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In August 2002, representatives from a handful of federal and state agencies embarked on a noble experiment in Tennessee. They wanted to offset the damage done to streams across the state by major contractors, like the state’s Department of Transportation, which often must degrade a stream to build over it. TDOT, for example, constructs ditch-like culverts for streams to pass through so there isn’t complete destruction of these small waterways. But the concrete does have an impact. An informal survey conducted by the Tennessee Department of Environment and Conservation (TDEC) several years ago found that more than 10 miles of the state’s streams have been degraded by roads built over them.
To offset the damage, several agencies—the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, TDEC, the Tennessee Valley Authority, the Environmental Protection Agency and the Tennessee Wildlife Resources Foundation—agreed to begin funneling millions of dollars toward a fund whose purpose was to rehabilitate Tennessee streams. The idea was that if road- or homebuilders had to degrade a stream, they would be levied a special tax, which would pay for stream restoration in a location not far from where the damage occurred.
The idea was a noble, if not novel, experiment. During the 1988 presidential campaign, the first George Bush hoped to entice environmentalists to vote for him by proposing “no net loss” for the nation’s wetlands, meaning that for any acre damaged by development, another acre would be restored to its previous condition. Bush was talking about wetlands, but states like North Carolina and Kentucky began to use the same concept for streams.
A nonprofit subsidiary of the Tennessee Wildlife Resources Agency agreed to be the fund manager. With only five employees, it would identify sites, approved by a review team, and pay consultants and contractors to rehabilitate streams. As of last December, it had collected $15 million.
But almost from its beginning in 2002, the program faced intense scrutiny from all sides—business interests, environmental groups, other governmental agencies. “Everybody wanted money,” says Joey Woodard, a former TDEC biologist tapped to head the stream program. “But we’re not a grant program. We ended up pissing everybody off. I can’t believe how many enemies we made.”
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One of the program’s chief critics is Richard Young, a 59-year-old senior scientist at the Franklin-based environmental consulting firm of Breedlove, Dennis & Young, which represents development companies, road builders and others. He wrote an 18-page rebuke of the stream program in the spring 2006 issue of the Southeastern Environmental Law Journal. Young alleges a number of problems, but his chief criticism is that millions of dollars have come into the fund but precious little has gone out to offset the impact road and homebuilders have caused. He says the program simply isn’t spending money fast enough.
Young further says that the amount the stream program charges per foot, $200, is arbitrary. And he says the quality of the program’s restoration is questionable, pointing to the Yanahli project near Columbia in which portions of the Duck River were enhanced by planting trees and erecting a fence to keep out cattle, which trampled the Duck’s banks to the point of erosion. (Cattle are often a prime culprit of stream erosion.) Young says that because the cattle were grazing on state land, state officials should have made ranchers pay for the project instead of using taxpayer dollars.
And lastly, Young is unhappy that the same seven-member panel reviewing projects worthy of the stream program is the same committee assigned to consider projects for a business model created to compete with it. Private interests have access to stream restoration through a business model called a stream bank. The model differs from the original stream program, in which offenders like TDOT pay a fee to offset the damage they cause, in that investors locate and buy a plot of land on which a number of streams need restoration. The investors bankroll the work, and then sell “credits” to TDOT and other environmental offenders at a profit. Those credits are counted toward TDOT’s obligations for environmental mitigation. Young thinks $200 per foot is artibrary because offenders like TDOT would have no incentive to pay more for credits in the banking program than it would pay in fees to the restoration program.
So Young is calling for complete dissolution of the original stream mitigation program and for federal and state agencies to replace the banking program with one that would be more busines friendly.
Which would be a solution except for the fact that it overlooks several significant developments—the first of which is that most stream restoration programs take several years to get off the ground. At the time Young’s paper was published, he noted that the program had completed only two projects—4,430 feet of bank stabilization along Turnbull Creek in Cheatham County and the Yanahli project. But by March, the program will have completed 13 projects totaling 120,00 feet of stream restoration at a cost of $8.5 million. In other words, the program is quickly closing the gap between the time fees are paid and the time stream restoration is completed.
Even members of the program agree it was slow to commence, but they say that there was a learning curve because no one in Tennessee had ever done stream restoration before. “We were hoping to get going quicker than we did,” says Dan Eagar, a TDEC natural resources manager and member of the program review team. “I don’t think any of us anticipated the complexity of starting a program. But we went into the whole thing with a sense of urgency.”
Administrators also say Young’s economics are flawed. Program administrators take lag time into account by agreeing to do more restoration than the damage that is caused. Instead of restoring one foot of stream for every one degraded, the program will rehab up to four feet. “We consider streams that are built over to be a complete elimination,” says Woodard, the program’s director. “So we decided one-to-one restoration wouldn’t cut it.”
They say that Young’s agenda is to represent developers who want to erode the high standards program administrators have set for stream restoration in Tennessee. “He says we’re not spending money fast enough,” says Bob Bay, another member of the program’s review team. “What he means is he’s not getting money in his pocket fast enough.”
Program administrators agree the Yanahli project could have been handled better. But contracts between the state and ranchers forced them to spend public money on a project they still considered worthy. In any event, the Yanahli project barely scratches the surface of what the program aspires to. On Pond Creek, in Crockett County, the program is partnering with the West Tennessee River Basin Authority on a $1.25 million demonstration project to push the Pond’s levees back 150 feet on both sides and construct a flood plain, allowing the Pond to once again meander as it had before the levees were built. The site is only 2,000 feet long. But David Salyers, the Basin Authority’s executive director, is hoping he can encourage farmers along the Pond to agree to more restoration.
As for the stream program’s staff, Salyers calls their expertise “cutting edge.” “They have been absolutely great to work with,” he says.
Even Young’s charge of a conflict of interest because the program’s seven-member review team oversees stream banks doesn’t hold up. The legal definition of conflict of interest, according to Black’s Law Dictionary, is an incompatibility between personal interests and public duties. Team members don’t profit personally or professionally from approving projects, either for the stream program or stream banking. In fact, they’ve kept at least one questionable project from breaking ground.
Developers were hoping to tie restoration to a creek flowing through cluster homes in Williamson County that were never built. The developer tried to double the amount of credit the project would receive by using a “watershed multiplier,” a term no one on the review team had ever heard of. The developer’s consultant who submitted the multiplier was none other than Joe Cathey, a retired Corps veteran who helped organize Tennessee’s stream program, now working for CEC Inc.
Cathey admits that the multiplier made no sense because he was using “voodoo biology.” The voodoo involved the developer enhancing part of the stream but leaving other parts that were already in good shape. Cathey, however, wanted credit for the entire stream.
“It looked good to me at the time,” Cathey says, “but now it looks kind of foolish.”
In this case, at least, the review team did its job.
“Developers are doing whatever they can to maximize profits,” says Bay, the Fish and Wildlife biologist. “They’re not necessarily interested in good science. Their main objective is profits, and they’ll do whatever they can to manipulate things."