Author: Marc Seelinger

Wetland Wednesday

September 16, 2020

About a month ago the US Army Corps of Engineers (Corps), The US Environmental Protection Agency (EPA) and the US Department of Agriculture (USDA) issued a memorandum of understanding about issues relating to implementing section 404 of the Clean Water Act (CWA) and the Food Security Act (FSA). The concern is the fact the the USDA and the EPA/Corps define wetlands differently. In short, the USDA protects wetlands from filling by farmers and the Corps/EPA regulates the filling of wetlands under the CWA. Consequently, these agencies have different missions and a very different outlook on what a wetland is.

The memo indicates that the USDA will use the FSA Manual to determine farm subsidy eligibility. The Corps/EPA will use the newly released Navigable Waters Protection Rule (NWPR) to determine Federal jurisdiction. These two approaches and vary widely and there is an effort to coordinate locally using Local Level Agreement (LLA)’s. The main goal of a LLA is to “to promote business process efficiencies in order to reduce delays in actions related to their wetland programs.”

One of the biggest topics where the Corps/EPA is different from the USDA concerns Prior Converted Cropland (PCC). The Corps/EPA look to re-regulate PCC while the USDA is concerned about long term wetland effects or impacts that me associated with farming. To try to explain this I have copied the entire PCC discussion text from the memo below. If you would like to download the entire memo you can get it HERE.

IV. PRIOR CONVERTED CROPLAND

The USDA is responsible for making determinations as to whether land is prior converted cropland for FSA purposes, whereas the Corps and EPA are responsible for determining applicability of the prior converted cropland exclusion for CWA purposes, consistent with the government’s longstanding interpretation of those agencies’ authority under the CWA. The USDA’s regulatory definition of “prior
converted cropland” and the definition established in the Navigable Waters Protection Rule (NWPR; 85 FR 22339) have different purposes and they are substantively different. A determination of the applicability of the prior converted cropland exclusion for CWA purposes does not affect the USDA’s administration of the FSA or a landowner’s/operator’s eligibility for benefits under USDA programs.

The NWPR excludes prior converted cropland from the definition of “waters of the United States” under the CWA and defines the term “prior converted cropland” for CWA purposes. The definition of “prior converted cropland” in the NWPR clarifies that the exclusion is no longer applicable when the subject cropland is abandoned and the land has reverted to wetlands, as that term is defined under the NWPR. If the prior converted cropland exclusion does not apply, the Corps and EPA are responsible for determining whether the wetlands are “adjacent wetlands” and therefore “waters of the United States,” consistent with the NWPR. For purposes of the CWA, prior converted cropland is considered abandoned if it is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. See NWPR, 85 FR 22339; 33 CFR 328.3(c)(9). Prior converted cropland may not be subject to CWA regulation even after it is abandoned because the land does not revert to wetlands or because the land reverts to wetlands but those wetlands are not “adjacent wetlands” as defined in the NWPR. However, in some instances abandoned prior converted cropland may, under normal circumstances,
meet the definition of “wetlands” under the NWPR. In all cases, the burden to prove that such wetlands are “adjacent wetlands” and therefore a “water of the United States” remains with the Corps and EPA.

When determining the extent of “waters of the United States” subject to CWA jurisdiction, the Corps and EPA will exclude waters meeting the definition of “prior converted cropland” under the NWPR. 85FR 22326. The Corps and EPA will defer to any USDA determination as to whether a parcel or tract of land is prior converted cropland when the Corps and EPA determine the applicability of the prior
converted cropland exclusion under the NWPR. Id. Once eligibility is determined based on a determination made by USDA, the Corps and EPA will evaluate the land to determine if the exclusion under the NWPR currently applies, or if the land has been abandoned, as described in the NWPR. A landowner/operator seeking eligibility for USDA loans and payments without an existing prior
converted cropland determination from USDA may seek a new determination from USDA. See 85 FRTo allow the Corps and EPA to rely on a USDA prior converted cropland determination, the landowner/operator may provide a copy of the USDA determination to the Corps and/or EPA.2 The landowner/operator would need to determine which information is relevant to submit to the Corps and/or EPA for prior converted cropland purposes. The USDA can assist the landowner/operator in determining what information may be relevant. In the absence of a USDA determination as to whether a parcel or tract of land is prior converted cropland for FSA purposes, the Corps and EPA will evaluate any relevant information or documentation provided by the landowner/operator, as well as relevant additional sources of information as appropriate, to determine whether an area meets the definition of “prior converted cropland” under the NWPR and is excluded from the definition of “waters of the United States.” In evaluating the status of such lands as prior converted cropland for purposes of applying the NWPR exclusion, the Corps and/or EPA will consult with USDA as appropriate.

“Agricultural purposes” under the NWPR includes land use that makes the production of an agricultural product possible, including but not limited to crop production, grazing and haying. 85 FR 22341. The NWPR also clarifies that cropland that is left idle or fallow for conservation or agricultural purposes for any period or duration of time remains in agricultural use (i.e., it is used for, or in support of, agricultural purposes), and therefore maintains the prior converted cropland exclusion. 85 FR 22341. Agricultural purposes include, but are not limited to, idling land for conservation uses (e.g., habitat; pollinator and wildlife management; and water storage, supply, and flood management); irrigation tailwater storage; crawfish farming; cranberry bogs; nutrient retention; and idling land for soil recovery following natural disasters like hurricanes and drought. The uses listed above, in addition to crop production, grazing and haying, fall within the term “agricultural purposes” and, if documented, may maintain the prior converted cropland exclusion from the definition of “waters of the United States.” Conservation practices, including those required or supported by USDA, state, and local programs (including recognized private sector programs that partner with government programs or that can provide verifiable documentation of participation) are critical to the success of agricultural systems across the country. Conservation practices and programs also are conducted “for or in support of agricultural purposes” and are appropriate to maintain the prior converted cropland exclusion from the definition of “waters of the
United States.” 85 FR 22321.

It is important to note that some progressive agricultural activities and conservation practices can be difficult to recognize. This is often true for agricultural uses that mimic natural processes and have significant environmental benefits. For example, the USDA promotes soil health practices which emphasize maintaining diverse vegetative covers on soil at all times throughout the year, even on
cropland. To some, this may give the appearance of abandoned land. For difficult-to-recognize agricultural use activities that result in instances when soil tillage is reduced or eliminated on cropland (e.g., soil health), or water is stored for re-use on a dedicated area of cropland (e.g., tailwater recovery), the Corps and EPA can rely on USDA for examples of potential documentation of agricultural use (such
as a landowner’s/operator’s conservation plan, land use certifications for specific fields with USDA Farm Service Agency, and related documentation). The USDA may assist landowners/operators with information and documentation of agricultural use and other information which may demonstrate that prior converted cropland has not been abandoned or may no longer meet all parameters of wetland criteria. In addition, various other types of documentation may be used to indicate that land is being used for or in support of “agricultural purposes” and that the prior converted cropland exclusion continues to apply to a certain field or tract of land. In making an abandonment determination, the Corps and EPA intend to work closely with the landowner/operator and USDA, as appropriate, to determine whether the land is currently or has been used for or in support of agricultural purposes at least once in the immediately preceding five years. The Corps and EPA may consider documentation from USDA and other federal or state agencies as well as other relevant sources of information.

In circumstances where the landowner/operator wants to provide the Corps or EPA direct access to their USDA records regarding a USDA prior converted cropland determination and/or information which may be useful for establishing agricultural purposes, the landowner/operator may provide the Corps or EPA with a signed consent form (see Appendix A) to allow those agencies access to the relevant information. 85 FR 22326. The landowner/operator should note that in signing the consent form they are authorizing the Corps and EPA access to their complete record with USDA.

Oh, and don’t forget none of this applies to the State of Colorado. Have a great week!

Wetland Wednesday

September 2, 2020

The US Army Corps of Engineers (USACE) released a draft version of its Antecedent Precipitation Tool (APT) on July 8, 2020.  The tool is a desktop-based web interface written in Python by Jason Deters of the Corps.  It is Windows compatible, but it does not appear to support Apple.  It is also not mobile ready.

The purpose of the APT is to simplify the rainfall analysis now required for a wetland delineation as described in the new Navigable Waters Protection Rule (NWPR).  The NWPR necessitates that wetland delineations should only be conducted when rainfall amounts on or before the delineation are considered normal for the season.  This translates to rainfall amounts occurring within the 30^th and 70^th percentiles of the daily mean.  Below 30% is considered too dry and above 70% is conserved too wet to conduct a wetland delineation.

There are a number of rainfall analysis tools in use currently.  However, there are none that are explicitly designed for wetland assessment proposes.  This new USACE APT is designed specifically for wetland delineation use.

It is important to note that this new APT is in beta form.  It has not been formally released by the USACE and it is only available to the public via GitHub.

There are a lot of positives about this new tool.  The first of course is that it is free!  Second it does a really nice job of plotting out graphical illustrations of the rainfall trends.  The tool automatically prepares a spreadsheet of the entire data review and produces daily graphs in PDF format.  Both are easy to read and there is a lot of in app help and help guides back on GitHub.

The tool starts up in a command box and an interconnected graphical user interface (GUI).  It has a bit of a DOS look but I would rather see what it is doing rather than hiding it and just using the GUI.  So, I will also count the DOS look as a positive.

To run the tool the user simply enters the latitude and longitude of the project site and either a single date to review or a date range.  That is it.  The program does the rest.  It will pull down recent rainfall data and compare the current data to historic data via another web tool called WebWimp.  Once it is done you have a nice graph and spreadsheet that you can dive into.

There are some negatives to this tool.  The first is the ability to install the tool onto your computer.  Anti-virus programs and many server and local cyber security tools will prevent it from installing and running.  These all must be turned off.  Good luck getting your IT staff to let you do that.  I would recommend buying a cheap laptop and using it on your company’s guest network or other unsecured network (Starbuck’s?).  Just do not install any security software.  Windows will also put up some warnings, but you can bypass these once it gets done with the “are you sure” messages.

From a wetland science perspective, I only have one issue with the program.  The dependence on WebWimp for historic data is a bit of a concern.  WebWimp is a web-based system hosted and developed by the University of Delaware.  Its last update was around 2009.  Being over 10 years old is not the concern.  We are looking at historic data after all.  The issue degree of accuracy of the data relative to the project site.

WebWimp is basically an online portal to an old database.  The user enters the site latitude and longitude and it almost instantly produces a wet, dry and normal year result.  The USACE APT does this through a direct database call between the two systems. 

WebWimp is not doing any calculations.  It is too quick.  It is just doing a lookup.  The publisher indicates that it is accurate to half a degree of latitude and longitude which is 30 plus miles in either direction.  I suspect that there is also a lot of extrapolation between even these points.

At issue is that the APT is running a very accurate local analysis of rainfall data and then comparing it to very generalized historic data.  The problem that results from this is that the historic data does not account for on-site conditions like rain shadows and other localized weather phenomenon that are ongoing.

There are other historic rainfall analysis tolls that would use the same APT precipitation data set.  WetBud for example will take 30 plus years of weather data and calculate wet, dry and normal years based upon local weather data.  I suspect that this could be a feature added into the APT in a future version fairly easily.

Overall, I really like this new APT.  I would suggest using WetBud to generate your own historic data calculations and compare them to what the APT puts out.  The math to adjust is based upon “real” data and would simply be accounting for the 30^th and 70^th percentile range of the calculated data.  In short, I give this latest USACE effort two thumbs up!

Wetland Wednesday

August 19, 2020

Back in January (AKA pre-COVID) the  U.S. Fish and Wildlife Service (FWS) proposed a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.  This rule was focused on the intentional injuring birds.

Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.  The goal of this new rule is to end all enforcement against the predictable and preventable killing of migratory birds from commercial activities.

In short, the idea of this rule is to encourage best management practices and eliminate enforcement on mainly energy related projects.  The idea is that the killing of the birds is not intentional and therefore should not be prosecuted. 

Many birding groups, environmental and conservation organizations voiced significant concern about this new rule.  The FWS largely ignored the public comments and the new rule went into effect in the spring (AKA COVID season).  However, Audubon being the largest of the concerned groups filed a lawsuit on May 24, 2020 in the southern district of New York Federal Court.

On August 11, 2020 (still COVID)  United States District Court Judge Valerie Caproni ruled that the legal opinion which serves as the basis for the FWS rollback of the Migratory Bird Treaty Act does not align with the intent and language of the 100-year-old law. In her ruling, Judge Caproni found that the policy “runs counter to the purpose of the MBTA to protect migratory bird populations” and is “contrary to the plain meaning of the MBTA”.

“With today’s court decision, the administration should abandon the regulatory process it started to make this illegal bird-killing policy permanent,” said Sarah Greenberger, Interim Chief Conservation Officer for the National Audubon Society. “With the legal basis for its actions over the past year defeated the administration should expect more defeats in court if they try to lock-in their attempt to roll back the MBTA.”

Judge Caproni’s response to this opinion is clear: “There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only “some” kills are prohibited.”

“For decades this law has been a proven incentive to remind companies to do the right thing for wildlife,” added Greenberger.

Judge Caproni stated in her opening remarks: “It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

Wetland Wednesday

August 5, 2020

In this last part I wanted to go over some of the value-added features of an online class.  While it may be nice to offer a class on demand or at least on a flexible schedule there is still a need to maintain a sense of connectedness between the student and teacher.  There are several tools in the marketplace that can help with this.

One of the more popular communication tools for a class setting is Zoom.  In addition, there are number of paid remote meeting tools that offer a variety if features.  Zoom has the big advantage of being basically free, however you do get what you pay for with this type of tool.  Perhaps the biggest downside to free is that you have no or very little control of who can see you meeting and how it may be archived.  There have been numerous stories of Zoom bombing a meeting with inappropriate images or behaviors from unwanted guests.

Personally, I really like Big Blue Button for our internal meetings with staff and students.  Access is limited to only registered Swamp School participants and cannot be Zoom bombed.  It is not free, but the cost is not that bad either.  It also can switch presenters very easily during a meeting.  This is very handy when a student wishes to display a photo or add some more detail to a question.  It also has a very tight integration with many Learning Management Systems (LMS) such as Moodle, Schoology and Blackboard.  This makes it very easily to implement across an entire program.

Video tracking has always been a bit dicey.  How do we know if a student has watched an entire presentation?  We need to ensure that when we issue a certificate that the student has completed the material.  The answer is a new tool called WarpWire. 

WarpWire is both a video playback system as well as a video analytics program.  It gives us the ability to see who has watched what video and for how long.  It has a very nice reporting feature that is easily to access.  It is also integrated with the major LMS’s so it is very to use once it is installed.

WarpWire also has a number of behind the scenes features that allow the instructor to easily create a video on the fly.  This is very useful in “how to” type lessons.  It also maintains a video library that can be used across classes.  One of the biggest benefits is that there is a lot of control over how a video can be shared or not.  Many of our videos are proprietary and we would rather not see theses blasted across YouTube for all to see.  Although this is one of the more expensive features we use, the security WarpWire provides is worth it.

Sadly, there is one other value-added feature that we have had to implement.  Plagiarism has become rather commonplace in the online learning world.  It is very easy to Google your way through a class and just copy and pasting your way to a degree.  This is especially disconcerting given how just about all of our schools are going online. 

There is a solution to this in the form of a plagiarism checker.  We use one called UniCheck and have been very happy with it.  It integrates nicely with our LMS and is relatively inexpensive to run.  There are a number of plagiarism checkers in the marketplace and pricing is all over the place.

A good plagiarism checker should do a couple of things.  First it will check the student document against the entirety of the internet.  Then it will check a custom repository of previous student submissions.  Any duplicate phrases and paragraphs will be flagged, and a report will be quickly (usually only a few minutes) generated.  This report is visible to the student and they can decide if they want to submit or revise based upon the score.  Oftentimes common phrases are shown as plagiarism warnings and the student can look these over beforehand.

Once the student hits the submit button the report and the document is sent to the teacher.  Usually the teacher will ignore the common phase issue, but sometimes it is a hit at a bigger problem.  The nice thing about the initial student report is that the student will see how they rank thereby avoiding uncomfortable discussions with the teacher before they submit.  Afterwards it is a whole other matter.

One item on our value added wish list is a photo plagiarism checker.  So far, we have not seen this in the marketplace.  We have had a few of our students download pictures of wetland plants and try to pass them off as their own.  We usually check these manly having seen the same photo many times.  We will even Google the plant name to see if the student submission matches.  This is a time consuming process and some sort of photo checker would be a great help.  But for now, we are always watching.

I hoe this has been a helpful review of some of the good and bad of online learning.  As we move forward into the school year, I suspect these issues will continue to crop up. 

All the best,  Marc

Wetland Wednesday

July 22, 2020

This is part one in a three-part discussion on the good, the bad and the ugly of online learning.  We hope that this will help both students and teachers prepare for the upcoming school year and that they will benefit from our lessons learned discussion.  Please share this with any educators you know.

The demand for online classes and training has grown exponentially as a result of COVID-19.  Public and private elementary, middle and high schools are turning to online classes as well as colleges and universities.  Working from home and collaborating with co workers is made possible using a number of online education tools.  I think that it is a safe bet to say that online education is here to stay and may even replace traditional forms of education.

As with anything new to the marketplace there are good aspects of this and bad.  Probably the biggest issue is the lack of student social interaction coupled with a teacher’s inexperience with the online format.  Most teachers were not anticipating having to jump right into online learning and it is unfair to expect that they would immediately know how to run a virtual classroom.

Student social distancing is difficult if not impossible to manage in a traditional classroom setting.  Unfortunately, online learning makes student social interaction very limited and the life lesson cost of the loss of student social interaction will be high.  However, there are some things we can do to make it a little better with the online format and we will discuss these in the coming weeks.

Online classes have a short but dynamic history.  We can probably put a start date on the online education technology around 2003.  The Swamp School, being an early adopter to anything new and shiny started its first online wetland delineation class in 2006.  We have learned a lot about what works and what does not work having taught thousands of online students in the last 14 years.

First, a Zoom meeting is not online learning.    Zoom meetings much like its real-life counterpart, the office meeting is largely a waste of time.  There may be a few tidbits of knowledge transferred, but given the time spent versus the benefit received, there must be a better way to transfer information.  At least in the office meeting there are no barking dogs, kids running around, washing machines running and all the other generally noisy mayhem of normal home life.  There are better ways to teach online without Zoom as we will discuss.

A successful online learning program needs to be built upon a learning management system (LMS).  There are several very good LMS platforms in the marketplace.  The top three are Moodle, Blackboard, and Schoology.  There are also a few very bad ones.  Google Classroom tops this list.  The adage, “you get what you pay for” is very true when exploring LMS systems.  Blackboard and Schoology are both proprietary LMS systems.  They are hosted by the LMS providers and you pay a monthly or annual fee to keep them running.  This fee can be quite high.  Moodle is open source and therefore free to use.  However, it is like getting a free puppy.  The puppy is free but the vet bills, food, housing etc. are not.  Moodle is very good but requires a robust server system to run on and IT experts to keep it operating smoothly.  We use Moodle at the Swamp School and have been very happy with it, but it is not free to run and the server costs maintenance are similar to the hosted LMS fees.

Google Classroom is free.  It has very few features and you give Google all your private teaching materials to do what ever the heck it wants to do with it.  If you have any class materials that are unique or proprietary, they are available for all to see in the Google universe.   

Google Classroom was developed out of a much smaller company that Google purchased and put out of business.  It has very limited features, but if all you are looking for is a way to post publicly your class materials on a bulletin board then this is an easy and free way to do it. 

Classroom control is a starting point for most LMS systems.  Who can access your information and for how long is important to keep students on task.  Having due dates for assignments and tests are critical to keeping a student engaged.  We have seen this over the years.  Students need gentle reminders to keep engaged with the class.

Most of the better LMS systems start with an admissions setup that gives the student a username and password.  From there they are enrolled into a class.  There should be a defined start and end date to the class and a way for the student to see their progress in the class.  The more automated tracking of assignments the better.  This will help both the teacher and student keep up to date on the class.

Speaking of teachers, there should be one assigned to the class.  The teacher should be available to the students to answer questions in a timely manner.  Generally, student questions should be addressed by the teacher during the normal class day or the next class day at the latest.  It is critical to have a live teacher as part of the class.  As good as you think your presentation materials may be, a teacher is still needed to answer those “what if” and “I don’t understand” questions that always come up.

Many technical training schools require a subject matter expert (SME) to prepare presentation materials to explain a difficult topic.  However, SMEs generally make lousy teachers.  They may be an expert on a topic, but teaching is a skill unto its own.  If a teacher can grasp the topic, they can find a way to explain it to the student in a much more meaningful way.  The teacher’s top skill is communications which is often lacking with many SMEs.

Next week we will discuss how to organize your class materials to make it more effective for your students.