Theory of Constraints in 2020

Wetland Wednesday

March 11, 2020

This week I thought I would take a bit of a break from all of the new EPA and Corps rules, regulations and fines that are floating out there.  I also need a break from all the COVID 19 reporting.  I know it is serious and we have seen a sharp increase in online students as a result.  However, I think we need to focus on what we can do something about and trust that the medical professionals will do what needs to be done.  So take their advice, wash your hands and get on with whatever makes you happy.

I have spent a fair amount of time pondering new and better ways to speed up the wetland delineation process. The Army Corps of Engineers Regional Supplements have expanded the amount of data we collect in the field. This significantly adds to the time it takes to complete a data form. On average it can take 45 minutes to an hour and a half to completely fill out just one form.

I have looked a number of process design theories such as lean and six sigma and found that there are ways to reduce time and cost without sacrificing quality. One of the management concepts that business use is something called the theory of constraints (TOC).

The theory of constraints works from the proposition that a chain is no stronger than its weakest link. People, processes, organizations, procedures, etc. are vulnerable because the weakest person or part can always damage or break them or at least adversely affect the outcome. Therefore the entire system is regulated by one or more system constraints. In our wetland example what makes wetland delineations so expensive?

To answer this question we must first identify three measures: throughput, operational expense, and inventory. Throughput is the rate at which the system generates money through sales. In our case these are billable hours. Inventory is all the money that the system has invested in purchasing things which it intends to sell. This is your paycheck. You are the inventory. Remember you are selling your time. Operational expense is all the money the system spends in order to turn inventory (you) into throughput (billable hours). These are your direct expenses including travel, training and supplies as well as marketing, accounting and other office indirect expenses.

To quantify this we need three numbers. First is your compensation package. This includes everything the company pays you including all benefits. This is the inventory expense. The next expense is all of the office directs and indirect expenses. This includes the rent, non-billable staff salaries, office and field supplies, taxes, and anything else you can think of. Try not to use the overhead multiplier that some companies have to use for government contracts. Too often this underestimates the real office overhead because there are some expanses that are disallowed. In reality we still have to pay for these.

Once we know what it costs to put you in the field we need to know how much we can get for your time. This is the throughput. However throughput also considers the rate at which you convert expenses into sales. This in a sense is the velocity of your billable time. Because in our example we are only going to bill 8 hours a day the speed remains the same, but the amount of revenue generated is based upon how many hours in a day you can bill and what your billable rate is in dollars per hour.

It is at this point that we encounter our first big challenge. I want to make more money for my company but I bill at say $60 per hour, so that in any given day the most I can make my company is $480. If I look at all the expenses you might be surprised to learn that at most your company is only clearing an 8-9% profit. If you look deeper that number may be even smaller.

Here is the problem. You need to make more money, but there are only 8 hours in any day. The question is really what is your goal?

If your goal is to bill 8 hours then congratulations you are done. However, there is no acceleration possible because the velocity is set at 8 hours per day. Sort of like cruise control. No increase in speed means no more growth. You could add staff and increase revenue, but the profit will remain the same because more staff translates into more expenses. In some cases you may even see profit drop because the increase in staff may require a significant increase in overhead. More office space for example.

At issue is really focusing on the important goals. The theory of constraints is based on the notion that the rate of goal achievement (velocity) by a goal-oriented system (throughput) is limited by at least one constraint. What is slowing you down?

Cox and Goldratt explain in their book, The Goal, five ways to measure the velocity of goal achievement.

  1. Identify the system’s constraint(s) (what is preventing you from reaching your goals)
  2. Exploit the system’s constraint(s) (get the most out of the constraint, e.g. avoid unnecessary idle time, farm out work to other resources where possible)
  3. Subordinate all other resources to the constraint (align the whole system or organization to support the constraint’s operation, e.g. prioritize repair and maintenance, change process batch size on non-constraints)
  4. Elevate the system’s constraint(s) (make other major changes needed to increase the constraint’s capacity, e.g. perhaps a new senior hire)
  5. If in the previous steps a constraint has been broken, go back to step 1, but do not allow inertia to cause a system’s constraint. This means that the backlog of work should not be the constraint.

If we look back to our wetland example perhaps we should not be focused on billable hours. Rather, we should focus on the number of data points acutely completed in a day. There is really no limit to the number that you could do. You can only experience 8 hours in a given work day. So why limit yourself?

How many can you do now? What could you do to speed this up? Identify the constraints. For example you are spending way too much time on plant identification. This is the major bottleneck or what is sometimes called the “drum.” Fix the problem by attending several of the Swamp School’s awesome plant classes and reduce this time. I had to get a plug in here somewhere. Now you can do 3 times as many data points in a given day.

This fixes one end of the throughput. At the other end you need to consider a new way of billing your clients and getting paid. As it stands now you really have no incentive to work any faster if you are being paid by the hour. However, if you are being paid by the data point, I bet you would be able to find a way to get more data points done in a day. If your client pays by the data point rather than by the hour, in the long run they will save money because you are motivated to finish their job quickly so that you can move onto the next client.

If you want proof that this system works take a look at you next car repair bill. There is usually a quote based upon an average amount of time it takes to get a job done plus parts. Your quote is guaranteed so you know exactly what it is going to cost you to get your car fixed. However, in almost all cases the mechanic gets the job done in less time than was estimated. You still pay the quoted amount happy that the job was done a little sooner so you can get your car back. The mechanic moves onto the next car getting more done in a given day. Everybody’s happy.

I am not sure when wetland delineators thought it was a good idea to bill like lawyers do. If you think about it does anyone like paying for legal advice billed at a 0.1 hour rate. Really who can do anything meaningful in 0.1 hours? I really hate time-sheets. They are the bane of our business.

If you want to make more money you need to identify and exploit the constraint. Doing so converts more activities into revenue. Your throughput increases. Your clients are happy and you have a reputation of getting a job done quickly, efficiently and in the long run at a lower cost to the client. You just became more competitive in the market!

Have a great and profitable week!

– Marc

Implementing the Navigable Waters Protection Rule

Wetland Wednesday

March 4, 2020

There are a few subtle and not so subtle implementation aspects of the final Navigable Waters Protection Rule (NWPR).  Chief among these is the definition of a tributary.  On the surface (pun intended) only streams, wetland and other waterways that have a surface connection to a Traditional Navigable Waterway (TNW) are federally jurisdictional.  At issue is what is meant by surface connections?

Tributaries have been segmented for years into three broad classifications.  These classifications were used for Section 401 Clean Water Act (CWA) water quality standards implemented by the states.  There are differences in the way each state interprets the classifications but overall, they follow these general definitions,

These definitions come from the North Carolina Methodology for Identification of Intermittent and Perennial Streams and Their Origins (2010) and are specifically referenced in the final rule preamble.

Perennial stream means a well-defined channel that contains water year-round during a year of normal rainfall with the aquatic bed located below the water table for most of the year. Groundwater is the primary source of water for a perennial stream, but it also carries stormwater runoff. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

Intermittent stream means a well-defined channel that contains water for only part of the year, typically during winter and spring when the aquatic bed is below the water table. The flow may be heavily supplemented by stormwater runoff. An intermittent stream often lacks the biological and hydrological characteristics commonly associated with the conveyance of water.

Ephemeral (stormwater) stream means a feature that carries only stormwater in direct response to precipitation with water flowing only during and shortly after large precipitation events. An ephemeral stream may or may not have a well-defined channel, the aquatic bed is always above the water table, and stormwater runoff is the primary source of water. An ephemeral stream typically lacks the biological, hydrological, and physical characteristics commonly associated with the continuous or intermittent conveyance of water.

In order to be federally jurisdictional both the perennial and intermittent stream types must meet the new definition of a tributary.  These streams contribute surface flow to traditional navigable waters in a typical year.  They must flow more often than just after a single precipitation event.

In order to accomplish perennial or intermittent flow groundwater is needed to provide a base flow.  For the purposes of the NWPR groundwater is not federally regulated and they say as much in the regulation.  But as a good friend had always told me this is regulatory and not reality.  So be sure your stream has a perennial base flow and don’t worry about where it is coming from.

Have a great week!

Marc

 

Rescission of the 2005 Joint Guidance between NRCS and USACE

Wetland Wednesday

February 26, 2020

Rescission of the 2005 Joint Guidance between NRCS and USACE

On January 28, 2020 the Natural Resources Conservation Service (NRCS) and U.S. Army Corps of Engineers (USACE) agreed to rescind the 2005 memo that directed how wetlands and waterways would be assessed between the two agencies. The January 23, 2020 Navigable Waters Protection Rule (NWPR) preamble references the rescission of the 2005 Joint Guidance, “because it was not consistent with the newly promulgated definition of “waters of the United States” in the rule. At issue is the differing interpretations of wetlands and waterways between the two agencies.

NRCS administers farm subsidy programs. The USACE administers a regulatory program. These have very different objectives. NRCS’s program chiefly focus on avoiding and minimizing impacts to wetlands. Whereas, the USACE program focus is on authorized uses and fills of wetlands. NRCS does not make the distinction of jurisdictional waters as they are not claiming any jurisdictional authority. Rather their role is simply to pay farmers to not impact wetlands.

The Food Security Act Manual defines a wetland based upon the use of the USACE 1987 Wetlands Delineation Manual and the subsequent Regional Supplements. It does not address jurisdictional wetlands at all. Wetlands are managed by NRCS regardless of USACE jurisdictional status.

If a farmer fills in a wetland he or she risks losing all or some of the farm subsidies paid by NRCS. There is also the potential to lose future payments as well. These subsidy reversals can go beyond just wetland conservation monies and extend to other payments like crop insurance, soil conservation payments and other non-wetland related farm payments.

Ironically, the promulgation of the Navigable Waters Protection Rule was heavily lobbied by the farm community. It is ironic because the Clean Water Act (CWA) violations are the least of their problems. Under the NWPR, if a farmer fills in a non-jurisdictional wetland (USACE) he or she may not be subject to CWA violations, but they still run the financial risk of agreement penalties with NRCS. These can be very significant and have far more impact on a farm than the CWA fines they might have received.

It is also important to note that pursuant to this change in agreement a NRCS Certified Wetland Delineation cannot be used for USACE permitting. A farmer would need to request a jurisdictional determination from the USACE in order to proceed with a wetland or water filling project. This would also seem to negate the historic farmland exemptions enjoyed by the farmers in the past. The January 28, 2020 does not expressly state this, but the intent seems clear. Farmers will have to deal with USACE just like the rest of us.

Antecedent Precipitation Tool

Wetland Wednesday

February 19, 2020

Antecedent Precipitation Tool

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

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

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

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

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

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

Migratory Bird Treaty Act

Wetland Wednesday

February 12, 2020

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

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

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

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

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

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

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

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

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

Ditches, streams and wetlands

Wetland Wednesday

February 5, 2020

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

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

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

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

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

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

New Navigable Waters Protection Rule

Wetland Wednesday

January 29, 2020

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

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

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

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

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

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

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

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

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

Wetlands and the American Farm Bureau Federation

Wetland Wednesday

January 22, 2020

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

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

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

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

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

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

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

Changes to CWA 401 Rules

Wetland Wednesday

January 15, 2020

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

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

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

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

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

New EPA new Science Advisory Board

Wetland Wednesday

January 8, 2020

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

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

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

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