• Reprinted From CoastalOnlineReview.org

The U.S. House last week failed to override President Joe Biden’s recent veto of a resolution that would have rolled back federal clean water regulations, but the future for those rules remains cloudy as the Supreme Court weighs a case that could restrict the Environmental Protection Agency’s authority to regulate ephemeral waters and streams.

House Republicans had sought to reverse the administration’s new waters of the United States, or WOTUS, rule that included regulations that the EPA and Army Corps of Engineers’ reinstated in January. The protections apply to millions of acres of North Carolina wetlands and were repealed by the Trump administration.

NC Decision Makers Voice Concern

The GOP last week fell short of the two-thirds majority required to override Biden’s veto of the resolution sponsored by Water Resources and Environment Subcommittee Chairman Rep. David Rouzer, R-N.C., and Transportation and Infrastructure Committee Chairman Sam Graves, R-Mo.

The 227-196 vote included all seven North Carolina House Republicans and 1^st District Democratic Rep. Don Davis voting in favor of the veto override and Democratic Reps. Alma Adams, Kathy Manning, Wiley Nickel, Valerie Foushee and Jeff Jackson opposed. Second District Rep. Deborah Ross, a Democrat, did not vote.

“The Biden Administration’s waters of the United States rule is one of the most damaging in history, with the potential to devastate production agriculture, derail infrastructure projects and harm our economy,” Rouzer, who represents North Carolina’s 7^th District, said Tuesday in a press release. “Congress spoke with a loud bipartisan voice and voted against this overreach, but without enough votes from the other side of the aisle to override the President’s veto. We will continue to work to push back against and defang this onerous rule at every available opportunity.”

Rouzer had previously said that rule expands the federal government’s regulatory control, “cloaked under the guise of clean water.”

Stakeholder Groups Weigh-in

Clean water advocates, including the North Carolina Coastal Federation, which publishes Coastal Review, were opposed to the WOTUS rule repeal, saying in 2019 that the rollbacks would “cause significant damage to coastal natural resources and economy” and reverse efforts to protect and enhance thousands of acres of wetlands, hundreds of miles of coastal marshes and thousands of acres of estuarine waters.

Environmental justice groups, such as GreenLatinos, say there has been an ongoing campaign to create confusion around the purpose of the Clean Water Act and who is “burdened by regulations.” The group had urged the April 6 veto that was only Biden’s second.

“With this vote, all present Republicans and some Democrats have aligned with corporate interests and ignored the reality that if we truly value water as a human right, then our waters need to be better protected so that our communities have access to clean, healthy, reliable and affordable water,” GreenLatinos Director of Strategic Initiatives Mariana Del Valle Prieto Cervantes said in a March 29 statement released after the Senate’s 53-43 vote for a resolution of disapproval under the Congressional Review Act, in which a simple majority is sufficient to pass. The House had also voted 227-198 to reject the rule under the Congressional Review Act.

WOTUS Over The Years

The Obama administration finalized the controversial WOTUS rule in 2015, expanding its definition and prompting legal challenges backed by agriculture, construction and coal industries.

The Trump administration replaced the WOTUS rule with the 2020 Navigable Waters Protection Rule, which Biden vowed to repeal via executive order upon taking office.

The Biden administration’s revised WOTUS rule was itself dubbed a compromise that included acknowledgement of recent court decisions and a reversion to some Reagan-era policies.

“The 2023 revised definition of ‘Waters of the United States’ carefully sets the bounds for which bodies of water are protected under the Clean Water Act. It provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities — all while protecting water quality and public health,” according to Biden’s veto message to the House.

Biden said the loss of a clear WOTUS definition would threaten economic growth, including for agriculture, local economies and downstream communities. He said the veto override would have also negatively affected tens of millions of U.S. households that depend on healthy wetlands and streams.

What’s Next?

Earlier this month, a federal judge in North Dakota halted implementation of the Biden administration’s WOTUS rule in 24 Republican-led states, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming, pending the outcome of a lawsuit. Another recent injunction had blocked implementation in Idaho and Texas.

Elsewhere, the rule took effect March 20.

The Supreme Court is currently considering the case of Sackett v. EPA, to determine whether a federal appeals court set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act. The case involves an Idaho couple whose home construction violated the Clean Water Act because their lot contains wetlands that qualify as regulated “navigable waters.”

Over the holiday weekend, the New York Times reported that the US Environmental Protection Agency is drafting a new emissions limit for automotive tailpipes. This regulation would incentivize the production and distribution of all-electric passenger vehicles. This effort would be one of the most stringent climate regulations the Agency has introduced to reduce greenhouse gas emissions.

Here’s What We Know

• Goal: 67% of US new vehicle sales are to consist of all-electric vehicles by 2032
• Anticipated to be the EPA’s strictest climate regulation
• EPA Press Announcement

Supply-Chain Constraints?

While this would be an ambitious goal for the Biden Administration, it is unclear how this regulation would impact auto manufacturers. Several manufacturers have introduced electric and hybrid vehicles to their line of products. However, the ability to scale production and sales in the next ten years could hinder the Administration’s goal. Passenger cars and trucks are among the most complex consumer products to manufacture due to the various tiers of suppliers for parts (Becher, 2023, as quoted in McNamara, 2023). On the heels of the recent supply-chain crisis, upscaled demand for electric vehicle parts could result in longer production times. 

Could This Improve Wetland Functions?

Vehicle effluent is one of the major pollutants in our waterways. With the increased use of electric cars, we could see improved water quality with reduced oil and gas releases. However, while electric vehicles themselves would not produce emissions, increased electricity generation to charge them would impact our air quality. Power plants can emit harmful pollutants like sulfur dioxide, nitrogen dioxide, and carbon monoxide. These pollutants can hinder wetland functions as they deposit into soils and surface waters. 

The initiative to cap tailpipe emissions seems to cause an air quality Catch-22. If we reduce emissions from tailpipes, would it cause an equal amount of emission power plants to charge electric vehicles? Hopefully, this concern will be addressed in this proposed regulation. Once the announcement becomes available, we will attach a link to this article.

Sources

Capoot, A. (2023). EPA reportedly planning to announce significant limits on tailpipe emissions to boost electric vehicle adoption. CNBC. Retrieved from https://www.cnbc.com/2023/04/08/epa-reportedly-planning-to-announce-significant-limits-on-tailpipe-emissions.html

Davenport, C. (2023). E.P.A. Is Said to Propose Rules Meant to Drive Up Electric Car Sales Tenfold. The New York Times. Retrieved from https://www.nytimes.com/2023/04/08/climate/biden-electric-cars-epa.html

Green, J. (2018). Effects of Car Pollutants on the Environment. Sciencing. Retrieved from https://sciencing.com/difference-between-human-natural-air-pollution-23687.html

McNamara, C. (2023). Speed bumps with & lessons to be learned from the automotive-manufacturing supply chain. Smart Industry. Retrieved from https://www.smartindustry.com/examples-of-transformation/supply-chain/article/33003243/speed-bumps-with-lessons-to-be-learned-from-the-automotivemanufacturing-supply-chain

Introduced species that cause economic or environmental harm, or harm to human health, are called invasive species. The National Invasive Species Information Center states that “…these plants are characteristically adaptable to new habitats, grow aggressively, and have a high reproductive capacity. Invasive plants are often introduced to a new location without environmental checks and balances, such as seasonal weather, diseases, or insect pests that kept them under control in their native range. Their vigor, combined with a lack of natural enemies, often leads to outbreak populations.”

Invasive Wetland Plants

When one thinks of invasive wetland plant species, these four species probably come to mind, Reed Canary Grass (Phalaris arundinacea), Purple Loosestrife (Lythrum salicaria), Common Reed (Phragmites spp.), and Cattails (Typha spp.). Reed Canary Grass was introduced by settlers and farmers who planted this grass as a food source for their livestock. Boats from Eurasia inadvertently carried Phragmites seeds in their ballast. Purple Loosestrife was either accidentally introduced via ship ballasts or deliberately brought over as an ornamental.

Wetlands provide benefits ranging from water filtration to storm surge protection; however, wetlands have become vulnerable to invasive species. Wetlands seem to be especially vulnerable to invasions. Even though ≤6% of the earth’s land mass is wetland, 24% (8 of 33) of the world’s most invasive plants are wetland species. Furthermore, many wetland invaders form monotypes, which alter habitat structure, lower biodiversity (both the number and “quality” of species), change nutrient cycling and productivity (often increasing it), and modify food webs. Wetlands are landscape sinks, which accumulate debris, sediments, water, and nutrients, all of which facilitate invasions by creating canopy gaps or accelerating the growth of opportunistic plant species (Zedler & Kercher, 2004).

Purple Loosestrife

Purple loosestrife, a native to Eurasia, was introduced to eastern North America in the early to mid-1800s. It has the ability to become the dominant plant species in many wetlands. One plant can produce as many as 2 million wind-dispersed seeds per year, and underground stems grow at a rate of 1 foot per year.

Control of invasive wetland plants generally falls into one of three categories: mechanical, chemical, and biological. Mechanical control means physically removing plants from the environment through cutting or pulling. Chemical control uses herbicides to kill plants and inhibit regrowth. Biological controls use plant diseases or insect predators, typically from the targeted species’ home range. 

Biological Control

Biological controls are moving into the forefront of control methodologies, but the only widely available and applied biocontrol relates to Purple Loosestrife. Three different species have been used in North America to attempt to control purple loosestrife: two species of beetles and one weevil.

Galerucella pusilla and G. calmariensis are leaf-eating beetles that seriously affect growth and seed production by feeding on the leaves and new shoot growth of purple loosestrife plants. The two species share similar ecology and life history. Adults feed on young plant tissue, causing a characteristic “shot hole” defoliation pattern. The larva feed on the foliage and strip the photosynthetic tissue off individual leaves, creating a “windowpane” effect. At high densities (greater than 2-3 larvae per centimeter of the shoot), entire purple loosestrife populations can be defoliated. Several defoliations are needed to kill the plant. Adult beetles are mobile and possess good host-finding abilities. 

According to wetland scientist, Tom Ward, species of Galerucella beetles have been released in Upstate New York in prior years as a biological control for Purple Loosestrife.

“Every year, I find new beetles in new areas. While the loosestrife is not completely eliminated, it is controlled, as individual plants become stressed to the point where they do not flower. The beetles have had good success at controlling the loosestrife. In my experience, I would estimate that it is between 70-75% effective. The beetles, once released, naturally reproduce on their own and then disperse as the food source gets depleted. Therefore, loosestrife control is cyclic. Once the beetles deplete the food source, they move to other nearby food sources. That allows the loosestrife to regenerate, but not at levels experienced before release. As the loosestrife returns to a specific site, so do the beetles.” 

Tom Ward, CWB, PWS

Future Use

Recent scientific advancements in genetics and interactions between host plants and their micro-organisms create a unique opportunity to develop cutting-edge technologies to control invasive and promote native species establishment, further improving the efficiency and results of management actions. Sequencing and describing a plant’s genome opens the door to species-specific treatments that limit the expression of specific traits that help non-native plants outcompete native plants and invade critical habitats. By testing new non-toxic bioherbicides that target the relationship between invasive plants and bacteria, fungi, and other microbes, we can advance our understanding of how microbes contribute to plant invasiveness. However, these lines of research are novel and still full of many unknowns. 

Sources

Chandler, M. and Skinner, L.C. (n.d.). Biological Control of Invasive Plants in Minnesota. Minnesota Departments of Agriculture and Natural Resources. Retrieved from https://files.dnr.state.mn.us/natural_resources/invasives/biocontrolofplants.pdf

Minnesota Department of Natural Resources. (n.d.). Purple Loosestrife control: Biological; Purple loosestrife Biological Control: A success story. Retrieved from dnr.state.mn.us/invasives/aquaticplants/purpleloosestrife/biocontrol.html

Zedler, J.B. and Kercher, S. (2004) Causes and Consequences of Invasive Plants in Wetlands: Opportunities, Opportunists, and Outcomes. Critical Reviews in Plant Sciences, 23, 431-452. http://dx.doi.org/10.1080/07352680490514673

Press Release:

For 10 years, the U.S. Army Engineer Research and Development Center’s (ERDC) Cold Regions Research and Engineering Laboratory (CRREL) has  led research on the development of a national manual and data sheet to identify the Ordinary High Water Mark (OHWM) across the United States.

The national manual was released as an interim draft and describes the OHWM, which is used to define the boundaries of aquatic features for a variety of federal, state and local regulatory purposes.

Dr. Gabrielle David, a CRREL research physical scientist, began working on the manual at its inception, and is the chair of the National Technical Committee for OHWM, a group formed with representatives from the Environmental Protection Agency (EPA), regulators from the U.S. Army Corps of Engineers (USACE) and academia. Recently, members of the committee took the manual’s data sheet into the field, going to several rivers and streams in Vermont to take another critical look at their work prior to releasing the manual.

“This is the first time that we’re publishing something nationally to help improve consistency throughout the nation,” said David. “We’ve built a data sheet because we want to help regulators be more rapid in their decision making, be consistent, and have technical defensibility nationwide.”

David also said that even though the OHWM concept has been in regulation for awhile, there has never been a national technical manual published.

Data Sheet and Manual

“We’re releasing it for a one-year period and asking for public comments so that we can then incorporate that into the final version,” said David. “We want to make sure that we have a data sheet and manual that is as helpful as it can be for regulators and for the public.”

Dr. Tracie Nadeau, an EPA environmental scientist, was also in the field with David and USACE regulators using the data sheet to identify OHWM features. Nadeau said the data sheet and manual will be a major asset to the EPA as they work to enforce the Clean Water Act.

“The data sheet is critical for a lot of reasons,” said Nadeau. “When our folks get out in the field and have to make these decisions about how we’re regulating the waters that are under the protection of the Clean Water Act, the data sheets and user manual help assure that we get really consistent decisions in the field across the country.”

The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the Clean Water Act was enacted in 1948 and was called the Federal Water Pollution Control Act, but it was significantly reorganized and expanded in 1972. “Clean Water Act” became the Act’s common name with amendments in 1972.

Under the Clean Water Act, the EPA has implemented pollution control programs, such as setting wastewater standards for industry. The EPA has also developed national water quality criteria recommendations for pollutants in surface waters. Section 404 of the CWA establishes a permitting program implemented by USACE, which regulates the discharge of dredged and fill material into the water of the United States.

Applicability

Nadeau said the national manual and data sheet are important for good government, for consistency, and for the defensibility of the decisions that the EPA or USACE makes. She added that the data sheets are a quick “how-to roadmap” of applying the information from the manual.

“So, for us at EPA, we co-administer the Clean Water Act with the Army Corps of Engineers,” said Nadeau. “But EPA actually has to administer all these other programs under the Clean Water Act in its entirety. So, for EPA in particular, we will definitely use these data sheets in the larger manual of how we go out and do a determination of ordinary high-water mark to support lots of programs under the Clean Water Act, because we have to know where the federal government actually has authorities or jurisdiction, so it’s really helpful for the decisions we make around permitting, around national pollution discharge.”

ERDC works with the USACE Regulatory Program, other federal agencies and the academic community to develop regional and national OHWM delineation standards and procedures, as well as to improve OHWM delineation practices across the country. Research scientists test and validate the field indicators and methods used in OHWM delineations and explore new tools, techniques and resources to improve the accuracy, consistency and efficiency of OHWM delineation practices. These efforts have resulted in OHWM delineation manuals, such as the newly released national manual and data sheet, and other technical resources that support both the Corps Regulatory Program and the regulated public.

Sources

Marquis, D. (2023). Press release: ERDC Releases New Data Sheet for Identifying Ordinary High Watermarks. Cold Regions Research Laboratory. Retrieved from https://www.erdc.usace.army.mil/Media/News-Stories/Article/3280392/erdc-releases-new-data-sheet-for-identifying-ordinary-high-watermarks/

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On February 15, the European Union (EU) banned lead-shot ammunition in wetlands across all thirty European and Scandinavian countries. There will be a 2-year grace period to prepare for the ban accordingly. The ban will protect waterbirds from ingesting lead pellets from ammunition rounds. Anyone within 100 meters (328 ft.) of any wetland must use non-toxic ammunition. Anyone carrying a lead shot within 100 meters of a wetland will be presumed guilty of wetland shooting; unless proven otherwise.

New Regulation

This regulation has been in the works since 2015 when the EU Commission asked the European Chemicals Agency to submit a report on how a lead ammunition restriction would reduce lead found in wetlands for waterbird hunting. This ban is consistent with the EU’s Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation and the African-Eurasian Migratory Waterbirds Agreement (AEWA) push towards restricting lead ammunition in wetlands.

Waterbirds & Lead Poisoning

Lead is highly toxic to humans and animals when ingested in chronic amounts. Waterbirds are susceptible to lead poisoning because they mistake lead pellets for food or gravel, which they need to digest food. Once lead enters the bird’s gizzard (loons, ducks, geese, and swans) or ventriculus (eagles), it dissolves and absorbs into the bodily tissue. Treatment for lead poisoning in waterbirds is possible if caught early enough. However, most cases of lead poisoning go unnoticed and untreated. Over one million waterbirds die of lead poisoning in the EU each year.

Lead accumulation in waterbird populations presents another concern for waterbirds and humans. Accumulation can cause impacts on physiology, population growth, and reproductive rates in waterbird populations with direct exposure to lead. The exposure pathway can continue through raptors or scavenger species that prey upon waterfowl exposed to lead. Exposure can even reach humans if they forage with lead ammunition.

What about the U.S.?

Similar regulations have been passed in the United States to protect waterfowl and wetlands. In 1991, the U.S. Code of Federal Regulations (CFR) issued a nationwide ban on lead-based ammunition for waterfowl hunting. The regulation permits alternative ammunitions, including ammunitions made of bismuth, steel, and tungsten alloys. This past fall, the U.S. Fish and Wildlife Service issued their 2022-2023 hunting season rule. In this rule, they stated that their National Wildlife Refuges will prohibit or propose a ban on lead ammunition by 2026. A handful of their Refuges have already banned lead ammunition.

Since the U.S. ban in 1991, the number of deaths from lead poisoning in waterfowl has significantly decreased. Some states have expanded on this ban to restrict the use of lead tackle gear. Europe’s new lead shot ban is a tremendous stride toward wetland and waterfowl protection. They hope that once this ban is set in place after the grace period, over one million waterbirds will be spared from lead poisoning in the European Union.

Sources

Bird Life International. (2023). Press release: Lead ammunition finally banned from wetlands across the EU. Retrieved from https://www.birdlife.org/news/2023/02/14/press-release-lead-ammunition-finally-banned-from-wetlands-across-the-eu/

Chudzik, M. (2022). USFWS issues new lead ammunition rules on wildlife refuges. The Wildlife Society. Retrieved from https://wildlife.org/usfws-to-enforce-new-lead-ammunition-rules-on-wildlife-refuges/

Federation of Associations for Hunting and Conservation of the EU. (2022). New regulation proibiting lead shot over wetlands takes effect from 15 February 2023. Retrieved from https://www.face.eu/2022/11/new-regulation-prohibiting-lead-shot-over-wetlands-takes-effect-from-15-february-2023/

Michigan Department of Natural Resources. (n.d.). Lead Poisoning. Retrieved from https://www.michigan.gov/dnr/managing-resources/wildlife/wildlife-disease/lead-poisoning

Pain, D. J., Mateo, R., & Green, R. E. (2019). Effects of lead from ammunition on birds and other wildlife: A review and update. Ambio, 48, 935–953. Retrieved from https://link.springer.com/article/10.1007/s13280-019-01159-0#citeas

Wildfowl and Wetlands Trust. (n.d.). Tackling lead ammunition poisoning. Retrieved from https://www.wwt.org.uk/our-work/projects/tackling-lead-ammunition-poisoning/

Wildlife Futures Team. (2021). Lead Poisoning. University of Pennsylvania. Retrieved from https://www.vet.upenn.edu/research/centers-laboratories/research-initiatives/wildlife-futures-program/resources/fact-sheets/fact-sheet-detail/lead-poisoning#:~:text=Waterfowl%20suffering%20from%20lead%20poisoning,walk%2C%20coma%2C%20and%20death.