Category: Newsletter

2022 State of The Birds Report

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

North American Bird Conservation Initiative

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

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

Waterfowl and Water Birds

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

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

The Takeaways

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

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

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

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

Sources:

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

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

Automated Wetland Determination Data Sheet (ADS)

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

According to the news release:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sources:

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

EPA Opens Environmental Justice and Civil Rights Office

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

The OEJECR aims to:

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

Environmental Justice in North Carolina

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

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

Justice40 Initiative

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

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

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

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

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

Sources:

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

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

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

Delineation Concurrence

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

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

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

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

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

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

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

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

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

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

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

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

The Sackett Two-Step

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hydric Soil Indicators- PART 2

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

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

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

  • Carbon 
  • Iron and Manganese 
  • Sulfur 

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

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

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

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

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

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

Hydric Soil Indicators

The most common soil type we encounter in wetlands is the “F” group of hydric soils.  These are the loamy mineral soils.  The texture needs to be a fine sand or finer.  Usually, we are looking at silts and clays.

Of all the indicators in the “F” group, the two most common ones are the depleted matrix, “F3”, or the dark surface, “F6.”  It is not unusual to find both in the same soil pit.  Both indicators are dependent upon soil color as their hydric condition test.

There are many variations of color associated with the “F” indicators.  However, a basic rule of thumb is that they need to have a Munsell matrix chroma of 2 or less.  There are provisions for chromas greater than 2 found in some of the other indicators.  However, for the “F3” and “F6” we need to see colors that are at least as dark as a 2.

There is still some pushback from the old-time delineators on these new indicators.  For decades we used a single indicator for soil color.

  • Matrix chroma is 2 or less in mottled soils
  • Matrix chroma is 1 or less in unmottled soils

This must occur at a depth of 10 inches or the bottom of the “A” horizon whichever is shallower.

This definition served us well, but it is no longer in use.  However, when we look at the new “F” indicators we see that the old definition is buried in them (sorry for the pun).

One other oldie is the concept of mottling.  This term has been replaced with the concept of redoximorphic features.  We now refer to dark features as redox depletions and bright features as redox concentrations.  Mottling always meant a mix of soil colors.  However, it usually was expressed when the dark features were in the matrix (dominant color) and the bright features were individual masses.  The use of the redox concentrations and redox depletions is much more descriptive and a change for the better.

Thickness of the indicator feature is also a new concept.  Many of the “F” indicators not only require a specific soil color, but also a thickness associated with it.  For example, a matrix with a chroma of 2 must be at least 6 inches thick in order to count as a hydric soil feature.  To make this a bit more challenging some of these thickness requirements can be combined with other hydric soil indicators thickness   requirements to make up any missing thickness goals.  This only applies to certain indicators like the “F3” and “F6”.

The last caveat is that some of these features must occur within certain depth limits to count as a hydric soil feature.   You must see the feature start at a specified depth and then extend for a certain thickness.  On aspect of the “F3” requires that a depleted matrix must start in the upper 12 inches of the soil and extend for at least 6 inches.  Thickness and depth are combined.

The “F3” indicator is one of the most frequently found indicators.  It is referred to as a depleted matrix.   There is a tricky part to this indicator regarding the use of the US Army Corps Regional Supplements.  The definition of a depleted matrix is found in the glossary along with a nice graphic of what it means.  The problem is that the hydric soils section leads you to believe that the full description of the feature is found within they hydric soil indicator description.  It does not.  You need to check the glossary.

The description starts with the idea that you have a depleted matrix.  You need to know what a depleted matrix is.  This involves an analysis of the soil color and percent redox features.

A depleted matrix is:

Depleted matrix. The volume of a soil horizon or sub horizon from which iron has been removed or transformed by processes of reduction and translocation to create colors of low chroma and high value. A, E, and calcic horizons may have low chromas and high values and may therefore be mistaken for a depleted matrix. However, they are excluded from the concept of depleted matrix unless common or many, distinct or prominent redox concentrations as soft masses or pore linings are present. In some places the depleted matrix may change color upon exposure to air (reduced matrix); this phenomenon is included in the concept of depleted matrix. The following combinations of value and chroma identify a depleted matrix:

  • Matrix value of 5 or more and chroma of 1, with or without redox concentrations occurring as soft masses and/or pore linings, or
  • Matrix value of 6 or more and chroma of 2 or 1, with or without redox concentrations occurring as soft masses and/or pore linings, or
  • Matrix value of 4 or 5 and chroma of 2, with 2 percent or more distinct or prominent redox concentrations occurring as soft masses and/or pore linings, or
  • Matrix value of 4 and chroma of 1, with 2 percent or more distinct or prominent redox concentrations occurring as soft masses and/or pore linings (USDA Natural Resources Conservation Service 2010).

Common (2 to less than 20 percent) to many (20 percent or more) redox concentrations (USDA Natural Resources Conservation Service, 2002) are required in soils with matrix colors of 4/1, 4/2, and 5/2. Redox concentrations include iron and manganese masses and pore linings (Vepraskas, 1992).

Once you figure that out you just need to look for depth and thickness of feature.

A layer with a depleted matrix that has 60 percent or more chroma of 2 or less and that has a minimum thickness of either:

  • 2 in. (5 cm) if the 2 in. (5 cm) is entirely within the upper 6 in. (15 cm) of the soil, or
  • 6 in. (15 cm) starting within 10 in. (25 cm) of the soil surface.

The “F6” indicator does not require a depleted matrix.  It is described as a dark surface as follows:

A layer that is at least 4 in. (10 cm) thick, is entirely within the upper 12 in. (30 cm) of the mineral soil, and has a:

Matrix value of 3 or less and chroma of 1 or less and 2 percent or more distinct or prominent redox concentrations occurring as soft masses or pore linings, or

Matrix value of 3 or less and chroma of 2 or less and 5 percent or more distinct or prominent redox concentrations occurring as soft masses or pore linings.

I should add that distinct or prominent redox features are defined by the color contrast between these features.  Please check the Regional Supplement glossary for a full description.  We also printed it on our soil bandana.

These two soil indicators can also be combined to meet the thickness requirements of either feature.  This may vary by Regional Supplement so make sure to check with the Corps for any local interpretations.

Beaver Dam Creates Wetland During Drought

Beavers are an integral part of freshwater wetland ecosystems. The formation of their dams reduces the flow of freshwater streams and floods the surrounding area, turning it into a shallow wetland environment (Beavers, Wetlands, & Wildlife, n.d.). In creating these wetlands, beaver dams recharge groundwater supplies and provide nursery habitats to other aquatic species.

Despite their role as “ecosystem engineers”, beavers have been socially perceived as nuisances as their habitat continues to be fragmented by human development (NRDC, 2017). The USDA conducted a study to determine the response to beaver control, which found that 99% of responses utilized lethal force (NRDC, 2017). With this unique instance of human-wildlife conflict, numerous methods of non-lethal control methods have been introduced to landowners. These methods could include constructed barriers to protect the surrounding area from flooding, devices like Beaver Deceivers which prevent beavers from blocking road culverts, or simple monitoring techniques that observe water levels in beaver ponds (NRDC, 2017).

Drought in the UK

The United Kingdom’s Environment Agency has declared drought status throughout the southwest region of England. The Agency claims the current conditions are the driest the region has experienced in 90 years based on the hydrologic data collected over the last 5 months (Environment Agency, 2022).

Several areas in the southwest are observing the effects of the drought as the dry season continues. The lead of the Environment Agency’s drought team, Chris Paul, stated the “river levels across our Wessex area are exceptionally low – many showing the lowest flows on record. This places incredible strain on local wildlife, and this is why we are moving to drought status” (Environment Agency, 2022). As of August 30, 2022, the Environmental Agency has announced that 11 of their 14 regions in the UK have declared drought status (The Guardian, 2022). Several water companies throughout England have implemented hosepipe bans in an effort to conserve water for the remainder of the summer (The Guardian, 2022).

New Wetland in Devon County

The southwest county of Devon is among the many UK counties experiencing the effects of the drought. However, a system of beaver dams on the Clinton Devon Estate has flooded about 2.5 acres of land to create a freshwater wetland (Watson, 2022). The estate has been historically used as farm and cropland. There is a lot of uncertainty between the Devon farmers of how this wetland will impact their ability to farm (Watson, 2022). This creates an especially complex situation as beavers are soon to be federally protected in the United Kingdom. On October 1, 2022, the Eurasian beaver will be protected from trapping, killing, injuries, or disturbance without a license (Prior, 2022).

In response to this action, the National Farmers’ Union (NFU) announced their concern that beaver dams can have a negative impact on farmland as their habitat promotes upstream flooding (NFU, 2021). It is likely that the farmers and landowners of the Devon Estate will have to work carefully with the NFU and the government to create a comprehensive plan to protect the beavers on their property while maintaining the integrity of their land.

Sources:

Beavers, Wetlands,& Wildlife. (n.d.). Beavers & Wetlands. Beavers, Wetlands, & Wildlife. Retrieved from https://www.beaversww.org/beavers-wetlands/#:~:text=Because%20beavers%20build%20their%20stick,the%20land’s%20most%20beneficial%20ecosystem.

Environment Agency. (2022). All of England’s South West region now in drought. Environment Agency. Retrieved from https://www.gov.uk/government/news/all-of-england-s-south-west-region-now-in-drought

NFU. (2021). Beavers and flooding: The impact on British farms. NFU. Retrieved from https://www.nfuonline.com/updates-and-information/beavers-and-flooding-the-impact-on-british-farms/

NRDC. (2017). Beavers: Nature’s Wetland Ecosystem Engineers. NRDC. Retrieved from https://www.nrdc.org/sites/default/files/beavers-wetland-ecosystem-engineers-fs.pdf

Prior, M. (2022). Eurasian beaver to be given legal protection in England. BBC News. Retrieved from https://www.bbc.com/news/science-environment-62213459

The Guardian. (2022). All of south-west of England in drought, says Environment Agency. The Guardian. Retrieved from https://www.theguardian.com/environment/2022/aug/30/drought-all-south-west-england-environment-agency

Watson, E. (2022). Beaver dams in east Devon create area of wetland amid drought. BBC News. Retrieved from https://www.bbc.com/news/uk-england-devon-62662909?xtor=AL-72-%5Bpartner%5D-%5Bbbc.news.twitter%5D-%5Bheadline%5D-%5Bnews%5D-%5Bbizdev%5D-%5Bisapi%5D&at_custom3=%40BBCNews&at_medium=custom7&at_custom4=DAB7EB26-2510-11ED-AA51-55B64744363C&at_campaign=64&at_custom2=twitter&at_custom1=%5Bpost+type%5D

Securing a Jurisdictional Determination

A Jurisdictional Determination, also known as a “JD”, represents a US Army Corps of Engineers’ determination of the presence and/or extent of “waters of the US” on any given property. However, there are two types of JDs. One represents the official findings of the Corps, and the other is more or less an estimate. Both JDs have their purposes. It is important to recognize the difference between the two types because one could get you into a lot of trouble.

Approved JDs

An approved JD (AJD) is an official Corps determination that jurisdictional “waters of the United States,” “navigable waters of the United States,” or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters and determined to be jurisdictional under the Clean Water Act and/or the Rivers and Harbors Act.

An approved JD:

  1. Constitutes the Corps’ official, written representation that the JD’s findings are correct;
  2. Can be relied upon by a landowner, permit applicant, or other “affected party” (as defined at 33 C.F.R. 331.2) who receives an AJD for five years (subject to certain limited exceptions explained in RGL 05-02);
  3. Can be used and relied on by the recipient of the AJD (absent extraordinary circumstances, such as an approved JD based on incorrect data provided by a landowner or consultant) if a CWA citizen’s lawsuit is brought in the Federal Courts against the landowner or other “affected party,” challenging the legitimacy of that JD or it’s determinations;
  4. Can be immediately appealed through the Corps’ administrative appeal process set out at 33 CFR Part 33

If wetlands or other water bodies are present on a site, an AJD for that site will identify and delineate those water bodies and wetlands that are subject to Clean Water Act jurisdiction, and serve as an initial step in the permitting process.

Preliminary JDs

Preliminary JDs (PJD) are non-binding; “… written indications that there may be waters of the United States, including wetlands, on a parcel or indications of the approximate location(s) of waters of the United States or wetlands on a parcel. Preliminary JDs are advisory in nature and may not be appealed.”

The main purpose of a Preliminary JD is speed a project along. There are several scenarios where this type of JD would accomplish this:

  1. An applicant, or other “affected party”, may elect to use a preliminary JD to voluntarily waive or set aside questions regarding CWA jurisdiction over a particular site. Usually in the interest of allowing the landowner or other “affected party” to move ahead expeditiously to obtain a Corps permit authorization where the “party” determines that is in their best interest to do so.
  2. For purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S.
  3. Preliminary JDs are also commonly used in enforcement situations if a site may be impracticable, unauthorized, or for reasons that prevent an approved JD to be completed in a timely manner. In such circumstances, a preliminary JD may serve as the basis for Corps compliance orders (e.g., cease and desist letters, initial corrective measures). The Corps should support an enforcement action with an approved JD, unless it is impracticable to do so under the circumstances.

Which Should You Use?

It is the Corps’ goal to process both preliminary JDs and approved JDs within 60 days. The applicant or other affected party’s choice of whether to use a preliminary JD or approved JD should not affect this goal.

As the “waters of the U.S” definition is currently in a state of limbo, all future permits and JDs issued will be reviewed under the pre-2015 regulatory regime. Previously approved permits or JDs under the 2020 Navigable Waters Protection Rule are subject to review.

To learn more about the current guidance for wetland permits and JDs, please refer to U.S. EPA’s page on the current implementation of “waters of the U.S.”: https://www.epa.gov/wotus/current-implementation-waters-united-states

Deepwater Horizon Wetland Restoration

On August 4, the Louisiana Trustee Implementation Group (LTIG) issued their latest plan to restore coastal wetlands, marshes, and habitats previously damaged by the Deepwater Horizon (DWH) oil spill. The plan focuses on four project goals to be accomplished:

  1. Two projects for engineering and design: 
    • New Orleans East Landbridge Restoration will provide engineering and design for a project intended to create and restore marsh habitat that separates Lake Pontchartrain from Lake Borgne and the Gulf of Mexico. 
    • Raccoon Island Barrier Island Restoration will provide engineering and design for a project intended to create and enhance beach, dune, and tidal habitats through sand fill placement and shoreline protection.
  2. Two projects are selected for construction: 
    • Bayou Dularge Ridge and Marsh Creation is intended to create and nourish marsh on the south side of Bayou Dularge and restore the ridge along the southern bank of Bayou Dularge. 
    • Bayou La Loutre Ridge Restoration and Marsh Creation is intended to create and nourish marsh along Lena Lagoon, and restore the ridge along the southern bank of Bayou La Loutre. 

This plan is estimated to total around $75 million in recovery costs to complete these four projects. (NOAA Fisheries, 2022).

Wetland Habitat Loss

The Deepwater Horizon spill caused innumerable injuries to marine and coastal wildlife and habitats in the Gulf of Mexico. It is estimated that over 687 miles of wetlands along the Gulf Coast were lost from exposure to oil, vegetation loss, and accelerated erosion (NOAA, 2016). This loss is not only an incredible detriment to the natural environment, but proved to impact the residents of the Gulf states as well. Coastal wetlands and barrier islands across the Gulf Coast provide several ecosystem services like storm protection and flood control measures.

The Louisiana coastline is known for experiencing the most rapid decline of shoreline and coastal wetlands in the Nation. Within the state, there are over 3 million acres of wetlands, accounting for 40% of wetlands in the United States (U.S. Geological Survey, n.d.). As a result of the oil contamination along the Gulf, the rate of wetland decline in Louisiana has almost doubled (The National Wildlife Federation, n.d.).

The rapid decline of coastal marshes after the DWH spill stems from the direct contamination of wetland vegetation. Claudia Copeland and M. Lynne Corn stated in their research article for the Congressional Research Service that continuous exposure to oil can cause wetland vegetation to suffocate and die. Thus, causing the soil to collapse and accelerate the rate of soil erosion and overall wetland loss (Corn & Copeland, 2010).

Deepwater Horizon Natural Resource Damage Assessment Trustee Council

The Trustee Council consists of numerous state and federal agencies that study the effects of the spill and work towards recovering the Gulf Coast (Deepwater Horizon Natural Resource Damage Assessment Trustee Council, n.d.). The state agencies of Alabama, Louisiana, Mississippi, Texas, and Florida work closely with U.S. EPA, the Dept. of Agriculture, NOAA, and the Dept. of Interior. Each state leads their respective implementation group to focus on specific areas damaged by the spill.

In 2020, the Gulf Coast Ecosystem Restore Council published a comprehensive 10-year status report on the restoration projects throughout the Gulf. In their report, they state that about $177 million has been approved thus far to initiate 46 restoration projects throughout the Gulf (Gulf Coast Ecosystem Restore Council, 2020). Projects throughout the Gulf states are in various stages of progress to focus on engineering and design, water quality, habitat restoration, and nature-based tourism (NOAA, 2020).

Restoration of Wetlands, Coastal, and Nearshore Habitats

The LTIGs Final Restoration Plan/Environmental Assessment #8: Restoration of Wetlands, Coastal, and Nearshore Habitats is one of several installments for the Trustee Councils programmatic restoration plan. As outlined by the Councils by-laws, this plan is in aims to:

  • Restore a variety of interspersed and ecologically connected coastal habitats in each of the five Gulf states to maintain ecosystem diversity, with particular focus on maximizing ecological functions for the range of resources injured by the spill, such as oysters, estuarine-dependent fish species, birds, marine mammals, and nearshore benthic communities.
  • Restore for injuries to habitats in the geographic areas where the injuries occurred, while considering approaches that provide resiliency and sustainability.
  • While acknowledging the existing distribution of habitats throughout the Gulf of Mexico, restore habitats in appropriate combinations for any given geographic area. Consider design factors, such as connectivity, size, and distance between projects, to address injuries to the associated living coastal and marine resources and restore the ecological functions provided by those habitats. (LTIG, 2022)

With the focus on restoring these four barrier island sites, these projects are instrumental to bolstering the sustainability of Louisiana’s coastline and mitigating the environmental injuries caused by the DWH oil spill.

Sources:

Corn, M.L. & Copeland, C. (2010). The Deepwater Horizon Oil Spill: Coastal wetland and wildlife impacts and response. Congressional Research Service. Retrieved from https://highschoolenergy.acs.org/content/dam/acsorg/policy/acsonthehill/briefings/oilspillmitigation/crs-r41311.pdf

Deepwater Horizon Natural Resource Damage Assessment Trustee Council. (n.d.). Trustees: Working together. NOAA. Retrieved from https://www.gulfspillrestoration.noaa.gov/co-trustees

Gulf Coast Ecosystem Restore Council. (2020). Restore council: 10-year commemoration report. Gulf Coast Ecosystem Restore Council. Retrieved from https://www.epa.gov/sites/default/files/2020-04/documents/restorereport2020_v6.pdf

Louisiana Trustee Implementation Group. (2022). Final restoration plan/environmental assessment #8: Restoration of wetlands, coastal, and nearshore habitats. Louisiana Trustee Implementation Group. Retrieved from https://www.gulfspillrestoration.noaa.gov/sites/default/files/2022-08-LA-Final-RP-EA8-w-appendices-508.pdf

NOAA Fisheries. (2022). NOAA Fisheries Bulletin: Louisiana Trustees Approve Plan to Restore Wetlands, Coastal, and Nearshore Habitats. Retrieved from https://content.govdelivery.com/accounts/USNOAAFISHERIES/bulletins/326a578

NOAA. (2016). Effects of the Deepwater Horizon Oil Spill on coastal salt marsh habitat. Office of Response and Restoration. Retrieved from https://response.restoration.noaa.gov/about/media/effects-deepwater-horizon-oil-spill-coastal-salt-marsh-habitat.html

The National Wildlife Federation. (n.d.). Deepwater Horizon’s impact on wildlife. The National Wildlife Federation. Retrieved from https://www.nwf.org/oilspill

U.S. Geological Survey. (n.d.). Louisiana coastal wetlands: A resource at risk. USGS. Retrieved from https://pubs.usgs.gov/fs/la-wetlands/