Author: Marc Seelinger

Antecedent Precipitation Tool

Wetland Wednesday

February 19, 2020

Antecedent Precipitation Tool

The 2020 Navigable Waters Protection Rule (NWPR) requires the use of an Antecedent Precipitation Tool (APT) to calculate wet, dry and typical rainfall years. This calculation involves extensive data crunching from both NOAA and NRCS. An example would include daily NOAA observations for a local weather station and NRCS growing season measurements also from a local observation center. This would include 30-years or more of recorded data on a daily basis (Roughly 11,000 days) with multiple parameters adding up to over 60,000 data points per site.

Next, we apply some statistics. The generally accepted estimation for a wet, dry or typical year is 30 percent from the calculated year. It is possible to do some predications based upon this so that the user will know what type of year they are working in.

The USACOE has announced that they will not do wetland delineations based upon wet or dry years. They will only issue jurisdictional determinations based upon typical rainfall years. This is immediately problematic for two reasons. First, without the ability to predict what type of year is currently being experienced, the wetland scientist does not know if the field data and delineation will be accepted. Second, this could result in planning and construction delays due to the lack of regulatory concurrence in wet or dry years. A permit applicant would have to wait until a normal year was being experienced before the wetland delineation could be done. This is unmanageable for multiple reasons.

The USEPA recently announced that there is an effort to develop an Antecedent Precipitation Tool. However, it is unknown how long this will take and what regulatory compliance procedures they will need to undergo to release such a tool.

Fortunately, an Antecedent Precipitation Tool already exists and is part of a water budget modeling program that has been in use for years. WetBud is a water budget modeling software package that includes an APT. NOAA weather data and NRCS WETS data are combined to calculate wet, dry and normal years and the rainfall amounts associated with these years. The rainfall totals can be extrapolated to include the 30% variance. This provides the wetland scientist with the data needed to determine the “typical” status of the site.

WetBud can be a challenge to master. At issue is the pre-set weather data is limited to Virginia. Other locations can be configured around the globe. It just takes a bit of training to set it up. We currently include WetBud configuration as part of our Water Budget workshop. However, we have found that students need the hands in-person workshop to get past several tweaks needed to set up WetBud. Keep an eye on our APT workshop schedule for upcoming dates and locations.

Migratory Bird Treaty Act

Wetland Wednesday

February 12, 2020

Migratory Bird Treaty Act (FWS-HQ-MB-2018-0090)

I thought we would take a short break or all of the wetlands topics and jump into a new related regulation. The Migratory Bird Treaty Act (MBTA) is undergoing a facelift as it relates to how or why a migratory bird may be killed.

The regulation change is short enough to be posted here: Scope: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.

The relevant portion of the current MBTA reads, “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird, [or] any part, nest, or egg of any such bird.”

At issue is whether the “bird killer” indented to kill the migratory bird or was it an accident. The intention of the new regulation is to eliminate the ambiguity associated with a passive (accidental) kill. If the kill is passive the killer is not liable for the kill. I really hope this does not translate to people.

An example of a passive kill is all the birds killed by the BP Gulf oil spill. BP was held liable and had to pay damages for the millions of birds killed as a result of the spill. They did not mean to do it, but nevertheless they had to pay for the damages. This new regulation would mitigate the liability.

It is clear that the intention of his new regulation is to insulate certain industries from MBTA liabilities. However, if a kill could reasonably be foreseen, then the kill is not passive.

Windmills are a great example of a bird chopper. Every day birds are killed by the giant windmills. It is an example of an active kill. It can be predicted an even requires daily monitoring of the nights work. Biologists often are hired to do the grisly bird counts after the windmills are installed.

This regulation is being challenged by a number of environmental and birding groups. One interesting twist is that it appears that some of the challenges bring up renewed FWS and state agency scrutiny over potential project impacts to certain avian species under the Endangered Species Act, Bald and Golden Eagle Protection Act. You still have time to comment on this rule at regulations.gov. More to come I’m sure.

Ditches, streams and wetlands

Wetland Wednesday

February 5, 2020

The publication of the 2020 Navigable Waters Protection Rule is still pending in the Federal Register. At least as of 8 PM on Tuesday February 4, 2020. The pre-publication version is a mere 320 pages. It has some high points and some low points. However, believe it or not the Final NWPR is an expansion of jurisdiction as compared with the 2019 draft version.

The first major point is that the federal government recognizes that professional field work is necessary to make a wetlands or tributary assessments. Phew, we still have jobs! The draft version discussed the simplification of the assessment process to the point of ridiculousness. It was stated that anyone could stand in the back of their pickup and look out across the landscape and know what is jurisdictional and what is not. This might be a good way to hunt deer (we do this in the south) but it is hardly a way to delineate a wetland. So, they still need us. Yeah!

Ditches have also had a rework. In the draft version they needed to be tidal or navigable to be jurisdictional. In the new version, a ditch can become a tributary if it passes though a wetland. In the new rule man-made tributaries can be jurisdictional and this is an expansion. It may even go beyond the current (pre-2015 rules) definition of a ditch.

The concept of adjacent wetlands now includes wetlands that are separated by a berm or levee. This is an expansion of what we had known as abutting wetlands only being jurisdictional in the draft rule. The adjacent waterway needs to “touch” the wetland at some point in the year, but it does not need to be continuous.

Ephemeral streams have become much more complex. There are conditions that allow for jurisdiction. It is a bit too much in the weeds to cover in a short post, but they can be jurisdictional. More to follow on this topic.

One final thought on this is rule is the new tributary assessment field work. This is new work for us and expands the role of the wetland delineator. Now you are also a tributary assessor. We’ve got to come up with a better name, but it is a new job title. It is complicated enough that you should be able to add some billable time to your workday.

New Navigable Waters Protection Rule

Wetland Wednesday

January 29, 2020

Last Thursday, January 23, 2020 the US EPA and the US Army Corps of Engineers signed the new Navigable Waters Protection Rule. They also released a pre-publication of the new regulation on the EPA website. The new rules have not been published in the Federal Register yet, so an effective date has not been set. However, it will be 60-days from the date of the Federal Register publication. I would expect to see it published in the next couple of weeks.

The new rule will replace the Waters of the US rule (WOTUS) that went into effect in December 2019. It also replaces the 2015 Obama era Clean Water Rules and all other rules and guidance that were in effect. This was not unexpected as the President had promised to repeal and replace the Obama era rule as one of his campaign promises. This promise was largely to mollify the farmers and homebuilders who have been lobbying heavily for the Obama rule to be repealed.

The major tenet of the new rule is to simplify the jurisdictional determination process. At issue is the establishment of what waterbodies are subject to Clean Water Act. This jurisdictional establishment is based solely on the determination of whether a specific waterbody influences interstate and foreign commerce (CWA Section 404). That is the limit of authority granted to the Corps and EPA by Congress in 1972. Protecting the quality of waterbodies is left to the states and tribes to sort out (CWA Section 401).

What has become a very confusing issue for some is what is the Federal WOTUS role. From the onset of the Clean Water and the Rivers and Harbors Act it has been the position of the US Government to manage waters of the US in a manner to maximize commercial benefit. Historically, this has not always been an environmental protection focus. Just because something is regulated does not mean that it is protected. If you look at the WOTUS history the Corps has hardly been a defender of the wetlands. After all, they are the ones who permit the filling of wetlands.

The roles of the states and tribes have also been confused over the years. Under CWA Section 404(g) that state can assume a portion of the Federal WOTUS regulation. However, those same waters must have a commerce nexus. In the past 40 years only New Jersey and Michigan have assumed the 404(g) waters. This assumption was done largely due to a concern that the Corps was allowing too many projects to be authorized under its nationwide permit program.

The other role of the states and tribes in this regard is reflected in CWA Section 401. This is where the states and tribes can veto a Corps permit action due to a concern that the activity will have negative consequences on the water quality of the state or tribal land. This has less of a commerce nexus, but nevertheless it must be established for 401 to apply.

The biggest change brought on by the new Navigable Waters Protection Rule is the establishment of a federal (formally known as significant) nexus. For a water to be applicable to Section 404 it must have a physical surface connection to a commerce (aka navigable) water. The former Kennedy test (Rapanos 2006) that also included chemical and biological connections does not serve as the new federal nexus. The Kennedy test was rather vague and could only be proven with extensive data collection that was rarely, if ever done. In addition, the commerce test would also have to be proven for the water to be deemed jurisdictional and this did not mean protected, just regulated.

The overriding theme of the new rule is that it is up to the local communities to identify which aquatic resources should be protected and regulated outside of obvious commerce connected waters. This may seem like the Corps and EPA are passing the buck but is was never really theirs to pass. Congress in 1972 recognized the state’s and tribe’s role in protecting local waters though local ordinances and zoning. It would seem a bit foolish to expect someone in Washington, D.C. to have the local knowledge and sensitivity of what aquatic resources should be protected in Maine for example. We seem to have subordinated our local role in wetland protection to a centralized federal government. This was not the original vision of the CWA authors nor is a practical way to manage these critical resources.

If this new regulation makes you mad, then do something about it. Contact your local agencies and find out what local wetland laws are already in place and enforced. If there are not any, then get your local government to write some. If they are not being enforced, ask why not. It is a whole lot easier to do this on a local level than to try to get the federal government to take an interest in why vernal pools for example, should be protected. At the end of the day it is about getting something protected or managed rather than complaining about what is going on in Washington.

Wetlands and the American Farm Bureau Federation

Wetland Wednesday

January 22, 2020

Over the past several years we have discussed much about the waters for the US and wetland definitions. At issue is which wetlands and waters receive federal protection under the Clean Water Act. Under this Act both the federal government and the state have a role in deciding what is protected and what is not. However, all of the media attention has been on the federal role.

On Sunday January 19, 2020, in a speech given to the American Farm Bureau Federation President Trump discussed his vision for the federal wetland protection role. In short, he is passing the buck back to the states. The repeal of the Clean Water Rule, the recodification of the 1986 Waters of the US definition and the new draft 2020 Waters rule are all an effort to reduce the federal role in wetlands and waterway protection. He wants the states to do this.

This is not a new idea. In fact, it was always the vision of the authors of the Clean Water Act that the state would manage the non-navigable waters and wetlands based upon its own needs. To date two states, New Jersey and Michigan have formally adopted non-navigable waters regulations and have done so for over 30 years.

The other 48 states and tribes in various ways have also incorporated non-navigable wetlands and waters into their jurisdiction. This is usually done by a water quality classification system derived from the powers of the Clean Water Act 401 program. Typically, there is a wetland or waters classification that restricts use if the water body meets the classification. State examples include North Carolina (Unique Wetlands), Pennsylvania (Exceptional Value Wetlands), New Jersey (Exceptional) and more.

Just about all of these wetlands are rated high value if they provide habitat for endangered or threatened species. However, there are a number of other factors such as proximity to trout streams that may also trigger the high value rating. This rating imposes significant restrictions on the development of the water body and sometimes work in the vicinity of that water body.

It has always seemed strange to me to have the United States Army involved with assessing wetlands on private land. I believe the primary mission of the US Army has something to do with defense. Other than perhaps building a moat around D.C. to keep the bad guys out (or in) their historic role in wetlands regulation has always seemed to be at odds with their primary objectives.

The President in Sunday’s announcement, has made it clear that the state should be managing its own wetlands programs. While the American Farm Bureau may have been cheering for this perceived “regulatory relief” they may not be fully aware of the implications. After all, most of their wetland headaches are based upon the Food Security Act and not the Clean Water Act. The Food Security Act subsidies that are given to farmers are based upon a “do no harm” clause to wetlands. To date, there have been no repeals to that. It would be up to the state to define what is a wetland and most have already.

Changes to CWA 401 Rules

Wetland Wednesday

January 15, 2020

The 401 certification program is undergoing some major updates. This past August, the USEPA published its Economic Analysis for the Proposed Clean Water Act Section 401 Rulemaking. This is a fascinating document as it explains the economic rational for the proposed new 401 rules.

This document discusses the status of the existing processes and suggested efficiencies that are intended to expedite the permit process. The proposed EPA clarifications to the existing certification regulations include:

  1. Timeline: The timeline for action on a section 401 certification is proposed to begin upon receipt of a certification request by the certifying authority. Review timeline is reinforced as one year.
  2. Scope: The scope of a section 401 certification review, and the decision whether to issue or deny a section 401 certification, is proposed to be limited to an evaluation of whether the potential discharge will comply with applicable provisions of sections 301, 302, 303, 306, and 307 of the Clean Water Act and EPA-approved state or tribal Clean Water Act regulatory program provisions.
  3. When the EPA is the certifying authority, the EPA is proposing additional procedures for prefiling engagement and requests for additional information. Under the proposal, project proponents would be required to request a pre-filing meeting with the EPA, when it acts as the certifying authority, at least 30 days prior to submitting a request for certification to help ensure a timely section 401 certification decision. As proposed, when EPA is the certifying authority, it would be allowed to request additional data from the project proponent within 30 days of receipt of a request for certification; the EPA would only request additional information that could be collected or generated within the established reasonable period of time; and the EPA would include a deadline for the project proponent response, allowing sufficient time to review the information and act on the request within the federal agency’s timeframe.

This proposed rule was published in the Federal Register on August 22, 2019. The public comment period ended on October 21, 2019. These changes are in response to the April 2019 Executive Order 13868: Promoting Energy Infrastructure and Economic Growth.

There is quite a lot of information about the changes and I encourage you to dive into the proposed rules. They can be found at: https://www.regulations.gov/document?D=EPA-HQ-OW-2019-0405-0025

New EPA new Science Advisory Board

Wetland Wednesday

January 8, 2020

The USEPA has established a new Science Advisory Board (SAB) to consider a scientific rational for establishing jurisdiction over Waters of the US (WOTUS). The stated goal of this effort is to establish a scientific basis for making a waterway jurisdictional. This was done in the past to justify the Obama era Clean Water Rule and is now being used for the proposed WOTUS replacement rule.

In the past several years the SAB has met less frequently and its member makeup has changed dramatically. Historically, the SAB had mainly consisted of academics. Today, according to the Union of Concerned Scientists, the number of industry experts on it has tripled and the number of academics has been cut nearly in half.

However, despite or perhaps because of the political nature of the recent WOTUS rules and challenges there is some honestly about the EPA’s position. In a recent email obtained by the Washington Post, EPA spokeswoman Corry Schiermeyer said several of the proposed changes, such as the water pollution rule, reflect limits imposed by the Supreme Court as well as Congress. She said, “As a result, the definition of ‘waters of the United States’ may be informed by science, but science cannot dictate where to draw the line between federal and state or tribal waters.”

Despite this statement, the EPA SAB concludes, “The proposed definition of WOTUS is not fully consistent with established EPA recognized science, may not fully meet the key objectives of the CWA – “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” and is subject to a lack of clarity for implementation.”

WOTUS Rule lawsuits

Muddy Monday (AKA Wetland Wednesday)

December 30, 2019

Last Monday, the NEW Waters of the US (WOTUS) rules went into effect. Fourteen State’s Attorney Generals have field lawsuits just ahead of the effective date. The basis of the challenges is that the new regulation reduces Federal wetland protections.

One big difference with these lawsuits is that they all have to start in District Court. This is a result of a recent Supreme Court Ruling that requires Waters of the US challenges to start in District Court rather than Circuit Court which had been a strategy in the past. This somewhat alleviates the immediate Nationwide implications of a Circuit Court ruling. A successful challenge to the WOTUS would be limited to the District Courts jurisdictional area.

Right on the heels of the new WOTUS Part 1 rules is the Part 2 replacement rules that were published in draft form this past summer. The Trump Administration has announced plans for Final Part 2 rule to be published in a matter of weeks from now.

New WOTUS Rule goes into effect

Muddy Monday

December 23, 2019

Today is the day the NEW Waters of the US Rules go into effect. We thought this would be a good reason to move up our regularly scheduled Wetland Wednesday newsletter. Besides, it is Christmas!

We have been talking about this new rule for some time. There is one major change that may or may not be a typo. It has to do with the definition of a wetland. There are two versions of what a wetland is in the new regulation.

The old and familiar definition is:

“Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”

This definition is found in several sections of the regulation and has been in use since about 1986.

However, today’s regulation also has a new version of this definition that changes the last sentence to:

“Wetlands generally include playa lakes, swamps, marshes, bogs and similar areas such as sloughs, prairie potholes, wet meadows, prairie river overflows, mudflats, and natural ponds.”

This is significant as it includes some of the more controversial wetland types.

Both versions of the wetland definition are included in the new regulation. What does this mean?

Waters of the US definition

Wetland Wednesday

December 18, 2019

As you may or may not be aware, next week is a pretty important week for wetland regulation. On December 23, 2019 the new Waters of the US definition goes into effect nationwide. So far there are no stays or court challenges that have derailed the implementation of the new rule. In short, the 2015 Obama era Clean Water Rule is repealed and the old WOTUS rules remain in effect. However, there are some subtle changes that may have big impacts depending on the type of project you are working on.