methodology to be valid, the set of impacts used must satisfy a number of conditions; and whether or not these are met depends on how the impacts are selected and characterized. This paper generalizes instances where the conditions may be violated and how they may be resolved, and concludes with a few thoughts on how the methodology might be adapted to the routine of bureaucracy.This work was performed under the auspices of the U.S. Department of Energy by the Lawrence Livermore Laboratory under Contract W-7405-ENG-48.     

A better rationale for wetland management

The present US Federal wetland management strategy under Section 404 of the Clean Water Act does not account for the differences in the natural values of wetlands and their different vulnerability to development pressure. The strategy, aimed at reducing the regulatory burden, provides for different levels of wetland protection, primarily by designating certain activities in or affecting wetlands as essentially harmless, having only minor impacts even when considered for their cumulative effects. Such activities are authorized under general permits precluding any evaluation of project impacts. A sounder, yet practical, rationale for wetland management and regulatory relief should be linked to the scarcity of certain wetland habitats, the habitat diversity or carrying capacity, the degree of degradation from past development, and the incremental losses already incurred within the same wetland ecosystem. The regulatory effort should be concentrated where these characteristics indicate high-value wetlands.Wetland impacts appear to fit into five basic orders of magnitude; these pertain to the relative cost and difficulty of impact mitigation. Up to 13 ecological and public-interest variables can modify the seriousness of the basic impact. Together, the basic orders of impact and modifying variables describe the theoretical framework for wetland management. However, a practical rationale for better wetland management must be constrained to factors not requiring a field investigation in advance of project planning for construction and development.This article was produced in part from work funded by the Office of Technology Assessment (OTA) of the United States Congress for use in its study, Wetlands: Their Use and Regulation. The views expressed do not necessarily represent those of OTA.     

Implications of environmental program planning for siting a nuclear waste repository at Yucca Mountain,Nevada, USA

The US Department of Energy (DOE) plans to conduct site characterization studies at Yucca Mountain, Nevada, to determine if the location is a suitable site for a nuclear waste repository. In lieu of traditional environmental review in accordance with the National Environmental Policy Act of 1969, the DOE is relying on an environmental assessment (EA) mandated by the Nuclear Waste Policy Act of 1982 as the cornerstone of its environmental program for the Yucca Mountain Project. Because of statutory restrictions, the EA is not based on comprehensive baseline information. Neither does it address fundamentals of environmental analysis such as ecological integrity and assessment of cumulative impacts. Consequently, the present environmental program for Yucca Mountain reflects decisions made without complete information and integrated environmental review. The shortcomings of the program risk compromising the natural integrity of Yucca Mountain and invalidating future assessment of the ability of a nuclear waste repository located at the site to protect the environment. Significant improvements are needed in the repository siting program before it can serve as a model of how society can evaluate the long-term environmental consequences of advanced technologies, as has been suggested.     

Risk Tradeoffs in Adaptive Ecosystem Management: The Case of the U.S. Forest Service

Natural resource planning processes on public lands in the United States are driven in large part by the requirements of the National Environmental Policy Act (NEPA), which dictates general processes for analyzing and disclosing the likely impacts of proposed actions. The outcomes of these processes are the result of multiple factors, many related to the manifold smaller incremental decisions made by agency personnel directing the processes. Through interviews with decision makers, team leaders, and team members on five NEPA processes within the U.S. Forest Service, this study examines those incremental decisions. Risk, in particular external relationship risk, emerged as a dominant lens through which agency personnel weigh and make process-related decisions. We discuss the tradeoffs associated with agency actors’ emphasis on this form of risk and their potential implications for adaptive ecosystem management and organizational performance.     

The meaning of the National Environmental Policy Act within the U.S. Forest Service

We conducted a survey of 3321 Forest Service employees involved in compliance with the National Environmental Policy Act (NEPA) followed by five focus groups to investigate agency views of the purpose of agency NEPA processes and their appropriate measures of success. Results suggest the lack of a unified critical task for Forest Service NEPA processes and that employees' functions relevant to NEPA influence their views of its meaning. Compared to other agency personnel, members of interdisciplinary teams who carry out most day-to-day NEPA-related tasks placed greater emphasis on minimizing negative environmental and social impacts, satisfying multiple stakeholders and avoiding litigation and appeals. Line officers, who typically serve as the decision makers following NEPA processes, placed greatest emphasis on efficient implementation and least emphasis on minimizing impacts. Advisory personnel placed greatest emphasis on effective disclosure of analyses and decision-making. We discuss the structural origins of these differences as well as their implications.     

General concepts for measuring cumulative impacts on wetland ecosystems

Because environmental impacts accumulate over space and time, analysis is difficult, and we must incorporate the most recent scientifically defensible information and methods into the process. Methods designed to deal specifically with cumulative impacts include checklists of characteristics or processes, matrices of interactions (rated according to their level of importance) between disturbance activities and environmental conditions, nodal networks or pathways that depict probable effects of disturbances, and dynamic system models. These methods have been tested over the past decade and have proven generally successful.Landscape perspectives have emerged as especially helpful in analyzing cumulative effects, and have focused specific attention on questions of spatial and temporal scale, while leading to recognition of the complexity of ecosystem processes in general. An evaluation of several cases studies by the Commission on Life Sciences of the U.S. National Academy of Sciences emphasizes the importance of interactions and cumulative effects, but recognizes that current knowledge of the processes involved is insufficient to make specific recommendations for conceptual frameworks.The conceptual approach suggested by Preston and Bedford (1988) addresses many critical issues, such as the need to define dimensions of scale, and the importance of wetland size, shape, and location in the landscape. This approach and similar ones must be tested and evaluated so that a consensus may eventually emerge.A cumulative impact matrix is proposed that sets up additive, synergistic, and indirect categories, each capable of variation in space and time. Every interaction would be carefully examined to determine the likelihood of cumulative impact in any of the six categories. Because of its magnifying glass approach, such a matrix could be a very useful analytical tool, using existing methods to uncover all the information presently available about the behavior of the ecosystem of concern.     

The Impact of Local versus National Framing on Willingness to Reduce Greenhouse Gas Emissions: a case study from central Pennsylvania

This paper explores the impact of the frame in which people interpret global warming. In 1999, 637 respondents completed a mail survey in five counties in central Pennsylvania. Half of the sample received questionnaires that framed global warming in terms of the local impacts of mitigation policies, whereas the other half received questionnaires that framed global warming in terms of the national impacts of mitigation policies. The results show a statistically significant but small difference between the local and national frames in the respondents' willingness to support government policies, as well as to take voluntary actions to mitigate climate change.     

Environmental implications for disaster preparedness: lessons learnt from the Indian Ocean Tsunami

The impact of disasters, whether natural or man-made, not only has human dimensions, but environmental ones as well. Environmental conditions may exacerbate the impact of a disaster, and vice versa, disasters tend to have an impact on the environment. Deforestation, forest management practices, or agriculture systems can worsen the negative environmental impacts of a storm or typhoon, leading to landslides, flooding, silting, and ground/surface water contamination. We have only now come to understand these cyclical causes and impacts and realize that taking care of our natural resources and managing them wisely not only assures that future generations will be able to live in sustainable ways, but also reduces the risks that natural and man-made hazards pose to people living today. Emphasizing and reinforcing the centrality of environmental concerns in disaster management has become a critical priority, requiring the sound management of natural resources as a tool to prevent disasters and lessen their impacts on people, their homes, and livelihoods. As the horrors of the Asian tsunami of December 2004 continue to be evaluated, and people in the region slowly attempt to build a semblance of normalcy, we have to look to the lessons learnt from the tsunami disaster as an opportunity to prepare ourselves better for future disasters. This article focuses on findings and lessons learnt on the environmental aspects of the tsunami, and its implications on disaster preparedness plans. This article essentially emphasizes the cyclical interrelations between environments and disasters, by studying the findings and assessments of the recent Indian Ocean earthquake and tsunami that struck on 26 December 2004. It specifically looks at four key affected countries - Maldives, Sri Lanka, Indonesia, and Thailand.     

A Framework for Net Environmental Benefit Analysis for Remediation or Restoration of Contaminated Sites

Net environmental benefits are gains in value of environmental services or other ecological properties attained by remediation or ecological restoration minus the value of adverse environmental effects caused by those actions. Net environmental benefit analysis (NEBA) is a methodology for comparing and ranking net environmental benefits associated with multiple management alternatives. A NEBA for chemically contaminated sites typically involves comparison of several management alternatives: (1) leaving contamination in place; (2) physically, chemically, or biologically remediating the site through traditional means; (3) improving ecological value through onsite and offsite restoration alternatives that do not directly focus on removal of chemical contamination; or (4) a combination of those alternatives. NEBA involves activities that are common to remedial alternatives analysis for state regulations and the Comprehensive Environmental Response, Compensation, and Liability Act, post-closure and corrective action permits under the Resource Conservation and Recovery Act, evaluation of generic types of response actions pertinent to the Oil Pollution Act, and land management actions that are negotiated with regulatory agencies in flexible regulatory environments (i.e., valuing environmental services or other ecological properties, assessing adverse impacts, and evaluating remediation or restoration options). This article presents a high-level framework for NEBA at contaminated sites with subframeworks for natural attenuation (the contaminated reference state), remediation, and ecological restoration alternatives. Primary information gaps related to NEBA include nonmonetary valuation methods, exposure–response models for all stressors, the temporal dynamics of ecological recovery, and optimal strategies for ecological restoration.Published online     

Human Impacts to River Temperature and Their Effects on Biological Processes: A Quantitative Synthesis1

Hester, Erich T. and Martin W. Doyle, 2011. Human Impacts to River Temperature and Their Effects on Biological Processes: A Quantitative Synthesis. Journal of the American Water Resources Association (JAWRA) 47(3):571‐587. DOI: 10.1111/j.1752‐1688.2011.00525.x Abstract: Land‐use change and water resources management increasingly impact stream and river temperatures and therefore aquatic organisms. Efforts at thermal mitigation are expected to grow in future decades. Yet the biological consequences of both human thermal impacts and proposed mitigation options are poorly quantified. This study provides such context for river thermal management in two ways. First, we summarize the full spectrum of human thermal impacts to help thermal managers consider the relative magnitudes of all impacts and mitigation options. Second, we synthesize biological sensitivity to river temperature shifts using thermal performance curves, which relate organism‐level biological processes to temperature. This approach supplements the popular use of thermal thresholds by directly estimating the impact of temperature shifts on the rates of key biological processes (e.g., growth). Our results quantify a diverse array of human thermal impacts, revealing that human actions tend to increase more than decrease river temperatures. Our results also provide a practical framework in which to quantify the sensitivity of river organisms to such impacts and related mitigation options. Finally, among the data and studies we synthesized, river organisms appear to be more sensitive to temperature above than below their thermal maxima, and fish are more sensitive to temperature change than invertebrates.     

Economic Values and Corporate Financial Statements

Corporate financial statements do not include environmental values. This deficiency has contributed to the criticism that company managers do not include environmental impacts in the internal decision-making process. The accounting profession has not developed effective environmental reporting guidelines. This situation contributes to a second problem: the apparent inability of corporate reports to provide useful information to external parties. It has been suggested that by using nonmarket valuation methodologies, financial statements can be used to measure progress toward sustainable development. Nonmarket valuations are not generally accepted by the accounting profession. They are too subjective to support effective decisions, and too costly to obtain. Furthermore, demand for this sort of information appears small. Some of these issues may be resolved over time. The most serious challenge, however, concerns how enhanced financial reports would be used. Financial statements are supposed to help investors assess the amount, timing, and uncertainty of future cash flows. A substantial portion of environmental value is based on nonuse benefits, much of which will never be realized in company cash flows. In other words, the role of financial statements would have to change. Furthermore, since there is no general agreement as to the meaning of sustainable development, efforts to operationalize the term have been fraught with difficulty. Moreover, monetization of environmental values could jeopardize their preservation, leaving some to question the overall objective of this form of reporting. For these reasons, while it is to be hoped that better reporting of environmental impacts will be forthcoming, the greatest advances will likely be outside the financial statements themselves.     

“We can keep the fire burning”: building action competence through environmental justice education in Uganda and Germany

The global dimensions of climate change necessitate a response that takes national differences – social, economic, geographic, and cultural – into account. Action-oriented education has a key role to play in advancing citizen engagement in a culture of sustainability. This paper describes research conducted with one such education programme, Youth Leading Environmental Change (YLEC), which operates in six countries and engages university-aged youth in discussion and practice related to global sustainability, systems thinking, and environmental justice. YLEC aims to advance four key competencies; this paper focuses on the goal of action competence, which involves acquiring knowledge, reflecting on experience in the context of one’s values, envisioning alternative futures, and acting individually and collectively to advance those alternatives. The present article examines the impacts of YLEC on environmental action competence in two of the countries involved in this research: Uganda and Germany. In-depth interviews were conducted with participants in both countries to examine the development of action competence during and after the programme. Findings suggest that outcomes differed in each country, reflective of participants’ different lived experiences. YLEC effectively built on the conditions faced in each country to accompany youth to a higher level of awareness and action. These findings have implications for environmental education programmes striving to work with multiple nations and diverse participants.     

Industry Response to the Challenge of Sustainability: The Case of the Canadian Nonferrous Mining Sector

/ The paper investigates how the Canadian nonferrous sector is tackling the challenge of sustainable development. Although there is no consensus as to what sustainable development means in practice for management in the sector, at least three dimensions must be taken into account: (1) metals are recyclable, the availability of this resource is not a concern for the foreseeable future; (2) the need to minimize environmental impacts of metals exploration, extraction, transformation, consumption, and recycling; and (3) production activities should not be socially or culturally disruptive. The nonferrous mining industry faces several environmental problems. Some of the most significant are acid mine drainage, sulfur emissions, recycling, and metals toxicity. The industry has developed a number of responses to address these specific concerns as well as other more general challenges. Six strategies are described and analyzed: (1) research and development, (2) an effort of consensus building among stakeholders known as the Whitehorse Mining Initiative, (3) international networking, (4) active involvement in the development of environmental management standards, (5) management reorganization and (6) voluntary agreements. The importance of external factors in the shaping of corporate environmental management practices is discussed, in particular the role of government. Progress has been achieved in three areas: (1) managerial practices and organization, (2) reducing the impacts of ongoing operations and (3) minimizing future liabilities, but two significant fields of conflict remain, namely mining in wilderness areas and projects on aboriginal lands.KEY WORDS: Canada; Environmental management; Minerals industry; Nonferrous metals; Sustainable development; Whitehorse Mining Initiative