Author: Marc Seelinger

NWP 12 is Vacated

Wetland Wednesday

April 22, 2020

How is that for a headline!

Last week on April 15, 2020 a Montana federal district court issued a decision that vacates the US Army Corps of Engineers Nationwide (NW) 12 permit nationally.  This permit is used for utility line crossings of wetlands and waterways throughout the United States.  This includes oil and gas pipelines, electrical rights-of-way, sewer lines, water lines, telecon, and any other utility type crossing.  I do not think I can overstate how big a deal this is.

The case is associated with the rather infamous Keystone XL pipeline project.  The specific reason for the case is that the Corps failed to comply with the Endangered Species Act (ESA) because it did not consult with the U.S. Fish and Wildlife Service (FWS) prior to re-issuing the NWP 12 in 2017.  Furthermore, there is also an issue related to the Nationwide requirement that an authorized activity, “will result in no more than minimal individual and cumulative adverse effects on the aquatic environment.”  The practice of breaking up a project so that segments of it will fit under a Nationwide permit threshold was challenged.  This has become common practice for all of the Nationwides and the State Programmatic permits.  This could change the applicability of when a Nationwide can be used.

It is expected that the Corps will appeal this decision or a least limit the extent of the decision to Montana.  However, the Court did vacate NWP 12 and enjoined the Corps from authorizing any dredge or fill activities under the current NWP 12.  They will need to complete the ESA consultation process and be in compliance with other environmental statutes and regulations for the NW12 to be reinstated.  But for now, there is no longer a national NW12.

Initial questions as to whether the court’s order applied nationwide or just within the District of Montana were at least temporarily rendered moot.  On April 17, 2020 the Corps issued an email  directive to all of its chiefs of all Regulatory Districts not to process any more NWP 12 verifications until further notice. However, the email was silent on self certifications.  One interpretation is that there was no point in highlighting the permit suspension on cases that where the Corps was not going to assert jurisdiction.  In essence no Prior Construction Notification (PCN) is needed.  However, their silence on self certifications does not really mean anything.  A lot of small pipeline projects operate under the self certification program.   I’d ask a lawyer about that one before you assume you have a NW12.  (Source: jdsupra.com)

There is a risk in the Corps taking this to court.  The basic premise of the case is the lack of coordination with the ESA and the USFWS.  I do not think you can limit this lack of coordination to just the NW12.  It would seem to be across all of the Nationwides.  I am sure that this fact was not missed by the plaintiffs and may be the cause for future litigation.

In addition, the practice of segmenting a linear project to stay under the Nationwide impact thresholds has always been controversial.  The project impacts are not aggregated thereby avoiding or reducing mitigation and/or Individual permits.  From a bookkeeping point of view this seems to help, but from an environmental impact point of view it would seem to short cut the mitigation.  The same holds true for Programmatic Permits that are usually used for State funded projects (like DOT).  The entire process is centered around streamlining the permit process.  By its very definition it eliminates a lot of inter-agency consultation.  This is what the Corps got sued for and lost.

A copy of the decision can be downloaded here.

There is some push back from industry on this decision.  On April 20, 2020 North America’s Building Trades Unions (NABTU), the American Petroleum Institute (API) and the Interstate Natural Gas Association of America (INGAA) issued the following statement:

“The US Army Corps of Engineers’ Nationwide Permit 12 is critical to the responsible and efficient development and maintenance of energy and other vital infrastructure projects across America, as well as the millions of good-paying union jobs that they support. Whether it’s a utility line, broadband cable, or a water main, this general nationwide permit allows construction and maintenance activities that will have minimal environmental impacts.

“Based on our initial review, one thing is clear: the judge’s decision to vacate NWP12 went well beyond what the plaintiffs requested. The decision creates tremendous uncertainty in an already uncertain time, and could lead to lengthy delays.”

There is a murky but direct path the Corps may take.  The 2017 NWs were due to expire in 2022.  There was a movement late last year to expedite the energy related NWs of which NW12 is one.  The plan was to publish the new energy NWs in 2020.   The Corps may consider publishing all the 2022 NWs two years early rather than try to litigate the 2017 NWs.   I am sure they will consult with FWS this time were this to happen.  Problem solved. 😉

In other news . . . .

Yesterday, April 21, 2020 the US ACOE and the US EPA published in the Federal Register the FINAL Navigable Waters Protection Rule.  This will replace the current 2019 Waters of the US definition and finalize the repeal of the 2015 Clean Water Rule.

There have been some hints at a few court cases poised to strike as soon as this new rule was published.  Most of them are a bit weak so time will tell if they will derail the process.  In any event the new rule becomes the law of the land on June 22, 2020.

The effect of the new rule is to limit what is considered a federally jurisdictional aquatic resource.  The basic test to make a waterbody jurisdictional is to determine its physical connection to a commence connected waterbody.  If an aquatic resource lacks this type of connection it is not federally jurisdictional.  However, this does not diminish any previously established State or local jurisdiction.  Although, there is an argument for some states like New Jersey that have assumed the federal role (CWA 404(g)) that they also lose jurisdiction.  If a waterbody (isolated) is no longer a federally regulated, then the states 404(g)assumption of the federal role over an isolated waterbody is no longer applicable.  The cure for this is for the state to pass a law (not a regulation) that would define waters of the state.

There are some new technical components that are part of the new Waters of the US definition.  The new wetland delineation process now requires the calculation of a typical rainfall year and the determination of perennial and intermittent stream flow.  These are two new skill sets that are required for every wetland project.

What week and I did’t even mention COVID once (oops).

So, stay safe and healthy and get ready for a very busy summer.

Happy Earth Day!

Marc

Trump Wetlands

Wetland Wednesday

April 15, 2020

I thought I would give you an update on the Navigable Waters Protection (NWP) Rule.  It remains unpublished in the Federal Register.  The COVID 19 pandemic has most certainly derailed the publication process.  However, other rules are getting published.  Perhaps it may never get published.  I sort of doubt it, but who knows.  If EPA wanted to slip this one in while nobody was looking now would be the time.   Perhaps this is in the spirit of the recent announcement that EPA would be scaling back enforcement of environmental regulations during the pandemic.

On the flip side there are also no active court cases against the new NWP rule.   You cannot object to a rule that is not published.  There are several pending cases just waiting for the day that it is published.  Specifically, a New York Federal judge had recently informed a group of landowners that they cannot show that they have been harmed by the new rule if it has not gone into effect yet.

I suspect that the new rule will be published shortly after things start to open again.  The administration had timed this to generate news well before the election.  Delays to the NWPR publication would only bring this to mind closer to election day.   It is not a very popular rule and suspect the Administration would want the controversy to blow over before election day.   However, it was a promise made to the farm community, so I do not see it going away entirely or at all.

In the meantime, we are still working under the current revised Waters of the US definition.  This temporary regulation went into effect in December 2019.  In essence it rolls back the Obama era Clean Water rule and replaces it with the pre-existing set of regulations.   Essentially, the old Kennedy test for significant nexus is needed to determine if a wetland is a waters of the US.

The biggest change to the regulations as a result of the new rule is the definition of adjacent wetlands.  The old rule required a significant nexus test if the wetland did not directly abut a navigable waterway or its tributaries.  The new NWP rule requires that all wetlands directly connect to a navigable water or its tributaries.  In essence, what we used to call abutting wetlands are now adjacent wetlands.    I really wish they used a different name.  The concept of adjacent wetlands has a long history in the courts and I only see this adding to the confusion.  Perhaps they should call them Trump wetlands?  He would probably like that.

Swamp School Big Day 2020

Wetland Wednesday

April 8, 2020

I know many of you are stuck at home looking for something to do. We have noticed an increase in bird activity due to the decrease in traffic and human activity. I can sit on my back porch and hear all the sounds of the forest without the din of traffic in the background. I think the birds have noticed this too and they are a lot more active.

We are sponsoring a Big Day Challenge for the next two weeks. The way this works is that you record all the birds that you see or hear over a 24-hour time period. This can be at home, in the field, at a park or wherever you are. It is just a matter of making a list. You can put as little or as much effort into it as you wish. It can also be done while you are working if you are fortunate enough to have field work.

What you need to do is pick a day between now and next Friday (April 17, 2020) to do your Big Day. Then write down the common names of all the birds you see or hear. It is on the honor system, but you do need to be sure. We don’t need any photographs, just your word is good enough. We are not collecting numbers of individual species, just the bird species itself. So, if you see a cardinal in your back yard 5 times, it will only count once.

We ask that you gather your data in an excel compatible spreadsheet to include the following headers:

  • Date of Your Big Day
  • Common Name of Bird
  • Location of sighting (just county and state)

Once you have finished your Big Day, email us your list to: BigDay@SwampSchool.org

Be sure to include your name and email with your spreadsheet.

We will compile all the data into one spreadsheet and make that available to all participants. You do not need to pre-register for this. Your data entry will serve as your registration. The winner of the Big Day will be announced, and an official Swamp School Big Day Award Certificate will be sent to the top three birders. We will also post this on our website for all to see!

If you have any questions, please reply to this post.

Happy birding, Marc

5 Tips to be a Successful Distance Learner

Wetland Wednesday

April 1, 2020

As we move into our new social distancing and virtual lifestyle, I thought it might be helpful to offer a few tips on what makes a successful ELearner.  We have been working in the online learning arena for over 15 years and have picked up a few things along the way.  No matter what class or program you take these tips should help you.

  1. Learn the technology before you have to use it.

Distance learning requires the use of some pretty sophisticated technology.  There is no such thing as just log in and learn.  Security settings on your computer may need to be changed to allow you access to the learning resource.  Be sure to try out the trial or demo version of any software or system login before you jump into the class or webinar.  Oftentimes, you may find you need IT help to bypass firewalls or other company security settings.  There is nothing worse for the student or the instructor to find out minutes before the class starts, that a student cannot access their class due to a corporate firewall that is blocking the student.

  1. Set a specific time to work on your class.

On-demand classes mean that you can work on a class any time you want.  That freedom may seem ideal; however, it comes at a price of self-discipline.  You must make your coursework a priority.  Set a specific time of day to start and stop your class work.  Try to keep to that schedule every day or week.  You don’t want to rush though the class, so be sure to give your self enough time to absorb the material and work on class assignments.  However, don’t over do it.  Be sure to take a break every now and again.

  1. Ask questions!

Your instructors love to hear from you.  It makes the class much more personal if you try to develop a dialog with your instructors.    There should be a way to contact your instructor directly either through a site messaging board like the one we use or email.  A good instructor will get back to you right away.  Ideally, the same day or no later than the next business day.  If you had not received a response don’t assume, they got your message.  Bug them.  It is their job to answer your questions so be respectful and ask again.  Please give them a day to respond.  They are not online all the time.  Although, it seems that way sometimes.

  1. There is no rush.

We want you to complete your coursework in a timely manner.  But at the same time, we want to make sure you are learning the material.  If a deadline is approaching and you cannot make it, contact your instructor and asks for an extension.  It is always better to ask first than for our instructors to have to track you down for missed work.  We know many of our students are working professionals with many job and life commitments.  Let your instructor know what you are facing, and you will be able to work out a plan to finish in a meaningful way without the rush.

  1. Keep track of your assignments and time using an alarm

Set up an alert or alarm if you have an assignment or need to take a test.  Put it in your online calendar to keep on track.  Most courses have internal alert features, but you need to be logged in to see the alert.  Using your Google, Outlook or similar calendar as an alert incorporates your daily schedule with your virtual class life.  However, be sure to put everything on one calendar.   It is almost impossible to keep up with 3 or 4 separate calendars at one time.  After all you can only be at one place at one time.

I hope these tips help and please let us know if you have any questions.  We love questions!

All the best, Marc

A brief history of the Waters of the United States

Wetland Wednesday

March 25, 2020

I have been asked many times over the past few weeks about when the final Navigable Waters Protection Rule (NWPR) will go into effect.  Prior to COVID-19 I had conversations with the US Army Corps (Corps) about this.  The general feeling at the Corps was that the final rule is due out any day.  Post COVID 19, who knows.  There is no one to ask.

The NWPR has largely been an EPA directed effort.  The Corps is a signatory on the rule, but they are following EPA’s lead.  A case in point is that there has been very little communicated to the Corps regional offices about how to implement the NWPR.  Most feel that they will deal with it when it comes.  To be fair they have not had much to do with the drafting of the rule and many Corps staff are looking at it just like you or I are.

Many of our students have asked about the rulemaking process and history   I thought it might be helpful to review how we got here and what the process is to move forward.  This is my short history of the NWPR and the Waters of the US definition.

The first law that regulated waterways in the United States is the Rivers and Harbors Act of 1899 (RHA).  It is still in force and includes the oldest body of regulations in US history.  Its main objective is to regulate discharges and fills into waters used for navigation.

In 1948 the Federal Water Pollution Control Act (FWPCA) was passed to expand the pollution discharge aspect of the RHA.  Many lawsuits were argued using the RHA authority that seems a bit unclear as how to handle pollutants.  The FWPC attempted to hand this off to the states by incentivizing them to pass pollution laws.  This was largely ineffective.

In 1972 the FWPCA was amended under what is now known as the Clean Water Act (CWA).  The objective of the Act was to improve and maintain the integrity of the nation’s waters.  There was no definition or distinction as to what waters were regulated.  It was presumed that all waters were regulated.

The early days of the CWA were focused on point discharges of pollution and was largely managed by the EPA.  In 1977 the National Discharge Elimination System (NPDES) rules were added to the CWA and the Corps’ role into wetlands was starting to take shape.  Wetlands and waterways were still undefined, but the Corps started developing some technical manuals to help clarify what was going to be regulated.

One of the items that came up in the 1977 CWA update was the need to define federally regulated waters.  Some waters would be regulated by the states, but others were Waters of the US (WOTUS).  It would take until 1986 for this definition to take written form and it is the one, we use today.

The 1986 definition has been challenged in federal court numerous times.  The most significant cases Supreme Court cases were the 2001 SWANCC case and the 2006 Rapanos case.  Both resulted in the Corps updated via guidance documents the WOTUS definition.

Many argued that it was inappropriate for the Corps to issue unilateral changes to the WOTUS definition through guidance.  Consequently, in 2015 the Obama administration finalized a new and very controversial WOTUS definition.  This was known as the Clean Water Rule (CWR).  This definition modified the role of the state and was challenged by many states such that only about half of the country was working under the new definition.

In 2019, the Trump administration rolled back the 2015 CWR by a recodification rule.  In short, we are now using the 1986 WOTUS definition with some modifications.  Ironically, some of the objectors to this rule were the same entity that pushed for the change. There is no pleasing some people.  Other objectors are concerned about an apparent rollback on water protections.

On January 23, 2020 the EPA and the Corps signed the NWPR.  It will become effective 60 days from the rule’s publication in the Federal Register.  It was to have happened by now, but I suspect it has also fallen victim to COVID 19.

I have one final thought on the WOTUS.  All the regulations and guidance on the definition of WOTUS have nothing to do with wetlands protection.  There is not one syllable in any of the documents that prevents the filling of a wetland.  All they do is provide a definition of what is regulated.  Just because it is regulated does not mean it is protected.  The fact of the matter is that a WOTUS definition is a pathway for permitting and filling a wetland.  Remember that the Corps’ job is to authorize discharge and filling activities.  You only get in trouble if you don’t tell the Corps that you want to fill a wetland.  They almost always give you a permit.  It may be expensive, but if you can meet their conditions, fill away.  If you want to protect a wetland, perhaps the Corps is not the ones we should be looking too.

Have a safe and healthy week!

Marc

Learning Management Part 2

Wetland Wednesday

March 18, 2020

On Monday we started our discussion of online education.  We covered distance learning and some tips and ticks to run a successful real-time workshop.  Today we are going to discuss the other two types of online programs, online learning and virtual workshops.

Online learning is a bit of a catch all, but within the digital learning community it has a specific meaning.    It is the original type of digital learning and is still used by many large companies to train employees in specific skill sets.  It generally does not involve a human instructor and may or may not be offered remotely.  A lot of Human Resource departments use this for employee orientation.

Online learning involves a static lesson with a quiz at the end to demonstrate mastery of the topic.  There may or may not be any video and oftentimes just involves reading text on a computer screen and answering questions to move on.  A lot of health and safety training is offered this way and give the employer a way to verify attendance and results.  However, this type of training pretty boring.

Most of the online learning packages are produced by a software product called Adobe Captivate.  The software produces a standalone lesson that can be run on a desktop or put online.  It gives the learning manager the ability to publish slides or videos in a very graphical interface that is easy to use.  There is even the ability to animate the slides to make the lesson a bit more engaging.

Generally, there is no instructor with online learning.  The learning manager will often hire a subject management expert (SME) to prepare a Power Point slide deck with notes.  Once they are done, the SME is only consulted for updates to the system and does not interact with the students.  The learning manager may or may not have any detailed knowledge of the topics being presented and may direct some student questions to the SME for a brief time after a new lesson is launched.  Once the lesson is been in use for a time, the SME is out of the picture.

Virtual learning is by far the most effective type of online instruction.  The idea is to simulate a classroom environment in an online setting.  This requires the most interaction with the instructor and students of the three types we have discussed.  It is also the most expensive to run but it has the greatest learner success of the three.  If run properly, student success can even exceed traditional classroom environments.  It is also the type we offer at The Swamp School.

A virtual environment has four components.  These are instructor presentations, class assignments, student discussions and questions, quizzes and tests.  These are usually grouped into weekly modules.  There is also a method to contact the instructor directly for questions and technical help.

A virtual workshop requires the use of a learning management system (LMS).  There are a number of good one and not so good ones in the marketplace.  The most popular with Universities are Moodle and Blackboard.  Many K-12 schools favor Schoology and Socrative.  At issue is the degree of complexity associated with the setup and ongoing management of the LMS.  Some are self-hosted like Moodle.  Moodle is PHP based and requires a server setup on something like Amazon AWS.  This is my other life.

The managed hosted LMS software like Blackboard and Schoology provide the setup and management for you.  These seem more expensive however self-hosting is not free and can be very expensive.  The advantage to the managed systems is that they are just a matter of creating a user account and you are up and running.  The downside is that you have less control over updates and are at the mercy of your provider for keeping the site up and running.  We outsource some of this work and have been pretty happy with the result.

The biggest advantage of virtual learning is the instructor.  The students need to know that they have a person available to them to help and guide them through their learning journey.  This is especially true for complicated topics like wetland design or delineation.

One major success or failure aspect of virtual learning is instructor response time.  Poor programs rely on email exchanges.  This can result in days or weeks between student question and instructor answer.  This is frustrating for the student and affords little opportunity for follow-up questions.

To solve this problem, better virtual learning environments include an in-class discussion board and an instructor messaging system.  Both can tie to email alerts, but they are within the LMS so nothing gets lost to spam filters.  Scheduled chat sessions can also be offered to simulate instructor office hours.

We have been teaching online for over 15 years and have learned many dos and don’ts along the way.  Our LMS is state of the art, robust, scalable and always being updated.  We invite you to contact us if you would like to take a virtual tour of our school.  Send us a chat message below to set up a time.

Please stay safe and healthy during this difficult time.  If we can be of any help to you or your fellow staff with your learning needs, please let us know.

 

All the best,  Marc

COVID and Working from Home

Muddy Monday

March 16, 2020

So, they have closed schools, churches, sporting events and any large-scale venues. Heck they even closed the Nike store. I guess March Madness has taken on a new meaning. Ironically, everyone seems concerned about the lack of productivity, but have you ever been able to get anything done while everyone else in the office is watching basketball. So, I suppose the timing of the virus is not so bad as we were not getting anything done anyway.

However, closing the schools and asking you to work from home has added a new twist to March Madness. Many of our students are very experienced with online learning having taken many of our classes remotely. However, running a webinar or online meeting is very different than participating in one. I thought it might be helpful to offer some tips and tricks we have learned over the past 15 years of running an online school.

There are several types of online programs and I have found it helpful to lump these into three groups. The groupings are based upon several factors including live meetings, presentations, discussions, communication, assignments, and collaborative working. From this we get our three groupings that are:

  • Distance Learning Workshops
  • Virtual Learning Workshops
  • Online Learning

Today we will talk about Distance Learning Workshops. These are meant to provide the same learning and collaborative interaction as an in-person class or meeting. These are generally offered at a specified time and date with real-time discussions with the instructor or team leader and the class. This requires live one-on-one interaction and is by far the most technologically challenging workshop that can be offered. An example of these are our monthly webinars.

The real-time discussion presents the most challenges. At issue is the device you may be using to call in. When a user calls in on a webinar service like Zoom or Go to Meeting there is often audio feedback from the microphone and speakers. This is especially true if the user is calling in using a laptop. The issue is very similar to when radio call in shows ask you to turn off your radio if you want to speak to the host. The microphone will pick up your voice and loop it back into the audio feed. The result is a mess and nobody can understand what anyone is saying. EPA just experienced this in their live webinar on the Navigable Waters Protection Rule a few weeks ago. It was pretty awful.

The solution is to separate the inbound voice to the outbound broadcast. This can easily be done by using a microphone headset. There are many USB types in the market and they all work pretty well. Even a $20 headset will sound OK for this type of use.

Alternatively, there are microphones that will only broadcast if you hold down the broadcast button. They are sort of like a CB radio microphone if anyone remembers what a CB radio is. When the button is released the microphone goes silent. You can still get a little feedback but it is greatly minimized.

Believe it or not a simple phone is also a great solution. Most webcast software products have a call in number. The speaker cannot hear the microphone so there is no feedback. Just call in with a user code and talk away.
The last option is chat. This is very effective when you have a large group like in our webinars. Real-time discussions can get pretty noisy especially if the kids are home. Chat offers the ability to have a discussion without distractions.
If you opt in for chat you will need to make sure you know the limitations of the chat platform you are using. Many only allow for a relatively small (like less than 10) number of simultaneous chats. Many of the webinar service plans require upgrades for larger groups.

There are also stand-alone chat platforms that can be added to a website fairly easily. These usually don’t require or at least give you the option not to have the users log in. This is great if you want to engage a client in a chat. These also charge by the user.

The last option for “sort of live” conversations is to use a discussion board for chat. The user would need to have an account and post to a discussion board. The conversation is asynchronous, but the time delay is mere seconds so it does feel live. A free version we have used is called Discourse. It is not bad, but it does require a login for all users but it is web-based so you do not need to host it. Many of the free ones require that you self host meaning you need to install the free software on a server.

We will jump into the other topics on Wednesday. If you would like to continue reading please subscribe to our newsletter. We publish every Wednesday.  Click here to subscribe.

So, if you are stuck at home working, don’t forget to switch the laundry!

Have a great week!

Marc

Theory of Constraints in 2020

Wetland Wednesday

March 11, 2020

This week I thought I would take a bit of a break from all of the new EPA and Corps rules, regulations and fines that are floating out there.  I also need a break from all the COVID 19 reporting.  I know it is serious and we have seen a sharp increase in online students as a result.  However, I think we need to focus on what we can do something about and trust that the medical professionals will do what needs to be done.  So take their advice, wash your hands and get on with whatever makes you happy.

I have spent a fair amount of time pondering new and better ways to speed up the wetland delineation process. The Army Corps of Engineers Regional Supplements have expanded the amount of data we collect in the field. This significantly adds to the time it takes to complete a data form. On average it can take 45 minutes to an hour and a half to completely fill out just one form.

I have looked a number of process design theories such as lean and six sigma and found that there are ways to reduce time and cost without sacrificing quality. One of the management concepts that business use is something called the theory of constraints (TOC).

The theory of constraints works from the proposition that a chain is no stronger than its weakest link. People, processes, organizations, procedures, etc. are vulnerable because the weakest person or part can always damage or break them or at least adversely affect the outcome. Therefore the entire system is regulated by one or more system constraints. In our wetland example what makes wetland delineations so expensive?

To answer this question we must first identify three measures: throughput, operational expense, and inventory. Throughput is the rate at which the system generates money through sales. In our case these are billable hours. Inventory is all the money that the system has invested in purchasing things which it intends to sell. This is your paycheck. You are the inventory. Remember you are selling your time. Operational expense is all the money the system spends in order to turn inventory (you) into throughput (billable hours). These are your direct expenses including travel, training and supplies as well as marketing, accounting and other office indirect expenses.

To quantify this we need three numbers. First is your compensation package. This includes everything the company pays you including all benefits. This is the inventory expense. The next expense is all of the office directs and indirect expenses. This includes the rent, non-billable staff salaries, office and field supplies, taxes, and anything else you can think of. Try not to use the overhead multiplier that some companies have to use for government contracts. Too often this underestimates the real office overhead because there are some expanses that are disallowed. In reality we still have to pay for these.

Once we know what it costs to put you in the field we need to know how much we can get for your time. This is the throughput. However throughput also considers the rate at which you convert expenses into sales. This in a sense is the velocity of your billable time. Because in our example we are only going to bill 8 hours a day the speed remains the same, but the amount of revenue generated is based upon how many hours in a day you can bill and what your billable rate is in dollars per hour.

It is at this point that we encounter our first big challenge. I want to make more money for my company but I bill at say $60 per hour, so that in any given day the most I can make my company is $480. If I look at all the expenses you might be surprised to learn that at most your company is only clearing an 8-9% profit. If you look deeper that number may be even smaller.

Here is the problem. You need to make more money, but there are only 8 hours in any day. The question is really what is your goal?

If your goal is to bill 8 hours then congratulations you are done. However, there is no acceleration possible because the velocity is set at 8 hours per day. Sort of like cruise control. No increase in speed means no more growth. You could add staff and increase revenue, but the profit will remain the same because more staff translates into more expenses. In some cases you may even see profit drop because the increase in staff may require a significant increase in overhead. More office space for example.

At issue is really focusing on the important goals. The theory of constraints is based on the notion that the rate of goal achievement (velocity) by a goal-oriented system (throughput) is limited by at least one constraint. What is slowing you down?

Cox and Goldratt explain in their book, The Goal, five ways to measure the velocity of goal achievement.

  1. Identify the system’s constraint(s) (what is preventing you from reaching your goals)
  2. Exploit the system’s constraint(s) (get the most out of the constraint, e.g. avoid unnecessary idle time, farm out work to other resources where possible)
  3. Subordinate all other resources to the constraint (align the whole system or organization to support the constraint’s operation, e.g. prioritize repair and maintenance, change process batch size on non-constraints)
  4. Elevate the system’s constraint(s) (make other major changes needed to increase the constraint’s capacity, e.g. perhaps a new senior hire)
  5. If in the previous steps a constraint has been broken, go back to step 1, but do not allow inertia to cause a system’s constraint. This means that the backlog of work should not be the constraint.

If we look back to our wetland example perhaps we should not be focused on billable hours. Rather, we should focus on the number of data points acutely completed in a day. There is really no limit to the number that you could do. You can only experience 8 hours in a given work day. So why limit yourself?

How many can you do now? What could you do to speed this up? Identify the constraints. For example you are spending way too much time on plant identification. This is the major bottleneck or what is sometimes called the “drum.” Fix the problem by attending several of the Swamp School’s awesome plant classes and reduce this time. I had to get a plug in here somewhere. Now you can do 3 times as many data points in a given day.

This fixes one end of the throughput. At the other end you need to consider a new way of billing your clients and getting paid. As it stands now you really have no incentive to work any faster if you are being paid by the hour. However, if you are being paid by the data point, I bet you would be able to find a way to get more data points done in a day. If your client pays by the data point rather than by the hour, in the long run they will save money because you are motivated to finish their job quickly so that you can move onto the next client.

If you want proof that this system works take a look at you next car repair bill. There is usually a quote based upon an average amount of time it takes to get a job done plus parts. Your quote is guaranteed so you know exactly what it is going to cost you to get your car fixed. However, in almost all cases the mechanic gets the job done in less time than was estimated. You still pay the quoted amount happy that the job was done a little sooner so you can get your car back. The mechanic moves onto the next car getting more done in a given day. Everybody’s happy.

I am not sure when wetland delineators thought it was a good idea to bill like lawyers do. If you think about it does anyone like paying for legal advice billed at a 0.1 hour rate. Really who can do anything meaningful in 0.1 hours? I really hate time-sheets. They are the bane of our business.

If you want to make more money you need to identify and exploit the constraint. Doing so converts more activities into revenue. Your throughput increases. Your clients are happy and you have a reputation of getting a job done quickly, efficiently and in the long run at a lower cost to the client. You just became more competitive in the market!

Have a great and profitable week!

– Marc

Implementing the Navigable Waters Protection Rule

Wetland Wednesday

March 4, 2020

There are a few subtle and not so subtle implementation aspects of the final Navigable Waters Protection Rule (NWPR).  Chief among these is the definition of a tributary.  On the surface (pun intended) only streams, wetland and other waterways that have a surface connection to a Traditional Navigable Waterway (TNW) are federally jurisdictional.  At issue is what is meant by surface connections?

Tributaries have been segmented for years into three broad classifications.  These classifications were used for Section 401 Clean Water Act (CWA) water quality standards implemented by the states.  There are differences in the way each state interprets the classifications but overall, they follow these general definitions,

These definitions come from the North Carolina Methodology for Identification of Intermittent and Perennial Streams and Their Origins (2010) and are specifically referenced in the final rule preamble.

Perennial stream means a well-defined channel that contains water year-round during a year of normal rainfall with the aquatic bed located below the water table for most of the year. Groundwater is the primary source of water for a perennial stream, but it also carries stormwater runoff. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

Intermittent stream means a well-defined channel that contains water for only part of the year, typically during winter and spring when the aquatic bed is below the water table. The flow may be heavily supplemented by stormwater runoff. An intermittent stream often lacks the biological and hydrological characteristics commonly associated with the conveyance of water.

Ephemeral (stormwater) stream means a feature that carries only stormwater in direct response to precipitation with water flowing only during and shortly after large precipitation events. An ephemeral stream may or may not have a well-defined channel, the aquatic bed is always above the water table, and stormwater runoff is the primary source of water. An ephemeral stream typically lacks the biological, hydrological, and physical characteristics commonly associated with the continuous or intermittent conveyance of water.

In order to be federally jurisdictional both the perennial and intermittent stream types must meet the new definition of a tributary.  These streams contribute surface flow to traditional navigable waters in a typical year.  They must flow more often than just after a single precipitation event.

In order to accomplish perennial or intermittent flow groundwater is needed to provide a base flow.  For the purposes of the NWPR groundwater is not federally regulated and they say as much in the regulation.  But as a good friend had always told me this is regulatory and not reality.  So be sure your stream has a perennial base flow and don’t worry about where it is coming from.

Have a great week!

Marc

 

Rescission of the 2005 Joint Guidance between NRCS and USACE

Wetland Wednesday

February 26, 2020

Rescission of the 2005 Joint Guidance between NRCS and USACE

On January 28, 2020 the Natural Resources Conservation Service (NRCS) and U.S. Army Corps of Engineers (USACE) agreed to rescind the 2005 memo that directed how wetlands and waterways would be assessed between the two agencies. The January 23, 2020 Navigable Waters Protection Rule (NWPR) preamble references the rescission of the 2005 Joint Guidance, “because it was not consistent with the newly promulgated definition of “waters of the United States” in the rule. At issue is the differing interpretations of wetlands and waterways between the two agencies.

NRCS administers farm subsidy programs. The USACE administers a regulatory program. These have very different objectives. NRCS’s program chiefly focus on avoiding and minimizing impacts to wetlands. Whereas, the USACE program focus is on authorized uses and fills of wetlands. NRCS does not make the distinction of jurisdictional waters as they are not claiming any jurisdictional authority. Rather their role is simply to pay farmers to not impact wetlands.

The Food Security Act Manual defines a wetland based upon the use of the USACE 1987 Wetlands Delineation Manual and the subsequent Regional Supplements. It does not address jurisdictional wetlands at all. Wetlands are managed by NRCS regardless of USACE jurisdictional status.

If a farmer fills in a wetland he or she risks losing all or some of the farm subsidies paid by NRCS. There is also the potential to lose future payments as well. These subsidy reversals can go beyond just wetland conservation monies and extend to other payments like crop insurance, soil conservation payments and other non-wetland related farm payments.

Ironically, the promulgation of the Navigable Waters Protection Rule was heavily lobbied by the farm community. It is ironic because the Clean Water Act (CWA) violations are the least of their problems. Under the NWPR, if a farmer fills in a non-jurisdictional wetland (USACE) he or she may not be subject to CWA violations, but they still run the financial risk of agreement penalties with NRCS. These can be very significant and have far more impact on a farm than the CWA fines they might have received.

It is also important to note that pursuant to this change in agreement a NRCS Certified Wetland Delineation cannot be used for USACE permitting. A farmer would need to request a jurisdictional determination from the USACE in order to proceed with a wetland or water filling project. This would also seem to negate the historic farmland exemptions enjoyed by the farmers in the past. The January 28, 2020 does not expressly state this, but the intent seems clear. Farmers will have to deal with USACE just like the rest of us.