2020 Nationwide Permit Comments

Wetland Wednesday

December 2, 2020

There is an ancient Chinese curse that seems most appropriate for 2020.  “May you live in interesting times.”  There is some debate as to whether this curse is attributable to the Chinese, but the meaning rings true.

I think it is safe to say that this year has been an interesting time.  The list of interesting topics is long and incudes a pandemic, a contested Presidential election, national protests, and mask mandates to name a few. 

The topic of wetlands regulation has also fallen to this curse.  We now have a new Waters of the US (WOTUS) definition, a new wetland plant list, new state wetland programs, and a new wetland permitting program.  The last of these I would like to focus on. 

A couple of weeks ago the public comment period for the USACOE Nationwide Permitting program had ended.  It had a whopping 534 public comments.  This is a far cry from the 1.6 million comments the Obama Administration had for its Clean Water Rule.  Ironically, the changes to these permits are as significant to the development industry as the WOTUS definitions updates where.  What is even more important about this general lack of interest in permits is that this low comment number expedites the final issuance of the new permits.

Looking into my muddy crystal ball I would expect to see these permits issued in final form before Inauguration Day in January.  The public comment period ended on November 16, 2020.  With only 534 comments to manage.  I would expect that the Corps has already finished its review of the comments and is in the process of formulating its response.  It would be reasonable to expect a pre-publication announcement within a week or two and final publication in the Federal Register on Christmas Eve.  December 24 has been a popular day to publish new wetland rules in the past.  The effective date of the new rules would probably be 30 days from publication with an outside chance that it might extend to 60 days.  Even if there is a new President seated there is nothing to stop this process once it has been published.

The comments themselves are fairly substantive.  I have reviewed many of them based upon who the commentor was.  From this I can briefly summarize the comments on a more wholesale basis.

To start there were very few seminar comments.  These are comments that are basically, “I like/dislike this new rules.”  Insert name here.  Most of the comments from individuals were genuine people with a specific concern. 

The government agency comments can be lumped into one general category.  They do not like to mess with the status quo.  At issue is the elimination of the 300-foot stream impact limit.  This has been replaced with a 0.5-acre threshold limit.  Their main concern relates to how to translate this into the various state permitting and mitigation rules.  One concern brought up by the NC Department of Mitigation Management poses an interesting dilemma.  They have over $400 million dollars’ worth of unencumbered stream restoration credits that are based upon a linear footage program.  The change to acreage creates significant bookkeeping problems.  It will be interesting to see how the Corps responds to that one.

There is also an issue with Statewide Programmatic Permits.  Well, there is no longer an issue with these permits as they would no longer exist.  Several state agencies had queried on this topic.

The private sector development groups have concerns about increasing the permit threshold limits.  Groups like the National Homebuilders would like to see these thresholds increase.

The environmental groups are generally opposed to these permits.  This stems largely from the National Environmental Policy Act (NEPA) issues that caused some of the 2017 permits to be rescinded.  It is not entirely clear how the Corps satisfied its NEPA compliance in the permit regulations.  However, I expect we will see more data show up in the regulation docket as time goes on.  The biggest issue identified relates to endangered and threatened (E&T) species impacts associated with these permits.  The E&T species impacts associated with the issuance of these permits is not well documented either way.  One would assume that any impact to a wetland would negatively impact E&T species if present.

All of the wetland programs that have been modified under the Trump Administration have been done through the issuance of regulations as opposed to executive orders.  Even the National Wetland Plant list was published in the Federal Register as a regulation.  Consequently, it would be very difficult for a new Administration to delete these new permit rules.  It took three years for the Clean Water Rule to be replaced and that was largely because it had not yet been nationally implemented due to numerous court challenges.

So, in summary, get ready for a whole new set of Nationwide Wetland Permits coming your way this spring.

The good news is 2021 on the Chinese calendar is the year of the Ox.  It should come as no surprise that 2020 was the year of the Rat.  The Ox should have come in first in the Great Race, but the Rat cheated.  Read into that what you will.  The Ox is also associated with Yang so good times are coming!

Merry Christmas, Happy Holidays and best wishes for a prosperous and productive New Year!

 – Marc

State Wetland Programs that Exceed Federal 404 Jurisdiction

Wetland Wednesday

November 4, 2020

There has been much discussion about how the new Waters of the US jurisdiction has been limited by the 2020 Navigable Waters Protection Rule (NWPR). Of main concern are the non-tidal wetlands that were once regulated as Section 404 Waters and are now no longer regulated under the Clean Water Act. This is a concern, however, there are many state programs that overlap and often exceed 404 jurisdiction. These programs are meant to cover important wetlands in a given state where Federal programs offered limited protection. Some states have these rules and many do not. To help you sort through this, we have made a short synopsis of the relevant state programs in the table below. We have also made a handy printable guide that you can download using the button below. The list is quite extensive, but we may have missed a item or two (or three). Please comment on any updates or suggestions.

All the best, Marc

Free State Rules Guide
State Regulations
 Arizona None
https://www.blr.com/environmental/water/wetlands-in-arizona
 Arkansas Wetlands are regulated as surface waters or water contained on the exterior or upper portion of the earth’s surface as opposed to groundwater. ASWM
 Colorado Colorado Natural Heritage Program (CNHP) has a Wetland Program Plan for 2011-2015, which can be found at: http://water.epa.gov/type/wetlands/upload/cnhp-wpp2011-2015.pdf  https://www.aswm.org/pdf_lib/state_summaries/colorado_state_wetland_program_summary_101315.pdf
Detail: The State has no blanket buffer protections for wetlands; however several county or local government areas have buffer requirements. (ASWM)
Statewide Strategies for Wetland and Riparian ConservationStrategic Planfor the Wetland Wildlife Conservation Program 
The Program facilitates voluntary, incentive-based conservation and management of priority wildlife species whose populations depend on wetlands or riparian areas in Colorado. This may be accomplished through protection of these habitats by easements or acquisition, or through habitat restoration, enhancement, and creation actions such as vegetation manipulation and water management.
https://cpw.state.co.us/Documents/LandWater/WetlandsProgram/CDOWWetlandsProgramStrategicPlan110804.pdf
 Georgia Has additional laws and regulations governing tidal wetlands protection and planning. (2)
On March 26, 2007, Georgia established rules to guide permitting under the Coastal Marshlands Protection Act. The regulations impose marshlands buffer, stormwater management, and impervious cover standards for the upland component of a tidal wetlands project. (2)
Georgia has no buffer requirements for freshwater wetlands. The state’s Coastal Marshlands Protection Act regulations may impose marshlands buffers. Contact CRD for additional information about marshland buffers. Georgia has additional buffer requirements for streams. (ASWM)
 Maine Unless “significant wetlands” are involved, the DEP must process applications for projects that will affect less than 15,000 square feet of a wetland area within 30 days 
Maine defines “significant wetlands” as wetlands that:
are within 250 feet of a coastal wetland or a great pond;
are within 25 feet of a river, stream or brook;
contain 20,000 square feet or more (approximately ½ acre) of open water and/or emergent vegetation under normal circumstances;
are in a floodplain;
contain significant wildlife habitat (as defined; some are explicitly identified in the law); and/or
consist of peatland.
Maine communities regulate wetlands under the home rule provisions of the Maine Constitution and under Maine’s Municipal Shoreland Zoning statute which gives authority to local government to regulate non-forested wetlands greater than ten acres in size.
Maine may require a permit for impacts within 75-feet of a wetland (adjacency). However, these determinations are made on a case-by-case basis. If a permit is not required under Maine law, impacts may take place right down to the edge of the wetland (ASWM)
 Michigan Some coastal wetlands receive further protection under the Shorelands Protection and Management Provisions of NREPA.
In accordance with Part 303, wetlands are regulated if they are any of the following:
Connected to one of the Great Lakes or Lake St. Clair.
Located within 1,000 feet of one of the Great Lakes or Lake St. Clair.
Connected to an inland lake, pond, river, or stream.
Located within 500 feet of an inland lake, pond, river or stream.
Not connected to one of the Great Lakes or Lake St. Clair, or an inland lake, pond, stream, or river, but are more than 5 acres in size.
Not connected to one of the Great Lakes or Lake St. Clair, or an inland lake, pond, stream, or river, and less than 5 acres in size, but EGLE has determined that these wetlands are essential to the preservation of the state’s natural resources and has notified the property owner.
 Missouri None
 New York New York has a comprehensive statewide program for all tidal wetlands regardless of size, and freshwater wetlands over 12.4 acres or any smaller wetlands determined to be of unusual local importance.
A buffer area of 100 feet is also regulated. (2)
 North Carolina North Caronlina relies primarily on §401 water quality certification under the Clean Water Act (CWA) for state-level wetland regulation. Until recently, the state has implemented similar protections for isolated wetlands and waters, as well as stream buffers in selected river basins. 
Currently, there are state riparian buffer protection programs in the Neuse River Basin, Tar-Pamlico River Basin, Catawba River Basin, Randleman Lake Watershed, Jordan Lake Watershed and Goose Creek Watershed. There are also local buffer protection programs across the state. However, this is likely to change with new rulemaking that will take place in 2015. It is likely that protections will be more limited in the future.A buffer authorization, or a “no practical alternatives” determination, is required for any use that is designated as “(potentially) allowable” or “(potentially) allowable with mitigation” within the applicable buffer rule. The riparian buffer must be undisturbed, regardless of property size or type of land use. Within each set of buffer rules*, there is a Table of Uses for specific activities:Exempt uses are allowed in the riparian buffer without approval from the Division of Water Resources (DWR).(Potentially) allowable uses may occur in the buffer after written authorization from DWR (some of these impacts may require mitigation for the impacts).Prohibited uses are not allowed in the buffer unless a variance is granted from the N.C. Environmental Management Commission.Activities not listed in the Table of Uses are prohibited
https://www.aswm.org/pdf_lib/state_summaries/north_carolina_state_wetland_program_summary_083115.pdf
 Ohio The state enacted the Isolated Wetlands Law in July 2001 in reaction to the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) decision that cast doubt on federal jurisdiction over some intrastate isolated wetlands. Administered by the Ohio Environmental Protection Agency’s Division of Surface Water, these two laws govern the bulk of wetlands-related activities at the state level. (1)
The state also enacted the Isolated Wetlands Law in July of 2001. (2)
The statute makes it illegal for a person to “engage in the filling of an isolated wetland” or to “discharge dredged material into isolated wetlands” without a permit. (2)
There are no minimum size thresholds for isolated wetlands that fall outside the jurisdictional boundaries of §401/§404—all are included under the Isolated Wetland Law. The only exemption concerns isolated wetlands that were created by coal mining activities and that are being returned to mining activity. https://www.aswm.org/pdf_lib/state_summaries/ohio_state_wetland_program_summary_111615.pdf
 Pennsylvania Pennsylvania hasa strong wetland regulatory program that focuses not only on direct impacts to wetlands, but also discharges to wetlands. (2)
Wetland and Waterways permitting in Pennsylvania is based on the Clean Streams Law and the Dam Safety and Encroachments Act, rather than Section §404 of the Clean Water Act. (2)
Water obstructions and encroachments must comply with Pennsylvania’s Clean Streams Law which requires that all earth moving activities must have an erosion and sedimentation control plan. (2)
Wetland and Waterways permitting in Pennsylvania is based on the Clean Streams Law and the Dam Safety and Encroachments Act, rather than Section §404 of the Clean Water Act. 
Buffers are required in Non-Isolated Wetland Mitigation (OAC 3745-1-54). If mitigation is at a 1:1 for restoration, a .5:1 is required for additional buffer. It is new for Ohio to have base buffers. Now to get more credit, the mitigation needs to include additional buffer work.
https://www.aswm.org/pdf_lib/state_summaries/pennsylvannia_state_wetland_program_summary_090915.pdf
 Washington At the state level, the most influential regulation is related to water quality certification under §401 of the Clean Water Act. The state’s primary role in wetlands regulation and protection involves filling gaps in federal jurisdiction over wetlands by using state authorities in water quality laws. The state also plays a significant role in assisting local governments in the development of comprehensive growth management plans, shoreline master programs, and regulations and ordinances.(1)
A Tribal Treaties and Rights at Risk document submitted to and supported by the federal government has led to the guarantee of rights to salmon and other traditionally-utilized species and the requirement for co-management by tribes. This has led to shifts towards stronger riparian and wetland protections (those that are related to estuaries critical for salmon, etc.), as well as protection of overwintering areas for these species. Consequently, salmon drives very specific non-voluntary restoration projects in the state.
 https://www.aswm.org/pdf_lib/state_summaries/washington_state_wetland_program_summary_090315.pdf
 Florida Regulation includes any activities in, on, over or under surface waters, construction of stormwater systems, and surface water management systems. These are governed by a single set of state rules and connected with a state-owned submerged lands program, which is analogous to the Section §404 program. The state has its own set of legislative rules. Florida’s program regulates most land alterations (including land clearing, development, stormwater, dredging and filling, mining, beach nourishment and re-nourishment, and other activities that affect water quality and quantity (draining and flooding) of uplands, wetlands, and other surface waters, including isolated wetlands. (2)
Florida also has separate authority to regulate trimming and alteration of mangroves. As such, the scope of Florida’s program extends beyond that of merely a “wetland” program or one limited only to regulation of dredging, filling, and discharges within wetlands or surface waters. 
While Florida does not have one statewide rule to protect buffers, buffers are protected as secondary impacts under Environmental Resource Permits. The state does not provide any “one-size-fits-all” recommendations for buffer protection.
 https://www.aswm.org/pdf_lib/state_summaries/florida_state_wetland_program_summary_111615.pdf
 Hawaii State approaches to the protection of these impor-tant, unique resources include management of wildlife and habitat and regulation of aquatic resources, among other activities. (1)
Buffer Protections: Information unavailable 
(ASWM)
 Montana The Montana Wetland Council is an active network of diverse interests that works cooperatively to conserve and restore Montana’s wetlands and riparian ecosystems and work toward solutions on complex wetland and riparian issues.
The Montana Department of Environmental Quality (DEQ)’s Wetland Program Plan 
With DEQ leadership and extensive public involvement, the Council developed Priceless Resources: Strategic Framework for Wetland and Riparian Area Conservation and Restoration in Montana 2013-2017, which guides the Council and all involved in wetland issues, in pursuing wetland conservation activities.
(http://water.epa.gov/type/wetlands/upload/mt-wpp-amendments.pdf) addresses the four core elements EPA designated for state wetland program.
Montana relies on the definition of wetland found in the 1987 Wetland Delineation Manual issued by the Corps of Engineers
ASWM
 Nebraska If a water is a non-404 water, the state sends a “letter of opinion” to the applicant saying that the state cannot issue a permit, but an activity might violate state water quality standards and the state will work with the applicant to avoid violation of these standards. The state refers to this approach as “resource advocacy through regulatory efforts.”
Nebraska’s wetland regulatory program has no requirements for buffer protections. However, there are requirements for buffer footages in antidegradation requirements. Mitigation sites are required to have buffers and buffers are usually considered during restoration planning and implementation.
However, uniquely, Nebraska does have a state voluntary regulatory program. If a water is a non-404 water, the state sends a “letter of opinion” to the applicant saying that the state cannot issue a permit, but an activity might violate state water quality standards and the state will work with the applicant to avoid violation of these standards. The state refers to this approach as “resource advocacy through regulatory efforts.” (2)
New Jersey Everywhere in the state there is some level of buffer protection. Different sources of protection include Surface Water Standards, Special Area Protections, and fish and wildlife requirements. Generally, the state regulates 300 feet of buffer area from a regulated water. In addition to regulating wetlands New Jersey places buffers around certain wetlands to further protect  them from degradation. Statewide, wetlands that are classified as intermediate or exceptional resource value have a 50 and 150 foot buffer, respectively. Under the State’s Freshwater Wetlands Protection Act, wetlands that discharge to trout-production waters or which are present or documented habitat for threatened or endangered species are considered exceptional resource value wetlands and are therefore have a 150-foot buffer. Most trout production waters are also designated as Category One waters pursuant to the State’s Surface Water Quality Standards rules (N.J.A.C. 7:9B) Category One waters are protected from degradation through the implementation of a 300-foot buffer known as the Special Water Resource Protection Area in the State’s Stormwater Management rules (N.J.A.C. 7:8). Such waters are also protected through the implementation of the State’s Flood Hazard Control Act Regulations, which require a 300-foot riparian zone immediately adjacent to Category One waters and upstream waters within the same HUC14 sub-watershed. These buffers are often coincident with wetlands that are protected in permanent conservation restrictions through the NJDEP’s permitting program.  ASWM
 Oregon The state does not regulate outside of wetlands. Wetland buffer protection is not required by state regulation, except on mitigation sites (including buffer credits). Compensatory mitigation projects may be required t include upland buffers. Buffer protection is required by some local government wetland regulations.
Some primary wetland-related responsibilities are coordinated by the following state agencies:
Oregon Department of State Lands (DSL)is responsible for implementation of the state’s removal and fill law.
Oregon Department of Environmental Quality (DEQ) administers the 401 Water Quality Certification program.
Oregon Department of Fish and Wildlife (DFW) provides expert and technical review of §401 certifications.
Oregon Department of Land Conservation and Developmentadministers Oregon‟s 19 Statewide Planning Goals that include: Goal 5 requires local protection programs for significant freshwater wetlands, Goal 16 prohibits development in 98% of the remaining estuarine wetlands, and Goal 17 requires protection for major marshes along Oregon‟s coastal shore lands. Less directly, Goals 6 and 7 may address wetland management for water quality and flood management purposes.
Oregon Watershed Enhancement Board (OWEB) is a leader in the conservation of Oregon’s natural resources by helping Oregonians take care of streams, rivers, wetlands and natural areas. OWEB administers the state‟s Watershed Enhancement Program that includes acquisition and restoration grants funded through the Oregon Lottery, promotion of local watershed councils, and development of watershed plans. OWEB coordinates The Oregon Plan for Salmon and Watersheds. OWEB is a primary source of funding for voluntary wetland restoration in the state.
ASWM
 Rhode Island Rhode Island was among the first states to pass legislation specifically addressing wetlands protection. Two agencies administer state-level wetland regulation by jurisdiction: Rhode Island Department of Environmental Management (RIDEM) oversees most freshwater wetland regulation and Rhode Island Coastal Resources Management Council (RICRMC) oversees regulation of coastal wetlands, as well as freshwater wetlands in the vicinity of the coast. (1)
RID DEM requires a 50-foot perimeter for regulated wetland areas if disturbed and require a 100-200-foot width for riverbeds (including wetlands).Buffers for coastal wetlands are required in accordance with CRMP Section 150, which requires buffers based primarily on the lot size and CRMC water type designation. A limited portion of the buffer may be managed for view corridors and access to the shoreline, but must adhere to CRMC rules for such. Contact Jim Boyd at CMRC regarding CRMC’s buffer management policy. As part of the freshwater wetland application process, CRMC and DEM can require buffer plantings near the limits of work in wetlands. DEM commonly permits buffer plantings “along the limit of disturbance” in a backyard, as well as along both sides of a wetland crossing. Two to three rows of plantings provide more buffering effect than a single row; however, a single row is preferable if additional rows involve an increase in clearing and alteration. The following factsheet provides additional information: http://www.dem.ri.gov.programs/benviron/water/wetlands/pdfs/wfs10.pdf
ASWM
 Texas The state does not have additional buffer protections beyond what the Corps requires.
ASWM
 Utah The state does not provide any specific protections for wetland buffers, but does for riparian buffers, although they are limited (small width). Contact UDEQ Division of Water Quality for more information.
 Vermont Until otherwise designated by the Secretary, a one hundred (100) foot buffer zone is established contiguous to the boundaries of a Class I wetland. Until otherwise designated by the Secretary, a fifty(50)foot buffer zone is established contiguous to the boundaries of a Class II wetland
The Secretary on his or her own motion or upon petition may, pursuant to 10 V.S.A. § 914:1. Determine whether a wetland is a Class II or Class III wetland.2. Determine which functions and values make a wetland significant.3. Determine whether the size or configuration of a buffer zone adjacent to a Class II wetland should be increased or decreased.4. Determine the boundaries of a significant wetland.5. Determine whether an area shown as a wetland on the VSWI maps is not a wetland.
The State of Vermont protects wetlands which provide significant functions and values and also protects a buffer zone directly adjacent to significant wetlands. Wetlands in Vermont are classified as Class I, II, or III based on the significance of the functions and values they provide. Class I and Class II wetlands provide significant functions and values and are protected by the Vermont Wetland Rules.  Any activity within a Class I or II wetland or buffer zone which is not exempt or considered an "allowed use" under the Vermont Wetland Rules requires a permit.
https://dec.vermont.gov/sites/dec/files/documents/wsmd_VermontWetlandRules.pdf
 West Virginia Isolated wetlands are considered “waters of the state” in West Virginia and are regulated according to §401 standards. The state uses the same ratios and assessments for isolated waters as for federal jurisdictional waters.
West Virginia also has an integrated evaluation/mitigation calculation tool called West Virginia Stream and Wetland Valuation Metric v2.0 (WV SWVM).
The state includes buffer protection as a component in WV SVWM. There are three tiers in SVWM: 1) simple preservation, 2) enhancement, and 3) enhancement and revegetation which provide increasing levels of credit. West Virginia is in the process of reviewing opportunities to adjust wetland mitigation conditions to increase buffering in at least some cases.
ASWM
 Wisconsin   In addition to §401 certification as required under the Clean Water Act (CWA), in 2001 Wisconsin became the first state to enact a nonfederal wetlands protection law in reaction to the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) decision that cast doubt on federal jurisdiction over some intrastate isolated wetlands. Wisconsin statutes also regulate wetlands below the ordinary high water mark of navigable lakes and streams.
 Alabama The state’s §401 certification program is the state’s primary regulatory program. The state has Division 8 Coastal Zone Buffer Protections and some municipalities have additional buffer protections
The state has Division 8 Coastal Zone Buffer Protections and some municipalities have additional buffer protections
https://www.aswm.org/pdf_lib/state_summaries/alabama_state_wetland_program_summary_083115.pdf
 California  State Wetland Conservation Policy
Porter-Cologne Water Quality Control Act; The standards are based on formally-recognized beneficial uses for water bodies (such as drinking water, recreation or endangered species habitat protection), many of which pertain to wetlands and are used to protect them.
Coastal estuaries, seasonal vernal pools, mountain wet meadows and extensive riverine wetlands, and other regional variants, are all protected under one set of state regulations.
Wildlife Conservation Board: The Wildlife Conservation Board (Board) is responsible for wetlands protection through the acquisition of fee and lesser interests, such as conservation easements.
California Dept. Of Fish and Wildlife: CDFW also regulates wetlands under the California Endangered Species Act when endangered species habitats are present.
Wildlife Management Division: WMD’s major role in wetlands management is to meet the wetlands protection, restoration, and enhancement goals through various public and private programs, such as the San Francisco Bay Joint Venture and the Central Valley Habitat Joint Venture, components of the North American Waterfowl Management Plan. These habitat goals are achieved on state-owned wildlife areas and on private land enrolled in WMD’s voluntary wetland incentive or easement programs.
The West Coast Region of NOAA’s National Marine Fisheries Service released the California Eelgrass Mitigation Policy and Implementing Guidelines (2014) to provide guidance on eelgrass mitigation efforts.
The state is researching how riparian zones protect water quality. The state is developing a California Riparian Width Buffer Algorithm. Buffer protections are politically complex in the state.
ASWM
https://mywaterquality.ca.gov/eco_health/wetlands
/improvements/regulations.html#california
 Connecticut Tidal wetlands are regulated exclusively by the Connecticut Department of Environmental Protection’s (CTDEP) Office of Long Island SoundPrograms (OLISP); regulation of inland wetlands occurs primarily at the municipal level under Municipal InlandWetland Agencies (MIWA).
The state does not have a buffer statute or regulation requirements for inland wetlands. However, there is state statute that allows municipalities to identify buffers for protection. Most communities that have adopted buffer protections require buffers in the range of 50-100 feet. Some municipalities have even greater requirements, up to 600 feet.
https://www.aswm.org/pdf_lib/state_summaries/connecticut_state_wetland_program_summary_083115.pdf
Idaho The state relies primarily on §401 cer-tification under the Clean Water Act to regulate impacts to wetlands and has also recently initiated efforts to increase coordination among state agencies involved with wetland issues.
the state does have an Idaho Wetland Conservation Prioritization Plan: http://fishandgame.idaho.gov/ifwis/idnhp/cdc_pdf/u05hah01idus.pdf 
Wetlands may also be regulated by two additional water-related state laws:
The Idaho Lake Protection Act:
The Idaho Stream Channel Protection Act:
https://www.aswm.org/pdf_lib/state_summaries/idaho_state_wetland_program_summary_111615.pdf
Illinois The state of Illinois does not currently have a state wetland program plan. 
There are no specific state policies or protections for buffers; however, the state does provide partial credit for the buffers through the mitigation process.
https://www.aswm.org/pdf_lib/state_summaries/illinois_state_wetland_program_summary_083115.pdf
Iowa Iowa does not have a state wetland program plan at this time.
 https://www.aswm.org/pdf_lib/state_summaries/iowa_state_wetland_program_summary_083115.pdf
Kentucky The state does not have a formal, EPA-approved wetland program plan, however Kentucky will be submitting a wetland program plan to the U.S. EPA in early January 2015. (can’t find this).
https://www.aswm.org/pdf_lib/state_summaries/kentucky_state_wetland_program_summary_111615.pdf
Louisiana Louisiana does not have a state wetland program plan.
 https://www.aswm.org/pdf_lib/state_summaries/louisiana_state_wetland_program_summary_083115.pdf
Maryland The State of Maryland has operated a tidal wetland regulatory program since 1970 and nontidal wetland regulatory program since 1991.1
Since January 1, 1991 the Maryland Nontidal Wetlands Protection Act has required a state nontidal wetlands permit or letter of authorization from the Nontidal Wetlands & Waterways Division for activities in a nontidal wetland or within a 25-foot buffer or 100-foot expanded buffer around a nontidal wetland.
As a matter of state policy, buffers must be included as an option for mitigation requirements. Regulated activities in buffers are also included in law for non-tidal wetlands. Twenty-five foot and 100-foot buffers are recognized in regulations and mapped when special state concern (unique, threatened species; steep sloped with highly-erodible soils).
New Mexico The New Mexico Department of Surface Water Quality Bureau (SWQB) Wetlands Program developed its first wetland program plan in 2003. This state’s wetland program plan was updated in 2012, providing a plan to continue progress towards a “comprehensive and sustainable” Wetlands Program for New Mexico. 
WETLANDS PROGRAM PLAN FOR NEW MEXICO (EPA Approved 4.9.2019)
https://www.env.nm.gov/wp-content/uploads/sites/25/2018/01/New_Mexico_Wetlands_Program_Plan_Update-Approved-4.9.2019.pdf
Condition assessments require review of buffer condition (5-metric evaluation). Santa Fe’ includes a 100-foot buffer component for wetlands and streams. They also prevent certain activities. Buffers are also considered in the establishment of grazing allotments, requiring the avoidance of riparian areas to reduce pressure on wetlands. Finally, the state is also looking into working with private landowners adjacent to public lands. Private land owner will be asked to voluntarily apply federal rules to private lands if they are adjacent to public lands in order to create a large buffer around public lands
New Mexico has operated a wetland restoration program (operated by the wetland program) since 2003. This program encourages volunteer participation in on-the-ground wetland restoration projects, and helps obtain funding for projects.
https://www.aswm.org/pdf_lib/state_summaries/new_mexico_state_wetland_program_summary_111115.pdf
South Dakota South Dakota regulates wetlands primarily through §401 certification under the Clean Water Act (CWA),which is overseen by the Water Management Board of the South Dakota Department of Environment andNatural Resources (SDDENR).
South Dakota does not currently have a state wetland program plan. 
South Dakota DENR’s Division of Financial and Technical Administration handles buffer protections. The Division works with landowners to develop and protect buffers on the Big Souix River and other waterbodies.
https://www.aswm.org/pdf_lib/state_summaries/south_dakota_state_wetland_program_summary_083115.pdf
Virginia In 2000, Virginia passed the Nontidal Wetlands Act, which provided the state with additional jurisdiction and enabled the VA DEQ to regulate activities in wetlands outside federal jurisdiction.
Comprehensive Wetland Program Plan for the Commonwealth of Virginia http://water.epa.gov/type/wetlands/upload/virginia_wpp.pdf
The 2000 Virginia General Assembly enacted the Riparian Buffer Tax Credit to provide a nonrefundable tax credit for voluntary actions to:
Individuals, S-Corporations or Partnerships; Estates and Trusts are not eligible for this tax credit, but Family Partnerships and Limited Liability Corporations are eligible.
owning land on which timber is harvested, 
which abuts a waterway, 
and who forbears timber harvesting on certain portions of the land for 15 consecutive years.
The buffer must be at least 35 feet wide and no more than 300 feet and be intact for 15 years. The applicant must have a Stewardship Plan for the tract to qualify. A separate application must be completed for each tract.
The state is in the process of updating its wetland plan (expected Fall 2015) https://www.aswm.org/pdf_lib/state_summaries/virginia_state_wetland_program_summary_092115.pdf
Wyoming The Wyoming Wetlands Task Force was established in 1989 and the Wyoming Wetlands Act (WWA) was passed in1991. The WWA, the Clean Water Act (CWA) §401/404 permitting process, land use planning by the U.S.Department of Agriculture (USDA) Forest Service and Bureau of Land Management, cooperative agreementsamong agencies, conservation easements, and land purchases are the primary ways Wyoming protects itsremaining wetlands.
Wyoming does not have a formal EPA-approved state wetland program plan at this time. However, the state does have a Wyoming Wetland Conservation Strategy which was submitted to EPA. The strategy document can be found at: https://wgfd.wyo.gov/web2011/Departments/Wildlife/pdfs/HABITAT_WYWETLANDSCONSERVATION0000332.pdf. 
As some elements were missing, it was not formally approved by EPA as a state wetland program plan, but it does continue to guide work on wetlands in the state. https://www.aswm.org/pdf_lib/state_summaries/wyoming_state_wetland_program_summary_101415.pdf
In 1991, the Wyoming Legislature passed the Wyoming Wetlands Act. The Act was further amended and refined in 1994. The purpose of the statute is to establish a statewide wetland mitigation bank to improve the administration of wetland protection, permitting and restoration programs in the state.
deq.wyoming.gov › wqd › resources › wetland-banking
Alaska Currently, only Anchorage and Juno are actively engaged in wetland regulation.
There may be 60- and 100-foot buffers that apply to wetlands owned by the state.
This definition is comparable to the Section 404 definition except that it goes beyond the Section 404 definition in regulating vegetated areas to a depth of three meters.
There may be 60- and 100-foot buffers that apply to wetlands owned by the state. Contact the state for more information on their buffer protections.
 https://www.aswm.org/pdf_lib/state_summaries/alaska_state_wetland_program_summary_083115.pdf
Delaware In addition §401 water quality certification under theClean Water Act (CWA), Delaware regulates tidal wetlands under the Wetlands Act. The Delaware Departmentof Natural Resources and Environmental Control (DDNREC), Division of Water Resources(DWR), Wetlands andSubaqueous Lands Section operates the state’s wetland regulatory and protection programs.
“State-regulated” wetlands protected by law are defined as “those lands lying at or below two feet above local mean high water which support or are capable of supporting” certain plant species that are listed in the law and regulations.
Buffers for wetlands and waters are imposed by three county planning and zoning offices. The focus of this work is pollution, not wetland protection.
 https://www.aswm.org/pdf_lib/state_summaries/delaware_state_wetland_program_summary_083115.pdf
Indiana Indiana’s DepartmentofEnvironmental Management (IDEM) administers the §401 Water Quality Certification program under theClean Water Act (CWA) in addition to a state-level regulatory program that targets isolated wetlands. TheDepartment of Natural Resources (IDNR) regulates wetlands situated within floodways and the high-waterline of lakes.
Indiana does not currently have a state wetland program plan; however, the state is in the final stages of getting their new draft plan approved. 
https://www.aswm.org/pdf_lib/state_summaries/indiana_state_wetland_program_summary_083115.pdf
Kansas The state’s wetland regulatory efforts include §401 water quality certifications and the Kansas Department of Agriculture’s permits for fill and stream obstructions in floodplains.
Massachusetts Massachusetts has aState Wetland Program Plan(2013-2017), which can be found at: http://water.epa.gov/type/wetlands/upload/ma_wpp_and_transmittal_letter.pdf 
Buffer Protections Description: In the Massachusetts Wetlands Protection Act regulations (310 Code of Massachusetts Regulations 10.04) define Buffer Zone as meaning that area of land extending 100 feet horizontally outward from the boundary of banks, wetlands, beaches, dunes, marshes, or swamps bordering on water bodies. Such Bordering Vegetated Wetlands are areas where the soils are saturated or inundated such that they support plants that are adapted to periodically wet conditions(http://www.mass.gov/eea/docs/dep/water/laws/a-thru-h/bvwmanua.pdf). There are a lot of minor activities allowed within the buffer zone.Recent amendments to wetland regulations pertaining to Buffer Zones provide allowances for certain minor activities related to transportation and utility maintenance project to occur within wetland Buffer Zones. The current Massachusetts Wetland Program Plan also anticipates future improvements towetland condition by strengthening buffer zone protection policy based on CAPS assessment of ecological integrity. Massachusetts also has a manual, Delineating Bordering Vegetated Wetlands under the Massachusetts Wetland Protection Act (http://www.mass.gov/eea/docs/dep/water/laws/a-thru-h/bvwmanua.pdf). Finally the state has a manual to assist landowners with the creation, restoration and maintenance of vegetated buffers (http://www.mass.gov/eea/docs/dep/water/bufman.pdf).
https://www.aswm.org/pdf_lib/state_summaries/massachusetts_state_wetland_program_summary_083115.pdf
Minnesota The state legislature passed the WetlandsConservation Act (WCA) in 1991. This Act establishes a “no net loss” wetlands policy. The state, in partnershipwith the federal government, also developed the Minnesota Wetlands Conservation Plan (MWCP) and is inthe process of developing a State Wetlands Restoration Plan.
Minnesota State Wetland Program Planhttp://water.epa.gov/type/wetlands/upload/2012-mn-wetland-program-plan.pdf
The WCA (wetlands conservation act) requires that all wetlands used for compensatory mitigation be protected by an upland buffer(the buffer itself also receives some mitigation credit). Some local governments in Minnesota require protective buffers around existing wetlands through local ordinance. Some large wetlands and shallow lakes have a mandatory buffer requirement through the state’s shoreland management program.
https://www.aswm.org/pdf_lib/state_summaries/minnesota_state_wetland_program_summary_111815.pdf
Mississippi The state’s regulatory efforts rely heavily on §401 water quality certification under the Clean Water Actfor freshwater wetlands statewide.
Coastal Wetlands Protection Act – MS Code § 49-27-1 et seq.Mississippi Coastal Program https://www.aswm.org/pdf_lib/state_summaries/mississippi_state_wetland_program_summary_083115.pdf
Nevada Nevada does not have an EPA-approved state wetland program plan. However, the Nevada Natural Heritage Program and several state agency partners developed and are in the process of implementing the Nevada Wetlands Priority Conservation Plan(2006) http://heritage.nv.gov/sites/default/files/library/wetplan2006.pdf  
DEP does not formally regulate or promote any wetland or stream buffer protections. The Natural Heritage Program may have some protections (contact NHP staff for more information).
https://www.aswm.org/pdf_lib/state_summaries/nevada_state_wetland_program_summary_083115.pdf
New Hampshire New Hampshire Wetland Program Plan 2011-2017 http://des.nh.gov/organization/commissioner/legal/rules/documents/env-wt800.pdf   https://www.aswm.org/pdf_lib/state_summaries/new_hampshire_state_wetland_program_summary_090315.pdf
The law also protects sand dunes and upland tidal buffer zones (100 feet above the highest observable tideline). Although the law was adopted in 1967 to protect tidal wetlands and waters, it was extended in 1969 to regulate activities in freshwater bodies. There is no minimum threshold of size for wetlands or wetland impacts under the Act; NHDES has jurisdiction over tidal wetlands, nontidal wetlands, and tidal buffer zones. New Hampshire Wetlands Statute, rules, and proposed rules are available at http://des.nh.gov/organization/commissioner/legal/rules/index.htm#wetlands 
New Hampshire Wetland Program Plan: https://www.des.nh.gov/organization/divisions/water/wetlands/documents/epa-plan-2011-17.pdf
In 1979 New Hampshire’s wetlands law was amended to provide an option for municipalities to designate high value wetlands for greater protection. The designation of these wetlands must then be adopted by the municipality by vote of the residents and approved by DES. Once DES formally accepts the designation, the designated prime wetland are afforded special protection by DES under the wetlands law. While there have been greater protections, a 100-foot buffer now applies to wetlands in only seven communities. Additionally, RSA 482-A (Wetlands law) provides for 100 foot tidal buffer zone for work proposed within 100 feet of the highest observable tideline. DES rules require that an upland preservation parcel to be protected for mitigation contain a 100 foot upland buffer. Permit conditions requiring protections for wildlife and water quality may require buffers. The legislature is currently reviewing a proposed bill to examine state buffers to wetlands and streams.
 https://www.aswm.org/pdf_lib/state_summaries/new_hampshire_state_wetland_program_summary_090315.pdf
North Dakota North Dakota regulates wetlands primarily through §401 water quality certification under the Clean WaterAct (CWA).
Oklahoma Oklahoma protects its base wetland resources primarily through the efforts of four agencies: the Oklahoma Departmentof Wildlife Conservation (ODWC), the Oklahoma Department of Environmental Quality (ODEQ), the OklahomaWater Resources Board (OWRB), and the Oklahoma Conservation Commission (OCC).
Although the state does not have a formal wetland buffer protections; the state does:
Encourage voluntary participation in a program that encourages fencing off areas (this is not a wetland-specific program, but includes wetlands as appropriate).
Encourages the inclusion of wetland buffers for 319 projects for non-regualtory sites
Buffer protections are provided for “special waters” through the stormwater program, some of which may include wetlands.
ASWM
South Carolina SCDHEC’s Office ofEnvironmental Quality Control (OEQC), Bureau of Water regulates waters of the state, including wetlands, andissues §401 certifications under the Clean Water Act (CWA).
South Carolina does not currently have a state wetland program plan. However, the state is currently working on the development of a state wetland program plan (funded by EPA state wetland program grants) and plans to have this plan ready for approval by the end of 2015.  South Carolina does not currently have a state wetland program plan. However, the state is currently working on the development of a state wetland program plan (funded by EPA state wetland program grants) and plans to have this plan ready for approval by the end of 2015.
South Carolina had a task force working on buffer protections, but the task force’s recommendations were not adopted. While there are several local ordinances around the state that address buffer requirements, there are not statewide laws or requirements.
ASWM
Tennessee The state provides some protections from construction for buffers through the statewide stormwater program. Additionally, Phase 1 and 2 MS4s must develop permanent buffers to achieve compliance with post-construction requirements.  
https://www.aswm.org/pdf_lib/state_summaries/tennessee_state_wetland_program_summary_083115.pdf

A key to hydric soil indicators

Wetland Wednesday

October 7, 2020

One of the biggest challenges new wetland delineators face is how to sort through all of the hydric soil indicators.  There about 100 of them and it is easy to get lost.  To help you manage this we have developed a key system that gets you to the right indicators by asking a few focused questions.

To start, the user needs to understand how the indicators are arranged.  They are grouped based upon particle size and component materials.  The size classes have been identified by the USDA as sand, silt and clay.  In addition there is non-texture related soil indicator grouping that can overlap with mineral soils as well as organic soils.

The “A” group is to be used for All Soils regardless of texture class.  This group includes all of the organic soil indicators.  However, there are some indicators that have nothing to do with the soil texture.  An example of this is the hydrogen sulfide (A4) indicator.  If you smell rotten eggs in the soil within 12 inches you pass this indicator.

The other “A” indicators mostly focus on the amount of organic matter in the soil.  The more organic matter in the soil indicates a low level of decomposition that is usually due to a high amount of water at the surface.  So the first question on our key is, “Do we have a lot of organic matter?”

The next question separates the sand from the loam soils.  If there is a lot of sand, then you have the sand “S” indicators.    If the soil is predominantly silt or clay, then we are looking at a “F” indicator.

The “S” indicators include factors that are related to high organic matter.  They also have redoximorphic features like oxidized rhizospheres and gleyed matrix colors.

The “F” indicators are focused on your Munsell Soil Color Chart.  Redox concentrations and depletions are key features of this group.  There is also a major focus on the soil color value.  There is a major divide between dark surface layers and the other colors.  This is reflective of values less than or equal to 3.

There are some general ground rules for soil colors.  In most cases the predominate color (matrix) should have a chroma less than or equal to 2.  However, there are many exceptions to this.  Most of these exceptions relate to the landform the soil is found in.

To start our key, begin with texture.  Is it an A, S or F soil?  Second, is the soil chroma less than or equal to 2?  If not, are there landform exceptions?  Finally, what is the soil color value?  Is it greater than 3 or less than or equal to 3?  This opens up those tricky dark surface layer indicators.

This month we are offering are hydric soil indicator webinar that includes a nice graphical key.  You can find our more about this webinar here.

2020 Prior Converted Cropland

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!

Three things you need to know about the New USACE Nationwide Permits

Wetland Wednesday

September 9, 2020

On 3 August 2020, the US Army Corps of Engineers (USACE) announced its intention to issue updated Nationwide permits to replace the 2017 permits.  These permits are renewed every five years, so this action is two years early.   This unusual move is largely motivated by the problematic Nationwide Permit #12, that is used for utility line crossings.  This permit had been temporarily rescinded this past summer over several controversial pipeline projects.

Nationwide Permits are used to allow the filling of wetlands and other jurisdictional waterbodies in situations where the impact to these systems will have minimal adverse environmental impact.  These permits allow certain categorical activities to take place so long as the activity does not exceed impact thresholds.  The alternative to a Nationwide permit is an Individual permit that either does not fit the activity category or it exceeds the impact threshold.  Nationwide Permits require the least amount of oversight and review, whereas the Individual permits require the most.

The 2017 permits will expire before their 5 years are up.

The draft 2020 (or 2021) permits are due to be published in the Federal Register any day now.  It seems to take about a month or so for publication after the pre-publication announcement.  Once this happens the public will have 60-days to comment on the new permits.  As of the writing of this post, the new permits had not been published in the Federal register.  However, if we assume that they are published before September 15, 2020 then the comment period will close by November 15, 2020. 

The USACE will need to review the public comments and respond.  This would also be published in the Federal Register along with the Final Permit Rules.  It would be a safe bet that this would take between 30-60 days which would bring us to January 15, 2021.  Implementation can be as soon as immediate, or at most 60 days.  Therefore, the earliest these rules would take effect would be January 2021.

There is a provision to allow projects that are already permitted under the 2017 program to proceed.  However, the permitted work must be finalized within one year of the start date.  Otherwise the applicant will need to reapply under the new program.  This means that is entirely possible that the 2017 permits would run out before their scheduled sunset in 2022.

The Nationwide Permit #12 is being split up.

The Nationwide Permit #12 is used for utility line crossings.  These include oil, gas, water, electrical, internet, etc.  Oil and gas comprise their own set of unique problems.  As a result, the USACE has decided to cleave the non-oil and gas activities into their own set of permits.  Proposed Nationwide “C” is for Electric Utility Line and Telecommunication Activities and Proposed Nationwide “D” is for Utility Line Activities for Water and Other Substances.  Both would have been covered by the old Nationwide Permit #12.

The new Nationwide Permit #12 is designed to expedite energy infrastructure projects.  It has reduced some of the circumstances where a Prior Construction Notification (PCN) is required.  In addition, it seeks to simplify some of the PCN requirements that were required in the previous version.

There is a unified method to measure aquatic resource impacts.

In the previous versions of the Nationwide Permits there was a separation between wetland impacts and stream impacts.  Wetlands were measured in acres and streams were measured in linear feet of crossing.  The problem developed when a stream was only measured based upon the length of the crossing and not the total area of impact.  For example, a 30-foot-wide road crossing a 10-foot-wide stream would have the same measured impact as a 100-foot-wide stream.  Both would impact 30 feet of stream.  However, the are of impact of the 10-foot-wide stream would be 300 square feet, whereas the 100-foot-wide stream would impact 3,000 feet of stream area which is 10 times greater.

To solve this disparity between measurements, the USCAE is going to an all-area measurement system.  This was brought up in a recent Regulatory Guidance Letter (RGL) 18-1.  This was focused on mitigation for dam removals, but it did attempt to replace acres instead feet as units of measurement of functional loss or gain.  This concept also substitutes wetlands for stream loss and vice versa and solves the issue of how to replace a 100-foot-wide river crossing with an in-kind stream.  Have you ever tired to build a 100-foot-wide river?

There is much more to cover on this topic, and we hope you will join us for our webinar on October 1, 2020.

USACE Antecedent Precipitation Tool Review

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 30th and 70th 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 30th and 70th percentile range of the calculated data.  In short, I give this latest USACE effort two thumbs up!

Marsh Magic

Wetland Wednesday

August 26, 2020

Corona has affected us all.  Mostly badly, but there has been some good come out it.  We get to spend more time with our families, we don’t eat out as much, no worries about not  going to the gym (it’s closed anyway), no commuting, and until recently more pay on unemployment than when I when you were employed.  For me, I have had time to think about things I have always wanted to do.

One of those ideas was to start a magic store/school.  I know it is a bit off the beaten path of wetland science, but if you will bear with me there is a connection.

In my youth (a very long time ago) I worked at a magic store.  I always liked clowns and graduated to a professional magical clown.  My very good friend Greg also was deeply into magic, but I could never get him to don a clown nose.  We did stage performances at fairs, festivals, parties and anywhere else that would hire us.  Our closing act was always Houdini’s Metamorphosis.  This was the performance where I would get locked up in chains, tossed in a bag and locked in a trunk.  Greg would stand atop of the locked truck with a curtain and do a three count.  On the third count I would be on the trunk holding the curtain and Greg would be in the trunk.  It was a lot of fun and we would add some variations to it that were always crowd pleasers.

By the time I was ready to start college, I was faced with a dilemma.  I was a pretty good student and really liked science.  At the same time, I really liked doing magic and clown gags.    So much so that I had applied and was accepted into Ringling Brothers Clown College.  I had studied all the great clown routines, some of which are ancient dating back hundreds if not thousands of years.  However, the swamps were calling.

In the end, I am very pleased to say that I choose the science path.  I have no regrets and have enjoyed my wetland career very much.

However, as a grandfather I see things a bit differently now.  Seeing kids with their nose stuck in an iPhone makes me a bit sad.  There is so much to see in the world that is not on a 3-inch screen.

We at the Swamp School have tired to run a few wetlands kids’ day camps.  We have a great curriculum and the kids would learn a lot, but they always seemed to be missing something.  I believe that something may be magic.

To do magic you need to look at the world in a completely new way.  What seems like an obvious outcome turns out to be completely wrong and often defies perceived laws of nature.  Wetlands are similar.  The public’s understanding of wetlands is that they are wastelands, good for nothing and in the way of development.  When in fact they filter our water, control our floods, serve as habitat for rare plants and animals and provide a peaceful respite from the corona world.  They are not as they appear.  One might even say they are magical.

This summer The Swamp School joined forces with a program called Discover Magic.  Discover Magic is an internationally recognized children’s magic program.  It uses magic to teach important life skills and character traits coupled with interpersonal skills that we fear will be gone post corona.  From this union we gave rise to Marsh Magic.  Marsh Magic incudes all the life skills of Discover Magic but we also includes a healthy dose of environmental stewardship as part of the program.  We draw from resources like Project Wild, Aquatic Project Wild, Project Learning Tree, Wonders of Wetlands and many more ecological curricula to educate children on the Magic of the world around us.

This fall we are offering our first Marsh Magic program for kids 7-12 years of age.  It will be offered after school (4:30ish) on Tuesdays for about 90 minutes.  We are holding it at our family friendly and COVID compliant facility in Angier, NC.  In the very near future we will also be offering an online version of this program that does not use Zoom!  They get enough of that at school.

Marsh Magic is a truly unique in that it combines the marvels of magic with the discovery of science in one program.  It is a lot of fun and give kids the ability to communicate their thoughts and ideas with each other and their audiences. 

I know many of our subscribers are not in North Carolina and the ability to send their kid to our school is simply not practical.   However, we will be coming to you online very soon and it will not be a magician doing magic tricks on Zoom.  As many of you are aware, we have built a state-of-the-art online learning management system for our wetland classes.  We plan on incorporating this into our Marsh Magic program. 

If you know anyone who has kids that might benefit from something like this, please let them know about our program.  You can share the link below to let them know about it.

We are trying to keep the cost to a minimum, but magic tricks can add up.  If your company would like to sponsor some children for this program, we would love to talk to you about this.  For us, it is not about the money.  We want to keep our children engaged in science and show them it can be a lot of fun.  Magic after all is simply science, we don’t understand yet.  Plus, we want to bring back some joy to our lives and what better way to do this than a magic show!

Marsh Magic Info

The Migratory Bird Treaty Act

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.”

USACOE 2020 Nationwide Permits

Wetland Wednesday

August 12, 2020

On August 3, 2020 the US Army Corps of Engineers announced its intention to renew and revise 52 nationwide permits for work in wetlands and other waters that are regulated by Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The Corps proposal includes five new nationwide permits related to seaweed mariculture activities, finfish mariculture activities, electric utility line and telecommunications activities, utility line activities for water and other substances, and water reclamation and reuse facilities.

The nationwide permits are designed to authorize activities that cause minimal adverse environmental impacts to aquatic resources separately or on a cumulative basis. Activities range from work associated with aids to navigation and utility lines to residential developments and maintenance activities.

The mariculture permits are brand new and represent an emerging market.  The biggest change is associated with the Nationwide 12 permit.  This permit in the past had been for utility line crossings.  The new proposal for Nationwide 12 retains the oil and gas activities and cleaves the other types of utilities into two new permits.  One permit is for electric and telecommunications.  The other is for water and sewer projects.

Another major permit change is reflected in the compensatory mitigation requirements.  In a previous regulatory guidance letter, the Corps had indicated that it had intended to move away from linear stream measurements and toward an acreage calculation.  That change is reflected in these permits.  

In addition, the district engineers discretionary call on ephemeral stream impacts has been eliminated.  This is owning to the recent Navigable Waters Protection Rule that has deemed ephemeral streams to be non-jurisdictional.  The permit changes clarify this fact.

Keep an eye out for the published version of the new permits in the Federal Register in the coming weeks.  We can expect these new permits to be effective before the end of the year.

How to Run a Successful Online Class (Part 3)

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