State and Federal Policies Contribute to Wetland Loss

Swamp Stomp

Volume 15, Issue 3

For years, Massachusetts has actively attempted to prevent the destruction of swamps, marshes, seasonal ponds, and other wetlands. These areas protect numerous threatened species, filter pollution, and control floodwaters. This policy began three decades ago when developers became required by law to replace almost every square foot of wetlands destroyed in the process of building houses, parking lots, and shopping malls.

Today, however, according to an examination by the New England Center for Investigative Reporting, the state’s landscape is littered with examples of the policy’s failure. Many of the areas created as replacement wetlands are now dry land, filled with invasive species, or much smaller than intended. Others, built near roads and sidewalks, degraded from pesticide control or foot traffic. Furthermore, due to a lack of vigor in carrying out the policy, some developers never even fulfilled their promises to replace the wetlands they destroyed.

The rate of wetland construction failure is not amiss to specialists, some of whom have joked that the best way to identify sites is to spot abandoned shopping carts and old tires. Matt Schweisberg, head of Wetland Strategies and Solutions, an environmental consultant firm in Merrimac, and former chief of the New England wetlands protection program for the U.S. Environmental Protection Agency, when asked if replacement wetlands match the ecological function of the areas destroyed, asserted, “It’s almost a blanket assumption that they don’t work.”

According to the preliminary results of a University of Massachusetts Amherst study, only 51 of the 91 wetland projects that researchers were given permission to access were successfully built—and some of these were much smaller than originally planned. In 28 cases, the developer attempted to build the wetland unsuccessfully, and in 12 cases, the wetland was never built at all.

These numbers reflect a string of long-running problems plaguing the state wetlands program, including: an administration that is ill-equipped to enforce the law and monitor sites, state budget crunches that have delayed some long-planned improvements, and challenges in building wetlands in areas that have always been dry.

The policy’s failure up to this point has led many regulators to rethink the policy all together. Now that the economy has begun to improve, large tracts of affordable dry real estate have become hard to find. An alternative that is under consideration is that instead of replacing the wetlands destroyed in construction, developers would have to contribute to a fund that would be used to create larger, more meaningful wetlands elsewhere.

A decision is expected soon due to the U.S. Army Corps of Engineers’ decision to allow developers to contribute to a fund used to build and preserve existing wetlands. Therefore, unless Massachusetts changes its policy, then its regulations would conflict with federal policy.

Municipal officials are worried, however, that a move away from the current policy would do little to benefit the communities that have lost their wetlands to construction. Furthermore, developers are concerned that the required contributions to the federal fund would prove too expensive.

Michele Restino, conservation agent for the city of Taunton, claimed, “The replication areas need to be next to what is destroyed. If it goes to Boston (or elsewhere), how does it do any good here?”

The director of the wetlands and waterways program at the Massachusetts Department of Environmental Protection, Lealdon Langley, however, thinks that the current policy approaches wetland preservation in the wrong way.  He asserted, “There are plenty of places where things can go wrong. We think it’s important to put emphasis on avoidance, and then reconstruction. We want to keep wetlands intact.”

Massachusetts’ “no net loss” policy for wetlands may be one of the stricter state policy’s regarding wetland preservation, but many of its shortcomings are applicable to a number of states. Appropriate funding and maintenance, as well as finding a location that can support all the complexities of wetland replication, must be available when constructing new wetlands. Furthermore, efforts must be made to preserve natural wetlands to ensure environments don’t lose the benefits wetlands provide. The new federal policy allows for greater attention and care to be given to larger wetland systems, however, it could also mean the extinction of wetlands from some environments entirely. A middle ground must be found to ensure wetland loss does not become a major problem in certain areas, and that also provides funds for the preservation and maintenance of all wetland systems.

SBA Warns EPA to Abandon Waters of the U.S. Rule

Swamp Stomp

Volume 15, Issue 2

On October 1, 2014, the Office of Advocacy, an independent office within the Small Business Administration (SBA), filed public comments with the Army Corps of Engineers and the Environmental Protection Agency (EPA) in response to the proposed “Definition of Waters of the United States under the Clean Water Act” rule. Advocacy thinks that the EPA ought to have conducted a Small Business Advocacy Review Panel before releasing the proposed rule for open comment. Had Advocacy been consulted prior to the public release, then it would have been able to raise its concerns in private rather than in a public forum. Subsequently, Advocacy was forced to publicly advise that the EPA withdraw the proposed rule and conduct a private panel before re-proposing the rule.

In the letter addressed to Gina McCarthy, EPA Administrator, and Maj. Gen. John Peabody, Deputy Commanding General of Civil and Emergency Operations of the U.S. Army Corps of Engineers, Winslow Sargeant, Chief Council for Advocacy, Kia Dennis, Assistant Chief Council for Advocacy, and Stephanie Fekete, Legal Fellow, state that the “EPA and the Corps have improperly certified the proposed rule under the Regulatory Flexibility Act (RFA) because it would have direct, significant effects on small businesses.”

Sargeant, Dennis, and Fekete say, “The RFA requires federal agencies to consider the impact of their proposed rules on small businesses. When a rule is expected to have a significant economic impact on a substantial number of small entities, agencies must evaluate the impact, consider less burdensome alternatives, and in the case of the EPA, convene a Small Business Advocacy Review Panel.” Therefore, by failing to consult with the SBA, the EPA broke the law.

In March, 2014, McCarthy claimed, “Our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act.” Now, however, Advocacy, an office that Congress created to defend the interests of small businesses and small local governments, states that such claims are erroneous.

Furthermore, the SBA claims that the statements made by the EPA and Army Corps of Engineers affirming that the proposed rule actually narrows EPA jurisdiction are  misleading because they are based on the 1986 definition of the scope of the Waters of the U.S.

Both the SBA and the Office of Management and Budget claim the outdated definition could only be used with the aim of misleading the public. Sargeant and his team state, “The 1986 regulation does not represent the current method for determining jurisdiction and has not served that purpose for more than thirteen years. Using an obsolete baseline improperly diminishes the effects of this rule.”

The SBA estimates that CWA 404 permit costs would increase somewhere between $19.8 million and $52 million dollars annually, while section 404 mitigation costs would rise somewhere between $59.7 million and $113.5 million annually. Sargeant and the SBA state that “these amounts do not reflect additional possible cost increases associated with other Clean Water Act programs, such as Section 402 permitting or Section 311 oil spill prevention plans. They also “leave small businesses without a clear idea of the additional costs they are likely to incur for these Clean Water Act programs.”

Sargeant concludes by stating, “The rule will have direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provide ample evidence of a potentially significant economic impact.” The EPA has “obligations under OMB guidance and the RFA.” As the debate over the proposed rule moves forward, the EPA ought to be held responsible for meeting its obligations, and disciplined appropriately if they continue to ignore them.

New Technology in Wetland Delineations

Swamp Stomp

Volume 15, Issue 1

CompassData, a global provider of geospatial data and services, uses a Trimble UX5 drone for aerial surveys. Recently, the Federal Aviation Administration (FAA) granted five regulatory exemptions for unmanned aircraft systems (UAS) used for commercial operations. Section 333 of the 2012 FAA Modernization and Reform Act (FMRA) granted these exemptions to four companies that represent several different industries, and promise to benefit from UAS technology.

One of the companies benefiting from these regulatory exemptions, Trimble Navigation Limited, manufactures the UX5 drone used by CompassData and several other businesses. These exemptions allow for an expedited certificate of authorization (COA) process because the use of unmanned aircraft systems are pre-approved.

“The process of acquiring a certificate of authorization from the FAA, which is required to fly legally within U.S. airspace, can be cumbersome and time consuming,” claimed Jeff Southard, Senior Project Manager at CompassData. He continued, “This exemption should help companies that use the Trimble UX5, like CompassData, accelerate this process and allow us to get into the field in a timely manner. This will benefit our customers.”

CompassData clarified that the Trimble exemption does not mean that future UX5 operations are exempt from the COA process, but, rather, the process may be accelerated due to the FAA exemption of the Trimble UX5. They are still only permitted to operate in a defined block of airspace under special provisions unique to the proposed operation.

The formal announcement of CompassData’s purchase of their first unmanned aircraft system, the Trimble UX5, arrived in early 2014. They are one of only a handful of U.S. based companies who have experience working with the UX5. Besides the excellent reviews the UX5 had received, the long history between CompassData and Trimble made the UX5 the obvious choice. The custom camera system was designed and constructed specifically for mapping and surveying professionals who rely on highly accurate deliverables. Furthermore, it has a potent airframe and is simple to operate.

CompassData now employs three Trimble certified remote pilots, all having many hours of flight experience, who are prepared to conduct flight operations for custom aerial imagery collection projects. There is no limit to the mapping and surveying projects CompassData are now able to conduct. A few implementations of the UX5 so far include but are not limited to utility mapping, oil and gas fields, crop analysis, terrain modeling, volume calculations, mine mapping, tree height calculations, disaster relief, wildlife monitoring, livestock management, wildlife management, and ranch mapping.

There remains strict limitations to UAS use, however. They are permitted to fly in the national airspace system under very controlled conditions. Operations have the potential to range between ground level to above 50,000 feet, depending on the size and type of aircraft. UAS operations are not allowed to be conducted in Class B airspace, however, that is, over major urban areas or in areas that contain a high density of manned aircrafts in the National Airspace.

CompassData provides additional information at http://compassdatainc.com/

Further information on the Trimble UX5 can be found at http://www.trimble.com/agriculture/ux5

EPA Fights to Overturn Federal Sanction

Swamp Stomp

Volume 14, Issue 52

The Environmental Protection Agency (EPA) hopes the federal appeals court will overturn a court order that forces the agency into a decision regarding whether or not federal regulations are needed to curb the flow of pollutants into the Mississippi River. As it stands, the accumulation of pollutants entering the river creates a low-oxygen “dead zone” along the coast of Louisiana each spring.

A hearing was held on December 4, 2014 before the 5th Circuit Court of Appeals, whereby federal attorneys argued that setting priorities for water quality falls under the EPA’s responsibility, not that of the court.

In 2013 U.S. District Judge Jay Zainey ruled that the EPA needed to make a “necessary determination” on whether federal intervention was imperative to the prevention of pollutants running into the Mississippi.  A delay to the order was granted by the 5th Circuit, allowing time for the Agency to appeal the decision.

Zainey’s ruling came as good news to the several environmental groups that have accused the EPA of taking more than their fair share of time addressing the problem, such as The Gulf Restoration Network, a conservation group based in New Orleans, and the Natural Resources Defense Council. In 2008, the EPA was asked by these groups to draft new regulations that would reduce the flow of Nitrogen and Phosphorus running into the river from certain sources, including farms and sewage treatment plants. The request was denied.

The added amounts of Nitrogen and Phosphorus into the water stream acts as a stimulant to the algae that are present. Toxic algae blooms subsequently grow, sink to the ocean floor, decompose, and consume all the oxygen in the water. The infected area effectively becomes a “dead zone;” any fish, worms, clams, or other oxygen reliant organisms in the range suffocate and die.

According to estimates from the National Oceanic and Atmospheric Administration, the added nutrients entering the Mississippi River result in a gulf dead zone that in 2013 covered at least 5,800 square miles—roughly the size of Connecticut.

The EPA argued that states are responsible under the Clean Water Act for regulating water quality, so any regulation is outside their jurisdiction. However, the aforementioned environmental groups think federal intervention is necessary due to how states have handled the issue—or as it may be, not handled the issue.

Ann Alexander, an attorney with the Natural Resources Defense Council, claimed at the December hearing that if individual states fail to act, then federal law requires the EPA to take action. She added, “On this particular issue, it has been an entire decade of relentless avoidance of the problem.”

If the EPA’s appeal to overturn Zainey’s order fails, then they have 180 days to formally decide whether it will create regulations to limit nutrient pollution. The Agency may act in either the affirmative or the negative, however, it must provide both a clear legal and scientific explanation for their decision.

If a decision is not arrived at during that time, the EPA is responsible for providing both an explanation as to why no decision was able to be made, and a projected timeline as to when a decision can be made. In such an event, the Agency will seek clarification on what are acceptable reasons for being unable to produce a decision.

In the order, Zainey, who was appointed to the bench by President George W. Bush, asserted that the EPA’s decision does not have to be made solely on environmental factors, but can take into account any influential aspects.

The Panel of 5th Circuit Judges, which includes Judge Edith Brown Clement—appointed by President George W. Bush—Judge Patrick E. Higginbotham—appointed by President Ronald Reagan—and Judge Stephen A. Higginson—appointed by President Barack Obama—is expected to reach a decision in the coming months.

Supreme Court Won’t End BP’s Liability

Swamp Stomp

Volume 14, Issue 50

On Monday December 8th 2014, BP saw their plea for government intervention in the multibillion-dollar litigation they face for the April 2010 debacle turned down. They were responsible for the millions of gallons of crude that were spilled into waters off of Louisiana, and the 11 offshore rig workers who were killed during the event. An open ended portion of BP’s liability will now cost billions of dollars more than the original $7.8 billion estimate thanks to the Supreme Court’s snub.

However, the Supreme Court’s refusal to act may have larger implications than simply raising BP’s liability fees. The oil and gas company’s appeal remarkably turned into a direct attack on Carl Barbier, the federal trial judge who oversees several aspects of the multifaceted spill litigation. Without the cloud of the Supreme Court looming over Barbier’s head, BP is expected to have to pay a heavy penalty for repeatedly challenging the integrity of the settlement process.

Stephen Herman and James Roy, the plaintiff’s attorneys, claim that the high court’s shun “should finally put to rest BP’s two-year attack on its own settlement.”

After the explosion that led to the worst offshore oil disaster in U.S. history, BP established an initial $20 billion fund to provide revenue for cleanup and damage claims, as well as attempting to negotiate settlements of various government and private suits. Since then the company has written checks in excess of $28 billion.

In order to avoid a trial on one category of potentially vast business and economic claims, BP agreed a settlement in 2012 estimated at $7.8 billion. The agreement, however, had no ceiling and the overall value was to be established by a highly flexible formula used to determine which of the alleged victims qualified for payment. This resulted in chaos as hundreds of large-dollar claims that appeared to have no apparent connection to the spill were made. Subsequently, BP accused the plaintiff’s solicitors and the settlement administrator—appointed by Barbier—of violating the agreement. Barbier, however, rejected the accusations of excessive and in some cases “fictitious” claims, and felt persecuted by the unfounded allegations that he was victimizing the oil and gas company.

It was this section of the claim that the Supreme Court refused to review. Constitutional or statutory clashes are not in question, but rather a one-time-only contract dispute that was complicated by peculiar facts. Therefore, it is not the kind of dispute the Supreme Court normally sets out to resolve.

BP’s attack on Barbier may prove to backfire in a substantial way. Having questioned Barbier’s settlement process, additional attention has been given to the loose terms of the settlement agreement. BP now estimates that the settlement will exceed $9.7 billion, however, the plaintiff’s attorneys expect a much larger number, estimating figures closer to $20 billion.

Keep in mind as well that this is only one portion of the claim against BP. The company also faces federal charges filed under the Clean Water Act. Barbier will also preside over that trial, whose the separate liability may itself reach $18 billion. The man who BP tried to railroad, then, will have it in his power to penalize the company in many facets of the suit without drawing the attention of the Supreme Court.

It is looking increasingly likely that the $43 billon pretax charge BP took to cover all of its spill liability will not sufficiently cover all of their expenses.

Algae Blooms Worsened by Invasive Species

Swamp Stomp

Volume 14, Issue 49

After an algae bloom forced the drinking water plant in Toledo, Ohio, to close in August 2014, scientists began to study several components of the Great Lakes habitats in order to further understand the causes of toxic algae. They discovered that the established causes of algae blooms—commercial farm runoff, animal manure, sewage spills, faulty septic tanks, and other sources contributing to the rising phosphorus and nitrogen levels in water—are not the only factors responsible for algal growth.

While invasive species do not provide the initial cause of toxic algae, they do encourage algal growth and worsen the effects of the toxin. The University of Michigan and the National Oceanic and Atmospheric Administration co-authored a paper in the scientific journal Water Resources Research, whereby they assert that the effect of invasive mussels contribute to the development of algae blooms after the initial phosphorus inputs.

After a 20-year absence between 1975 and 1995, toxic blooms have not only reappeared on Lake Erie, but continue to grow larger year after year. While there have been rising levels of phosphorus in the water since the return of the blooms, the lead author of the paper, Daniel Obenour, formerly of the University of Michigan Water Center, claims that other factors are decisive to the growth of toxic algae. He says, “Phosphorus loading doesn’t explain everything.”

David Culver, a retired zoologist from Ohio State University, is one of several scientists who think invasive mussels both spit out microcystis, the most dominant form of toxic algae found in Lake Erie, and excrete the majority of the phosphorus they absorb due to an inability to digest it. Invasive mussels have tiny sensors that identify when microcystis approach, allowing them to eat what they want and spit out what they don’t. Furthermore, their bodies absorb the phosphorus from the water as if they had a nutrient deficiency, however, due to the large amount of phosphorus in the water these days, most of the phosphorus ingested is merely excreted back into the water.

The initial introduction of zebra mussels into the Great Lakes in 1986 seemed to cleanse the water, however, scientists at numerous conferences since then have commented on how the quality of both the lakes aesthetics and delicate ecological balance have backslid. Furthermore, the last decade has seen a mussel abundance in the lakes as quagga mussels, the larger and more adaptable cousin of the zebra mussel, began to appear.

Don Scavia, director of the Graham Sustainability Institute, a University of Michigan aquatic ecologist, and a co-author of the aforementioned paper, claims that this increase in mussels must contribute to Lake Erie’s susceptibility to algae growth. He says, “We’re thinking it may have been the increase in mussels.”

A mussel may seem insignificant to the lake as a whole, but the amount of mussels now inhabiting the lake proves serious. Obenour asserts that these mussels “don’t remove phosphorus from the system; they just change how it is cycled through the system. Now because of changes in the lake, it requires less of a phosphorus load to initiate these blooms.”

The mussels, then, do nothing to cleanse the lake, but merely contribute to the risk of algae blooms. While initial phosphorus levels instigate toxic algae, it is the growing amount of invasive mussels in the water that cultivates the toxins and allows blooms to occur.

 

Prairie Pothole Wetlands Placed in Peril

Swamp Stomp

Volume 14, Issue 48

One of the most important wetland regions in the world hosts our nation’s capital, Washington DC. While the region homes over half of North America’s migratory waterfowl, according to the Public Employees for Environmental Responsibility (PEER)—a non-profit alliance that works with various government environment offices to responsibly manage the nation’s public resources—potholes plague the area. This is not surprising considering that nearly two-thirds of wetlands in the Prairie Pothole Region—Iowa, Minnesota, North Dakota, and South Dakota—have already been either drained or modified for agricultural use.

The National Resource Conservation Service (NRCS) of the U.S. Department of Agriculture, has been working to reverse this trend. A $35 million, four state initiative was launched, however, internal reviews suggest the program fails to make a desirable impact. One review from March 18, 2013, titled “Final Oversight and Evaluation Report: North Central Wetlands Conservation Initiative (NCWCI) — Combined Report Spring 2012,” revealed the following three shortcomings:

First, “Commonly, the reviewer did not agree with certified wetland determinations. It was apparent that quality assurance and oversight was occurring minimally (3 out of 4 states).”

Second, “The methods currently utilized for offsite determinations are inadequate.” Furthermore, “Agency experts are not consistently applying the approved protocols when conducting onsite determinations.” The processes for wetland identification, such as mapping and sampling, prove, therefore, to be deficient.

Third, “Agency experts have not consistently received adequate training as required. Inadequate training was found in 2 out of the 4 states with a combined success rate of 19.5%.”

Such reports led Jeff Ruch, PEER Executive Director, to assert, “America’s Prairie Pothole wetlands are dying the death of a thousand cuts.” The claim was delivered during comments regarding how one evaluation warns that the aforementioned conditions place “the agency at risk of loss of confidence from the wetland conservation community, the Administration, and Congress.”

Ruch also noted that “these reports also suggest that the government program charted to save the Prairie Pothole wetlands is doing the opposite.” The individual reports on each of the four prairie states from 2013 and 2014 revealed major concerns in three of the states.

In Minnesota, “The review finds that the correct wetland identification decisions (vegetation, soils, and hydrology) are not being rendered accurately and that proper wetland conservation labels are not being made according to policy. The inconsistencies fall outside of acceptable expectations.”

In South Dakota, “During the interview process it was discovered that wetland certification production goals had unrealistically been set at approximately 200 per year for wetland specialists in one area. This could result in the avoidance of adverse decisions.” Furthermore, retired NRCS employees acting as independent “consultants” to farmers have created a revolving-door problem. One person posted to the Comments section of the state report, “One employee expressed it was ‘uncomfortable’ trying to do a quality assurance because the Consultant used to be the DC [District Conservationist] in that office.”

In Iowa, “No Quality Assurance Plan was provided from either the State Office or the area offices. There is currently no policy pertaining to this issue, however it is still a ‘good idea’ to have one…”

Ruch used the Freedom of Information Act to acquire versions of the reviews that are heavily redacted to hide what the NRCS refers to as “pre-decisional” information. He claimed, “Terms like ‘absence of quality assurance’ are euphemisms for saying the resource is being sold out.”

“These redactions make it impossible to tell whether the agency is actually doing anything to fix what is broken. Typically, this much blacked out space in the official reports is a bureaucratic signal that problems persist,” Ruch continued.

The reports can be found at the following links:

Iowa, http://www.peer.org/assets/docs/ia/11_6_14_Iowa_report.pdf;

Minnesota, http://www.peer.org/assets/docs/ia/11_6_14_Minn_report.pdf;

North Dakota, http://www.peer.org/assets/docs/ia/11_6_14_North_Dakota_report.pdf;

South Dakota, http://www.peer.org/assets/docs/ia/11_6_14_South_Dakota_report.pdf.

 

Beavers Benefit Bare Banks

Swamp Stomp

Volume 14, Issue 47

Often thought of as vermin, beavers have been trapped and shot, while their dams have been destroyed by dynamite and bulldozers. However, the dry climates that have caused droughts throughout the West have brought beavers back to the forefront of landscape preservation.

By creating their dams, beavers raise the water table along rivers, which supports the tree and plant growth that stabilizes banks and prevents erosion. The dams also contribute to improved fish and wildlife habitats, and encourage richer soil to develop. However, in the dryer parts of the country that have been suffering from severe droughts, the most beneficial contribution of beavers is the water their dams collect.

Before beavers were considered pests, the tens of millions of semi aquatic rodents that dwelled in North America formed an integral part of the hydrological system in North America. Jeff Burrell, a scientist for the Wildlife Conservation Society in Bozeman, Montana, described how important the beaver once was for environmental stability. He said, “The valleys were filled with dams, as many as one every hundred yards. They were pretty much continuous wetlands.”

However, by 1930 the beaver population dropped to less than 100,000—most of which dwelled in Canada—because of fur trapping. Since then the number of beavers has bounced back to an estimated 6 million, and an appreciation for beaver dams has begun to grow.

Lately, hydroelectric and reservoir dams have been heavily criticized because of the extensive changes they cause to the natural environment. The benefits of beaver dams, both natural and artificial, have, subsequently, become an attractive alternative. In fact, the demand for natural damming has risen so much over recent years that government agencies sponsor workshops on the West Coast to train wetland workers how to attract beavers.

Burrell claimed that as long as beavers are able to help, we should take advantage of the resource. He said, “We can spend a lot of money doing this work, or we can use beavers for almost nothing.”

Beavers are the ecosystem’s natural engineers. Each time a family of beavers moves to a new territory, it begins a new dam in order to create a pond and shelter. As the water trapped behind the dam increases because of the buildup of twigs, mud, and stones, the entrance to the beaver’s shelter becomes submerged underwater, and thus protected from predators.

The new pond nourishes the nearby willows, aspens, and other trees, as well as providing a safe place for fish that require slow moving water. Land creatures such as deer, elk, and songbirds benefit from the grasses and shrubs that grow as a result of the pond.

The greatest benefit of the pond, however, is the increased levels of underground water. The boosted water supplies would considerably lower the groundwater costs for farming. Cheaper water preservation will be crucial going forward, especially in areas suffering from drought. Burrell claimed, “People realize that if we don’t have a way to store water that’s not so expensive, we’re going to be up a creek, a dry creek. We’ve lost a lot with beavers not on the landscape.”

The danger of allowing beavers to dam streams freely is that their damming may cause floods in residential and urban areas; if unchecked beavers can be destructive to ecosystems that are not already short of water. Therefore, it is important to only encourage beaver activity in areas that need help managing and retaining water.

Beaver activity has been increased in arid climates such as those found in Arizona. However, the consequences of doing so are largely unknown. Julian D. Olden, an ecologist at the University of Washington, discovered that beaver ponds made in Arizona proved to be ideal habitats for invasive fish, such as carp, catfish, and bass, which will eventually overrun the native species. He concluded, “There’s a lot of unknowns before we can say what the return of beavers means for these arid ecosystems. The assumption is it’s going to be good in all situations, but the jury is still out, and it’s going to take a couple of decades.”

It appears clear that beaver activity is not recommended in all situations, but the positives of allowing beavers to dam water supplies in low-water-areas seems to outweigh the negatives. As mentioned by Olden, the overall consequences will only be able to be gauged after a large amount of time has passed. Until then all we can do is hope that the positives continue to outweigh the negatives.

NWPL Update Questionnaire

Swamp Stomp

Volume 14, Issue 46

The last extensive update of the National Wetland Plant List (NWPL) occurred in 2012. Recently the NWPL’s national panel released an online questionnaire to ensure that the list remains current. The aim of the questionnaire is to designate those plant species possessing wetland ratings that may need revision, as well as those species that need examining either for inclusion or exclusion from the list.

All four of the federal agencies who collaborate on the NWPL—the U.S. Army Corps of Engineers, The Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the Natural Resources Conservation Service—have already received the questionnaire, which is set to be announced by numerous institutions, including the Society of Wetland Scientists and the Association of State Wetland Managers.

Any agency, institution, or individual interested in submitting information regarding one or more plant species possessing a wetland rating that may be in need of further review must complete the questionnaire prior to the January 31, 2015 deadline. In order to properly complete the questionnaire, the respondent must identify the species in question, the wetland region(s) and/or sub-region(s) in which the species’ wetland rating may need review, the species’ current wetland rating, and the proposed wetland rating change. Documents providing information in support of the proposed change must also be submitted with the questionnaire. Appropriate documents that provide supporting evidence include but are not limited to literature citations, regional floras, herbaria records, and personal observations. Additionally, the respondent needs to summarize his rationale for requesting a wetland rating be changed based on the evidence he provides in the questionnaire.

Once all questionnaires have been received, a list will be created of all the wetland ratings that are deemed necessary for review, as well as those species that have been suggested either to receive a wetland rating, or to have their wetland rating removed. The NWPL panel will then evaluate those species compiled from the questionnaire based upon the submitted documentation, available literature, and the panel member’s own experience. All decisions made regarding proposed changes to wetland ratings will be left to the panel member’s discretion.

The results of the questionnaire and NWPL’s evaluations will be posted on the NWPL website, and any changes to wetland ratings will be included in the 2015 NWPL update.

The NWPL provides an example of a completed questionnaire for an individual plant species, as well as a link to the questionnaire at their website: http://wetland_plants.usace.army.mil/.

If you have any questions or concerns regarding either the questionnaire or the process for rating wetland plants, please contact Robert Lichvar of the U.S. Corps of Engineers at 603.646.4657 or email NWPL@usace.army.mil.

It is important to follow the process of updating the NWPL closely, because any changes to wetland species may affect delineations, as was demonstrated in my previous article regarding the wetland rating of the Japanese Honeysuckle.

EPA Public Comments Close on 11/14/14

Swamp Stomp

Volume 14, Issue 45

Pubic comments on the proposed “Waters of the US” regulations close on November 14, 2014.  That is if they do not extend them once again.  I very much encourage you to submit your comments before then.  Many of our readers already have done so as evidenced by the over 250,000 comments submitted to date.

You can submit your comments online by going to:  http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0001

If you do comment, I would encourage you to post your comment tracking number in the comments section of this post.  My comment comment tracking number is 1jy-8fd2-fndk.  I have posted my full comment below.

My main concern is not that the definition needs to be revamped.  Rather, it is more focused on the way it is being done.  I am very concerned that the vast majority of water resource and wetland professionals have been left out of this discussion.  The regulations have been drafted by a very select group of mostly academics including at least one foreign national from Canada.  There are virtually no professionals involved.

I do not believe that this new definition is a matter of the “right thing to do.”  It is more a matter of is it the legal thing to do.  Does the President have the right to act alone and promulgate a regulation that expands the  reach of government into private landownership?  I believe that is a matter for our representative and elected officials in Congress to take up.

What do you think?

– Marc

Environmental Protection Agency

Water Docket

Mail Code 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Comments on the U.S. Environmental Protection Agency’s and U.S. Army Corps of

Engineers’ Proposed Rule to Define “Waters of the United States” Under the Clean

Water Act,

Docket ID No. EPA-HW-OW-2011-0880

To whom it may concern:

I would like to offer my comments on the proposed “Waters of the US” (2011-EPA-OW-0880) as advertised the Federal Register on April 21, 2014.

My chief comment relates to the overall stated premise of these new rules. The proposed rules are concerned with the perceived issue that the existing rules do not adequately represent the intent of Congress (ergo the people) when they passed the Clean Water Act in 1972. Currently, it is the Agencies’ stated belief that the intent of Congress was to claim jurisdictional authority over nearly every body of water in the United States including wetlands and non-wetlands.

In 2001 The Supreme Court ruled in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) that Congress did not have unlimited authority to regulate all bodies of water. This was emphasized on isolated wetlands associated with the SWANCC site. These wetland areas lacked the required commerce connection to downstream waters. The Clean Water Act is limited in jurisdiction to only those waters that have a potential to affect interstate or international commerce. Article 1, Section 8 of the US Constitution limits the role of the Federal government in this matter to only those areas that could affect commerce.

The proposed rules seem to ignore the SWANCC ruling of the Supreme Court. In fact, it is the stated intention of this rule to reverse the Courts decision.

Under the Constitution, it is the role of the executive branch to administer the laws that are passed by Congress. It is acknowledged that many aspects of the Clean Water Act are purposely left to the discretion of the executive branch to interpret these laws by promulgating regulations such as this proposed rule. However, the Executive branch does not have the authority to expand the regulations beyond what the laws allows. Similarly, it is the role of the Judicial Branch to reign in Congress and the President should they pass a law that is beyond what the Constitution allows as was done with the SWANCC case.

The White House Office of Management and Budget (OMB) report referenced in the proposed rule states that there is a minimal expansion of Federal jurisdiction over what is currently called “Waters of the US”. The report estimates that the expansion is only about 3%. While this may seem small on a relative scale it represents a land area roughly the size of the State of Arizona. This is in fact a rather large expansion of the Federal Governments reach into private land ownership. I am very concerned with the concept that the Executive Branch can expand the Federal Governments land holdings without the consent of the other two branches of government and the people.

Much of the proposed rule is based upon a misinterpretation of Supreme Court Justice Kennedy’s lone opinion in the 2006 John A. Rapanos, et ux., et al., Petitioners v. United States; June Carabell, et al., Petitioners v. United States Army Corps of Engineers, et al. case. The concept of significant nexus is central to his opinion. However the proposed rule offers no further insight into what constitutes “significant.”

The proposed rule does by way of reference to the EPA Science Advisory Board (SAB) Connectivity Report delve into the concept of “nexus.” The SAB report ostensibly argues that all bodies of water are connected to all other bodies of water. At a very fundamental level this is true. However, the SAB report does not address the concept of which of these connections or nexus are “significant” as described by Justice Kennedy. If it is assume that all waters are connected and that there is no procedure to distinguish these connections as significant, then are we to assume that all connected water bodies are considered ““Waters of the US?”

It is clear in the opinions of the Supreme Court Justices that there is a difference between jurisdictional and non-jurisdictional waters. What is not clear, and in fact these proposed regulations make it much less clear, what exactly is a ““Waters of the US.”

Furthermore, I draw your attention to the 199 additional documents posted to the Regulation.gov docket folder in the last two weeks. They in fact have not been posted and the public is greeted with this 12 page notice:

Additional Supporting Materials for Docket EPA-HQ-OW-2011-0880

EPA will be adding the following documents to the docket. Copyrighted material is publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202–566–1744, and the telephone number for the Water Docket is 202–566–2426.

To what purpose do these documents serve? Why at this juncture are the Agencies concerned with copyright issues? It does beg the question of whether these copyright issue were addressed in the SAB report. Perhaps this should be disclosed.

How does this serve the public trust when the vast majority of these documents are only available by taking a trip to Washington, D.C. If the agencies feel that these documents are necessary to support their case for further regulations, then they should resolve the stated copyright concerns and publish them on the website in their entirety.   Otherwise these 199 documents should be removed from the docket.

I disagree that there is a regulatory need to update the definition of what is a waters of the United States. What is needed and was voiced by Justice Alito in the Sackett v. Environmental Protection Agency case is for Congress to more narrowly define what is meant by a “Waters of the US” by amending the Clean Water Act.   This would afford the public through its elected representatives in Congress to express its concerns and support for what should be regulated as a “Waters of the US” and what should not. This current proposed regulation dictates to the public what is and is not jurisdictional without the consent of the governed. With over a quarter- million public comments already submitted, it is clear that this is a matter for the people to decide, not a single branch of the government.

Thank you for your consideration.

Sincerely,

Marc Seelinger, PWS