Category: Newsletter

The Threat of Toxic Algae and Aquatic Dead Zones

The Swamp Stomp

Volume 19, Issue 7

The last few decades have seen an increase in efforts to better understand the toxic algae and oxygen-hungry aquatic dead zones that have been appearing around the world. These threats are currently two of the largest dangers facing the world’s oceans and freshwater reserves. Little benefit has emerged from increased research, however. In fact, recent evidence suggests that such algae and dead zone hotspots are growing in size, and pose greater threats to fisheries and consumable drinking water.

Studies published in Science, a respected scientific journal, suggest that both phenomena are effects of the increased amounts of fertilizer, manure, and wastewater running into lakes, rivers, and oceans. Such studies have received backing from the U.S. National Science Foundation and other similar institutions.

August 2014 saw the drinking water plant in Toledo, Ohio, one of the largest cities located on the Great Lakes, closed due to a toxic bloom. This was the first time that a large American city has faced such an incident. However, since 2004 toxic algae infestations have shut down water supplies to more than 3 million people over 3 continents. Outbreaks to Australia’s Murray River, China’s Lake Taihu, and Kenya’s Lake Victoria are only a few instances of the problem escalating on a global scale.

When algae blooms die, the areas that they once consumed become dead zones. These low-oxygen areas decompose, causing the fish and other wildlife native to the habitat to either flee or die as a result of the new water conditions. Similar to toxic algae outbreaks, the amount of dead zones are increasing. A 2008 study by the Virginia Institute of Marine Science discovered over 400 dead zones that together cover 245,000 square kilometers worldwide.

If these obstacles are not addressed, then the events that occurred in 2007 to China will act as a warning to what the world can expect in the future. Significant algae bloom affected Lake Taihu—a 2,250-square-kilometer lake that supplies water to over 10 million people for consumption, as well as for industrial and agricultural purposes—and left 2 million people without water. It took a month to clean the lake and restore full drinking water service. The inhabitants of the nearby city of Wuxi were forced to only drink from bottled water for the duration of the cleansing period.

Hans Paerl, a professor at the University of North Carolina-Chapel Hill who worked to curb the algae in Lake Taihu, claimed, “We are using Lake Taihu as a looking glass for how bad things could get here [in the U.S.].” He said that “back in the ’90s, the lake had gone through a state change where the blooms initially started appearing but were not too serious.” However, he continued, “Within a matter of 5 to 10 years, the lake shifted to a situation where blooms started to pop up in the spring and persist through the summer. The change is very extreme. Now, blooms start in early May and run all the way into November—more than half the year.”

Paerl concluded that in order to remedy the problem in China, the amounts of phosphorus and nitrogen running into the Lake Taihu must be reduced by 50 percent. Considering the incident at Lake Taihu is viewed as a warning of what may happen to the United States in the future, it is reasonable to expect that similar proposals may be made in the not so distant future as prevention measures.

These phenomena do more than only cause environmental trouble, however—they also prove to be large economic obstacles. The increase in toxic algae blooms and aquatic dead zones cause a loss in seafood sales, higher drinking water costs, losses to livestock, and lower tourism revenues. The National Oceanic and Atmospheric Administration estimates that the U.S. loses 82 million dollars annually due to toxic algae and dead zones on coastal waters—a much lower number than those of Australia and the European coastal countries.

The combination of environmental and economic qualities makes the handling of toxic algae and aquatic dead zones a possible major talking point in upcoming political conversations.

Wigginton, Nicholas S., January 2015, Droughts and Dead Zones on the Rise, Science, Vol 347, Issue 6220, pp 385-386

Toxic Algae Blooms May Be Longer, More Intense Due To Climate Change, Huffington Post

Waters of the US 2019 Comments

Swamp Stomp

Volume 19, Issue 06

I would like to share our public comment on the 2019 WOTUS rule below. Be sure to send in your comments to EPA before April 15, 2019. Please feel free to use our comments to help you expand on any of the issues we have presented. You can comment on our post below, but it is more important that you send your thoughts and questions to the EPA. Try to avoid seminar comments and only send in thoughtful and insightful topics. The Agencies tend to ignore the bulk mail type comments. The link to submit your comments is here: https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0149

Best, Marc

Writing on behalf of the Swamp School, LLC I respectfully request that the government respond to my questions and comments pertaining to the proposed Waters of the US definition as published in the Federal Register on February 14, 2019.

The Constitution of the United States grants the US government certain powers to regulate interstate and foreign commerce under Article 1, Section 8 known as the “Commerce Clause.” This power extends to any activity that would effect an economic change between states, tribes and nations.

The United States government through its many agencies has published numerous reports documenting the economic importance of water resource management. These include studies on flooding, water quality, wildlife resources, agricultural management and many more. These underscore the economic important of aquatic resources associated with wetlands and waterways throughout the nation.

With the passage of the Clean Water Act, Congress formally acknowledged that it had a sovereign duty to protect the aquatic resources of the nation and adopted a policy that all wetlands and waterways were jurisdictional waters regardless of the size, source or direction of flow. This was demonstrated by the fact that in the initial round of nationwide permits released by the US Army Corps of Engineers (Corps), the nationwide 26 permit authorized fill into small headwater systems.

While this permit was extremely unpopular with environmental protection groups, it does acknowledge that the Corps had jurisdiction over these small ephemeral, intermittent, and perennial systems and was regulating what Congress had intended to protect.

In 2001, a decision by the US Supreme Court in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, resulted in a change of policy on what the Corps would regulate as waters of the US. This is the only case that has come before the Supreme Court that has resulted in a reduction of jurisdictional wetlands. However, this case has been misinterpreted with regards to isolated wetlands for years. The Court did not rule that isolated wetlands are non-jurisdictional rather, that the Migratory Bird Rule in of itself did not provide the commerce nexus to make the wetlands on the site, jurisdictional. The issue of whether the wetlands on site were jurisdictional was not resolved. That was not the case put before the Court. Simply put, the Migratory Bird Rule did not provide the jurisdictional nexus. However, the issue of what may provide the jurisdictional nexus was never discussed.

I respectfully request that the government respond to this comment with a confirmation and explanation of how the SWANCC decision has been interpreted in the proposed rule. Specifically, I am asking the Agencies to comment on the fact that the SWANCC decision has resulted in a misinterpretation by the Agencies, that all isolated wetlands are non-jurisdictional. This seems to be the basis for excluding many wetlands in the proposed rule and I am concerned that there may be a misrepresentation of fact and law in the rule.

The second issue of concern relates to how the proposed rule affects the farm community. It has been represented by the EPA that this new rule is somehow a win for the farmers. This is a gross misinterpretation of how wetlands affect farming.

The Food Security Act Manual defines wetlands as having the presence of hydric soils, wetland vegetation, and wetland hydrology consistent with the Corps wetland manuals. It does not make the distinction that a wetland must be a jurisdictional waters of the US in order to receive protection under the Food Security Act (FSA). The FSA provides subsidies to farmers who avoid wetland impacts and penalizes farmers who do impact wetlands by revoking subsidies as adjudicated by the National Appeals Division of the USDA.

In short, the proposed rule appears to remove the CWA violations from impact to some wetlands by farmers, but it does not address the FSA penalties. At issue, is that under the new rule, the USDA, EPA, and Corps all have a different definition of what a wetland is.

How does the US EPA and Corps plan on addressing the issue of farmers losing farm subsidies as a result of impacting a non-jurisdictional wetland? At the very least they should be informed of the risk.

During the December 11, 2018 presentation, Secretary Wheeler (USEPA) went to great lengths to describe how easy it should be for anyone to look out onto the landscape and know what is jurisdictional and what is not. This is overly simplified and very unrealistic. Wetland science has evolved over the years and we have a much greater understanding of the nature of wetlands and their borders than we did when the CWA was first passed.

Land management is a complex process requiring many different disciplines to safely and responsibly develop a project to ensure highest and best use, balanced with the least possible environmental impact. Imagining that someone could just look out across the landscape and divine the presence of jurisdictional wetlands heralds us back to a time when rivers were catching fire and was a major reason for the passage of the Clean Water Act in the first place. Quite frankly, it undermines the credibility of the EPA as it represents a failure to uphold the laws with which they are tasked to enforce and a complete disregard for the state of the science of wetlands.

Furthermore, if anyone can identify a wetland, then it is required that the EPA and Corps present an economic analysis of the job loss associated with the civil and environmental engineering professions. A review of the Bureau of Labor Statistics data for wetland-related jobs estimates that over 500,000 individuals work with and around wetland science. A 500,000-person layoff would certainly have a significant economic impact that needs to be addressed. To date, this has not been discussed by the Corps or EPA and I respectfully request that this be addressed with an economic analysis as required by the Administrative Procedures Act.

In addition, there is an entire wetland and stream restoration industry that would be directly affected by the loss of wetlands and the streams being regulated. This is a billion-dollar industry with individual projects often in the millions. If there is no longer a need to replace certain wetlands and streams that have been lost, then there would be a significant reduction in wetland and stream mitigation services. The lack of regulation for what has been historically regulated would result in significant tax revenue loss related to this industry alone. Can the Agencies provide a detailed analysis of the tax revenue lost and a description on how they plan to mitigate this significant economic impact to the US Treasury?

To counter an expected Agency response to the aforementioned tax loss it is expected that the Agencies would cite some sort of economic gain as a result of not having to spend money on mitigation by a permittee. However, even if a wetland or stream were to be deemed non-jurisdictional the permittee would need to spend significant money and time to verify that the area in questions is in fact non-jurisdictional. The fines for filling a wetland or stream are significant, and a landowner would be undertaking an extremely risky process to do it on their own despite Secretary Wheeler’s comments.

Most land developers are more concerned with uncertainty and time delays for their projects. It is unlikely that they would proceed with some sort of “do-it-yourself” business model for land assessment. Because it is very unclear what constitutes a jurisdictional nexus, this tends to be their biggest concern. Most developers would rather write a check for mitigation and proceed with their project, rather than some sort of protracted jurisdictional review. Time is truly money and generally the cost of mitigation, while expensive tends to fall in line with the cost of doing business and has proven not to be an impediment. What has proven to be an impediment is long delays for jurisdictional reviews often running into years. Please explain the process of how the Agencies will be accelerating the jurisdictional review process, especially “jurisdictional determination only” requests as outlined in the Corps’ RGL 16-1. Please also detail the costs associated with the new hires EPA and the Corps will need to bring on to manage these jurisdictional determination requests. If this is an unfunded mandate to the Agency’s rank and file, then please detail the time delays associated with the current and projected workload.

On a technical note, there is a significant issue with the EPA and Corps understanding of the water cycle. This seems odd as the last administration published a detailed report documenting the connectivity of wetlands to downstream waters. It would appear that both the Corps and the EPA are abandoning the scientific findings of their report. Is this to satisfy a political agenda or are there new scientific discoveries that are the basis for the proposed rule? I would appreciate a direct answer to this question.

The proposed rule excludes both ephemeral systems and groundwater. As it would appear the Agencies need a review of the water cycle I will explain. When it rains water falls from the sky creating storm water (ephemeral flow). This flow makes its way across the landscape infiltrating into the ground and creating groundwater. Some wetlands and many intermittent and perennial stream systems are intersected by groundwater as the systems major source of water. It would appear that this groundwater nexus (often associated with the hyporheic zone) would not result in a water of the US. This is at complete odds with the aforementioned EPA Science Advisory Board’s report.

Similarly, since these same systems receive rain on a regular basis, this is also a major source of non-jurisdictional hydrology. I am unclear as to what other sources of water would support any wetland or stream system. Could the EPA and Corps clarify where the water would have to come from in order for a wetland or stream to become a waters of the US? High humidity, perhaps?

The proposed rule states that is is based upon the “Scalia” opinion in the Rapanos case brought before the Supreme Court. At issue, is that there was no majority opinion in that case and it was vacated. How do the Corps and EPA plan to reconcile the fact that the entire premise of the proposed regulation is based upon a vacated and undecided case? The result of the case was that the wetlands in question were deemed jurisdictional by the lower courts and Rapanos had to pay a fine and mitigate and Carabell did not get his permit. Basing any regulation on a failed court ruling seems irresponsible and I would appreciate an explanation on the Agencies justification for this.

The issue of ditches is also a concern. If a wetland or waterway results in some sort of interstate commerce it is up to the government to regulate it (Article 1, Section 8 of the US Constitution). This has been the test brought before the courts for years. The only purpose of a ditch is to drain the landscape for some economic purpose. A roadside ditch keeps water off the road so that interstate trucking can proceed. A farm ditch allows a farmer to drain the land so they can grow crops that they can sell to other states or nations. Flood control ditches are used to prevent or reduce economic hardship in flood prone areas that may result in job and property loss. In short, the only purpose of a ditch is to support commerce. Therefore, should not all ditches be regulated as waters of the US?

Lastly, there is the issue of how the states will manage a non-waters of the US. These are not assumable 404(g) waters. If the state wishes to regulate a vernal pool for example, it would have to pass legislation to do so. As there is no federal jurisdiction, the state is left to “condemn” these types of wetlands under an eminent domain process and the landowner would be entitled to some compensation for the loss of use pursuant to the Uniform Relocation and Assistance Act. It is unlikely that the states have the funds to do this. So, it is a bit disingenuous to assume that the states can just pick these up. What mechanism would the states use to manage these non-404(g), non-jurisdictional wetlands?

In summary, I believe that this proposed regulation is fatally flawed and will result in much more confusion, legal challenges, job loss, and economic hardship. It was always Congress’s intent that all wetlands and waterways were waters of the US. The problem arose in the last administration’s attempts to redefine what a water of the US is. The idea that something is not a waters of the US means that you can do whatever you want to it is misguided, especially if you are a farmer. Perhaps, rather than focusing on the definition, the Corps could reexamine its Nationwide permit program to allow for more latitude in some of the permits.

On a final note, I know I have been highly critical of this proposed rule. I want to issue a shout out to both the EPA and Army Corps rank and file. I know very few of you have had anything to do with the rule and my comments are not directed at you. I have the greatest admiration for the hard work you do and I know that you are working under very difficult times. It is a shame that this topic has become a purely political one and I look forward to a time when we can all get back to work managing our natural resources in a responsible manner.

Respectfully,

Marc Seelinger, Director

The Swamp School

 

Water Usage and Reservoirs

The Swamp Stomp

Volume 19, Issue 5

Water is the single most important chemical required for life on Earth. Animals and plants are both dependent on it and can only survive a matter of days without it. There are many theories as to how water appeared on our planet. It could have come from space as part of the original nebula of gases expanding out after the big bang, possibly from comets and asteroids colliding with our planet, or maybe it was always here and was released from the ground as our planet cooled enough to retain the water. Perhaps, it was a combination of many factors. Whatever the original source, the Earth’s water supply is now essentially constant, with no new water being made or destroyed, just recirculated as part of the hydrologic cycle.

As the population of the world continues growing exponentially, the demand for water for humans, agriculture, and industry is also growing exponentially. Building dams has often been the answer when people need more water. However, the impact of dams on the water supply is unsustainable.

The history of population growth in Las Vegas is a perfect example. Many decades ago the city was growing tremendously and the population was expected to reach 400,000 by the year 2000, so a pipeline was built to Lake Mead above the Hoover Dam in Nevada. This, in turn, created a false sense of abundance of water and the population grew almost four times higher than what was predicted.

Dams give communities a false sense of security because they cover up the natural phenomena of droughts that often occur in the heat of the summer. People don’t feel the impact of the droughts, so their water usage remains constant, rather than considering rationing. In a similar way, the city of New Orleans was built behind a levee. While the levee can sustain small floods, it could not hold off a large storm like Katrina. The city was built on a floodplain and the levees created a false sense of protection from floods.

The US began constructing dams after World War II and construction in the US reached its peak during the 1960s.  Currently, though, the rate for decommissioning dams now exceeds the rate of new dam construction.

A previous article in the Swamp Stomp mentioned some of the drawbacks of building dams on rivers, such as the effects on water quality, and increased contamination, but a “dam-building boom” is happening in developing countries today. Western funding agencies are pushing the construction of dams in underdeveloped countries although the social and environmental impacts may outweigh the benefits.

Building dams in the Middle East has caused disastrous shortages downriver in many countries. Dams on the Euphrates River in Turkey have cause water shortages in Iraq and Syria. Dams on the Colorado River impact downstream cities in Mexico, leaving a dry riverbed in some cases.  Many years, the Colorado never even reaches the ocean. The cause and effect of such impacts are obvious. People in wealthy countries don’t envision the repercussions of their actions on others that are outside their realm of thought.

Climate change is also affecting the Earth’s water supply.  Rising sea levels could mean that saltwater could intrude into groundwater and our drinking supplies, especially in low-lying coastal areas, making the water undrinkable. Flooding due to extreme rainfall would cause sewers to overflow, also contaminating our fresh drinking water resources. These are just a few of the effects of climate change on our water supply.

The irony is that with 70% of the Earth covered in water, there really is no shortage of water. The problem is that 97% of it is salt water, and of the 3% that is freshwater, 2% is locked up in glaciers and in the polar ice caps.

The alternative seems simple enough: conserve water. Water saved by installing water-efficient fixtures and appliances in the home and in industry can reduce water use by 20%.  Just finding and repairing leaks in homes and in municipal distribution systems, could increase the water supply by 900 billion gallons a year, equivalent to the annual consumption for 11 million homes.

One example of how conservation can help can be seen in the cities of Phoenix, Los Angeles, San Diego, and Albuquerque. They would not be able to sustain their increasing populations without current reservoirs, however, due to conservation measures; the usage of water in the Southwest has remained flat since the 1980s, regardless of the rising populations.

Besides conservation, another method for easing water shortages is to capture and retain more rainwater. Captured rainwater is a great source of clean water that can be used for many things like watering lawns and gardens, washing, and toilet flushing, not to mention drinking water.

Seventy percent of freshwater used globally is used for irrigation. This usage that can have a tremendous impact on our water supply especially since it has been shown that half of the water used in irrigation doesn’t even get to the crops. Newer sprinkler and drip-irrigation technology uses much less water and reduces the “non-beneficial” consumption by 54% and 76% respectively.

Dams and reservoirs are not a bad solution, but the social, environmental, and economic costs and benefits should be evaluated for their long-term effects. As the population continues to rise, global warming will continue to impact our water cycle, and dams will continue to be built. There really is no one solution to this problem but unless people take a more active role in conservation and invest themselves in protecting the world’s water supply, some day, the faucets may just run dry.

1. Gies, Erica, “Do Dams Increase Water Use?,” Scientific American, Feb. 18, 2019, https://www.scientificamerican.com/article/do-dams-increase-water-use/

2. Nicklow, John W., Water Encyclopedia. http://www.waterencyclopedia.com/Da-En/Dams.html

Dams and Rivers – Maybe not a Good Fit

The Swamp Stomp

Volume 19, Issue 4

Rivers and streams are an integral part of the hydrologic cycle of water that occurs throughout the world, transporting rainwater from river basins upstream, to locations downstream and ultimately to the oceans. Along the way, they support fish and wildlife habitats, provide us with drinking water and irrigation, and help provide recreation and other useful functions. When a dam is built on one of them, for whatever reason, the equation changes. There are many obvious and but also sometimes subtle changes to ecosystems. For example, the increased transmission of malaria has been directly linked to dam construction in reservoirs in Southeast Asia and Africa.

Through 2015, dams have disrupted the flow of water to more than half of Earth’s major rivers with approximately 57,000 large dams being built. Millions of people worldwide have been displaced by the construction of dams, in the name of flood mitigation, hydroelectric power, water storage, and recreation.

The loss of forests, wetlands, and wildlife through inundation is one obvious effect of dams. Another effect is that by eliminating the natural flooding of an area we are affecting its ecological balance and this can cause major shifts in species diversity or even the possible loss of a species as in the case of the Tellico Dam project in Tennessee and the endangered Snail Darter.

A contamination problem that is pervasive in reservoirs is the accumulation of high levels of mercury in fish. Mercury is harmless in its organic form, occurring naturally in soils, but decomposing organic matter can transform this mercury into a toxic form called methylmercury. Methylmercury passes up the food chain and becomes dangerously concentrated. Levels of methylmercury in large fish at the top of the food chain can be high, and human consumption of these fish can cause central nervous system poisoning.

Dams affect the deposition of sediment downstream and within the reservoir. The sediment that would normally flow downriver now gets piled behind the dam. The disruption of the natural flow and deposition of sediment downstream leads to increased erosion of the riverbanks and streambeds for hundreds of kilometers downstream from the dam.  Silt from floodwaters deters erosion of delta wetlands and is instrumental in the dispersal of organic nutrients from the outflow of rivers. Without the floodwaters making their way to these natural landforms, the salinity can increase downstream. This has a severe impact on delicate eco-structures of estuarine and coastal wetland ecosystems.

Large temperature changes within a dam reservoir can affect many species of aquatic plankton, invertebrates, mollusks and fish that are extremely sensitive to even mild thermal changes. The water temperature regime of these large reservoirs is altered from its natural state behind the dams. Water channels downstream are also affected as water is released from the dam. Sensitive organisms must either adapt, relocate or die.

An additional concern with the impact of dams on the environment is degraded water quality.  Organics that would normally get washed downstream get built up behind the structure and consume large amounts of oxygen when they decompose. This can result in algal blooms. Rivers that are dammed don’t have the natural transport of sediment that is critical to having a healthy organic riverine channel.

Fish migration depends on a steady flow of a river to guide them to their spawning grounds. Dams can increase the time it takes for migration. While fish ladders and elevators have been installed in some dam structures, getting to them can be devastatingly tedious.

Dams transform the upstream, free-flowing river ecosystem to an artificial, stagnant pond in the reservoir. The changes in temperature, chemical composition, dissolved oxygen levels, and physical properties are not viable to the plants and animals that originally evolved with the river system. Reservoirs host non-native, and invasive species as a result.

Today, many dams that were once at the epicenter of a community’s livelihood that is now old, unsafe or no longer serving their intended purposes and is being removed to restore ecological balance. Trying to weigh the need for developing additional water resources while conserving the environment will continue to impact future generations.

Source:

1. “Environmental Impact of Dams”, International Rivers https://www.internationalrivers.org/environmental-impacts-of-dams 

2. “Problems and Benefits of Building a Dam,” Education Center Online. 2019 http://www.educationcenteronline.org/articles/Engineering-Careers/Problems-and-Benfits-of-Building-a-Dam.html

3. “The Downside of Dams: Is the Environmental Price of Hydroelectric Power Too High?”   Scientific American. https://www.scientificamerican.com/article/how-do-dams-hurt rivers/

4. “How Dams Impact Rivers,” American Whitewater, https://www.americanwhitewater.org/content/Wiki/stewardship:dam_impacts

For Utility Companies, 2019 Could Prove Interesting.

The Swamp Stomp

Volume 19, Issue 3

The demand for electricity has been continuously rising for the past 100 years.  Today, however, the demand is flat, and utilities are having to rethink their growth plans.  The US utility sector was originally built around the idea of perpetual growth in the industry. Now the utility companies are realizing that this may not be the case.

A decrease in energy usage should be good news because it means people are either finding cheaper, more efficient ways to use electricity or they are using less.  Either way, that’s a win-win for the environment. At the same time though, utility companies are slowly watching their revenues dry up.  The original models for the utility industry will have to change with the times. Utilities need to devise new ways to earn revenue, mostly through services, not products, as they have in the past.

The costs involved in the production of renewable energy are getting cheaper every year, and natural gas production is higher than it has ever been. U.S. natural gas exports at the beginning of 2018 were twice the 2017 average. Huge amounts of natural gas are being produced by extraction from shale and other sedimentary rock formations. With the abundance of relatively cheap, clean-burning natural gas, burning coal to produce electricity is no longer a competitive alternative, a big change from the past.

What this means for the future of the utility companies is still not clear. There are two kinds of utility companies, government-owned and Investor-Owned Utility Companies or (IOUs).  The IOUs are not permitted to make money on the actual selling of electricity. They make their money by earning a rate-of-return on power plants and the infrastructure that goes along with it. IOUs are struggling now because their infrastructure investments have dried up, along with their profits and the interests of stakeholders. Future profits are no longer guaranteed.

Utilities are trying to adapt by merging and diversifying into larger conglomerates.   Duke Energy bought Piedmont Natural Gas and has diversified its business by spinning off a company to transport natural gas.  Southern Company is taking a similar strategy, buying wind and solar plants across the country.

The U.S. uses 20% of the total electricity of the world, second only to China, while its per capita consumption is almost triple the consumption of China.  In 2017, U.S. consumption of energy came from many sources.  Over the decade 2004-2014, the largest increases in an electrical generation came from natural gas, wind, and solar. Power generation from coal and petroleum has decreased while other electricity sources have either remained constant or decreased.

These days, consumers are expecting more from their utility companies. They expect easy-to-use online interfaces, data about individual usage, and the option to buy energy from alternative energy sources. Self-production of electrical energy from solar panels is a popular option for many.  Consumers are also becoming much smarter about their energy consumption.  Homes are being equipped with upgrades such as Nest thermostats, solar panels, and LED light bulbs that help keep personal electricity costs under control.

With renewable energy sources becoming more financially competitive and energy-saving technology at our fingertips, utility companies must continue to adapt or face a bleak future.

1. Roberts, David, “After rising for 100 years, electricity demand is flat. Utilities are freaking out,” Vox, February 27, 2018. David Roberts
https://www.vox.com/energy-and-environment/2018/2/27/17052488/electricity-demand-utilities, 

2. Hoium, Travis, “Why Consolidation is the Name of the Game In the Utility Space”. The Motley Fool. June 4, 2016.  https://www.fool.com/investing/2016/06/04/why-consolidation-is-the-name-of-the-game-in-the-u.aspx

3. “Natural Gas Explained,” US Energy Information Administration. December 11, 2018. https://www.eia.gov/energyexplained/index.cfm?page=natural_gas_home

5. “Energy Dominance,” Department of Energy, Year in Review, https://www.energy.gov/department-energy-year-review-2018

Are Monarch Butterflies Becoming Extinct?

The Swamp Stomp

Volume 19, Issue 2

Since 1997, the Xerces Society for Invertebrate Conservation has organized a count of the migrating western m butterfly.  This was initiated when a large decline in the population of the monarch was noticed in that year. Since then, the count has been taken annually at Thanksgiving, along their migratory path to Mexico and California.

“In 1996, migrating monarchs covered 45 acres of forest in central Mexico, each acre holding an estimated 25 million butterflies. In December 2013, the butterflies covered a mere 1.5 acres. In California, the monarch population has dropped by an estimated 80 percent over the past 15 years.”3. Scientists fear the species will become extinct within the next 20 years, according to a study published in 2017 in the journal, Biological Conservation. Chip Taylor, founder and director of Monarch Watch, states, “Monarchs are symbolic of what’s happening on a larger scale, you eliminate monarchs, and you eliminate everything else that shares that habitat.”3.

The decline in Migrating Monarch Butterflies has become more and more alarming. Although the Western Monarchs have migrated through the western US for centuries, a graph of the last 30 years shows an almost exponential rate of decline. The decline has numerous causes: climate change, deforestation/habitat loss, and the agricultural use of pesticides and herbicides.3. These “problems” can all be traced back to the rapid decline of the milkweed plant in their habitat.

Monarch butterflies are fully dependent on milkweed throughout the growing season of the perennial, so a decline in milkweed populations would greatly influence western monarch butterfly populations. If you’re like most, you might not realize that the monarch butterfly cannot survive without the ample presence of milkweed. This perennial plant is the only plant on which the monarch will lay its eggs. Once the larvae hatch, the caterpillar eats the plant. The two organisms exist in a symbiotic relationship because as the milkweed feeds the caterpillar, the butterfly helps pollinate the milkweed.

For many years, since milkweed is not a cash crop, farmers have removed milkweed fields to grow more corn and soy beans. Whole prairies of milkweed have been mowed to the detriment of the milkweed plant. “A large swath of land that is traveled by monarchs runs through the American corn belt, where most of the crops grown are now genetically engineered and heavily doused with herbicides for weed control.”  

Each year, there are four generations of monarch butterflies that can exist. The migrating monarchs begin by laying eggs on their journey north after hibernation. These eggs are the beginning of the next generation for the coming year. The eggs from the first generation of butterflies become the second generation, and so on. The first three generations’ life cycles are consistent. Each generation of a butterfly’s life cycle takes about 2 months to complete.

The fourth generation’s life cycle however, is longer (from 6-8months) and much different. These are the migrating monarch butterflies – eggs laid by the third generation in the September/October time frame.  When these butterflies hatch, they know their southern path to the warmer climate. The monarch is the only non-bird species that migrates over 2,500 miles to a warmer climate.

The monarch butterflies will spend their winter hibernation in Mexico if they live east of the Rocky Mountains.  If they live west of the Rocky Mountains they hibernate in Southern California.  Interestingly, monarch butterflies use the very same trees each year when they migrate. “Most people don’t understand that the monarch, like so many other insects, have a symbiotic relationship with the plant world,” Flanagan said. “They’re connected to the plant world and so when we’re not seeing them, we have to question what’s going on in the plant world.”2.

Those that want to help the monarch butterfly can do so by creating monarch habitats, planting native gardens, and by helping scientists track the species. For additional ways you can help, please see the USFWS “Save the Monarch Butterfly” website.   

1.“Monarch butterfly population in California plummeted 86 percent in 1 year.”  ABC News 7, Chicago, IL, January 12, 2019,  https://abc7chicago.com/pets-animals/monarch-butterfly-population-in-california-plummeted-86-percent-in-1-year/5063396/.

2.Stafford, Audra, “Agency Sees Decline in Migrating Monarch Butterflies,” NBC News, San Diego, CA, January 11, 2019, https://www.nbcsandiego.com/news/local/Western-Monarch-Butterfly-Population-Decline-Encinitas-Butterfly-Farm-504212961.html

3.Dungan, Ron, “Lowly milkweed may be key to monarch recovery,” The Arizona Republic, April 27, 2014. https://www.usatoday.com/story/weather/2014/04/27/monarch-butterflies-milkweed/8226397/


Bats Threatened by White Nose Syndrome

The Swamp Stomp


Volume 19, Issue 1

A fungal disease that has been called “the deadliest disease to hit wildlife in the United States in recorded history” is threatening fifteen species of bats living in North America.(1) The disease is called White Nose Syndrome (WNS), and bats are the only animals that appear to be affected by this pathogen. Six of these 15 affected bat species are now either threatened or endangered with the possibility of becoming extinct altogether.

The actual scientific name for White Nose Syndrome is Pseudogymnoascus destructans, or Pd for short. Pd can infect up to 90% of a bat hibernaculum, which is a place such as a cave, where the bats hibernate over the winter months.  Bats normally hibernate in colonies of hundreds of bats so the infection spreads quickly through a colony and with devastating results. Whole colonies of bats can succumb to the disease in a single winter.  Already, the fungus has killed almost six million bats in North America. 

Pd attacks the bare skin of the bat (primarily the wings and faces) and produces a white fuzz on the surface. Because of this attack to their skin, the bats will periodically and unnaturally awaken while hibernating.  During a normal hibernation period, bats do awaken from time to time and use some small portion of their stored fat. However, the unnatural activity of the disease causes the bat to use much more of the stored fat that is required to survive the hibernating period.  Bats literally die of starvation from the fungus.(1)

The fungus finds its way into the caves of bat hibernacula through many different avenues. Infected bats can leave the fungus behind on the surface of a cave as they travel from cave to cave.  Sometimes cavers, people who study or investigate caves, carry it on their clothing from one bat hibernaculum to the next, and then there are winds and other external sources that may also be factors that introduce the fungus to a cave. Once introduced to a new setting, the fungus attaches itself to the substrate of the cave walls waiting for an unsuspecting bat.

Pd was first discovered in North America in an area near Albany, New York in the year 2006.  No one knows how it reached our continent, but research into the fungus has traced its initial existence to Eurasia many years prior to 2006.  In Eurasia however, the fungus has been around long enough that the bats there have built an immunity to it.  After its initial discovery in our country in 2006, the pathogen has spread across the US into the Midwest and into some portions of Canada.

There is ongoing research into a “cure” for WNS.  Research into the genome of the fungus and others like it, has shown that Pd is missing an enzyme that turns off reparation of DNA after exposure to UV light. This is one avenue that is being pursued by researchers to help eradicate the fungus from hibernacula before the bats have a chance to settle into their cave for the winter months.

Researchers are also studying the habits of some of the hibernating bats that survive WNS.  They have found that Big Brown Bats have developed a strategy of a unified awakening of the whole colony on a nightly basis in response to the WNS and researchers hypothesize that the heat from surrounding bats helps store energy and hence, fat, making survival of the season an option.(1)

The latest research shows that there are bats that have been infected, survived, and then become pregnant. Their immunity will be passed on to their offspring and there will be more and more immunity as these bats survive into the next generation. Natural selection is working for this species of bats, but what about the others? The disease is still new and spreading in North America. It may take many more years before either the fungal pathogen is eradicated or controlled, or multiple native bat species are able to combat the disease through immunity.  Let’s hope that the bats can hold out until this pathogen is no longer a problem.

1. ”White Nose Syndrome. The mystery fungus killing our bats.” Wild Things Sanctuary.org. nd. <www.wildthingssanctuary.org/bats–white-nose-syndtomr.html>

New EPA Policy on Jurisdictional Waters

The Swamp Stomp


Volume 18, Issue 51

Last week, the US Environmental Protection Agency released a draft version of its new Waters of the US definition. During the signing ceremony there were a few statements which spoke to the spirit of the regulation, specifically, the wisdom of the farmers,developers, and the manufacturing industry to know what is best for the land. I am afraid history is against them on that point. Several of the presenters also made mention that a Waters of the US assessment is something that any landowner should be able to perform as a Do It Yourself (DIY) project, much like building a deck or installing a screen door. This would eliminate the need for environmental consultants, civil engineers, planners, surveyors, attorneys, and many civil service positions. Oh, and yes, wetland training companies like us.

This is obviously a concern as the Clean Water Act has spurred on thousands of jobs in the past 40 years centered around environmental protection and compliance. None of this was disclosed in the associated economic impact analysis other than what was done for this proposed regulation.

Before you fire up your resume and consider a career change there is a bit of good news. Wetlands are still regulated and the fact that they require the presence of wetland soils,vegetation and hydrology is just complicated enough to keep most DIYers out of the swamp. Plus, the new regulation is 253 pages long. A DIY screen door is usually 2 pages with lots of pictures.

There is a significant legal question that I plan on asking in the public comment process. It is a bit complicated, but it may prove to be a major flaw in the regulation. It has to do with the state assumption of the Waters of the US.

Under section 404(g), states can elect to assume the federal 404 program. Thus far, only New Jersey and Michigan have done so. I have had the benefit of living through New Jersey’s assumption process so I have a unique perspective and experience on how the assumption process works.

When the Clean Water Act was passed in1972, it was the intention of the writers that all wetlands and waterways would be jurisdictional. This was underscored in the writing of the 2015 Clean Water Rule. What was not mentioned in the 2015 Clean Water Rule was the fact that initially the US Army Corps of Engineers (Corps) had granted an exemption in the form of a general permit (#26) to allow the filling of up to 10 acres of head-water wetlands. These wetlands may or may not have a physical connection to a traditional navigable water way. The was to reduce the regulatory burden on both the Corps and the public. This was an extremely unpopular nationwide permit and it was later reduced to one acre of fill and then ultimately it was eliminated entirely. However, the point being is that these wetlands and waterways were regulated from the onset of the Clean Water Act.

The US Supreme Court chimed in through a series of cases that confirmed that adjacent wetlands are federally jurisdictional and that isolated wetlands are not. Then came the Rapanos case.The nine Justices could not come to a consensus on that case and the lower courts’ decisions were upheld. What is unfortunate is that the current regulations and the proposed regulations are both based upon individual Justices’ opinions. What is before us today represents two opposing sides. The Rapanos case was vacated, so why are using it to make decisions today? I guess it’s just pick your favorite Justice and go with what suits you. This is aside from my point but also an important issue.

The issue is that under this new regulation, the federal government will not regulate wetlands that do not pass the Scalia physical connection test. How then can the states assume these waters under section 404(g)? If they are not regulated by the federal government, there is nothing for the state to assume. The spirit of the EPA proposal is to pass these contentious wetland decisions over to the states. However, if they are non-jurisdictional then the federal government does not have the right to pass them to anyone. It’s not their land! This then becomes a taking issue and the state would only be able to regulate these wetland systems though a state-passed imminent domain process. That will be fun – not.

This is not what New Jersey and Michigan did. They assumed the wetlands (all of them) that were regulated by the federal government. There was a lot of talk about grandfathering when the state laws were passed and there were grandfather provisions due to the more restrictive state versus federal implementation of section 404. However, it was never an issue that the state had the right to regulate the wetlands that were formally regulated by the federal government. At the time, all wetlands were Waters of the US, so the state could assume all of the waters of the state in their entirety.

This new regulation eliminates many of the head-water wetlands that were considered federally jurisdictional. Since some of them only had a biological or chemical significant nexus to a Traditional Navigable Waterway and not a physical connection, they would no longer be considered federally jurisdictional. The idea put forward by the EPA that we should not worry, because the state will regulate these waters if they are important, is disingenuous. If the federal government cannot regulate them, the state would need to create some sort of nexus that would bring these under their control. Forty-eight states, the US Territories, and the Tribes do not have this legislation in place.

I need to make one last point that regards farming. When the Clean Water Act was passed there were farmland exemptions to the Act. This was meant to specify what could and could not be done to a wetland on a farm. This was generally a more relaxed standard than other non-farm activities. However, the wetlands were still regulated. This underscores the intent of the writers of the Clean Water Act to regulate all wetlands and waterways in the US.

The ultimate solution to this issue was described by Justice Alito in the Sacket case of 2012. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.” Sackett v. Environmental Protection Agency (3/21/2012)

Remember, regulations are an agencies interpretation of a law. If they get it wrong, it is up to us to comment and correct them. You will have that opportunity as soon as the regulation is published in the Federal Register in the next few weeks. Your job may very much depend up where this ends up. Please read it and comment.

Part-Time Flexible Houston Area Wetland Delineator

1099 Contract work, must be able to get to the office or jobsites in the area. Must have own PC with ArcGIS pro.

Must have experience in field evaluations, plant identification &classifications / soil sampling / completing USACE data forms, experience with GPS survey of site efforts, and simple GIS overlays for report graphics. Must have completed delineation course and performed a sufficient number of Houston area evaluations to competently complete delineations of a site.

Most all field work and office work can be scheduled around other life activities is flexible.

Work is between 0 and about 15 hours a week. About 1/2 field and 1/2 office.

Pay would be $50 per hour of site and office work, then 1/2 rate for travel.

Good position for a student or stay at home parent that isn’t looking for a full-time position, but wants to make some good money and keep field/office skills sharpened.

Steve McElyea, MS PE 
President 
SMC Consulting, Inc. 
3418 Pickering Lane 
Pearland, Texas 77584

281-997-7911 office 
832-725-7085 cell 
steve@smcenvironmental.com

What is a Waters of the US in 2018?

The Swamp Stomp

Volume 18, Issue 50

In the last several months there have been a series of court rulings that have changed what constitutes a Waters of the US (WOTUS). Ironically, the reason for the change relates to the manner in which the change was announced. What makes it ironic, is that the judges who have ruled against the Trump Administration’s 2015 WOTUS Rule delay have have done so on the basis that the public needed more time to absorb and comment on the delay. These judges’ orders have had an immediate effect which seems a bit hypocritical given the reasons for the rulings.

When the Clean Water Rule was implemented in 2015, a partial and the then a nationwide stay of the Rule was ordered by the 6th District Court. Knowing that this three-year stay would be lifted this year, the Trump administration issued a regulation that imposed an additional 2-year postponement on the implementation of the 2015 Clean Water Rule. There was a brief public comment period and the delay became effective this past spring. Shortly thereafter the 6th Circuit stay was lifted.

This past August, a South Carolina Federal judge ruled that the Trump delay of the 2015 Clean Water Rule violated the Administrative Procedures Act (APA) and that the public should have had more time to comment on the delay rule. Please note that the Trump rule was simply a delay of the implementation of the published rule. Apparently, the public needed more time to absorb the impact of what an additional 2-year delay on a rule that already had been delayed for the previous 3 years would be. This seems a bit silly but as the South Carolina Federal Judge noted in his decision, “What is good for the goose is good for the gander.” This was in reference to all of the Obama era APA violations. It seems to be a possible political payback.

Shortly thereafter, District judges in Texas, Georgia and North Dakota have prohibited the South Carolina Judges’ rule from being applied in 28 states. The remaining 22 states are currently subject to the Obama era rules. The EPA has put together a pretty nice map of this as shown below.

About a week ago, a Washington State Federal judge reinstated the 2015 Obama era rules nationwide. However, this was in direct conflict with the previous Federal Judges’ prohibition on implementing the rules. It is a bit unclear if the rules are in effect nationwide. However, it seems that the previous Texas, Georgia and North Dakota judges’ decisions remain valid for now. So as shown on the EPA map, 28 green states are not subject to the 2015 rule and the 22 blue states are.

This week should prove interesting as the Trump administration has announced that it will be releasing its own Waters of the US definition. This would replace the 2015 Rules. It is expected that this would go into effect sometime before the summer of 2019. The Trump rules would follow the Scalia decision from the Rapanos Supreme Court decision of 2006. This would require jurisdictional aquatic resources to be physically connected to commerce waters. This is a divergence from the Kennedy decision of said same case that required a significance nexus that could also include chemical and biological connections to commerce waters. One can assume that the Scalia test would result in less areas being defined at the Federal level as jurisdictional aquatic resources as it only allows for a physical connection.

We will have more about this in upcoming newsletters and our annual Wetland Status and Trend Webinar in January.