Author: Cathy Salmento

Swamp Stomp

Volume 17, Issue 19

On January 6, 2017, the U.S. Army Corps of Engineers (USACE) publicized the changes and renewals to nationwide permits (NWPs) that are mandatory in order to work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The new NWPs will be enforced starting on March 19, 2017, and will nullify the existing permits, which expired on March 18, 2017.

The 2017 nationwide permits have been published in January 6th’s Federal Register at https://www.federalregister.gov/documents/2017/01/06/2016-31355/issuance-and-reissuance-of-nationwide-permits, and can also be found on USACE Web site at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx.

“Our goal in developing and authorizing nationwide permits every five years is to update them, and provide clarity and certainty for the regulated public while protecting the aquatic environment. Our nationwide permits are an important tool in encouraging project proponents to avoid and minimize impacts to wetlands, streams, and other aquatic resources,” said Maj. Gen. Ed Jackson, USACE Deputy Commanding General for Civil and Emergency Operations.

NWP 53 and NWP 54 are the new permits. NWP 53 provides the process to efficiently authorize permits for the removal of low-head dams to restore streams and enhance public safety. NWP 54 covers the construction and maintenance of living shorelines to control erosion in coastal areas.

Very few of the renewed permits from 2012 were changed.

It is possible for USACE division commanders, after public review and consultation, to add regional conditions to nationwide permits in order to protect local aquatic ecosystems such as fens or bottomland hardwoods, or to minimize adverse effects on fish or shellfish spawning, wildlife nesting or other ecologically critical areas.

Division and district commanders also coordinate and consult with federally-recognized American Indian and Alaska Native governments when necessary.

Highlights of the 2017 nationwide permits include:

• USACE reissued 50 existing permits and added two new ones.
• NWP 48 – The NWP 48 for Existing Commercial Shellfish Aquaculture Activities is revised to provide greater flexibility in its use. For example, NWP 48 now incorporates provisions that authorize activities that are consistent with other federal, state, tribal and local regulatory authorities. Incorporating these already authorized activities will reduce the number of activities that require review by individual USACE districts.
• NWP 53 – This new NWP covers the removal of low-head dams. The removal of these dams will restore rivers and streams, and will improve public safety by removing dams that can pose hazards to swimmers and to users of small recreational craft.
• NWP 54 – This new NWP covers the construction and maintenance of living shorelines, a technique to protect coastal property from erosion while providing some aquatic habitat and water quality benefits.

The new NWPs are numbered 53 and 54 respectfully, even though there are only 52 total permits this cycle, because NWP 26 has not been assigned since 2000, and NWP 47 was in effect for only one five-year cycle (2007 to 2012).

Additional information about the USACE Regulatory Program can be found at http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/.

Source: “Army Corps of Engineers Revises and Renews Nationwide Permits.” U.S. Army Corps of Engineers. U.S. Army Corps of Engineers, 06 Jan. 2017. Web. 10 Apr. 2017.

Swamp Stomp

Volume 17, Issue 16

The Chesapeake Bay has a serious problem.  The oyster population and the reefs in the Bay are diminishing and cannot be replaced fast enough.  The big issue regarding the oyster population is with the shells.

The oyster population cannot be restored because there are not enough shells to rebuild the Chesapeake Bay’s depleted bivalve population.  The Virginia area has been hit the hardest.  In this area, there may not even be enough shells to sustain the wild fishery for a whole lot longer.

The situation got this way due to decades of overharvesting, habitat destruction, disease and poor water quality.  The population of oysters in the Bay has reduced to less than 1 percent of its historic levels.  The fact that there are not enough shells also affects the oyster reefs not just the oyster themselves.  Oyster reefs are made up of the shells of living and dead bivalves and they are wearing down and disappearing faster than they are being built up.

Scientists, managers and others are concerned that there are not enough shells to go around sustaining both the traditional wild fishery as well as grow the aquaculture industry.  This does not take into consideration the ambitious large-scale efforts by both states and the federal government to restore the Chesapeake’s oyster population for its ecological value.

“We don’t have the habitat,” said Bruce Vogt, manager of ecosystem science and habitat assessment for the National Oceanic and Atmospheric Administration Chesapeake Bay Office. “Even if we had adequate spawning stock to revive the population over time, the habitat just isn’t there.”

The problem with not having enough shells is twofold.  “Oysters make their own habitat, building reefs out of the shells they produce. But juvenile oysters need a hard surface — customarily, another oyster shell — on which to grow. The problem now is that there are many fewer shells than there used to be on which the shellfish can live and reproduce” (Wheeler).

There used to be 450,000 acres of oyster reef habitat that once blanketed the bottom of the Bay and its tributaries.  Of the 450,000 acres, 70 percent has been lost to siltation, according to an environmental assessment done in 2009 by the U.S. Army Corps of Engineers.  The silt that is covering and destroying the reefs has yet to let up.

The shells are also being destroyed by predators.  Shells are also removed by harvesting and are not always returned.  In addition, the gear used to dredge up oysters scatters and breaks other shells.

The biggest challenge to restoring the oyster population and reefs is that there shells break down naturally overtime.  If there is a live oyster in the shell, they produce new shell from carbon and calcium and they filter out water.  After the bivalves die, corrosion sets in.  The process is hastened if the water is saltier or more acidic.

In order to get to the bottom of how to fix the problem, the state-federal Chesapeake Bay Program is commissioning a “shell budget” — an analysis of how many oyster shells are being lost and how many produced by new oysters.  The study is expected to take a year and the cost is estimated at $50,000–$60,000.

“We really need to put all this together,” said Peyton Robertson, director of NOAA’s Bay office and co-chair of the Bay Program’s Sustainable Fisheries Goal Implementation Team. “We don’t have a good handle on the puts and takes of shell coming in and going out.”

Source: Wheeler, Timothy B. “Chesapeake Losing Its Oyster Reefs Faster than They Can Be Rebuilt.” Bay Journal RSS. Bay Journal RSS, 29 Jan. 2017. Web. 13 Mar. 2017.

Swamp Stomp

Volume 17, Issue 13

A bill that would stop oil and gas fracking from occurring in Florida was passed and moved along in the process by the Florida Senate.

The Senate Committee on Environmental Preservation and Conservation voted unanimously to prohibit “advanced well stimulation treatment,” like hydraulic fracturing, acid fracturing and matrix acidizing.

State Sen. Dana Young (R) sponsored the bill, S.B. 442.  Last year she opposed the banning but, after her Senate district was redrawn, she changed her stance.

When questioned about her change of heart, Young said, “Florida is unique. Florida is special, and we do not have to be like every other state in the nation.”

Some who oppose the bill are Exxon Mobil Corporation, the Florida Chamber of Commerce, the James Madison Institute, the Heartland Institute of Washington, D.C., the Hispanic Chamber of Commerce and the Florida Petroleum Council.

According to Florida Petroleum Council President David Mica, as a state, Florida uses 27 million gallons of gasoline every day.  This makes Florida the third-largest consumer in the nation.

“We have a shared interest in our industry to protect energy resources,” Mica said.

In response to Mica’s concerns, Young responded that the bill does not prohibit traditional oil and gas exploration.

“There may be some uncertainty, but the question is are you willing to roll the dice with the future of our state?” Young asked.

Do you think Florida should pass the bill?  Why or why not?

Source: “Bill to Ban Fracking Advances through Senate.” Greenwire. E&E News, 08 Mar. 2017. Web. 08 Mar. 2017.

Swamp Stomp

Volume 17, Issue 11

According to a study conducted by the U.S. Geological Survey and the Milwaukee Metropolitan Sewerage District, coal-tar sealants which are used on blacktop parking lots and driveways are the primary source of toxic chemicals found in the muck at the bottom of area waterways.

The study tested muck samples that were collected from 40 locations along 19 creeks and rivers in the metropolitan area of Milwaukee and dust from six parking lots.  It found that coal-tar sealants contributed up to 94% of all polycyclic aromatic hydrocarbons, or PAHs, in streambed sediment, according to the study, which was published Thursday December 22, 2016 in the journal Environmental Toxicology and Chemistry.

Of all of the samples, a total of 78% of them contained enough PAHs to be considered toxic and capable of causing adverse effects in aquatic animals, said Austin Baldwin, a USGS scientist and lead author of the study. The sample location which had the most toxic sediment came from Lincoln Creek and Underwood Creek.

PAHS gets into the streams when rain and melting snow rinse it and other contaminants off the pavement and into storm water storage basins or directly into storm sewers that carry the load to waterways.

“Even before the study was published, early circulation of its findings boosted support for local restrictions or even bans on the use of coal-tar sealants and a switch to sealants containing asphalt emulsions,” according to Chris Magruder, a retired Milwaukee sewer district scientist who is science advisory committee coordinator for the Southeastern Wisconsin Watersheds Trust.

A previous federal study conducted in 2013 determined that PAHs posed a greater risk of harm to aquatic life in the streams than other chemicals but this study went beyond the previous study in two ways, Baldwin said.

The first was that researchers used multiple methods for identifying separate sources of PAHs in sediment, he said. Apart from coal-tar sealants, the remainder of the PAHs came from a variety of other sources, such as coal combustion at power plants and vehicle emissions.

The second was that this study exposed aquatic insects and small crustaceans to sediment taken from streams in the area.

“This study shows that PAHs pose a very real threat to aquatic organisms at the base of the food chain,” he said. Some of the adverse effects are fin erosion, liver abnormalities, cataracts and immune system damage. Additionally, exposure to the chemicals can cause high rates of tumors in fish.

“The study also reveals a costly consequence of regulations in Wisconsin and many other states requiring developers to excavate storm water storage basins next to massive parking lots. PAHs cling to dirt, sand and other particles in the storm water that settle to the bottom of the basins” (Behm).

It has been estimated by communities in the Minneapolis-St. Paul metropolitan area that it will cost up to $1 billion to dispose of PAH-contaminated sediment in the storm water ponds when the basins are dredged for maintenance.

Source: Behm, Don. “Some Driveway Sealants Create Toxic Muck in Streams.” USA Today. Gannett Satellite Information Network, 26 Dec. 2016. Web. 10 Feb. 2017.

Swamp Stomp

Volume 17, Issue 9

A West Virginia federal judge has ordered the U.S. Environmental Protection Agency (EPA) to evaluate coal industry job losses.  Attorneys for the agency argue that the order imposes “substantive obligations” and has “no basis in the statute” in a filing on February 21, 2017.

“In an opening brief, the Justice Department asked the 4th U.S. Circuit Court of Appeals to dismiss the order and instruct the lower court to either dismiss the case or rule in favor of the agency” (Reilly).

The order was “outside the bounds of the court’s authority,” Department of Justice (DOJ) attorneys told the appeals court. At a minimum, they said, the 4th Circuit should issue a new “straightforward” injunction that tracks with the Clean Air Act.

“At issue is last month’s decision by U.S. District Court Judge John Preston Bailey for the Northern District of West Virginia to require EPA to submit by July 1 an evaluation of how its Clean Air Act regulations affect coal jobs, mine closures and power plant shutdowns” (Reilly).

Bailey sided with Murray Energy Corporation, who filed a lawsuit in 2014 against the EPA.  The lawsuit argues that the EPA failed to comply with a section of the Clean Air Act that requires the continued economic evaluations of its regulations. Bailey issued the July 1^st deadline after determining that the EPA’s initial plan to comply with the provision was insufficient.

While most of the action regarding the lawsuit was handled under Obama’s administration, Trump’s Department of Justice has moved to appeal the ruling.

In its opening statement, the government raised both procedural and substantive arguments against Murray’s claims in the lawsuit. It should be noted that Murray CEO Robert Murray is a major Trump supporter.

The DOJ argued that the district court did not have the jurisdiction to hear Murray’s claims because the Clean Air Act did not impose an enforceable mandatory duty on the EPA to evaluate job losses.

The government is also arguing that Murray lacked standing to bring the lawsuit because the firm couldn’t point to specific harms caused by the EPA’s alleged failure to do the economic evaluations.

“Murray alleges that the coal industry as a whole is economically distressed, but the company did not provide any ‘specific facts’ showing that it specifically has been harmed,” EPA’s brief said.

The brief also argues that even if it crosses the procedural thresholds, the 4th Circuit should still reverse the order because the EPA already did the required evaluations.

The agency pointed to 64 documents that it says analyzed the economic impacts of its actions — even if those evaluations weren’t specifically done to comply with the Clean Air Act section at issue.

“Individually and collectively,” the brief says, “EPA’s documents evaluate the ‘potential loss or shifts of employment which may result from the administration or enforcement’ of the CAA.”

Judge Bailey’s order goes “far beyond” the Clean Air Act by requiring evaluations not just on economic shifts but on how coal “families” and “communities” may be at risk, the brief said.

Murray’s response is due on March 31.

“EPA has for years now sought to shirk its obligation to evaluate the loss and shifts in employment from its actions under the Clean Air Act,” Murray said in an earlier court filing.

Source:  Reilly, Amanda. “EPA Fights Order Requiring Study of Job Losses.” Greenwire. E&E News, 22 Feb. 2017. Web. 22 Feb. 2017.