The birth of Te Awa Tupua

The Whanganui is the longest navigable river in New Zealand and of special significance to the Māori who settled along it. It’s now also a person.

The course of the Whanganui

The course of the Whanganui

An act of the New Zealand Parliament declares the river to be Te Awa Tupua, “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.” It then proceeds to develop a legal framework called Te Pā Auroa nā Te Awa Tupua to support the legal person Te Awa Tupua. The main part of this legal framework is Te Pou Tupua, the “human face of Te Awa Tupua.” Te Pou Tupua is a pair of representatives, one nominated by the local iwi, the Māori tribes, which have interests in the Whanganui River, and one nominated by the New Zealand government. The job of this pair of representatives is to speak for the river and to uphold Tupua te Kawa, the “river values.” Tupua te Kawa can own property, and section 41 of the act vests the parts of the river bed currently held by the Crown in the person of Tupua te Kawa.

The idea that some thing other than a human being can be treated legally as a person is nothing new. This is, of course, the source of the much derided but not exactly wrong comment from Mitt Romney during the United States presidential election of 2012. What does seem to be new is the designation of personhood to a natural environment. The Whanganui River settlement has as much to do with protecting the rights and heritage of the Māori as it does with the environmental protection of the river, but Te Pou Tupua is tasked to promote and protect the health and well-being of Te Awa Tupua, so the legal designation has clear environmental consequences. We’ll see if the new legal framework results in changes to the health of the river.

It also remains to be seen if this strategy gets deployed elsewhere in New Zealand and in the rest of the world. It seems to me like the basic legal framework could be made to work in the United States, though it might be politically challenging to implement.

There was a singing of a waiata after the bill was passed:

Conservation Easements: protection of land and private property

Last week it was reported that Tim Sweeney, co-founder of Epic Games (the studio that brought you Gears of War), established a 7,000 acre conservation easement to protect the Box Creek Wilderness in North Carolina. What exactly is a conservation easement, and how is it used to protect land?

Box Creek Wilderness
From Unique Places to Save

A landowner who wants to protect the land that they own faces a problem. They must ensure that the land is conserved after they no longer own it. If a conservationist landowner dies, their heirs may not be able to maintain the property, and the heirs would be forced to sell it, possibly dividing it up in the process and opening it up to possible development. To solve this problem the landowner may place a conservation easement on all or part of their property. With an easement, the landowner still owns the property, but they give up some of their rights to develop that property. In the process, they engage a qualified organization, usually a land trust or a governmental agency, to ensure that the conservation objectives are met. A conservation easement outlasts the original owner. The easement follows the land in perpetuity, so no one will ever be able to use the land under the easement in a way that is contrary to the conservation objectives.

The right to establish a conservation easement comes from a notion that property ownership consists of a “bundle of rights”1,2 including the right to build upon that land, to exclude others from using land, to extract the mineral, water and biological resources of the land, and many others. Ownership of a piece of land doesn’t necessarily mean you possess all of the rights to that land. Indeed when you mortgage your property, you give up some of your rights to the property to a lender in exchange for a loan. The same thing happens when you place a conservation easement on your land. You give up the right to subdivide the land and the right to develop the property in certain ways to the qualified conservation organization. Each individual conservation easement spells out the rights to the property the landowner retains and the rights that the conservation organization receives, and they are constructed differently for each easement. An easement could allow a landowner to farm or to harvest timber from the property, assuming the landowner does this in a way that is consistent with the conservation objectives of the easement.

Easements are more cost-effective than a conservation organization buying the land outright. The Nature Conservancy, the largest non-profit holder of easements in the United States, acquired 34 percent of its land between 1954 and 2003 through conservation easements, but only 16 percent of its total land-acquisition costs over that period went to easements3. They also provide financial benefits to landowners through tax relief given to landowners who establish an easement.

The Nature Conservancy maintains a good set of resources on easements.

1. Jane B. Baron. 2013. Rescuing the bundle-of-rights metaphor in property law. University of Cincinnati Law Review.
2. James Penner. 1995. The “bundle of rights” picture of property. UCLA Law Review.
3. The Nature Conservancy. Easements 101

United States Army Corps of Engineers v. Hawkes Co., Inc.

Just as I’m starting to learn more about wetland law, the Supreme Court issues an opinion in United States Army Corps of Engineers v. Hawkes Co., Inc. The case turns on what is, to me, a technical question of administrative law, namely when does an agency determination become something that can be appealed? In the end, the resolution of this technical question does not appear, to me, to change wetland law all that much. But the opinion does shed some light on the challenges of wetland conservation within the United States legal framework.

Continue reading “United States Army Corps of Engineers v. Hawkes Co., Inc.”

Lawyers, Swamps and Money

As I mentioned in The Winged Scourge, I have been reading Royal Gardner’s Lawyers, Swamps and Money, a book about American federal wetland protection laws and regulations. I am trying to build up my understanding of the social and political sides of wetland science, and Lawyers, Swamps and Money is a very good read for someone less familiar with the details of U.S. administrative law. Gardner begins by filling in all of the policies and procedures that lead to an agency promulgating a regulation and the legal interpretations of those regulations and procedures that get applied when a case on wetlands goes to court in the United States.

The most surprising thing for me as a wetland scientist is the incredibly convoluted way wetlands are protected at the federal level in the United States. That is, there is not a federal law protecting wetlands explicitly. Instead, we have the Clean Water Act whose section 404 requires developers to obtain a permit for the discharge of dredged or fill material into navigable waters of the United States. The US Army Corps of Engineers issues the permits but the Environmental Protection Agency has authority to review and veto Corps permit decisions if they think the Corps is being too lenient. It is the interpretation of the Clean Water Act of these agencies that includes wetlands in the “navigable waters” and gives the Corps and the EPA the authority to protect wetlands.

But not just any wetlands, as the fractured Supreme Court opinions in Rapanos v. United States make clear. The most important opinion in that case is not Justice Scalia’s plurality opinion, but Justice Kennedy’s concurring opinion which defines wetlands under the protection of the Corps of Engineers as those which possess a “significant nexus” to the truly navigable waters of the United States. This opinion is central to the current regulatory practice of the Corps and EPA. A recent goal of many wetland scientists has been to show that so-called “geographically isolated wetlands” such as prairie potholes, playas and vernal pools do possess a significant nexus to navigable waters (through subsurface hydrological connections) or at least some important function to the landscape which merits their protection under the Clean Water Act.

Fig. 4 from Cohen et al. "Do geographically isolated wetlands influence landscape function?" PNAS, 2016.
Fig. 4 from Cohen et al. “Do geographically isolated wetlands influence landscape function?” PNAS, 2016.

Now to many scientists, the roundabout way of protecting wetlands in the Clean Water Act — not protecting them at all, but instead forcing developers to go through a permitting process only to discharge dredged or fill material into a wetland — and the carefully ambiguous interpretation under the “significant nexus” rule is pointless and confusing. But that’s because scientists don’t often have to make decisions which balance the needs of several interest groups and a large body of administrative law simultaneously. We cannot protect everything we might define as a wetland just because we like wetlands a lot since people do have legitimate needs to convert wetlands to other land uses. So, in a way, the Clean Water Act represents the best we’re going to get, and our role as wetland scientists interested in the conservation of wetlands is to apply what pressure we can to the Corps of Engineers, the Environmental Protection Agency, Congress and the Supreme Court to broaden the legal and regulatory protections available to wetlands.

The other problem I am very interested in goes in the opposite direction. How can wetland scientists build some understanding of this legal and regulatory framework and the decisions of landowners into models of wetland functioning and evolution. I am not entirely sure that is a completely cogent question or if our wetland models really need that kind of information, but I am looking into it and shall report back when I learn more.

The other half of Lawyers, Swamps and Money looks at the “money” part, in particular a tool increasingly used by the Corps of Engineers and the real estate development community to offset the wetland impacts of their decisions: wetland mitigation banking. My thoughts on mitigation banking deserve their own post, so we’ll save those for later.

What makes a grassland? The saga continues

This week’s issue of Science revisited the debate over the grassland-forest conservation tensions I examined earlier. If you recall, William Bond’s Perspective from January 8, “Ancient grasslands at risk,” argued that many grasslands that previous efforts have identified as the result of deforestation may actually be ancient ecosystems, preserved by fire and herbivory. Therefore, he claims, efforts to reforest grasslands may destroy these unique ecosystems.

The authors of one of the studies that Bond criticizes, the Atlas of Forest and Landscape Restoration Opportunities, responded with a letter in which they assert that the Forest and Landscape Restoration (FLR) project has no intention of converting ancient grasslands into forests in the name of forest conservation and that “A fundamental first step in the FLR process involves understanding the ecosystem at the landscape level, including its historical and cultural values, before making decisions on a restoration approach. FLR under this definition would promote exactly the same conservation of ancient grasslands that Bond advocates.”

This certainly sounds reasonable, but Bond replies in the same issue: “the western Serengeti and Kruger National Park are mapped as deforested instead of as ancient savannahs, and the natural species-rich montane grasslands of South Africa and southern Brazil are both mapped as deforested and/or degraded” in the Atlas of Forest and Landscape Restoration Opportunities (as, indeed, they are).

I am fascinated by this debate because it reveals a whole bunch of unresolved tensions in the fundamental principles of landscape science. Some I mentioned in my previous post: how should we value certain landscapes in order to apply conservation projects to them? Another I hinted at in my post about state-and-transition models: are these distinct landscape states such as “grassland” or “forest” meaningful? The Atlas authors mention that mosaics of forests and grasslands confound their attempts to classify, especially since the definition of forests that they use is not mutually exclusive with the definition of grassland that Bond uses.

Bond and the Atlas authors advocate their variants on the classification paradigm because it advances their interests: the preservation and continued study of grassland ecosystems on one hand and the reforestation of vast tracts of the globe on the other. My own interests in landscape dynamics push me towards an opinion that this whole project of classification is not incredibly useful. Rather than attempts to enumerate all the things you can see at a certain scale, leading to these ambiguous definitions of landscape states, I prefer approaches which build a representation of the environment at multiple scales, capturing not just the variability between different ecosystems but also the incredible amount of heterogeneity within a single ecosystem. I think it’s still an open question though how best to design environmental interventions which are aware of multiscale phenomena, and that’s certainly something I would like to know more about.

Critical physical geography: State-and-transition models

I came across a solicitation to a dissertation workshop on “critical physical geography” which was a field I had never heard of before. Accompanying the solicitation was an introduction to a special issue of Progress in Physical Geography on the field, written by Rebecca Lave (link). I want to explore some of the intersections between what we think of as the mission of Borrowed Lands and critical physical geography.

Chris Van Dyke’s contribution to the special issue, “Boxing daze — using state-and-transition models to explore the evolution of socio-biophysical landscapes” (abstract) focuses on a type of model I spend a lot of time thinking about, what he calls the state-and-transition model. In the state-and-transition model framework, there are distinct landscape states, grassland and shrubland, say, and transitions which flip a landscape from one state to another such as grazing or fire.

State-and-transition model example
Figure 1 from Van Dyke (2015) illustrates a three-state STM




Continue reading “Critical physical geography: State-and-transition models”

What makes a grassland?


There was an article published in the most recent issue of Science that seemed like a good way to get the ball rolling here at Borrowed Lands.

William J. Bond. 2016. “Ancient grasslands at risk” Science, Vol. 351, No. 6269, pp. 120-122.

When you look at a grassland, often you’re looking at what used to be a forest. Knowing that deforestation is a massive contributor to biodiversity loss and carbon dioxide emissions, you might be tempted to plant trees on your grassland, restoring the environment to its previous state.

But what if that grassland was never a forest and is, in fact, an ancient grassland? That’s the question Bond asks in this article, and one which I’ve seen pop up a lot over the past year. In that case, you may not want to blindly reforest the grassland.


Depiction of the life cycle of an underground tree in a tropical grassland. From Bond, Science 2016

A similar debate exists in the salt marsh community. Recent results have suggested that North American marshes may owe their origin to changes in sediment supply driven by colonial-era deforestation and that salt marshes may have an inherently short life-cycle. Conserving marshes exactly as they are now or trying to install marshes as part of a revitalized urban landscape doesn’t reflect their natural dynamics.

However, we may not want to simply recreate the natural dynamics of salt marshes. Instead of framing the question in terms of restoring environments to their pristine, unaltered or natural condition — a frame which may lead us to reforest grasslands that don’t look as old as they are — we need to think about what exactly the various ecosystems provide both to humans and to the local and global environments. Unfortunately, as Bond notes, we don’t even have good maps of old-growth grasslands, much less a firm grasp of their carbon and nutrient budgets, biodiversity, social and ecological roles and environmental history. Similar uncertainties exist in salt marshes, for instance in their carbon budgets.

Even if we do get a handle on these uncertainties, we may yet decide that a tropical forest is worth more than an ancient grassland or that some extra marshes on groynes might do wonders for Boston Harbor. Conservation is far from straightforward.

On the Borrowed Lands reading list: Forgotten Grasslands of the South: Natural History and Conservation by R.F. Noss. I saw this book at the Harvard Bookstore the other day, and now Bond cites it, so I think I’ll have a look at it.