Author: Marc Seelinger

Waters of the US News Alert

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News Alert

September 13, 2019 – Washington, D.C.

We are going back to the 1980s… The EPA has formally repealed the 2015 Clean Water Rule!

On September 12, 2019 EPA Administrator, Andrew R. Wheeler signed the final rule on, with signature by Mr. R.D. James, Assistant Secretary of the Army for Civil Works finalizing the repeal of the Obama Era Clean water Rule.  This is the final step of the rule-making process that started several years ago.  There is no public comment period as the draft version of this rule was vetted through the review process last year.  The official publication date of the rule pending its appearance in the Federal Register which is anticipated in a week or so.  Once the rule is published in the Federal Register it will be effective 60 days from then.

“The agencies are repealing the 2015 Rule for four primary reasons. First, the agencies conclude that the 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos. Second, the agencies conclude that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(b). Third, the agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachments of federal jursidiction (sp) over traditional State land-use planning authority. Lastly, the agencies conclude that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies find that these reasons, collectively and individually, warrant repealing the 2015 Rule.” (USEPA, 2019).

The Swamp School has obtained a copy of the prepublication rule that you may download HERE.  The EPA Docket ID No. for this regulation is:  EPA-HQ-OW-2017-0203 and can be found at regulations.gov.

The net effect of this rule will be to nullify the 2015 Clean Water Rule.  This will result in one Waters of the US definition to be used nationwide.  This will mean that the states currently using this definition will revert to the pre-2015 definition that includes the 1986 published definition of a waters of the US.

The Trump Administration has published a draft waters of the US definition of its own that is currently undergoing agency review of the public comments.  The Administration has stated that the new regulation will be finalized before the end of the year.  In the meantime, its back to the 80’s.

The prepublication rule listed above is 172 pages long! You are free to review it or take our brand new on-demand webinar – the [NEW] Waters of the US on October 16, 2019 and let the Swamp School walk you through all the new changes and important points before they go into effect. Click the button below to learn more and register for this important webinar.[/vc_column_text][vc_empty_space][vc_btn title=”Check Out the New Webinar” style=”custom” custom_background=”#3f912d” custom_text=”#ffffff” size=”lg” link=”url:https%3A%2F%2Fswampschool.org%2Fproduct%2Fnew-waters-of-the-us%2F|||”][/vc_column][/vc_row]

SWANCC In 2019

One of the most misinterpreted rulings by the Supreme Court of the US (SCOTUS) is the 2001, Solid Waste Agency of Northern Cook County (SWANCC). The pedestrian result is that isolated wetlands are non-jurisdictional with regards to the Clean Water Act. This is a gross misstatement, and the US Army Corps of Engineers and the US EPA have done very little to clarify what the ruling actually said. Furthermore, the proposed definition of Waters of the US (WOTUS) currently awaiting final release has also grossly underestimated the extent of the CWA reach.

The 2019 WOTUS rule relies on two crucial SCOTUS cases. The first one is the SWANCC decision in which the Court made two essential points.

  1.  The SWANCC waters were not wetlands. They were small ponds that were created as a result of sand and gravel mining. The wet areas lacked one or more of the USACOE’s three criteria to define a wetland. Mostly, wetland vegetation was missing.
  2. The SCOTUS only ruled that the migratory bird rule was not sufficient to establish federal jurisdiction over the SWANNC ponds. The SCOTUS never ruled if the SWANCC ponds were or were not WOTUS for any other reason. They also admonished the USACOE for what amounted to dereliction of duty in not bringing any other jurisdictional evidence forward.

The second critical SCOTUS case is the 2006 Rapanos and Carabel indecision. This case was vacated due to a split 4-1-4 ruling and remanded to the lower Courts who maintained the wetlands in question were jurisdictional. The USACOE prepared a guidance document based upon the sole Kennedy opinion that required that WOTUS must have a significant nexus to a downstream navigable waterway. Four Justices confirmed that the wetlands in question were jurisdictional, and four others did not feel the government had established sufficient cause to prove jurisdiction. Justice Scalia had written about needing a physical connection to navigable waterways to establish jurisdiction, but his opinion did not represent the majority of the Court.

The CWA was passed in 1972 to restore the physical, chemical, and biological integrity of WOTUS. The original extent of WOTUS was not limited to only navigable waters. In 1977, the definition of WOTUS under the CWA was clarified to include wetlands an isolated waters. The extent of this jurisdiction was confirmed in 1985 in the SCOTUS Riverside Bayview Homes case that confirmed adjacent wetlands are jurisdictional. No limits on what was not jurisdictional were discussed by the Court.

It was Congress’ original intent to clean up and restore America’s waterways by the passage of the CWA. Congress did not delineate jurisdictional and non-jurisdictional waters in the Act. They intended to make all waters in the US cleaner. One way to do this was to establish a permit program administered by the USACOE. Recognizing that the CWA gave the USACOE the authority to regulate all waterways, the USACOE established a Nationwide Permit program. This permit program included discharge of fill into headwater wetlands and waters under Nationwide 26. The idea was that the USACOE regulated these very small waters, but did not want to impose Individual permit conditions on them. The first version of the Nationwide 26 allowed for 10 acres of fill in headwater areas. This was reduced to 1 acre, and then eventually the Nationwide 26 was not renewed.

The point of the Nationwide 26 is that these wetlands and waterways were regulated by the USACOE from the start. As some sort of relief, the USACOE issued the Nationwide 26 to ease the regulatory burden imposed by the CWA. However, at no time was intended to imply that these wetlands and waters were not subject to regulation.

The limits of Congress to impose limits on what can and cannot be done to waters and wetlands is based upon the impacts to commerce. This has been confirmed in every SCOTUS case and has also included aggregate impacts to wetlands and waters. One individual wetland loss may not have a visible impact to commerce, but multiple impacts to similarly situated waters or wetlands have been upheld by SCOTUS as having an aggregate commerce connection. This further underscores Congress’s original intent to regulate all wetlands and waters.

It is impossible to cleave a commerce connection from any waterbody. Water is the most important natural resource we have. It costs money to gather, clean, and distribute water. Clean, usable water is necessary for all life needs and extends to numerous commercial enterprises.

Currently, the USACOE and EPA are reviewing the public comments associated with the new 2019 Waters of the US definition. What makes a water jurisdictional under this new rule is its direct physical connection to a navigable water. This is a highly politically motivated rule and will remove many of the protections on wetlands and waterways that have been in force for over 40 years.

In the majority of SCOTUS rulings, there has been a call to Congress to clarify what it had intended to regulate under the CWA. The original authors of the CWA were fairly clear on their intent, and when recently questioned, they confirmed it was to regulate all waters. Is this still the intent of Congress?

Write your representatives and let them know what you think and ask them for a direct answer to this question. If the people of this country no longer support the original intent of the CWA, then Congress should be informed. If we do support the notion that clean water is essential no matter the location, then Congress needs to know. We should not be relying on unelected government officials to dictate what will be protected and not. In 1972, we passed the CWA to make this very clear. Perhaps we need to remind the government that they are answerable to the people, not the other way around.

National Wetland Plant List 2018/2019 Updates

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The Swamp Stomp

Volume 19, Issue 14

On June 10, 2019 the US Army Corps of Engineers announced that an update to the National Wetland Plant List (NWPL) is now available for review and comment. The public comment period ends on August 9, 2019.

The direct link to comment on the list is: https://www.federalregister.gov/documents/2019/06/10/2019-12129/national-wetland-plant-list

For the 2018 NWPL update, the NWPL National Panel (NP) and Regional Panels (RPs) reviewed proposed wetland rating changes or additions for 20 species and 37 regional ratings (some species were reviewed for multiple regions) submitted by the general public.

Eight of these species were proposed for addition to the NWPL, and 12 species were submitted for a rating change request in one or more regions. Submitted information was reviewed by the NP and RPs, and proposed 2018 ratings for these species were determined, as detailed below.

Note that all submitted species are included here, regardless of whether or not the NP and RPs proposed a rating change. Hence, for those species where the current and proposed ratings are the same, a rating change request was submitted, but after review of the submitted information no rating change is being proposed for the 2018 update.

For the time being, it would appear that we are calling this the 2018 update to the NWPL. Perhaps this will be changed to 2019 in the final version.

The Federal Register notice also reiterates the wetland rating definitions for OBL, FACW, FAC, FACU and UPL. The percentage definitions used in the past are only used for testing and problematic species. Plus and minus designations and wetland indicator designations such as No Indicator (NI), No Occurrence (NO), and No Agreement (NA) are no longer used on the NWPL.

Users are encouraged to submit literature citations, herbaria records, experiential references, monitoring data, and other relevant information.

Specific knowledge of, or studies related to, individual species are particularly helpful. Commenters should use their regional botanical and ecological expertise, field observations, reviews of the most recent indicator status information, appropriate botanical literature, floras, herbarium specimens with notation of habitat and associated species, habit data, relevant studies, and historic list information.

This is also an opportunity to suggest new ratings for species not included on the short list below. The Corps is also discouraging guessing ratings. I am not sure what that means, but don’t do it.

These are the proposed changes.  Be sure to note American Holly (Ilex opaca).

Species Region Current 2016 Rating* Proposed 2019 Rating
Aristida palustris AGCP NOL FACW
Artemisia dracunculus AW NOL FACU
Artemisia dracunculus WMVC NOL FACU
Bassia hyssopifolia AW FACU FACU
Bromus nottowayanus MW NOL FACU
Bromus nottowayanus NCNE NOL FACU
Delairea odorata AW NOL FAC
Delairea odorata WMVC NOL FAC
Dichanthelium wrightianum AGCP NOL FACW
Epilobium brachycarpum AW NOL FAC
Epilobium brachycarpum WMVC NOL FAC
Hymenocallis latifolia AGCP FACW FACU
Hymenocallis latifolia CB FACW FACU
Hymenocallis occidentalis AGCP OBL FAC
Hymenocallis occidentalis EMP OBL FAC
Hymenocallis occidentalis GP FACW FAC
Hymenocallis occidentalis MW OBL FAC
Ilex opaca AGCP FAC FAC
Iva axillaris AW FAC FACU
Iva axillaris WMVC FAC FACU
Liriodendron tulipifera AGCP FACU FACU
Liriodendron tulipifera EMP FACU FACU
Penstemon rydbergii AW FACU FACU
Penstemon rydbergii WMVC FACU FACU
Pleopeltis polypodioides AGCP FAC UPL
Polymnia canadensis EMP NOL FACU
Polymnia canadensis MW NOL FACU
Polymnia canadensis NCNE NOL FACU
Pycnanthemum muticum EMP FAC FACU
Quercus michauxii AGCP FACW FACW
Tussilago farfara NCNE FACU FACU
Verbena brasiliensis AGCP NOL FACU
Verbena brasiliensis EMP NOL FACU
Verbena brasiliensis MW NOL FACU
Verbena incompta AGCP FACW FACU
Verbena incompta EMP FACW FACU
Verbena incompta MW FAC FACU

 

*NOL = “Not On List” and indicates proposed additions
OBL—almost always occur in wetlands
FACW—usually occur in wetlands, but may occur in non-wetlands
FAC—occur in wetlands and non-wetlands
FACU—usually occur in non-wetlands, but may occur in wetlands
UPL—almost always occur in non-wetlands

Be sure to mention in your comments and suggestions related the the 2016 name changes of species.  There is no mention that these will be updated with the new release.  There had been a discussion that the 2014 names should be used.  This has been a big issue when trying to key out a plant only to find that the Corps has changed the name and there are not academic references to support the name changes.  This has lead to misidentification in the field of species wetland ratings.[/vc_column_text][/vc_column][/vc_row]

2019 Wetlands Jobs Report

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Click to Download our Free Jobs Report

Are you looking for the keys to a successful Wetlands career?

Are you a student wondering if you are getting the right education that your future employers will be looking for in their next hire?

Or maybe you are a seasoned Wetland Professional who just wants to take the next step up the career ladder and needs some certifications?

Well, Swamp School’s 2019 Wetlands Jobs Report is a free whitepaper that you will NOT want to miss.

You will gain a better understanding of the Wetlands Industry as a whole from a list of wetland job titles, the most requested experience or expertise for a job in the wetlands, as well as current legislation and policies driving wetland jobs. Read through an extensive list of where most wetland jobs are located as well as the major wetland industry employers (governmental and private).

This white paper is written for graduates in the environmental sciences to show them how to get the experience they need in the classroom and in the field and to be eligible to do land a job working with saving the wetlands. Education and training in specific wetland duties should be part of the graduate’s resume on graduation![/vc_column_text][vc_column_text]

Free Wetland Career Advice

As an exclusive over the next few months, Swamp School is also offering free Wetlands Career Advice!

For those who feel like they are stuck trying to land that perfect job in the field. We have decades of experience to help guide and mentor you. If Free Wetland Career Consultation is something that you are interesting, click here to enroll.

Read some of what other Swamp School students have said about our courses in the past:

I really like the class format and all of the matetrial in it. It has been a lot of fun and it was great to get out of the office to go hunt down some plants.” – Kelley M.

I really enjoyed this class and would recommend it to others. I really enjoyed the discussions between the members of the class. – William B.

Swamp School is trusted by over 600 clients such as the United States Environmental Protection Agency (EPA), the Department of Energy in the United States, and the US Army Corps of Engineers to name a few.[/vc_column_text][vc_single_image image=”23371″ img_size=”medium” alignment=”center”][vc_column_text]

Preview of the 2019 Wetlands Job Report

Finding a Job is the most stressful part of graduating from college. The Dr. Suess book entitled “Oh, The Places You’ll Go” is given as a gift at many graduations. The problem is that, collectively, colleges do not prepare graduates with marketable training for a job AFTER college.

You expect to find a job in your major because that is WHY the money is spent, and soon you realize that the training is not there. Especially if you have a degree in environmental sciences.

You’d like to do something rewarding that is done outdoors os you don’t sit at a desk all day. However, you have no experience or training in a marketable skill.

The most common degree awarded to students studying Environmental Science is a bachelor’s degree. A roadmap designed to lead graduates with bachelor’s degrees in environmental sciences, ecology, geology, biology, etc., into an environmental career would reduce the stress of finding a job. Wetlands provide many careers for science degree candiates.

This white paper is written for graduates in the environmental sciences to show them how ot get the experience they need in the classroom and in the field and to be eligible to land a job working with saving the wetlands. Education/training in specific wetland duties should be part of a graduate’s resume on graduation.

A listing of job titles is included in this whitepaper as well as a listing of the most requested experience or exprtise for a job in the wetlands. It also includes a list of current legislation and polices driving wetland jobs.

Marc Seelinger, PWS, Founder the Swamp School

CONTENTS

1 – Introduction

2 – Legislation

3 – Job Locations

3 – Job Titles

4 – Major Employers

5 – Curriculum

6 – Training

7 – Swamp School

What is driving the increased need in the Wetland Business? Legislation Supporting Wetland Protection…

To keep reading click the button below.[/vc_column_text][vc_btn title=”Download Jobs Report” style=”classic” shape=”square” color=”success” size=”lg” align=”center” link=”url:http%3A%2F%2Fswampschool.pagedemo.co%2F|||”][/vc_column][/vc_row]

Using a Laser Level for Ecological Studies

The Swamp Stomp

Volume 19, Issue 9

The use of a survey grade level is critical for obtaining accurate measurements of various biological features, biological benchmarks, etc.  This information is used for many purposes including stream restoration, coastal restoration, wetland restoration, and other design purposes.

There are two types of levels used for construction and design. The older of the two is known as the Dumpy level. This level is like a spotting scope with crosshairs. It is highly accurate (despite its name) and also has an added advantage of being able to measure distance. However, it does require much more work to operate and is limited to a range of about 30 feet.  It also requires two people to operate.

Laser levels are the other commonly used measuring tool and are a great improvement over the Dumby levels. The major benefit is that the distance away from the level is pretty much as far as you can see.  This reduces the number of station moves and speeds the process along.  You also only need to have one person to operate the level.

There is a third option which is to use a surveyor total station. This, however, is a very complicated process and usually beyond the level of detail needed for most biological assessments.  A corollary to this is the use of GPS.  GPS is great for x and y coordinates, but it is often meters off on the elevation (z).

Laser Levels

You do not need to spend a lot of money to purchase a quality laser level. You can often find these for sale in big box home improvements stores and hardware stores.  They are around a couple of hundred dollars.  You can also rent one from a survey supply shop for about $20-$30 per day.  They will also be happy to sell you one if you need to use it more than just a few times.  Survey grade levels are usually in the $500 to $1000 range.  This is worth the investment if this type of work is a regular thing for you.  Also, do not cheap out on the box.  The level will get bounced around so you will need a quality instrument case.  This is sometimes a problem with the home center levels.

The laser receiver is usually included with the laser level.  This is a little box that attaches to the survey rod with thumb screws.  It takes batteries and makes a tone when the laser beam from the level hits it.

You also need legs. The level should be placed upon a quality tripod. This is not the same type as you use for a camera. Survey grade tripods are usually made of wood or aluminum and have steel spikes to set it into the ground.  The legs are adjustable so that you can level your level. The level should be about chest high when mounted so the tripod needs to be 4-5 feet high when set up.

Next on your shopping list is a survey rod. You want to get the smallest rod that will serve the purposes of the site work you are doing. A 12-foot rod is much better than a 25-foot rod if you only need to go up a few feet. The bigger the rod the more sway you have and the measurements will be less accurate. However, if you have a steep slope on your site a bigger rod may be necessary.

You will also need a measuring tape or carpenter’s rule.  It is better to get one that is calibrated to 1/10’s of a foot rather than inches.  The survey rod is almost always in 1/10’s of a foot, however, make sure you are not using some sort of metric rod.  That really clean rod in the back of the tool closet that nobody uses might be there for a reason.

Set Up

The first thing that you want to do is take a walk around the area that you need to survey. You want to find the best place to set up the level so that you do not need to move it more than necessary. Keep an eye on slope, trees and other obstructions.  The level needs a clear line of sight. You can clear some of the vegetation away, but it is usually easier to find a spot that would require the least amount of work to get your shots. The tripod should be set up above the highest point you are going to survey. You need to include the height of the level receiver on the rod when you are making this estimate. This translates to about 5 feet above your highest point. The level needs to be able to “see” the receiver.  If the level is set is too low it will shoot below the receiver mounted on the rod.  You can move the receiver down, but that would require that you recalculate for those shots.

Keep the level in the box until you are ready to place it on the tripod.  Do not attach it to the tripod and then walk around with it.  It should be boxed when moving it around the site.

Set the legs up on as level a surface as you can. Adjust the legs so that the level mounting plate is fairly level. You can use a hand level to do this or the bubble level on the laser level itself.

The laser level attaches to the tripod by way of a large screw below the mounting plate. Do not tighten this too much until you have leveled the level. There are three or four leveling screws on the level. There is also a glass bubble level on the mounting plate. Adjust the leveling screws so that the level is dead on the level in all directions. This will require that you spin the level around and make adjustments. If you have attempted to level the tripod before you mounted the level, this will go fairly quickly.  It is critical that the level is mounted level. Otherwise, your data is junk.

Instrument Height

There is usually a marking on the level where you should measure downwards to the ground. We are also going to determine the height of the instrument using the back site, but you should always measure the distance from the instrument to the ground. We don’t really use this data, but it seems that it is always done. It is sort of a cross check.

Backsight

You should place a project benchmark somewhere near the level set up. This serves as your project control and can be surveyed for real later if you need to derive actual elevation points from your level runs. This control should be set using a pin, rod, pipe or other relatively permanent makers. Wooden stakes do not work as they can be easily removed or damaged.

The backsight elevation is any number that makes sense. The convention is to set it at 100.  You may come back later in drag control onto the site to determine the actual elevation, but that is not necessary for this type of work.

The laser level indicator should be attached to the rod, usually at the tip. Note the location of the indicator. For example, it is on the rod at 4.5 feet.  Most telescopic rods have a height indicator on the back of the rod.  As you raise the rod the height indicator numbers will change.  Be careful to raise the rod in the proper order.  This varies with some rod types so be sure to check with the manufacturer on the use of the rod.

A Direct Elevation Rod or a “ Lenker Rod ” is the most common type and has numbers in reverse order on a graduated strip that revolves around the rod on rollers. Figures run down the rod and can be brought to the desired reading—for example, the elevation of a point or benchmark. Rod readings are preset for the backsight, and then, due to the reverse order of numbers, foresight readings give elevations directly without calculating backsights and foresights.

Turn the laser on and position the rod on the benchmark and raise the rod until you hear a steady tone. You will usually hear a slow chip when you are just below the laser beam and a fast chirp when you go past it.  Note the rod reading. That is your backsight reading. Add the elevation from the benchmark rod reading and you have your height of instrument (HI).

For example, your benchmark is elevation 100.  Your rod reading on that benchmark is 4.06.  Therefore, your Height of Instrument (HI) is 104.06’.  Your benchmark elevation should be lower than the instrument ground location.  If not, you need to adjust the detector and do some more math. It can be done, but it takes more time.

Now you are ready to go to work on the foresight.

Position the rod directly on the ground at each feature shot. The rod should be straight up and down. There are plumb levels you can attach to the rod to help you.  Some laser detectors will also beep at you if you are too far out of plumb.

Raise the rod until you hear that steady tone. Note the rod reading. Make sure that you raised the rod in the right order and that the numbers are being read correctly.  Usually, this is a matter of checking reality.  If your rod reading suddenly jumps by 5 feet from the last point you may have raised the rod sections in the wrong order.

Record each feature and provide some notes.  A level book works great for this.  This is an example of a level book set up.

Set  Up  1

Station

BS

HI

FS

Elev

Notes

(feet)

(+)

(-)

4.06

104.06

100

Benchmark

6.63

0+25

97.43

MT

5.35

0+50

98.71

MHW

At each feature subtract the foresight (FS) from the Height of Instrument (HI) to derive the elevation.

In this example, we have a 1.28’ difference from mid tide (MT) to Mean High Water (MHW).  We can, therefore, assume that our total tidal exchange would be 2.56’ from Mean Low Water (MLW) to MHW.

We would need to check many other points. Usually, for a biological benchmark survey, we would to stationing along a cross-section.  Each feature would be relative to the feature type and its location on the cross-section.  In our example above, the distance from the MT to MHW is 25’.  This is measured by setting a fixed starting point at 0+00 and measuring along that line.

If you need to move the level you will need to calculate a new HI.  Make sure to reference the setup with the data.  Start a new table for a new set up.

Finally, if you need to determine the real elevations of your features survey the benchmark. This will require a surveyor to locate nearby elevation control and drag that onto the site using traverse lines. You can also use high-end GPS for this.  In our example above the real elevation for the benchmark is 456’ NAVD 88.  Our new HI is 460.06.  We need to make sure we cite the vertical data source. In this case, it is North American Vertical Datum of 1988 (NAVD 88). Therefore our MT is 453.43’ NAVD 88 and the MHW is 454.71’ NAVD 88. You can do this for all of the data associated with the benchmark.

One final note of caution

If you are doing level runs for design purposes, you may or may not need a licensed land surveyor to sign off on them.  However, if you are doing any floodplain calculation work you will most likely need the help of a licensed surveyor. Some jurisdictions allow licensed professional engineers to do this as well. This is a matter of state and federal law so be careful and ask questions.

Waters of the US 2019 Comments

Swamp Stomp

Volume 19, Issue 06

I would like to share our public comment on the 2019 WOTUS rule below. Be sure to send in your comments to EPA before April 15, 2019. Please feel free to use our comments to help you expand on any of the issues we have presented. You can comment on our post below, but it is more important that you send your thoughts and questions to the EPA. Try to avoid seminar comments and only send in thoughtful and insightful topics. The Agencies tend to ignore the bulk mail type comments. The link to submit your comments is here: https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0149

Best, Marc

Writing on behalf of the Swamp School, LLC I respectfully request that the government respond to my questions and comments pertaining to the proposed Waters of the US definition as published in the Federal Register on February 14, 2019.

The Constitution of the United States grants the US government certain powers to regulate interstate and foreign commerce under Article 1, Section 8 known as the “Commerce Clause.” This power extends to any activity that would effect an economic change between states, tribes and nations.

The United States government through its many agencies has published numerous reports documenting the economic importance of water resource management. These include studies on flooding, water quality, wildlife resources, agricultural management and many more. These underscore the economic important of aquatic resources associated with wetlands and waterways throughout the nation.

With the passage of the Clean Water Act, Congress formally acknowledged that it had a sovereign duty to protect the aquatic resources of the nation and adopted a policy that all wetlands and waterways were jurisdictional waters regardless of the size, source or direction of flow. This was demonstrated by the fact that in the initial round of nationwide permits released by the US Army Corps of Engineers (Corps), the nationwide 26 permit authorized fill into small headwater systems.

While this permit was extremely unpopular with environmental protection groups, it does acknowledge that the Corps had jurisdiction over these small ephemeral, intermittent, and perennial systems and was regulating what Congress had intended to protect.

In 2001, a decision by the US Supreme Court in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, resulted in a change of policy on what the Corps would regulate as waters of the US. This is the only case that has come before the Supreme Court that has resulted in a reduction of jurisdictional wetlands. However, this case has been misinterpreted with regards to isolated wetlands for years. The Court did not rule that isolated wetlands are non-jurisdictional rather, that the Migratory Bird Rule in of itself did not provide the commerce nexus to make the wetlands on the site, jurisdictional. The issue of whether the wetlands on site were jurisdictional was not resolved. That was not the case put before the Court. Simply put, the Migratory Bird Rule did not provide the jurisdictional nexus. However, the issue of what may provide the jurisdictional nexus was never discussed.

I respectfully request that the government respond to this comment with a confirmation and explanation of how the SWANCC decision has been interpreted in the proposed rule. Specifically, I am asking the Agencies to comment on the fact that the SWANCC decision has resulted in a misinterpretation by the Agencies, that all isolated wetlands are non-jurisdictional. This seems to be the basis for excluding many wetlands in the proposed rule and I am concerned that there may be a misrepresentation of fact and law in the rule.

The second issue of concern relates to how the proposed rule affects the farm community. It has been represented by the EPA that this new rule is somehow a win for the farmers. This is a gross misinterpretation of how wetlands affect farming.

The Food Security Act Manual defines wetlands as having the presence of hydric soils, wetland vegetation, and wetland hydrology consistent with the Corps wetland manuals. It does not make the distinction that a wetland must be a jurisdictional waters of the US in order to receive protection under the Food Security Act (FSA). The FSA provides subsidies to farmers who avoid wetland impacts and penalizes farmers who do impact wetlands by revoking subsidies as adjudicated by the National Appeals Division of the USDA.

In short, the proposed rule appears to remove the CWA violations from impact to some wetlands by farmers, but it does not address the FSA penalties. At issue, is that under the new rule, the USDA, EPA, and Corps all have a different definition of what a wetland is.

How does the US EPA and Corps plan on addressing the issue of farmers losing farm subsidies as a result of impacting a non-jurisdictional wetland? At the very least they should be informed of the risk.

During the December 11, 2018 presentation, Secretary Wheeler (USEPA) went to great lengths to describe how easy it should be for anyone to look out onto the landscape and know what is jurisdictional and what is not. This is overly simplified and very unrealistic. Wetland science has evolved over the years and we have a much greater understanding of the nature of wetlands and their borders than we did when the CWA was first passed.

Land management is a complex process requiring many different disciplines to safely and responsibly develop a project to ensure highest and best use, balanced with the least possible environmental impact. Imagining that someone could just look out across the landscape and divine the presence of jurisdictional wetlands heralds us back to a time when rivers were catching fire and was a major reason for the passage of the Clean Water Act in the first place. Quite frankly, it undermines the credibility of the EPA as it represents a failure to uphold the laws with which they are tasked to enforce and a complete disregard for the state of the science of wetlands.

Furthermore, if anyone can identify a wetland, then it is required that the EPA and Corps present an economic analysis of the job loss associated with the civil and environmental engineering professions. A review of the Bureau of Labor Statistics data for wetland-related jobs estimates that over 500,000 individuals work with and around wetland science. A 500,000-person layoff would certainly have a significant economic impact that needs to be addressed. To date, this has not been discussed by the Corps or EPA and I respectfully request that this be addressed with an economic analysis as required by the Administrative Procedures Act.

In addition, there is an entire wetland and stream restoration industry that would be directly affected by the loss of wetlands and the streams being regulated. This is a billion-dollar industry with individual projects often in the millions. If there is no longer a need to replace certain wetlands and streams that have been lost, then there would be a significant reduction in wetland and stream mitigation services. The lack of regulation for what has been historically regulated would result in significant tax revenue loss related to this industry alone. Can the Agencies provide a detailed analysis of the tax revenue lost and a description on how they plan to mitigate this significant economic impact to the US Treasury?

To counter an expected Agency response to the aforementioned tax loss it is expected that the Agencies would cite some sort of economic gain as a result of not having to spend money on mitigation by a permittee. However, even if a wetland or stream were to be deemed non-jurisdictional the permittee would need to spend significant money and time to verify that the area in questions is in fact non-jurisdictional. The fines for filling a wetland or stream are significant, and a landowner would be undertaking an extremely risky process to do it on their own despite Secretary Wheeler’s comments.

Most land developers are more concerned with uncertainty and time delays for their projects. It is unlikely that they would proceed with some sort of “do-it-yourself” business model for land assessment. Because it is very unclear what constitutes a jurisdictional nexus, this tends to be their biggest concern. Most developers would rather write a check for mitigation and proceed with their project, rather than some sort of protracted jurisdictional review. Time is truly money and generally the cost of mitigation, while expensive tends to fall in line with the cost of doing business and has proven not to be an impediment. What has proven to be an impediment is long delays for jurisdictional reviews often running into years. Please explain the process of how the Agencies will be accelerating the jurisdictional review process, especially “jurisdictional determination only” requests as outlined in the Corps’ RGL 16-1. Please also detail the costs associated with the new hires EPA and the Corps will need to bring on to manage these jurisdictional determination requests. If this is an unfunded mandate to the Agency’s rank and file, then please detail the time delays associated with the current and projected workload.

On a technical note, there is a significant issue with the EPA and Corps understanding of the water cycle. This seems odd as the last administration published a detailed report documenting the connectivity of wetlands to downstream waters. It would appear that both the Corps and the EPA are abandoning the scientific findings of their report. Is this to satisfy a political agenda or are there new scientific discoveries that are the basis for the proposed rule? I would appreciate a direct answer to this question.

The proposed rule excludes both ephemeral systems and groundwater. As it would appear the Agencies need a review of the water cycle I will explain. When it rains water falls from the sky creating storm water (ephemeral flow). This flow makes its way across the landscape infiltrating into the ground and creating groundwater. Some wetlands and many intermittent and perennial stream systems are intersected by groundwater as the systems major source of water. It would appear that this groundwater nexus (often associated with the hyporheic zone) would not result in a water of the US. This is at complete odds with the aforementioned EPA Science Advisory Board’s report.

Similarly, since these same systems receive rain on a regular basis, this is also a major source of non-jurisdictional hydrology. I am unclear as to what other sources of water would support any wetland or stream system. Could the EPA and Corps clarify where the water would have to come from in order for a wetland or stream to become a waters of the US? High humidity, perhaps?

The proposed rule states that is is based upon the “Scalia” opinion in the Rapanos case brought before the Supreme Court. At issue, is that there was no majority opinion in that case and it was vacated. How do the Corps and EPA plan to reconcile the fact that the entire premise of the proposed regulation is based upon a vacated and undecided case? The result of the case was that the wetlands in question were deemed jurisdictional by the lower courts and Rapanos had to pay a fine and mitigate and Carabell did not get his permit. Basing any regulation on a failed court ruling seems irresponsible and I would appreciate an explanation on the Agencies justification for this.

The issue of ditches is also a concern. If a wetland or waterway results in some sort of interstate commerce it is up to the government to regulate it (Article 1, Section 8 of the US Constitution). This has been the test brought before the courts for years. The only purpose of a ditch is to drain the landscape for some economic purpose. A roadside ditch keeps water off the road so that interstate trucking can proceed. A farm ditch allows a farmer to drain the land so they can grow crops that they can sell to other states or nations. Flood control ditches are used to prevent or reduce economic hardship in flood prone areas that may result in job and property loss. In short, the only purpose of a ditch is to support commerce. Therefore, should not all ditches be regulated as waters of the US?

Lastly, there is the issue of how the states will manage a non-waters of the US. These are not assumable 404(g) waters. If the state wishes to regulate a vernal pool for example, it would have to pass legislation to do so. As there is no federal jurisdiction, the state is left to “condemn” these types of wetlands under an eminent domain process and the landowner would be entitled to some compensation for the loss of use pursuant to the Uniform Relocation and Assistance Act. It is unlikely that the states have the funds to do this. So, it is a bit disingenuous to assume that the states can just pick these up. What mechanism would the states use to manage these non-404(g), non-jurisdictional wetlands?

In summary, I believe that this proposed regulation is fatally flawed and will result in much more confusion, legal challenges, job loss, and economic hardship. It was always Congress’s intent that all wetlands and waterways were waters of the US. The problem arose in the last administration’s attempts to redefine what a water of the US is. The idea that something is not a waters of the US means that you can do whatever you want to it is misguided, especially if you are a farmer. Perhaps, rather than focusing on the definition, the Corps could reexamine its Nationwide permit program to allow for more latitude in some of the permits.

On a final note, I know I have been highly critical of this proposed rule. I want to issue a shout out to both the EPA and Army Corps rank and file. I know very few of you have had anything to do with the rule and my comments are not directed at you. I have the greatest admiration for the hard work you do and I know that you are working under very difficult times. It is a shame that this topic has become a purely political one and I look forward to a time when we can all get back to work managing our natural resources in a responsible manner.

Respectfully,

Marc Seelinger, Director

The Swamp School

 

New EPA Policy on Jurisdictional Waters

The Swamp Stomp


Volume 18, Issue 51

Last week, the US Environmental Protection Agency released a draft version of its new Waters of the US definition. During the signing ceremony there were a few statements which spoke to the spirit of the regulation, specifically, the wisdom of the farmers,developers, and the manufacturing industry to know what is best for the land. I am afraid history is against them on that point. Several of the presenters also made mention that a Waters of the US assessment is something that any landowner should be able to perform as a Do It Yourself (DIY) project, much like building a deck or installing a screen door. This would eliminate the need for environmental consultants, civil engineers, planners, surveyors, attorneys, and many civil service positions. Oh, and yes, wetland training companies like us.

This is obviously a concern as the Clean Water Act has spurred on thousands of jobs in the past 40 years centered around environmental protection and compliance. None of this was disclosed in the associated economic impact analysis other than what was done for this proposed regulation.

Before you fire up your resume and consider a career change there is a bit of good news. Wetlands are still regulated and the fact that they require the presence of wetland soils,vegetation and hydrology is just complicated enough to keep most DIYers out of the swamp. Plus, the new regulation is 253 pages long. A DIY screen door is usually 2 pages with lots of pictures.

There is a significant legal question that I plan on asking in the public comment process. It is a bit complicated, but it may prove to be a major flaw in the regulation. It has to do with the state assumption of the Waters of the US.

Under section 404(g), states can elect to assume the federal 404 program. Thus far, only New Jersey and Michigan have done so. I have had the benefit of living through New Jersey’s assumption process so I have a unique perspective and experience on how the assumption process works.

When the Clean Water Act was passed in1972, it was the intention of the writers that all wetlands and waterways would be jurisdictional. This was underscored in the writing of the 2015 Clean Water Rule. What was not mentioned in the 2015 Clean Water Rule was the fact that initially the US Army Corps of Engineers (Corps) had granted an exemption in the form of a general permit (#26) to allow the filling of up to 10 acres of head-water wetlands. These wetlands may or may not have a physical connection to a traditional navigable water way. The was to reduce the regulatory burden on both the Corps and the public. This was an extremely unpopular nationwide permit and it was later reduced to one acre of fill and then ultimately it was eliminated entirely. However, the point being is that these wetlands and waterways were regulated from the onset of the Clean Water Act.

The US Supreme Court chimed in through a series of cases that confirmed that adjacent wetlands are federally jurisdictional and that isolated wetlands are not. Then came the Rapanos case.The nine Justices could not come to a consensus on that case and the lower courts’ decisions were upheld. What is unfortunate is that the current regulations and the proposed regulations are both based upon individual Justices’ opinions. What is before us today represents two opposing sides. The Rapanos case was vacated, so why are using it to make decisions today? I guess it’s just pick your favorite Justice and go with what suits you. This is aside from my point but also an important issue.

The issue is that under this new regulation, the federal government will not regulate wetlands that do not pass the Scalia physical connection test. How then can the states assume these waters under section 404(g)? If they are not regulated by the federal government, there is nothing for the state to assume. The spirit of the EPA proposal is to pass these contentious wetland decisions over to the states. However, if they are non-jurisdictional then the federal government does not have the right to pass them to anyone. It’s not their land! This then becomes a taking issue and the state would only be able to regulate these wetland systems though a state-passed imminent domain process. That will be fun – not.

This is not what New Jersey and Michigan did. They assumed the wetlands (all of them) that were regulated by the federal government. There was a lot of talk about grandfathering when the state laws were passed and there were grandfather provisions due to the more restrictive state versus federal implementation of section 404. However, it was never an issue that the state had the right to regulate the wetlands that were formally regulated by the federal government. At the time, all wetlands were Waters of the US, so the state could assume all of the waters of the state in their entirety.

This new regulation eliminates many of the head-water wetlands that were considered federally jurisdictional. Since some of them only had a biological or chemical significant nexus to a Traditional Navigable Waterway and not a physical connection, they would no longer be considered federally jurisdictional. The idea put forward by the EPA that we should not worry, because the state will regulate these waters if they are important, is disingenuous. If the federal government cannot regulate them, the state would need to create some sort of nexus that would bring these under their control. Forty-eight states, the US Territories, and the Tribes do not have this legislation in place.

I need to make one last point that regards farming. When the Clean Water Act was passed there were farmland exemptions to the Act. This was meant to specify what could and could not be done to a wetland on a farm. This was generally a more relaxed standard than other non-farm activities. However, the wetlands were still regulated. This underscores the intent of the writers of the Clean Water Act to regulate all wetlands and waterways in the US.

The ultimate solution to this issue was described by Justice Alito in the Sacket case of 2012. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.” Sackett v. Environmental Protection Agency (3/21/2012)

Remember, regulations are an agencies interpretation of a law. If they get it wrong, it is up to us to comment and correct them. You will have that opportunity as soon as the regulation is published in the Federal Register in the next few weeks. Your job may very much depend up where this ends up. Please read it and comment.

What is a Waters of the US in 2018?

The Swamp Stomp

Volume 18, Issue 50

In the last several months there have been a series of court rulings that have changed what constitutes a Waters of the US (WOTUS). Ironically, the reason for the change relates to the manner in which the change was announced. What makes it ironic, is that the judges who have ruled against the Trump Administration’s 2015 WOTUS Rule delay have have done so on the basis that the public needed more time to absorb and comment on the delay. These judges’ orders have had an immediate effect which seems a bit hypocritical given the reasons for the rulings.

When the Clean Water Rule was implemented in 2015, a partial and the then a nationwide stay of the Rule was ordered by the 6th District Court. Knowing that this three-year stay would be lifted this year, the Trump administration issued a regulation that imposed an additional 2-year postponement on the implementation of the 2015 Clean Water Rule. There was a brief public comment period and the delay became effective this past spring. Shortly thereafter the 6th Circuit stay was lifted.

This past August, a South Carolina Federal judge ruled that the Trump delay of the 2015 Clean Water Rule violated the Administrative Procedures Act (APA) and that the public should have had more time to comment on the delay rule. Please note that the Trump rule was simply a delay of the implementation of the published rule. Apparently, the public needed more time to absorb the impact of what an additional 2-year delay on a rule that already had been delayed for the previous 3 years would be. This seems a bit silly but as the South Carolina Federal Judge noted in his decision, “What is good for the goose is good for the gander.” This was in reference to all of the Obama era APA violations. It seems to be a possible political payback.

Shortly thereafter, District judges in Texas, Georgia and North Dakota have prohibited the South Carolina Judges’ rule from being applied in 28 states. The remaining 22 states are currently subject to the Obama era rules. The EPA has put together a pretty nice map of this as shown below.

About a week ago, a Washington State Federal judge reinstated the 2015 Obama era rules nationwide. However, this was in direct conflict with the previous Federal Judges’ prohibition on implementing the rules. It is a bit unclear if the rules are in effect nationwide. However, it seems that the previous Texas, Georgia and North Dakota judges’ decisions remain valid for now. So as shown on the EPA map, 28 green states are not subject to the 2015 rule and the 22 blue states are.

This week should prove interesting as the Trump administration has announced that it will be releasing its own Waters of the US definition. This would replace the 2015 Rules. It is expected that this would go into effect sometime before the summer of 2019. The Trump rules would follow the Scalia decision from the Rapanos Supreme Court decision of 2006. This would require jurisdictional aquatic resources to be physically connected to commerce waters. This is a divergence from the Kennedy decision of said same case that required a significance nexus that could also include chemical and biological connections to commerce waters. One can assume that the Scalia test would result in less areas being defined at the Federal level as jurisdictional aquatic resources as it only allows for a physical connection.

We will have more about this in upcoming newsletters and our annual Wetland Status and Trend Webinar in January.

Clean Water Rule Now In Effect

Swamp Stomp

Volume 18 Issue 35

On August 16, 2018, the US District Court of South Carolina, Charleston Division issued an injunction to remove the 2-year delay of implementation of the Clean Water Rule. This arises out of a case brought before the Court by a number of environmental groups represented by the Southern Environmental Law Center against the US Army Corps of Engineers (USACE), The US Environmental Protection Agency (EPA) and the American Farm Federation as well as a number of agricultural groups.

The result of this case was to make Clean Water Rule effective immediately and nationally. However, 26 other states have other Clean Water Rule stays that would remain in effect. The states that are affected by this decision include; California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.

States included in this decision are now subject the 2015 Waters of the US (WOTUS) definition. For all intensive purposes, a 2015 WOTUS includes all waters with the exception of puddles. However, while puddles are mentioned in the regulation they are not defined so, perhaps some could be jurisdictional.

The decision handed down to the agencies by U.S. District Court Judge David C. Norton appears to be largely a political one. In a highly unusual statement by the Judge, it would seem that the Trump administration is being punished for Obama era injunctions. Judge Norton cites in his decision the case of the City of Chicago v. Sessions:

“[U]nder the Obama administration, such injunctions stymied many of the President’s policies, with five nationwide injunctions issued by Texas district courts in just over a year[.] At that time, then-Senator and now-Attorney General Sessions characterized the upholding of one such nationwide preliminary injunction as “a victory for the American people and for the rule of law.” Press Release, Sen. Jeff Sessions III, June 23, 2016. Now, many who advocated for broad injunctions in those Obama era cases are opposing them.”

He further adds a rather fascinating statement of his own:

“This court agrees that nationwide injunctions should be utilized “only in rare circumstances.” Id. This is one such set of rare circumstances. Just because the political shoe is on the other foot does not mean that nationwide injunctions are no longer appropriate. What is good for the goose is good for the gander.”

His decision is based upon a perceived violation of the Administrative Procedures Act. This Act governs how the US government issues among other things regulations. The 2-year delay in the implementation of the Clean Water Rule was issued as a regulation with a 10-day public comment period. Apparently, this was not enough for the Judge. The rule was simply to delay the implementation of the new WOTUS definition.

It should be noted that the Clean Water Rule only defines what is a WOTUS. Not one word of the Rule has anything to do with cleaning up water. A number of environmental groups have rallied around the Clean Water Rule as some sort of water and wetland protection rule. It is not. It simply defines what waters are subject to federal regulation. The assumption is that if it is regulated by the federal government it must be cleaner. It is a bit ironic to make this assumption as the federal government has been responsible for more wetland loss than any other single entity. Just a few decades ago it was the policy of the federal government to drain and fill wetlands. Why then do you suppose that giving the federal government unilateral control over wetlands and waters would guarantee their protection? History would seem to dispute this.

In the meantime, it is safe to expect a delay on the issuance of any permits or Jurisdictional Determinations in the affected states. The Corps will need to issue some guidance on how it will comply with the Court’s findings as there is no current 2015 WOTUS guidance in place. As soon as it breaks we will post it on our FaceBook page and publish a follow-up newsletter.

References: August 16, 2018, Order No. 2-18-cv-330-DCN

Definition of Waters of the United States-Addition of Applicability Date to 2015 Clean Water Rule

2018 Soil Auger Buyer’s Guide

The Swamp Stomp

Volume 18, Issue 33

Wetland Soil Augers

One of the most frequently asked questions by our wetland delineation students is, “what type of soil auger should I buy?”

A quick browse through any of the forestry supply companies catalogs and you are quickly overwhelmed. Who would have thought that there we so many different types of soil augers? Some of them are quite expensive. Many are modular and you end up buying part of an auger and have to order more parts. You do not want to drop a grand on an auger only to find out it is not what you needed or expected.

To help you get a handle on this I have put together brief pros and cons of the most common soil augers used for wetland delineation. This list is based upon my personal field experience with these augers. Each has its place so be prepared to buy a few. I do have a favorite all around auger which I will also cover, but I own a bunch.

Tube Sampler

This is a favorite for the beginning wetland delineator. One of its biggest assets is it is the cheapest. However, it has limitations. The basic construction is a simple tube that is cut open at the bottom. There is usually about a 16 inch half pipe slice that is used to examine the soil profile in-situ. The very end is a ring that everyone gets their fingers stuck in. A good one is about 24 inches in length with an opening extending about 16-18 inches. There is a short t-handle on the top. Sometimes this is detachable with a screw fitting. Others have the handle welded on. The former is a bit more expensive.

One of the biggest advantages of this type of auger is the small footprint it makes. In glacial regions, it is sometimes the only auger that can get in between the rocks. It is also very handy for quick assessments.

The biggest disadvantage is the relatively small amount of soil sample this auger extracts. Oftentimes, it just is not enough sample to make a wetland determination. Small rocks are also a problem as they will plug up the tube end. The issue of cleaning it the sampler end out is also a challenge. Don’t stick your finger in the end. It is sharp and just the right size to get your finger stuck. Use a stick to clean it out.

Screw Sampler

This auger looks like a giant corkscrew. The screw is about a foot long and is about 2-3 feet in total length. The screw is usually attached by extension bars that can be added to achieve a comfortable length. It has a slightly larger footprint than the tube sampler and is similarly useful in glaciated regions.

The biggest challenge with using this auger is the ability to measure the thickness of a hydric soil feature. The screw blades are about .5 inches thick. This results in a stretching of the soil sample. It is hard to estimate how thick a feature may be using this auger. It also provides a very small about of soil sample.

Bucket Auger

 

This is probably the most common type of auger used by soil scientists. Not necessary wetland delineators, however. The basic design looks like a coffee can with one end open and the other end has two blades welded onto it. An extension bar connects in between the bucket and a t-handle on the top. All of these items can be customized to fit the user’s needs.

If you are just starting out delineating, you will probably be handed one of these bucket augers. There always seems to be one hiding in a closet in the office. Someone bought it, used it once and there it sits.

I do not have a lot of pros to offer with this type of auger. The biggest problem is that it grinds up the soil profile making it very hard to distinguish the hydric features if the soil. It also requires that once you auger down and grab a sample you then have to tip the bucket upside down and bang out the sample. This also obscures the features.

Soil scientists like these augers because they are trying to obtain a discrete sample at a specific depth. This is usually why the extension bars are so long. I have seen some augers used in the field that were over 6 feet long. This is very hard to use if you are 5’6” tall.

Dutch Auger (My Favorite)

This auger was made for wetland delineations. It is a double blade at the end of an extension bar and t-handle. It cuts a very nice sample without disturbing the profile integrity. You can usually auger down several feet fairly easily and lay out the samples in more or less the same way they would be found in the pit. You also get a decent amount of sample to play with.

There are a number of brands and styles of this type of auger. The biggest difference between the individual styles is a represented by the size and pitch of the blades. The original use of the Dutch auger was for muddy soils. However, there have been many modifications to the design and there is such a thing as a combination auger that works well in loamy soils as well as mud.

Sharp-Shooter

 

This is also known as a tree planting spade. It is simply a shovel that is 4 inches wide and 16 inches long. It digs a small hole and cuts a nice sample. In a pinch, this shovel will work in almost any circumstance.

The biggest advantage of this sampler is the cost. You can pick one of these up in your local home improvement center for about $25. Most of the other augers mentioned are well north of $200.

The biggest downside to this device is the work associated with it. Digging a hole is a lot of work. You get a nice amount of sample and you can even cut a nice sidewall to see the profile. However, this took a lot of work.

Quick Connect or Not

 

One last note on the issue of quick connects. To be frank, I have yet to see one of these work once they were put into field use. The fittings get gummed up with dirt and the quick connects jamb. I would suggest going with an all welded design. You are not going to take these apart anyway so why spend the extra money. If you need to travel by airplane, TSA is not going to let you carry these on so there is no need to break them down. Just check them or better yet, buy a shovel for $25 when you get to the job site.

Soil Auger Sources