Point Intercept Sampling Procedure

Just how accurate are vegetation inventories? Currently, we are allowed to conduct a visual estimate of percent cover of a given plant species. Based upon the 2020 US Army Corps of Engineers National Wetland Plant List we can determine whether a site has a hydrophytic plant community. Two issues arise from this methodology. The first of course is the proper identification of the plant species. Most wetland biologists put forth a tremendous effort in trying to correctly identify both the genus and species of a given plant. However, the second issue is the estimate of percent cover. This is highly subjective and prone to large error.

The procedure for determining percent cover is a simple guesstimate of looking up into the sky and estimating how much cover each species occupies. Similarly, we also look downwards and estimate the aerial cover of smaller species. The problem lies in the fact that it’s a guess. If you were to have a dozen wetland biologists on a given site, I can almost guarantee that you will have a dozen sets of data. The problem is exasperated by the fact that it is entirely possible for one group of individuals to identify a plant community as being hydrophytic and another group looking at the exact same plant community and find it to be an upland community.

How is this possible? Well quite simply the problem lies in the data collection itself. The current methodology can have variances up to 40%. If you were to go to court and had to defend your data what would be your comfort level given this type of variance?

Fortunately, the US Army Corps of Engineers has published another plant collection methodology. Buried deep in the back of the regional supplements in Appendix B is a procedure called the point intercept sampling method. This procedure is highly accurate and can have a variance of less than 2% among numerous data collectors. As you might suspect it takes a bit longer to do this type of procedure, but the data is rock solid. The following procedure is taken directly from US Army Corps of Engineers regional supplements for wetland delineations. It is highly recommended that you consider incorporating this procedure into your routine wetland delineation methods. As part of our wetland delineation programs, we offer training using this methodology.  Please review the methodology outlined below and let us know your comments.

Appendix B: Point-Intercept Sampling Procedure for Determining Hydrophytic Vegetation

The following procedure for point-intercept sampling is an alternative to plot-based sampling methods to estimate the abundance of plant species in a community. The approach may be used with the approval of the appropriate Corps of Engineers District to evaluate vegetation as part of a wetland delineation. Advantages of point-intercept sampling include better quantification of plant species abundance and reduced bias compared with visual estimates of cover. The method is useful in communities with high species diversity, and in areas where vegetation is patchy or heterogeneous, making it difficult to identify representative locations for plot sampling. Disadvantages include the increased time required for sampling and the need for vegetation units large enough to permit the establishment of one or more transect lines within them. The approach also assumes that soil and hydrologic conditions are uniform across the area where transects are located. Transects should not cross the wetland boundary. Point-intercept sampling is generally used with a transect-based prevalence index (see below) to determine whether vegetation is hydrophytic.

In point-intercept sampling, plant occurrence is determined at points located at fixed intervals along one or more transects established in random locations within the plant community or vegetation unit. If a transect is being used to sample the vegetation near a wetland boundary, the transect should be placed parallel to the boundary and should not cross either the wetland boundary or into other communities. Usually, a measuring tape is laid on the ground and used for the transect line.  Transect length depends upon the size and complexity of the plant community and may range from 100 to 300 ft. (30 to 90 m) or more. Plant occurrence data are collected at fixed intervals along the line, for example every 2 ft. (0.6 m). At each interval, a “hit” on a species is recorded if a vertical line at that point would intercept the stem or foliage of that species. Only one “hit” is recorded for a species at a point even if the same species would be intercepted more than once at that point. Vertical intercepts can be determined using a long pin or rod protruding into and through the various vegetation layers, a sighting device (e.g., for the canopy), or an imaginary vertical line. The total number of “hits” for each species along the transect is then determined. The result is a list of species and their frequencies of occurrence along the line (Mueller-Dombois and Ellenberg 1974, Tiner 1999). Species are then categorized by wetland indicator status (i.e., OBL, FACW, FAC, FACU, or UPL), the total number of hits determined within each category, and the data used to calculate a transect-based prevalence index. The formula is similar to that given in Chapter 2 for the plot-based prevalence index (see Indicator 3), except that frequencies are used in place of cover estimates. The community is hydrophytic if the prevalence index is 3.0 or less. To be valid, more than 80 percent of “hits” on the transect must be of species that have been identified correctly and placed in an indicator category.

The transect-based prevalence index is calculated using the following formula:

PI = FOBL + 2FFACW + 3FFAC + 4FFACU + 5FUPL

FOBL + FFACW + FFAC + FFACU + FUPL

where:

PI = prevalence index

FOBL   = frequency of obligate (OBL) plant species;

FFACW = frequency of facultative wetland (FACW) plant species;

FFAC   = frequency of facultative (FAC) plant species;

FFACU   = frequency of facultative upland (FACU) plant species;

FUPL   = frequency of upland (UPL) plant species.

The Resurgence of Fracking

If you have ever watched the movie, “Monty Python and the Holy Grail,” you will remember the scene where a man is coming down the street yelling, “Bring out yer dead!,” to which a person on the cart exclaims, “I’m not dead yet.”  Well, the same could be said about fracking. From the fracking boom of just a few years ago, we see many wells being capped off and new wells not being drilled. What happened?

To quash the nascent US fracking industry, OPEC+ increased output to lower the price of oil but found they could not maintain those prices forever. Fracking became more efficient and hung on. OPEC+ was finally forced to raise prices back up, with prices stabilizing in the $60/bbl. range. Then, in 2019, the COVID pandemic hit, and its repercussions dominated 2020. Oil demand waned and oil companies began tightening their collective belts. But it may be time to start ramping up production once again.

Hydraulic fracturing in Texas, North Dakota, and most recently, the Marcellus region in Pennsylvania, has turned the US into a net energy exporter. Fracking is one of the main reasons that the US became the world’s largest oil producer, producing over 18,875,000 bpd and fracking may be getting an invigorating boost from several unrelated sources.

The unprecedented attack on Ukraine by Russia and the ensuing conflict has caused many countries, primarily those in Europe, to rethink their commitments to buying Russian oil and gas. As more countries, including the US, pull out of their deals with Russia, countries are scrambling to find alternative energy sources. While this may be a boon for renewable energy in the long run, in the short run, alternative sources of oil and gas are frantically being sought out to make up for shortfalls in Europe to prepare for the rapidly approaching winter months.

The U.S. is considered a swing oil producer and its production is tightly related to market demand. Financers of oil companies are now weighing their options, “Is the oil shortage going to be a temporary one or not?” They have been burned before by previous rapid expansion that did not translate into the profits investors expected. Investors and oil company executives are unsure of what to do. Should the spigots be turned back on, or should we wait and see?

It may not be that simple though. Oil companies may not be able to help offset the loss of Russian supplies sufficiently. During COVID, many workers in the fracking field found other employment and may not be that enthusiastic about jumping back on a ship that may or not float. Loss of funding for infrastructure has left the industry with a severe lack of equipment, which would be needed to get production back to pre-COVID levels. According to Chris Wright, chief executive of Liberty Oilfield services, “We have shortages of labor, sand and equipment, and it will take 18 months to ramp up”. A lot of equipment has been retired; a lot of equipment is past its useful life.” (Eaton, 2022)

Oil companies, however, have not been sitting patiently with their hands folded waiting for a war to boost demand. They found an existing demand and are making huge investments in exploiting it. As the world increasingly turns toward renewable energy and strives to decarbonize, fossil fuel giants like Shell are trying to advance a new plastics boom to keep their ventures afloat. Lured to Pennsylvania by an “unlimited tax credit,” Shell oil has invested over six billion dollars to produce a huge ethane cracker plant in Beaver County, Pennsylvania and, if current profit predictions pan out, there will certainly be other plants that will follow. They will all require copious quantities of shale gas obtained through fracking. Hence, the Shell plant was built near the Marcellus shale fields of Pennsylvania (Marusic, 2022).

Ethane cracking is a process that takes ethane, a gas commonly found with oil and natural gas deposits, and it turns it into the building blocks of plastic. As part of the refining process, ethane is first separated from methane as the raw shale gas is refined. Methane continues along one route and ethane goes into producing plastic. In the cracking process, ethane is converted to ethylene and then into polyethylene. Polyethylene pellets are then transported to plastic producers.

When the ethane cracker plant was proposed, nearby residents were promised a 25-year operating contract, thousands of construction jobs, and over six hundred permanent workers hired upon completion. In addition, local businesses in the region could expect up to 20,000 direct and indirect new jobs.

At the outset, this would seem like a workable solution. There seems to be a never-ending need for plastics in our modern economy. According to a report from NPR, ever since China stopped accepting most of our waste plastic, only about 5% of the plastic currently produced is being recycled. Plastic from ethane cracking would help make up the difference by providing the raw material needed for new products.

Yet, there are concerns that this plastic will end up doubling the size of our landfills and residents worry about increases in air pollution from cracker plants. As always, will the benefits outweigh the costs?

Another industry that will see their services in high demand are environmental companies and consultants. From the increase in gas production from current wells, the fracking of new wells, and the associated pipelines and rights-of-way that will be built, there will be a tremendous increase in the need for wetland delineation services. Every one of these new projects will require delineation of the sites.

Hopefully, the war in Ukraine will soon be over but no one knows how countries will respond to their energy needs in the future. Will they return to their traditional fossil fuel trading partner, Russia, or will the US become Europe’s new go-to partner for oil and gas? As is usually the case, money will be the central focus. Where can we get the energy we need at the lowest price while minimizing political fallout?

As for plastics, we have become dependent on them, and production is expected to double by 2040 and increase by 2.5 times by 2050.

We are certainly in for some major changes. Which direction they take is still the subject of debate.

References:

1. Smith, K. (2022, February 24). Fracking Is a Powerful Weapon Against Russia. Bloomberg -The Washington Post.

2. Marusic, K. (2022, September 15). These are the New Titans of Plastic – Pennsylvania becomes the newest sacrifice zone for America’s plastic addiction. Sierra Magazine.

3. Eaton, C. (2022, March 9). Frackers Say Bottlenecks Impede Output Boost as Oil Prices Soar. The Wall Street Journal.

4. Frazier, R. (2017, April 7) This is exactly How Natural Gas Gets Turned into Plastics. Part of a series, “Energy – The coming Chemical Boom.” The Allegheny Front This story was originally published on September 9, 2016.

2022 EPA Construction General Permit (CGP)

On January 18, 2022, the US EPA signed its 2022 Construction General Permit (CGP) for stormwater discharges from construction activities. This new permit became effective February 17, 2022. It also replaces the 2017 CGP.

The nationwide effect of this permit is limited. The EPA does not have NPDES permitting authority in all states and territories. However, it is effective in the following locations:

  • Massachusetts, New Hampshire, New Mexico, and the District of Columbia
  • American Samoa, Guam, Johnston Atoll, Midway and Wake Islands, Northern Mariana Islands, and Puerto Rico
  • Tribal lands within Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Idaho, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming
  • Federal facilities within Colorado, Delaware, and Vermont, and areas within Washington subject to construction by a federal operator
  • Denali National Park and Preserve
  • Oil and gas activities in Oklahoma

There are several significant changes from the 2017 CGP. These include:

  • Differentiation between routine maintenance and corrective action
  • Clarification on flexibilities for arid and semi-arid areas
  • Requirements for inspections during snowmelt conditions
  • Availability of key documents in electronic form
  • Endangered Species Act (ESA) eligibility determinations
  • Perimeter control requirements
  • Documenting signs of sedimentation
  • Notice of Intent (NOI) Updates
  • Mandatory Training Requirements

The mandatory training requirements go into effect on February 17, 2023. After this time, persons conducting inspections will have to have taken and passed the EPA Construction Inspection Course. Alternatively, if an inspector already has construction inspection certification or license, it may suffice to supply the certification or license program that covered the material outlined in the new permit. Some of this material is new and is unlikely to have been covered for a course that pre-dates the 2022 CGP. The EPA does allow you to supplement your training with their online training class. The good news is the EPA class is free.

There are a lot of updates to documentation that is needed, and mandatory timeframes that must be met. There are also several new provisions for sensitive waters and contaminated sites. The EPA training class covers all of this in about 6 hours. This is offered in five modules. The test at the end is 40 questions.

The EPA training is free, but you will need to keep track of your studies. The system does not bookmark your progress so if you are in the middle of a module and must stop, you cannot pick up from where you left off. However, you do have an unlimited number of test tries to get an 80% passing grade.

To learn more about the EPA training click the button below.

EPA CGP Training (Free)

Problems Posed By PFAS

A recent study revealed that approximately 200 million pounds of toxic substances were released into U.S. waterways in 2020. Although per- and polyfluoroalkyl substances (PFAS) make up only 440 pounds of the total released toxics, the report emphasizes that only 172 out of 12,000 PFAS chemicals must be reported to the EPA’s Toxics Release Inventory (TRI). There is a strong likelihood that PFAS chemicals make up a higher concentration of the total released toxics in our waterways.

What are PFAS?

PFAS are a group of synthetic chemicals that are used in common products like non-stick cookware, water-resistant clothing, fire-fighting foam, and carpeting. These chemicals are often referred to as “forever chemicals” as they are nearly impossible to break down. This is due to their carbon-fluorine bond which is the strongest single bond. Chemicals like PFOA, PFOS, and GenX belong to the parent group of PFAS. The production of perfluorooctanoic acid (PFOA) and perfluoro octane sulfate (PFOS) began in the 1940’s with the invention of non-stick cookware. The production of PFOA and PFOS have since been banned once they were discovered to cause a variety of health issues in humans. Despite the ban of PFOA and PFOS, these chemicals are still persistent in the environment and GenX, along with other PFAS chemicals, are still produced and released into the environment today.

There has been a growing concern of the health and safety of PFAS released into the environment. Their persistence in the environment has resulted in concentrations found in drinking water sources across several municipalities in the United States. In a study conducted by the Environmental Working Group, they found that over 2,800 locations documented a PFAS contamination- they further estimate that over 200 million Americans could have PFAS in their drinking water. These substances are incredibly dangerous as they have been linked to illnesses like liver and kidney cancer, fertility problems, immunosuppression, and diabetes.

PFAS in the Environment

As research into PFAS is new, there are a lot of unknowns about their effect on ecological functions. It has been proven that PFAS can bioaccumulate in fish and wildlife as they do in humans. In laboratory settings, animals exposed to PFAS experienced damage to their livers and immune systems, as well as developmental issues in juvenile stages. It can be assumed that wildlife exposed to considerable amounts of PFAS would experience increased mortality rates overtime.

Bioremediation Strategies

As we know, wetland ecosystems function as filters for the environment by trapping sediment and filtering pollutants from surface waters. There are a few emerging reports that have shown the bioremediation of PFAS using microorganisms and vegetation found in wetlands.

Microorganisms:

As mentioned earlier, PFAS are a persistent contaminant due to their carbon-fluorine bond. Researchers Shan Huang and Peter JaffĂŠ discovered the bacterium Acidimicrobiaceae sp. A6, which is found in New Jersey wetland soils, can break this bond through a reaction called Feammox. Over a course 100 days, the microbe had degraded 60% of the PFOA culture and 50% of the PFOS culture. The applicability of this microbe in wetlands could supply an efficient method to control contaminated soils and groundwater.

Vegetation:

Wetland plants show some of the most unique adaptations to survive in an oxygen deficient environment. A few reports have shown how Juncus sarophorus (Broom Rush), Phragmites australis (Common Reed) and Willows (Genus Salix) can control PFAS contamination through phytoremediation. This environmental engineering tactic is often used for removing metals, sewage, and common wastes from the environment. It is worth noting that most of these experiments were conducted in hydroponic systems. The intention of these studies was to analyze the use of these plants in constructed or floating wetland systems for areas with low levels of PFAS. As more research develops on this subject, it would be interesting to see the comparison of phytoremediation rates between floating/constructed wetlands and natural wetlands.

Sources:

Awad, J., Brunetti, G., Juhasz, A., Williams, M., Navarro, D., Drigo, B., Bougoure, J., Vanderzalm, J., & Beecham, S. (2022). Application of native plants in constructed floating wetlands as a passive remediation approach for PFAS-impacted surface water. Journal of Hazardous Materials, 429. Retrieved from https://doi.org/10.1016/j.jhazmat.2022.128326

HMVT Environmental Solutions. (n.d.). Treatment of PFAS in a constructed wetland using willows. HMVT Environmental Solutions. Retrieved from https://www.hmvt.nl/en/news/treatment-of-pfas-in-a-constructed-wetland-using-willows/

Huang, S. & JaffĂŠ, P. (2019). Defluorination of Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) by Acidimicrobium sp. Strain A6. Environmental Science & Technology, 53, 11410-11419. Retrieved from http://pubs.acs.org/doi/abs/10.1021/acs.est.9b04047

Rumpler, J., Casale, M., Dutzik, T., & Huxley-Reicher, B. (2022). Wasting our waterways: Toxic pollution and the unfulfilled promise of the Clean Water Act. Environment America Research and Policy Center. Retrieved from https://environmentamerica.org/center/resources/wasting-our-waterways/

Zhu, J., Wallis, I., Guan, H., Ross, K., Whiley, H., & Fallowfield, H. (2022). Juncus sarophorus, a native Australian species, tolerates and accumulates PFOS, PFOA and PFHxS in a glasshouse experiment. Science of The Total Environment, 826. Retrieved from https://doi.org/10.1016/j.scitotenv.2022.154184

2022 State of The Birds Report

The 2022 State of the Birds report provided some disheartening news about our Nation’s bird populations. The North American Bird Conservation Initiative (NABCI) estimates that almost three billion birds have been lost in the United States and Canada. In an interesting observation, the report found that bird populations have declined in every habitat, except wetlands. They note the rise of waterfowl populations is attributed to the funding and political initiatives set forth to protect wetland habitats.

North American Bird Conservation Initiative

NABCI is a committee comprised of state and federal agencies, non-governmental organizations, and bird initiatives in the United States that work together to observe and protect native bird populations across the country. Their mission is to utilize this committee to facilitate partnerships that advance biological, social, and scientific priorities for North American bird conservation.

Every two years, NABCI releases their State of the Birds report. Each report focuses on a different factor influencing North American bird populations. For example, in 2010, NABCI focused their report on how the effects of climate change can stress native species. This year, the report shows the population trends across several habitats over the last 50 years. The groups of species monitored in the report include shorebirds, grassland birds, arid land birds, western forest birds, eastern forest birds, waterfowl and water birds, Hawaiian birds, and seabirds.

Waterfowl and Water Birds

As mentioned earlier, waterfowl and water birds in wetland habitats showed a tremendous rise in population growth. NABCI specifically references wetland policies like the American Wetland Conservation Act and U.S. Farm Bill conservation programs, like the Wetlands Reserve Program (WRP).

The waterfowl and water bird section of the report displays the population trends of dabbling and diving ducks, sea ducks, geese and swans, and water birds from 1970-2020. Of these species, geese and swans show the highest increase in population. This trend is due to their adaptation of agricultural and urban landscapes. Diving and dabbling ducks show a steady rise in population; however, their populations are sensitive to wetland drainage, climate change, and grassland loss. Some populations of water birds have increased over the last few decades, but there are at least four species that have been identified as tipping point species. These are species that have lost 50% of their population in the last 50 years and are at risk of losing an additional 50% of their population in the upcoming 50 years. Finally, sea duck species have exhibited a constant rate of population decline because of the increasing effects of climate change, limited food resources, altered predator communities, and changes to their breeding habitats.

The Takeaways

This report is incredibly unique as it shows the importance of establishing conservation efforts to improve the quality of wetland habitats and their wildlife. To maintain this trend in other habitats, NABCI recommends scaling up conservation through a variety of means. They highlight three opportunities to restore habitat quality for our native birds:

  • Climate Resilience: Investing in bird habitats can sequester carbon, improve water security, and protect people from climate disasters.
  • Environmental Justice: Bird conservation is a multiplier that benefits the health of our communities and addresses environmental inequities.
  • Biodiversity: Helping birds improves the outlook for wildlife throughout restored habitats—supporting recreation, economic opportunities, and well-being for people.

Through these avenues, the North American Bird Conservation Initiative hopes that with the involvement of local communities, state and Federal agencies, and advocacy groups, the restoration of native bird populations will stabilize local economies, natural security, and human health.

If you would like to review the entire State of the Birds report, please follow this link to their interactive report: https://www.stateofthebirds.org/2022/

Sources:

North American Bird Conservation Initiative. (2022). 2022 State of the Birds Report. North American Bird Conservation Initiative. Retrieved from https://www.stateofthebirds.org/2022/wp-content/uploads/2022/10/state-of-the-birds-2022-spreads.pdf

North American Bird Conservation Initiative. (n.d.). About. North American Bird Conservation Initiative. Retrieved from https://nabci-us.org/committee/

Automated Wetland Determination Data Sheet (ADS)

On April 5th of this year, the Army Corps of Engineers released its new ENG Forms 6116 (1-9), Automated Wetland Determination Data Sheet (ADS), and the associated “User Guide for Automated Wetland Determination Data Sheets.” This form originated in the Detroit district but is now supported in all 10 Regional supplements. It does not replace the PDF versions of the data forms but is another option with additional features that were designed to save time and cut down on errors.

According to the news release:

The Excel-based ADS increases technical accuracy by reducing errors and increases efficiency by automatically populating many of the field indicators of wetland hydrology, hydrophytic vegetation, and hydric soils. The ADS incorporates or includes the following:

  • Similar layout as the Regional Supplement wetland determination data forms,
  • Application of the most up-to-date plant species wetland indicator status ratings from the National Wetland Plant List (currently the 2020 National Wetland Plant List, version 3.5),
  • Automated calculation of hydrophytic vegetation indicators,
  • Automated interpretation of most hydric soil indicators and certain wetland hydrology indicators,
  • Automated features prompting users to complete, or review required information,
  • Exportable to PDF or other electronic format, and the ability to print formatted hard copies, and
  • Application of the most up-to-date field indicators of hydric soils (currently version 8.2).

Clicking on the ADS form brings up an Excel spreadsheet of the form with either 3 or 4 individual pages depending on whether you are using a 4 or a 5 strata vegetation page.

My review is based on the Eastern Mountains and Piedmont Region Data sheet. Starting with the Project Information at the top of the Hydrology work sheet, you are presented with an exact copy of the PDF data sheets available in the regional supplements. You can tab through each entry, use arrow keys, or select an entry with your mouse. Several of the entries have pull-down lists such as STATE and LRR, which is convenient. Some of the entries are auto filled depending on the data entered on your form such as “Wetland Hydrology Present?  Yes ____ No ____.” The default is NO until you prove you have a wetland. The same is true for the individual pages Hydrology, Vegetation, and Soils.

Moving to the HYDROLOGY section, most of the indicators have a red triangle in the upper right corner of the data entry area as indicated here by a red asterisk. (___* Surface Water (A1)). If you run your cursor over the triangle, you will get a description of the indicator, “This indicator consists of the direct, visual observation of surface water (flooding or ponding) during a site visit.” These indicators must be entered manually depending on the conditions of your site.

Under Field Observations, you can indicate the presence of surface water, water table, and saturation. It will not automatically remove a √ or an X if you change your mind so remember to remove the unwanted symbols.

Accidental entries with any letter/symbol other than an “x” or “X” will appear on the form but will not count as an indicator. Entering remarks is a straightforward text entry.

Under VEGETATION, you have the option to choose either a 4 or a 5-strata vegetation form depending on your region. Each stratum requires you to enter a Plot size. The entry area for any missing data will appear hi-lighted to alert you of a problem. To choose an indicator status for your region, you must first make sure that you have selected a state and an LRR/MLRA on page one.

You are instructed to use proper scientific names, and if you do, the program will give you the indicator status for your region. If, however, you enter the common name, it will allow this, but you must enter the indicator status manually. Once the absolute cover % is entered, the sheet will fill in whether the species is dominant or not based on the 50/20 rule. As you enter new species, the number of dominants may change as the 50/20 rule values change. The Dominance Test and Prevalence Index worksheets are automatically computed unless you elect to NOT have them done by checking a box in the right margin of the sheet. The Rapid Test did not automatically check a box when a sole FACW species was entered. I had to enter it manually. The ADS form will automatically go back to your hydrology page and fill in FAC neutral as a secondary hydrology indicator if the vegetation passes this test.

If incorrect information or information that the sheet does not expect in a box is entered, it can get a little quirky. As with all automation including commercially available programs, it pays to check your work carefully so that the program accurately reflects the information you want presented.

I always like to show a “with and without” sheet when using Morphological Adaptations to adjust of indicator status of FACU species that show these adaptations. However, I did not see a way of adding a second vegetation data sheet using ADS. For this purpose, you could always go back and use the PDF version.

In calculating A, S, and F indicators on the SOILS page, I found that you again, must be careful and thoroughly check the results you are given. For example, the form allowed me to choose an indicator that was only available in a specific LRR/MLRA combination even though I had purposely chosen an incorrect LRR.

The form will populate indicators based on the Munsell information given and often suggests other related indicators that may or may not be applicable in your situation. You can also add your own indicators. An error notice will pop up if you do not enter the layer information correctly such as gaps in the measurements between layers. One other potential issue is when there are combinations of indicators such as with an F6 and A11.

In conclusion, the ADS is a normal Wetland Determination Data Form presented as an Excel spreadsheet with automated features designed to save you time and help eliminate errors. It requires an electronic device to enter the data and therefore also has the associated issues of using electronics in the field.

It may not have all of the bells and whistles of commercially available programs designed to help you complete data forms, but the ADS is a good alternative, and it is free.  Personally, nothing beats a pencil and a Data Form printed neatly!

Sources:

https://www.usace.army.mil/Media/Announcements/Article/2989646/5-april-2022-army-corps-of-engineers-announces-the-release-of-automated-wetland/

EPA Opens Environmental Justice and Civil Rights Office

On September 24, 2022, the EPA announced the merger of three existing programs to create the Office of Environmental Justice and External Civil Rights (OEJECR). The new office is a combination of the Office of Environmental Justice, the External Civil Rights Compliance Office, and the Conflict Prevention and Resolution Center. 

The OEJECR aims to:

  • Improve and enhance the agency’s ability to infuse equity, civil rights, and environmental justice principles and priorities into all EPA practices, policies, and programs.
  • Support the fair treatment and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies regardless of race, color, national origin, or income.
  • Engage communities with environmental justice concerns and increase support for community-led action through grants and technical assistance.
  • Enforce federal civil rights laws that, together, prohibit discrimination on the basis of race, color, or national origin (including on the basis of limited-English proficiency); sex; disability; or age by applicants for and recipients of federal financial assistance from EPA.
  • Provide services and expertise in alternative dispute resolution, environmental conflict resolution, consensus-building, and collaborative problem-solving.

Environmental Justice in North Carolina

EPA Administrator, Michael Regan, stood alongside environmental justice advocates in Warrenton, North Carolina to announce the inception of the OEJCER.

Warren County, NC is thought to be the birthplace of the modern environmental justice movement as a protest sparked in 1982 over the State’s decision to construct a hazardous substance landfill. Warren County is a predominantly Black community that was slated to receive a landfill to process hazardous contaminants, notably PCBs. In opposition to this decision, residents of Warren County and members of the NAACP and United Church of Christ staged a protest to call attention to the exposure of PCBs and the disproportionate environmental challenges inflicted on this minority community. Over the six-week protest, roughly 500 protestors were arrested. Despite the efforts of the community protests, the State pushed for the landfill to open in Warren County, while pledging to enforce clean-ups when the technology became available. In light of this conflict, the Warren County protest gained national attention, thus inspiring similar communities across the U.S. to organize and shed light on local environmental justice issues.

Justice40 Initiative

The launch of the OEJECR stems from the Biden Administration’s Justice40 Initiative. The program aims to dedicate 40% of benefits from Federal investments toward marginalized, underserved communities experiencing environmental justice issues. Including the EPA, the Justice40 Initiative utilizes several Federal agencies to support at-risk communities. Among those agencies include the U.S. Army Corps of Engineers, the Department of Homeland Security, the Department of Agriculture, and the Department of Housing and Urban Development.

The office will be located at EPA’s headquarters in Washington, D.C., and employ over 200 staff members. The office currently oversees the EPA’s Office of Resource Management and Communications, the Office of Community Support, the Office of Policy, Partnerships and Program Development, and the Office of External Civil Rights Compliance.

Please follow the links below to learn more about the Justice40 Initiative and the Office of Environmental Justice and External Civil Rights:

https://www.whitehouse.gov/environmentaljustice/justice40/

https://www.epa.gov/aboutepa/about-office-environmental-justice-and-external-civil-rights

Sources:

Environmental Protection Agency. (2022). EPA launches new national office dedicated to advancing environmental justice and civil rights. Environmental Protection Agency. Retrieved from https://www.epa.gov/newsreleases/epa-launches-new-national-office-dedicated-advancing-environmental-justice-and-civil

Office of Legacy Management. (n.d.). Environmental justice history. Energy.gov. Retrieved from https://www.energy.gov/lm/services/environmental-justice/environmental-justice-history

Wagner, A. (2022). EPA Administrator Regan announces new environmental justice office, $3B in funding. The News & Observer. Retrieved from https://www.newsobserver.com/news/politics-government/article266257236.html

Delineation Concurrence

Over the past several months, several US Army Corps of Engineers (USACOE) districts have started using a new review process called Delineation Concurrence (DC).  A DC provides concurrence that the delineated boundaries of wetlands on a property are a reasonable representation of the aquatic resources on-site. A DC does not address the jurisdictional status of the aquatic resources.  The DC is often an email exchange and does not usually require a site visit.

The DC arose out of the need for the USACOE to streamline its review process with ever shrinking resources.  The need for speed has been a major concern for the Corps as the number of projects under review have increased tremendously.   The DC process is a very simple and quick process, but it has some limitations.

The most significant issue is that the DC does not verify jurisdiction.  This remains with the Approved Jurisdictional Determination (AJD) process.  The DC is like the Preliminary Jurisdictional Determination (PJD) process, but it does not require the field work associated with the PJD.  The DC relies primarily on remote sensing, maps, and other third-party data to concur that aquatic resources are on a site.  Neither of the DC or PJD procedures address the jurisdictional status of the aquatic resources.

The DC process still requires the consultant to preform a full wetland delineation.  The consultants are on the hook for any inaccuracies represented to the Corps.  If a third party challenges a DC, the consultant is the only one that will be defending the aquatic resource data.  The Corps is not providing any “seal of approval” with a DC or PJD.

The main use of the DC is for Nationwide permits.  If the applicant submits a permit request with a Prior Construction Notification (PCN) form, they can also request a DC at the same time.  The Corps is discouraging “standalone” requests and prefers that the JD request be associated with a permit.

This can complicate matters with other regulatory entities and planning boards.  For years the Corps has been training these agencies to require JDs before they issue approvals.  It is going to take some time and a shift in thinking to get these agencies to no longer require JDs.  It may also require formal changes in local ordinances as many municipalities have written the JD requirement into their municipal codes.

It is a reasonable question to ask why the Corps is doing this.  In effect they seem to be backing out of whole JD process.  In fact, they are.

In 2016, the Hawkes case was ruled upon by the Supreme Court of the US (SCOTUS).  That case revealed that JDs are final agency actions that can be immediately appealed in court.  This changed the role of the Corps in the JD process.  They are no longer the final arbiter of what is a jurisdictional aquatic resource.  A federal judge now makes that determination.  The Corps acts as another (well informed) opinion.

There is a fair amount of risk associated with DCs.  If a site has a waterbody on it that the consultant thinks is non-jurisdictional, the consultant is on the hook for that determination.  This is true even if the Corps issues a full AJD.  The liability for the accuracy of the jurisdictional data remains with the consultant and the applicant for DC requests.  In the AJD scenario, the Corps would only become a co-defendant should the determination be challenged.  The Corps makes it very clear that DCs and PJDs are non-binding and do not represent a jurisdictional opinion.

All of this opens the possibility for legal challenges to what is a deemed a jurisdictional aquatic resource under the Clean Water Act.  Any project, big or small, can be challenged by a variety of third-party environmental groups, federal agencies like the EPA or Fish and Wildlife, or other public interest groups.  The accuracy and defense of the site data remains with the consultant, the applicant, and the landowner. 

This leads us into a discussion of whether there should be some sort of licensing or credentialing of aquatic resource delineators.  It would be fair of an insurance company to question the credentials of someone who does this type of work before they issue an Errors and Omissions (E&O) policy or pay on a claim should the consultant be sued.  It is envisioned that it would be some sort of state board would be needed to license aquatic resource delineators.

The Corps has implemented the DC program in over half of the U.S.  Many other Corps Districts are considering it.  It is a useful permitting tool, but it underscores who is ultimately responsible for the jurisdictional determination.  The Corps has made it clear they will no longer assume responsibility.

The Sackett Two-Step

On October 3, 2022, Mr. and Mrs. Sackett and their legal team will be making oral arguments to the Supreme Court of the US (SCOTUS) about the extent of federal jurisdiction on their land.  This is the second time in 10 years that the Sacketts have been before the Supreme Court over a wetlands issue on the same piece of property in Idaho.  It is extremely rare for the same individuals to go before the Supreme Court and even rarer for it to be the same piece of land that is being discussed.

At issue is that the US EPA and the US Army Corps of Engineers have identified federally protected wetlands on the Sackett’s property.  The Sackett’s initial SCOTUS case was all about due process and the Administrative Procedures Act (APA).  The EPA/Corps required that the Sacketts restore, mitigate, and pay a fine with the benefit without the benefit of a defense.  The SCOTUS unanimously sided with the Sacketts.  However, the issue of wetland impact was never decided.

The current issues are that the EPA/Corps have determined that federal wetlands are present and impacted on the Sackett property.  The Sackett response is that the wetlands on the property are not federally jurisdictional.  The SCOTUS has agreed to hear the case which opens the issue of what types of wetlands federally jurisdictional.

The EPA/Corps arguments follow the Rapanos significant nexus test.  They envision that the site is jurisdictional as described in the April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.

Priest Lake is a navigable water → A non-navigable creek connects to Priest Lake → The non-navigable creek is connected to a non-navigable, man-made ditch → The non-navigable, man-made ditch is connected to wetlands → These wetlands, though separated from the Sacketts’ lot by a thirty-foot-wide paved road, are nevertheless “similarly situated” to wetlands alleged to exist on the Sacketts’ lot → These alleged wetlands on the Sacketts’ property, aggregated with the wetlands across the street, bear a “significant nexus” to Priest Lake.

The Sacketts have proposed a two-step test for determining whether a wetland is among “the waters of the United States” subject to regulation under the Clean Water Act.  The first step questions whether a wetland may be considered a “water.” This step has two prongs. The first prong requires a finding that the wetland has a continuous surface-water connection with a “water,” such that the resulting physical nexus makes the wetland and “water” “inseparably bound up,” to the extent that it is difficult to say where the wetland ends and the “water” The second prong requires a finding that the “water” to which the wetland is thus connected is a hydrogeographic feature ordinarily referred to as a “water,” such as a stream, ocean, river, or lake.

(April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.)

The two prongs of the first step are compelled by the statute’s text, which regulates “waters,” not land (wet or otherwise) or other features (such as sewer systems or some manmade ditches) that are not commonly denominated as “waters.” Although the Court in Riverside Bayview upheld the regulation of wetlands immediately adjacent to a navigable-in-fact river as “waters,” it did so only because of the inherent ambiguity in defining the border between true waters and wetlands immediately adjacent to and abutting those waters. Hence, where such a physical nexus is absent—that is, where there is no line drawing problem—wetlands and other non-waters that are merely nearby true “waters” cannot themselves be deemed to be “waters.”

(April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.)

The Sackett’s second step requires a finding that the “water” is “of the United States”—in other words, that it is subject to Congress’s authority over the channels of interstate commerce. This step follows from the Court’s conclusion in SWANCC that the Act is an exercise of Congress’s commerce power over navigation. Such power traditionally encompassed various types of interstate waters, as well as some activities outside those waters that nevertheless harmed them. But given its dissatisfaction with the regulatory status quo that was limited to such waters, Congress had by 1972 determined to go beyond prior statutes and to exercise the full extent of its channels of commerce power. The result is a Clean Water Act that regulates not just traditional navigable waters, but also intrastate waters that serve as a link in a channel of interstate commerce.

(April 11, 2022, Brief of petitioners Michael Sackett, et al. filed.)

Based upon this two-step analysis the Sackett argument is that lot contains no “waters of the United States.” Therefore, the Sacketts are entitled to a declaration that EPA lacks jurisdiction over their property. 

This should be closely watched.  The Biden Administration has put a stay on the release of the final Waters of the US rules it recently published.  At issue is that the Biden rules rely heavily on the 9th Circuit significant nexus test.  If SCOTUS overturns the significant nexus test, then the Biden rule would become moot.  So, there is a lot riding on this case. 

Oral arguments are in October.  Perhaps we will get a decision by next June.  Stay tuned!

Hydric Soil Indicators- PART 2

One of the most fundamental and often confusing topics around soils are hydric soil indicators. There are just so many of them. Each regional supplement also has different indicators. Tweaks are often made that are region or sub-region specific. 

The most basic concept surrounding the hydric soil indicators is that they only apply to hydric soils. Now this may seem a bit obvious, but it is critical to the understanding how they work. Non-hydric soils do not exhibit any of the listed indicators. However, if an indicator is present, it tests positive for hydric soils. Once that happens, it is not usual to find multiple indicators in the same soil profile. If there are no indicators present, the soil is not hydric, and no indicators should have been found. This becomes a bit tricky when dealing with remnant hydric soil as shadows of indicators might be present. However, the soil is not actively hydric. The lack of hydrology indicators may help to confirm this. 

The next topic is, “what is it we are looking for?” The hydric soil indicators are based upon how three groups of elements respond to the presence of water. It is not just the presence of water, but the anaerobic environment the water creates. These element groups are: 

  • Carbon 
  • Iron and Manganese 
  • Sulfur 

The easiest one to spot is sulfur. The soil stinks like rotten eggs. If you have stinky soil, you meet one of the hydric soil criteria. Iron and manganese are also easy to spot. There is a distinct color change from orange red to grey in the case of reduced iron. The anaerobic environment chemically changes the color of the soil. Manganese tends to turn black in this wet environment. However, the problem with these chemicals is that the color change back to the brighter colors in an aerobic environment may not happen quickly or at all in some cases. Consequently, you need to make sure that you have an active reducing environment by cross checking your hydrology indicators. 

Carbon is perhaps the trickiest. A simple explanation is that a significant amount of organic material (a.k.a. carbon) is present due to the lack of oxygen in the environment. The soil microbes are not able to break the organic material down because they need oxygen to do this. The more the soil is subjected to anaerobic conditions, the thicker the layer of undigested carbon becomes. The more organic matter, the more likely the soil is hydric. 

To help organize the indicators, the Corps uses the USDA texture classes. Each indicator is grouped based upon it’s dominate texture. These include sand, loam, and no specific texture.
Sand is the easiest, the texture is sandy like beach sand. All the indicators have this in common. The funny thing about this one is that the presence of organic matter is a big part of the “S” indicators. 

Loam is denoted by the letter “F.” It stands for fine sand or finer. This includes silts and clays. Most of the indicators in the F category related to iron and manganese color changes. 

All soils are the last category and are listed as not specific to any one texture type. Many of the poorly drained organic soil types fall into this category. However stinky soil also is an “A” indicator. These are sort of “other” but with a strong emphasis on organic soils. 

One last thought on this soil overview, many of the indicators have thickness requirements. A given soil feature must be a specified thickness to count. It may also have to occur at a specified depth. Otherwise, the feature does not count. You can also combine features, if present, to meet these thickness thresholds.