I. Evolution of Ecosystem Management

Ecosystem management is fast becoming a subject of environmental law. More than a catch phrase, ecosystem management is a concept which underlies several decades of scientific study and more recent policy thrusts toward such things as sustainable development, smart growth, sprawl control, watershed management, wetland restoration, wildlife conservation, life-cycle analysis, multi-media environmental protection, and efforts to enhance biodiversity.

Ecosystem management law appears to be the next legal advance after areas such as Superfund, Brownfields, and, most recently, Sprawl.

The American Bar Association's January 2000 publication, "Natural Resources & Environment," was devoted to ecosystem management. It described ecosystem management as "a concept that seems to hold potential for integrating principles of ecology into environmental and natural resources law."¹

Ecosystem management law is only just developing. As the ABA's editor observes, "at this stage of its development, the law of ecosystem management is mainly concerned with protecting more-or-less intact ecosystems from disruptions caused by people and restoring ecosystems that have been damaged." ²

It is no surprise that there is no consensus yet on what is ecosystem management. Again, as observed by the ABA publication:

"Some of us hear the term with the emphasis on "ecosystem", while others hear the emphasis on "management". In one sense "ecosystem management" is an oxymoron. Ecosystems manage themselves; it's the human activities that disrupt ecosystems that we need to manage. In another sense, human populations are part of the ecosystems they inhabit, and humans can use the word "management" to describe the changes that they impose on ecosystems,

even when what we have really done is destroy an ecosystem and replace it with something else".³

The idea of ecosystems, their study, their appreciation, their management, and their protection, is not new:

• Charles Darwin's writings on natural selection starting in 1859 drew scientific attention to the role of ecological contexts;
• Charles Elton in the 1930s framed the modern study of ecology;
• A. G. Tansley in 1934 coined the term ecosystem to describe the basic unit in studying ecology;
• Eugene P. Odum and other ecologists in the 1950s developed the methodology of ecology research; and
• E. O. Wilson recently has popularized the study of ecosystems and their importance to the preservation of biodiversity and, ultimately, the planet.

You understand that the present environmental laws evolved from the early common law concepts as well as the government police power to protect the public's health, safety, welfare, and morals (and from the federal government's authority over interstate commerce). They also grew from contract law principles, and from the sovereign's ownership as proprietor or steward of natural resources such as water, forests, wildlife, tidelands, oil and gas, and minerals.

Add to these historical bases the powers of federal and state (and some local) governments to tax, to take property by eminent domain, and to spend public funds for public purposes.

It is tempting to believe, after centuries of evolution, that environmental laws are comprehensive and consistent, far-reaching and fair. Unfortunately, today's environmental, conservation, preservation, and management policies, programs, and practices evolved piecemeal. Laws were enacted, regulations promulgated, and programs implemented mostly to deal with problems already known, after-the-fact, not proactively.

The law, by its nature, lags behind public knowledge and awareness. This is true of statutes addressing air pollution, water pollution, wetlands protection, hazardous wastes, toxic substances, oil spills, underground tanks, solid waste, and endangered species.

The same is true of the array of laws about recreational vehicles, fisheries and wildlife, historic sites and structures, coastal zone management, archeological and underwater resources, zoning and subdivision control, wells and water supplies, sewage disposal, and outdoor advertising. And mining and land reclamation laws, national and state parks and forests roles, designations of wilderness areas, wild and scenic rivers, lead paint, asbestos, radon, PCBs, indoor air pollution, and depletion of the ozone layer.

All these laws operate largely prospectively (some, like Superfund and RCRA, also retroactively), regulating or licensing activities after they have reached problem proportions, documented and described to the satisfaction of the Congress and state legislatures. Environmental laws generally follow by decades the advances of environmental science.

These many laws were enacted at different times, by different legislative bodies, with different memberships, addressing different problems, presented in different ways, solved by different legislation, employing different approaches, to be administered by different administrations (or courts), at different levels of government, with different levels of success.

Thus, there is no single body of statutory or court-made law found in a single volume on the shelf of the law library. Eventually, though, there will be both procedural and substantive standards for ecosystem management, utilizing traditional and modern bases of legal authority. These likely will develop piecemeal, as usual, as they are inserted in existing environmental, land use, and conservation laws and regulations (and easements and restrictions, covenants, equitable in contracts, deeds, grants, permits, and enforcement orders).

Ecosystem management law might develop in a more concerted manner, though, in the form of comprehensive statutory enactments and regulatory revisions, if Congress and the state legislatures ever return to looking favorably at broad-ranging laws making long-range reforms, or if agencies ever return to promulgating over-arching rules and policies.

Since there will be some law of ecosystem management, sooner or later, in pieces or wholesale, it makes sense for attorneys, planners, engineers, and scientists to take active roles in its creation and formulation. It makes sense to be involved in the evolution of laws likely to influence our clients, their welfare, our communities, our children, and the health of our environment for centuries to come.

Even before there is substantive and procedural ecosystem management law to apply to pending projects, permits, registrations, certifications, contracts, grants, and other permissions of government (and contracts, easements, and other arrangements between private parties to transactions and developments), the question arises whether the principles of ecosystem management should affect our advice and representation as professionals.

One APA author warns us this way:

"Lawyers are practical and know that what counts is not always what is found in the Code of Federal Regulations. For example, a lawyer representing a large land development project in its environmental permitting phase will certainly check all applicable federal, state, local and tribal regulations (hard law) for the standards and rules under which approval requests will be evaluated. But any lawyer who has been involved in such a case, for or against the development project, knows that good lawyering requires more. Thus, even if no applicable rule requires the project to demonstrate that it promotes sound ecosystem management or meets specified goals of ecosystem management, suppose that opposition to the project forms around the charge that it threatens some important ecosystem function? Should the lawyer representing the project advise the client to ignore that charge on the basis that it finds no foundation in the hard law? What if the ecosystem function is associated with a locally cherished wildlife or recreational area, or the habitat of a species that is being discussed as a potentially endangered species? Ignore such a charge at your peril."⁴

The same lawyer cautions that "real-world lawyers...must consider what lies ahead for a client as much as what lies already in the law books."⁵

The best attorneys, engineers, scientists and environmental planners advise their clients to be proactive rather than reactive. We advise our clients to "meet the law and then some".
This means to address the letter as well as the spirit of the law, the law as it is and as it is moving, the meaning of the law and its policy goals, the law plus emerging best practices, the law as well as evolving science and policy.

There are several reasons for this.

• First, regulatory agencies (federal, state and local) have some flexibility (discretion) within the standards given them to apply, and a project's relative protection of ecosystem values may come into consideration, even if not overtly;
• Second, agency staff have been known to apply unwritten standards which may reflect personal predilections about ecosystem values;
• Third, it is best for a project sponsor to design for ecosystem protection rather than to fight about whether the project barely meets the applicable written standards;
• Fourth, the likelihood of public support (and avoidance of appeals and other litigation) is enhanced by public involvement in how the project protects ecosystems;
• Fifth, incorporation of ecosystem protection measures (including proper site selection) reduces the review time under agency scrutiny; and
• Sixth, even while a project is pending before government agencies, applicable laws and regulations may change to add ecosystem protection requirements and these may apply retroactively.

II. Ecosystem Management Examples

Bruce Babbitt, Secretary of the U.S. Department of the Interior, has presented several examples of ecosystem management projects, involving protection or restoration. These focus on rivers as "the most neglected and degraded of all of our ecosystems...."⁶

Mr. Babbitt offers that there is really no surprise that rivers are the focus:

"Rivers gather their waters from hundreds of tributaries that collect polluted waters from cities, farms, and factories across the watershed. Rivers ignore state lines and other political boundaries, making it difficult to coordinate cleanup efforts. To restore our waters will require a new national partnership for watershed restoration...."

The examples cited by Mr. Babbitt include:

• The administration's comprehensive plan to protect the spotted owl in the old growth forests of the Pacific Northwest in 1993;
• Restoration of the Chinook Salmon to the Snake River into the mountains of Idaho;
• Restoring the dead zone in the Gulf below the Mississippi Delta extending westward to Texas;
• Undoing the cumulative effects of water pollution, dams, bad management, and excessive diversions in the Sacramento River's inland delta near San Francisco;
• Restoring the delta of the Colorado River on the Mexican Border polluted by upstream diversions into irrigation canals and aqueducts for Los Angeles, Los Vegas, and Phoenix; and
• Restoration of the Florida Everglades as an important national park and former home of species of millions of wading birds, storks, egrets, rosiest spoonbills, ibis, herrings, and seaside sparrows.⁷

Other authors have described the seminal studies of ecosystems with resultant major changes in society's law and policy.

A good example is the Hubbard Brook Experimental Forest in the White Mountains of New Hampshire. An unexpected consequence of long-term research at the Hubbard Brook site (involving the important role of biota, particularly plants, in the retention and recycling of nutrients in ecosystems) was the discovery of the impact of acid rain on ecosystems in the northeastern United States. This work "helped to justify passage of the acid rain portions of the Clean Air Act Amendments of 1990. In addition, this long-term research program has documented the positive impact of that legislation as acid rain has declined over time."⁸

The same authors site the example of the Konza Prairie, a long-term ecological research site in Northeastern Kansas, as an example of the importance of disturbances (the role of prairie fires) and how ecosystem structure and function can be studied at spatial scales that do not necessarily coincide with distinct ecosystem boundaries.⁹

For a definition of ecosystem management, the authors adopt this concept from earlier literature:

"management driven by explicit goals, executed by policies, protocols, and practices, and made adaptable by monitoring and research based on our best understanding of the ecological interactions and processes necessary to sustain the ecosystem composition, structure, and function."¹⁰

The authors point out how this definition includes a common use of the term ecosystem as a functional and identifiable unit in nature as well as ecosystem processes, an understanding of which is useful in order to accomplish the goal of managing a defined ecosystem (often to provide a product such as water, wood, or meat) while sustaining natural processes such as air and water purification, soil nutrient regeneration, and biodiversity. They conclude that "ecosystem management may provide a viable strategy for sustainable use of natural resources."¹¹

Another commentator critiques the Northwest Forest Plan in the United States, which was to be founded on a new land management concept of ecosystem management, that would "take a scientifically-based look at environmental and socioeconomic issues to meet the concerns of both conservationists and resource-dependent communities."¹²

Using their statutory authorities, the Bureau of Land Management and the National Forest Service traditionally focus their planning so as to manage federal land to provide for multiple uses such as recreation, wilderness, commodities (grazing, timber and mining), watersheds, and fish and wildlife for both current and future generations. Some critics have commented that, despite these statutory obligations, "federal planning efforts often failed to consider adequately broad-scale ecological issues that crossed administrative boundaries."¹³

This same author observes about the Northwest Forest Plan effort:

"Despite the fact that there is no federal law that defines or directs the use of ecosystem management, nor is there agency agreement on a definition of ecosystem management, ecosystem management was settled on as the process to resolve the difficult political issue of the appropriate balance between human needs and wants and the protection of the natural system from which those needs are met. It was argued that this new approach was more scientific and inclusive and would be more efficient than the failed public land planning mechanism."¹⁴

The author concludes, in this case example, that changing the process of analysis changed neither the players nor the ground rules. The federal agencies, she critiques, moved from seeking and relying on the "best science" to implementing new administrative initiatives, for instance emphasizing public land preservation and withdrawals, forest roads moratoria, and endangered species actions. The effort drifted, said the author, from ecological science toward "pure policy-making, dressed up in the values-based terminology of conservation biology."¹⁵

III. Massachusetts Watershed Initiative

An early example of ecosystem management in Massachusetts on a larger scale than previously piecemeal advances is a statewide watershed program. It serves to identify policy needs, and utilize new interagency, intergovernmental, public-private watershed study and decision groups to address environmental issues.

The Massachusetts Watershed Initiative was set up in 1993. The key feature is the creation of multi-discipline Watershed Teams in each of the 27 major watersheds of rivers in Massachusetts, and assignment of 20 full-time team leaders to coordinate activities.¹⁶ Funding comes from a variety of sources including what is called a state Watershed Roundtable to allocate state resources to priority projects identified by the teams.

The first results of the Watershed Initiative have been coordinated wastewater discharge permitting, water withdrawal approvals, and monitoring activities in each watershed. It informs the allocation of federal, state and municipal dollars within each watershed based on a consensus approach about the best way to achieve environmental benefits with limited dollars available.

Traditional clean water programs have focused on particular sources of water quality impairment. Technical assistance and funding programs did not direct many resources to watershed-wide problems. The Massachusetts Watershed Initiative has changed this with some new structure, process, and funding.¹⁷

The Watershed Initiative has expanded the ability of the Commonwealth to address water resource, community preservation, and biodiversity issues. The Watershed Teams, with support of state agencies and other participants, are defining the high priority issues within their watersheds. Not surprisingly, the most pressing issues are watershed or regional in nature. These issues, such as stream flow, aquifer depletion, or fish movement, are often outside the focus of traditional clean water or drinking water programs.

You appreciate that state environmental programs are administered by several agencies (five of them overseen by EOEA, five others programs within EOEA).¹⁸ One thing the Watershed Initiative tries to do is integrate the activities of these EOEA agencies and programs with federal and local governments, non-governmental organizations, businesses and industry, and other participants in the watershed approach.

The conceptual differences overall appear to be:

• co-leadership roles for state officials, watershed associations, other citizen groups, the business community, and affected municipalities;
• watershed-based education, resource assessment, planning, and implementation activities with input from parties affected (and some delegation of decisionmaking);
• annual watershed work plans, and five-year plans, to guide specific public and private activities in each watershed;
• additional problem identification with action plans for sub-watersheds;
• targeting funds to watershed priorities; and
• working on all watersheds at the same time (rather than picking priority watersheds).

The idea has been to facilitate locally-based problem identification and problem-solving by local people, to protect local resources (of regional and state significance), individually or cumulatively, and to coordinate implementation activities among the parties. It has been said by EOEA that the Watershed Initiative "is both a structure and process for implementing the watershed approach."¹⁹

A 30-member Watershed Initiative Steering Committee (WISC) provides advice and guidance to EOEA. It consists of representatives of the environmental community, watershed associations, businesses, business organizations, regional planning agencies, municipal governments, scientists, educators and citizens.

The EOEA Watershed Teams operate to provide a forum and direct watershed-specific link for interagency and community participation. For instance, they perform watershed-wide water quality and habitat assessments, and they assist watersheds in overall planning and implementation through annual work plans and five-year action plans. Each Watershed Team is accountable equally to the Secretary of EOEA and to the communities. Team leaders are employees of EOEA or its agencies.

The Watershed Teams work with their communities to try to establish broader Community Councils which are designed to get a broader group of community leaders and citizens involved, so as to identify priority issues and then put those priorities in the action plans.

The Watershed Teams also create sub-watershed Stream Teams. These are organized to assess local environmental quality through such things as water quality monitoring and shoreline surveys.

The state level interagency Watershed Roundtable coordinates resource allocation in support of the Watershed Teams and to help set priorities for the EOEA agencies. Roundtable members include senior EOEA agency managers and three community representatives selected by the WISC Executive Committees. There is a Grant Program funded through the Roundtable so that money can go to groups dedicated to watershed issues (especially local grassroots watershed organizations which have received substantial moneys).

Some early practical results have been:

• The reorganization of DEP in 1996 on a watershed basis, with delegation of key environmental decisions to regional DEP offices better able to understand watershed issues;
• A ranking system for state revolving loan funds (SRF) giving the most points to projects demonstrating consistency with state watershed plans (and broadening SRF eligibility to include non-point source pollution);
• Including ranking criteria in all state water-related grant programs for consistency with watershed plans or team activities;
• Issuing NPDS, water withdrawal and groundwater discharge permits within each watershed during the same year to allow comprehensive evaluation and decision making;
• Total Maximum Daily Load (TMDL) analyses, with Watershed Team help on data development and assessment, to take actions needed for water bodies to meet state water quality standards;
• The Riverways Program of the DFW provides technical assistance and outreach to communities, citizen groups and others to develop "adopt-a-stream," and other stewardship activities;
• The Massachusetts Watershed Coalition (a non-governmental organization) assists watershed groups to build themselves through training in strategic planning, board development, and membership; and
• The Massachusetts Environmental Trust uses funds raised through special conservation activities to give grants to grassroots, non-governmental organizations to raise awareness and protect environmental resources.

The Watershed Initiative has helped to define future issues and focus efforts to find solutions on thorny challenges:

• Water Quality: Now that point sources are largely controlled, we see problems occuring where numerous point sources exist along a single river reach or, more often, where non-point sources (including combined sewer overflows, sanitary sewer overflows, and stormwater discharges) are now the primary sources of pollution;
• Stream Flow: As rivers return to healthy levels of water quality, it now seems that lack of sufficient flow at certain times is an obstacle to restoration, due to increased demands for water, water systems which over-pump groundwater sources, and regional sewer systems which convey wastewater (as well as inflow and infiltration) away, over long distances, from the point of origin, and disrupting the natural cycle;
• Fish Movement: Obstructions, often in the form of dams, block fish movement by segmenting our rivers and preventing movement to the very habitats needed during their lifecycles, or seasonal movements, obstructions which are exacerbated during low-flow conditions; and
• Peak Water Demands: Communities relying on groundwater for water supply face increasing difficulties meeting peak demands, especially due to the strong economy causing rapid suburban and rural growth, made worse by summer water demands for outdoor use, primarily lawn watering, itself made worse by the increased popularity of automatic in-ground sprinklers.

With the input of the Watershed Teams and other Watershed Initiative participants, statewide policy on low-flow conditions, aquifer depletion, future water demands, regional water quality problems, and restoration of ecological functions of rivers will be informed by the new watershed perspective. The Watershed Initiative addresses these challenges so the state will see them in the contexts of the entire natural systems in which our cities and towns (and regional state infrastructure) exist.

IV. Massachusetts Watershed Reforms and Projects

Some reforms resulting from the watershed approach in state agency programs are these:

• DEP revised its guidance for comprehensive wastewater planning programs to require communities to consider decentralized wastewater treatment alternatives (including smaller groundwater discharge treatment plants and use of shared septic systems);
• DEM is developing site-specific and statewide methods for determining the level of stress within watersheds caused by altered hydrologic conditions, so as to better characterize watersheds and impacts;
• EOEA is launching its River Restore program to systematically identify dams that have the potential to be breached or removed, coupled with review and change of existing environmental laws and regulations to allow habitat improvement projects in conjunction with dam removal; and
• EOEA is sponsoring a Community Preservation Initiative to empower communities with build-out analyses for several (eventually all) cities and towns in the Commonwealth so they can plan for sustainable growth and address pressing issues such as land conservation and affordable housing.

The experience has shown the benefit of the ecosystem approach, refocused priorities, local input from those most knowledgeable, participation of business and non-governmental parties, communication along new lines, state funding informed by watershed input, exposure to evolving science and policy, and a dramatically different relationship between state and local governments.

The Watershed Initiative touts four projects underway with some considerable success:

Neponset River

Flowing 28 miles from west to east to Boston Harbor through 14 communities, the Neponset River has a history of heavy industrial use as a source of mill power and recipient of industrial and other wastes, but it feeds the groundwater of more than half the population in the watershed (for drinking water), and most of these communities are served by a central sewer system discharging to Boston Harbor and Massachusetts Bay. These historic uses, extensive degradation, identified needs, and infrastructure choices made the Neponset an ideal pilot project for the Watershed Initiative. The Initiative's structures, policies, and procedures, described above, were put in place first for the Neponset, shaping new approaches to many environmental issues. One of the most pressing is fish movement and fish passage, now effectively prevented or restricted by low flow conditions, high water temperatures, loss of stream bank vegetation, and numerous dams. The Watershed Team is sponsoring a study by the U. S. Army Corps of Engineers to improve fish passage. Originally a narrow look at developing or rehabilitating fish ladders, the project now will look at a full range of options including dam removal, flood implications, and sedimentation.

Ipswich River

Flowing almost 40 miles from northeastern Massachusetts to Massachusetts Bay, the Ipswich River drains a watershed of about 155 square miles from 17 communities. Part of the headwaters run dry regularly during peak summer water demand; the watershed cities and towns rely primarily on groundwater for public water supplies, plus three communities outside the watershed divert water directly from the river to fill reservoirs during the winter; sewers carry water out of the watershed to discharge to Massachusetts Bay. The DEM and the United States Geologic Survey (USGS) have studied the cause and impacts of these problems, resulting in a comprehensive groundwater model of the watershed to predict the impacts of water withdrawals, wastewater disposal, precipitation, and other factors on stream flow and groundwater levels, demonstrating that the no-flow and low-flow conditions primarily result from the adverse cumulative effects of past infrastructure decisions.

Charles River

With a watershed of 308 square miles flowing through parts of 35 communities, populated by almost a million people, the Charles River has a watershed of three very different parts: rural headwaters, a suburbanized and urbanized middle, and a very urban Charles River Basin. The Boston Harbor clean-up and the EPA's Charles River Initiative (with a goal for a fishable, swimable river by 2005) have brought focus on the river in recent years; local projects in the upper parts have dealt with meeting water supply demand and sustaining stream flow; low flows six miles above the major public treatment plant remain a problem; groundwater withdrawals by many communities from regional aquifers have shrunk wetlands and water bodies feeding the river. The Charles River Watershed Association (CRWA) conducted a groundwater modeling project to study the safe yield of the aquifer, highlighting that it would not be able to sustain continued growing demand over the long-term (rapid land use development is increasing water demands and at the same time reducing aquifer recharge by impervious surfaces). A plan to address failing septic systems with a regional treatment plant in Holliston was refocused to keep the water local, with shared septic systems and groundwater discharge mechanisms. Another CRWA project will produce recommended environmental zoning to protect identified resources.²⁰

SUASCO

The Sudbury, Assabet, and Concord Rivers (acronym SUASCO) come together, totaling 266 miles (29 miles of which have been designated federal wild and scenic rivers) and draining 377 square miles from three small watersheds where 365,000 people live. The watershed has many separate municipal sewage treatment plants; nutrient loading causes severe algal blooms, exacerbated by dams creating pond-like, rather than riverine environments; low- flow and wastewater discharges combine to aggravate the problem further. The Watershed Team has worked with DEP on the water quality problems to undertake a TMDL analysis for nutrients for the three rivers, evaluating both point and non-point sources, and a hydrologic study of flows, to develop a comprehensive control strategy. The limits of natural resources and municipal services in the watershed led six communities to form the Assabet River Consortium to fund a single comprehensive wastewater management plan, so a watershed-based approach can help meet future needs.

V. The Massachusetts Biodiversity Program

EOEA is now moving beyond watersheds to biological conservation and ecosystem protection. The Secretary of EOEA has announced this as a top priority, building on the Watershed Initiative and companion efforts in environmental education, community preservation, and pollution prevention.

The Watershed Initiative really is a leading edge of ecosystem management in Massachusetts. The underlying premise is that a watershed approach that includes protection of animal and plant species and ecological processes can achieve environmental as well as economic goals, because the living beings and the non-living components of ecosystems comprise the life support systems sustaining our environmental as well as economic systems.²¹

EOEA has instituted a program of biomapping. This is a statewide effort to identify the most important areas to protect in order to preserve Massachusetts' biodiversity.

EOEA is undertaking ecological assessments in each watershed, beginning with the five watersheds in southeastern Massachusetts and the Housatonic Watershed in the Berkshires. This ecological information source can inform us where development may occur in a sustainable fashion.

The state's Geographic Information System (GIS) Program documents, among many other things, natural resource attributes such as water bodies, forests, habitat, groundwater and surface water supplies. EOEA is moving to add critical uplands and other resources that connect resources in resulting ecosystems. At the very least this would help identify wildlife corridor routes extending beyond water bodies into upland areas.

Ecological restoration projects have begun already, starting with EOEA's wetlands restoration program. The acreage of these efforts will increase, informed by watershed and ecosystem information, improving the likelihood of actual restoration of watershed and ecological functions of the degraded wetlands, including water quality, stream baseflow, groundwater recharge, flood storage, fish habitat, and wildlife habitat.

The nation's first citizen Biodiversity Days were June 9-11, 2000, hosted by EOEA in partnership with non-profit groups and educators. Organized teams of children and adults (with experts) did data collection using a workbook published by EOEA, to catalog what the EOEA Secretary described as a "treasure trove" of animals and plants in their communities, so Massachusetts residents will come to know and appreciate the diversity of life in their own watersheds. Data from Biodiversity Days will be recorded in a central database for use in local and watershed conservation planning, and state decision making.

Under preparation in EOEA, according to Secretary Durand, is a "Citizen's Guide to Protecting Biological Diversity and Ecosystems". Starting with teaching what is biodiversity, the guide will explain how to inventory species and habitats in backyards and neighborhoods. EOEA says it will distribute this guide widely to educators, municipal officials, business leaders, service organizations, environmental and conservation non-profits, environmental engineers and scientists, planners and managers, and the development community. It is planned to have the guide be accessible through the EOEA web page. Users will be encouraged to establish their own "Local Species and Habitat Registries".

At the MACC Annual Meeting 2000 Secretary Durand also predicted that his office expects to develop a booklet on "Sustainable Practices Guidelines", for corporate, land use, government, and citizen decision makers, to "promote the inclusion of biological conservation and ecosystem protection considerations in public and private decisionmaking."²²

The Secretary has requested that the employees of EOEA and its constituent agencies and offices visit schools, to teach children about the natural world and how human well-being is connected to the well-being of living things, about threats to the natural world, and how each citizen can take action to protect the environment. Secretary Durand says that the idea is to teach kids about their "watershed address" and the biological wealth contained in their own watershed homes.

VI. CONCLUSION

Only recently emerging, ecosystem management law likely will bring the next major expansion of legal concepts integrating and possibly coordinating the disparate, piecemeal regulatory, contractual, funding, taxation, and stewardship programs of the federal, state, and more recently, local governments.

At the very least, lawyers, engineers, scientists, and other professionals ignore ecosystem management values and goals at the peril of their clients. The idea of ecosystems is reflected in established, respected literature, addressed in case studies largely in federal experience, and somewhat constrained by trying to accomplish ecosystem protection in the context of existing politics, legislation, and litigation. State initiatives separate from amending statutes and regulations hold some promise, an example being the Massachusetts Watershed Initiative, within existing authorities, integrating the activities of the agencies and programs of the Executive office of Environmental Affairs (EOEA) with federal and local governments, and participating representatives of business and industry, non-governmental organizations, and other "stakeholders" in what is called the watershed approach. This has resulted in some specific reforms and projects.

Building on the watershed approach, which has coordinated wastewater discharge, water withdrawal approvals, and monitoring activities in Massachusetts and allocated available funding within each watershed based on a consensus approach, the Commonwealth through the Secretary of EOEA is implementing a Biodiversity Program. Largely done within EOEA agencies, utilizing its own resources, the Biodiversity Program tries to build ecological factors into important governmental data bases, decisionmaking, and actions.

__________________________
*Mr. McGregor is the founding partner of McGregor & Legere, P.C., a Boston law firm concentrating for more than 25 years in environmental law, real estate, and related litigation. The firm is a member of the national Environmental Law Network (ELN).

 

¹“Ecosystem Management,” in Natural Resources & Energy (NR&E), published by the ABA Section of Environment, Energy, and Resources, Vol. 14, No. 3, Winter 2000. Many of the observations here are based on this excellent compendium.

² “Vantage Point,” Dean B. Suagee, Issue Editor, NR&E, Winter 2000.

³ Id.  NR&E, Winter 2000, pg. 144.

⁴ “Ecosystem Management, the ESA, and the Seven Degrees of Relevance,” J. B. Ruhl, NR&E. Winter 2000, pg. 157.

⁵ Id., pg. 158.

⁶ “Restoring Our Natural Heritage”, Bruce Babbitt, NR&E Winter 2000, pg. 147.

⁷ Id.

⁸ “Ecosystems as Functional Units in Nature”, John M. Blair, Scott L. Collins, and Alan K. Knapp, NR&E Winter 2000, pg. 150 at 153.

⁹ Id., pg. 154.

¹⁰ The Report of the Ecological Society of America, Committee on the Scientific Basis for Ecosystem Management, Norman L. Christensen, et al, 6 Ecological Applications 665 (1996), quoted at Id., pg. 154.

¹¹ Id., pg. 154.

¹² “Ecosystem Management in the Northwest:  Is Everybody Happy?” Rebecca W. Watson, NR&E Winter 2000, pg. 173.

¹³ Id., pg. 173.

¹⁴ Id., citing U.S. General Accounting Office (GAO), Ecosystem Management:  Additional Actions Needed to Adequately Test a Promising Approach (1994).

¹⁵ Id., pg. 177.

¹⁶ The 27 major watersheds are of the 

¹⁷ “Watershed Teams Take Charge:  Results From The Massachusetts Watershed Initiative,” Mark P. Smith, Director of Water Policy, Executive Office of Environmental Affairs (2000) (unpublished).  This article is a fine summary and discussion of the watershed approach in Massachusetts, and the author is grateful to Mr. Smith.

¹⁸ The agencies are the Department of Environmental Protection (DEP), Department of Environmental Management (DEM), Department of Food and Agriculture (DFA), Department of Fisheries and Wildlife (DFW), and the Metropolitan District Commission (MDC).  The independent programs are the MEPA Unit administering the Massachusetts Environmental Policy Act (MEPA), Office of Coastal Zone Management (CAM), Division of Conservation Services (DCS), Office of Technical Assistance (OTA), and Water Resources Commission (WRC).

¹⁹ Id.

²⁰ The CRWA environmental zoning project was funded by several foundations, trusts, corporations, institutes, and agencies.  It identified the benefits of environmental zoning:  improved surface and groundwater quality; sustained groundwater quantity; managed growth; and planning driven by environmental realities.  The project products were priorities for open space acquisition; a water budget analysis; town-wide storm water management ideas; new growth management tools; and techniques transferable to other towns.  The land use tools identified were transferable development rights (TDR), an improved cluster bylaw, an improved multi-housing bylaw, more dense and multiple uses in the village center, and performance zoning provisions.  The CRWA has prepared a set of slides and overlays for public presentations.  CRWA, 2391 Commonwealth Avenue, Newton, MA 02466-1773, 617-965-5975.\

²¹ Secretary Durand has set forth this premise and its implementation in “Charting the Course for Ecosystem Protection and Community Preservation“ appearing in the program book of the Annual Meeting of the Massachusetts Association of Conservation Commissions (MACC), March 4, 2000.

²² Id.