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Restorative Vegetation Management Legal Considerations

By Michael Marefka, restoration ecologist and vegetation services operations manager, EnviroScience

Restorative vegetation management is an intended to conserve, improve, and reintroduce habitat to natural systems impaired by human activity. Natural systems range in size and complexity, from small, channelized urban streams to preserved glacial fens and bogs. Each system presents unique restoration challenges, whether due to terrain or the presence of rare and endangered species, that requires expert planning, execution, and monitoring. Furthermore, protected areas and wildlife habitats require a holistic understanding of existing site conditions, and how those conditions influence system-level and species-level ecological function.

There is no one-size-fits-all approach to restorative vegetation management, especially when dealing with semi-intact natural systems that require immediate restorative intervention while simultaneously providing critical habitat to native species, both .

Here, 鈥渃hallenge鈥� is an umbrella term for a constellation of problems facing stakeholders involved in the restorative process. Vegetation management stakeholders include but are not limited to regulatory agencies, land conservancies, governmental natural resource organizations, vegetation management vendors, concerned neighbors, and wildlife. The ever-shifting landscape of challenges is a result of navigating the legal framework governing restorative vegetation management activities, manufacturing stakeholder consensus, defining and achieving project objectives with budgetary restraints, and identifying, through expert analysis, the ecological complexities of impaired natural systems.

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Restorative vegetation management is disruptive. The success of mechanical, chemical, and biological methodologies of control is measured by the impact, removal, and permanent elimination of target species. A main challenge of managing target species near or within protected areas and wildlife habitats is preventing collateral damage. Non-target species, also known as desirable species, are often interspersed within an impaired natural system. The ratio of target to non-target interspersal is a major factor in the degree of challenge.

In the context of protected areas, wildlife habitats, and endangered species, restorative vegetation management compliance can be understood as an adherence to the system of rules and regulations designed to protect natural resources from harm. Harm reduction needs to be implemented both for invasive vegetation control and native vegetation installation, the two essential phases of restorative vegetation management.

For invasive vegetation management, compliance depends on control methodology (i.e., mechanical, chemical, biological), existing natural resource removal (i.e., crop tree release), and site assessment (i.e., presence of endangered species).

State and Federal laws govern chemical control application processes. Business licensing and individual commercial applicator certification requirements vary by State. In Ohio, for example, business licensing and applicator certification for herbicide use is regulated by the Ohio Department of Agriculture and required by all vegetation management vendors. The application of herbicide for commercial purposes without the appropriate licensing and certifications is not in compliance with laws governing restorative vegetation management. Furthermore, specific categories of certification, such as Aquatic Pests and Forest Pests, need securing, particularly when working in protected areas and wildlife habitats. Certification in these categories by commercial applicators displays an understanding of native and invasive vegetation, the label requirements of herbicides such as those approved for aquatic environments, and the ability to mitigate harm to non-target species by tailoring herbicide applications to specific site conditions.

Herbicide compliance is by far one of the most pressing challenges in managing vegetation near protected areas and wildlife habitats. Herbicide itself is a product regulated by the (NEPA), and only those evaluated and registered by the (USEPA) can be utilized for restorative vegetation management. Although navigating the labyrinth of state-specific herbicide rules and regulations is difficult in and of itself, the real challenge comes during the application process. Essential laws like the (MBTA), which prohibits the harming of all native birds, nests, and eggs, put the onus on herbicide applicators to protect natural resources while performing services. This is why site assessments by experienced restoration professionals are imperative.

Restoration professionals understand and diagnose the system-level and species-level ecological functions at work on a given site. For example, identifying the presence of engendered species while also identifying their existing habitats, such as particular species of trees, shrubs, grasses, or forbs. Furthermore, they can define treatment timelines in compliance with governing laws, such as those that define nesting periods for endangered and non-endangered bird and bat species.

Vegetation management in protected areas and wildlife habitats involves a combination of mechanical and chemical control. Mechanical control components are meant to remove existing vegetation from a site, such as non-desirable trees or shrubs. This can pose a challenge for remaining in compliance, given that even non-desirable vegetative species can provide temporary habitat to endangered and non-endangered bird and bat species.

Assessment of nest timelines is crucial for the timely and successful execution of vegetation management services. Timelines for disturbance, set by the Division of Wildlife, often dictate budgetary and capacity restraints and require creative planning solutions to ensure project objectives are met while also protecting vulnerable wildlife populations. Assessments inform restorative vegetation services, and in the context of compliance with governing laws, they ensure treatments mitigate risk.

The main challenges of managing vegetation near protected areas and wildlife habitats often come down to balancing project objectives, limitations, and the interests of existing natural resources on a given site. Governing laws, such National Environmental Policy Act (NEPA) and the Migratory Bird Treaty Act (MBTA), provide the framework for protecting the latter. This framework should inform the project objectives and limitations and provide a realistic scope of work for all stakeholders involved in the restorative vegetation management process.

Restorative vegetation management is crucial for utilities, which often operate in diverse ecological landscapes. For example, by establishing pollinator habitats and raptor nesting programs, utilities can enhance biodiversity and mitigate vegetation management challenges. These initiatives support crucial species, naturally control pest populations, and demonstrate a commitment to environmental stewardship. This balance of operational needs with ecological preservation ensures compliance with regulations like NEPA and the MBTA, contributing positively to both the environment and utility operations.