2016 Wetlands, Waters, Permits, & Courts Webinar | Thursday, July 7, 2016

The year 2016 has already been a very busy wetland regulation year. Since January the Sixth U.S. Circuit Court of Appeals has had additional rulings on the proposed Clean Water Rule. The US Army Corps of Engineers has released its proposed Nationwide Permits for 2017. The US Supreme Court has decided a very important Jurisdictional Determination case. We have even had a recent out of court settlement that required public comment with the EPA over a farm pond issue with national implications. To add to this confusion Supreme Court Justice Anthony Kennedy recently called the Clean Water Act “arguably unconstitutionally vague.”

Before we wade in any deeper into 2016, we thought it might be appropriate to host a mid-year webinar on these topics and a few more. Don’t forget we also have a new National Wetland Plant list to work with.

We also added a new feature to this webinar. By now you may already have questions and insights about these new wetland and waters issues. We will invite you to send us these thoughts ahead of the webinar so that we will be able to incorporate them into the discussion. A special discussion portal will be provided in advance that you can not only send us you topics but also discuss them with your peers before and after the webinar.

Join us on July 7, 2016 at 1 PM EDT to participate in this important webinar. Don’t worry if you can’t make the live broadcast. A recorded version will be made available to everyone who registers for the live session and will remain active for 30 days.

Credit Hours: 2

Questions? Give us a call at 1-877-479-2673

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Understanding Habitat Conservation Plans

The Swamp Stomp

Volume 16, Issue 22

Imagine you own a restaurant that was not performing well. In order to increase your revenue, you decide to build a second restaurant, in another section of town. After weeks of searching, you finally find the perfect spot, but you soon find out that your new plot of land is a habitat for an endangered species of bat. You realize that if you build on this perfect piece of land now, you could be breaking federal laws. So what do you do?

In order to build that new restaurant, you will have to go through the process of obtaining an incidental take permit from the U.S. Fish and Wildlife Service. Once the permit is obtained you can proceed with building the additional restaurant, because the “take” of the bat is now legal.  So how did this process of having to obtain a permit originate?

To begin with, take a trip back to the 1970’s. It all started with the Endangered Species Act (ESA) of 1973, which was passed in order to provide greater protection to animals in danger of being hurt by human progress. The Act was designed to not only protect species and their habitats, but to also halt the illegal removal and trade of these creatures. This is where the idea of a “take” comes in.  A take is defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”. This can include things like habitat modification that results in injury, death, or impairing a species so it cannot perform basic survival skills like eating or breeding.

An “incidental take” is a permit that is required if a company’s business’s activities could potentially come in contact with any listed plant or animal wildlife species.  For example, if your construction project required the endangered bat’s tree to be cut down, this would count as a take.   Other examples of activities that are considered a take include: building over a habitat, removing a major food source, and tearing down breeding grounds.   These permits can apply to species that are listed as endangered and those that are non-listed as well.

greenseaturtle

In order to enforce the Endangered Species Act, in 1982 the US Fish & Wildlife Service developed Habitat Conservation Plans (HCP).   HCPs are required in order to obtain an incidental take permit.  HCPs determine the potential effects of the proposed taking and the actions that will be taken to reduce or address potential adverse effects to the species in question.  HCPs can be fairly complex documents.  An HCP consists of six major sections, which include:

  1. Introduction and Background
  2. Project Description and Activities Covered by Permit
  3. Environmental Setting and Biological Resources
  4. Potential Biological Impacts and Take Assessments
  5. Conservation Programs
  6. Plan Implementation

What does an implemented HCP look like in action?   In 2006, Copper Mountain College in California decided to expand in order to meet the demands of the growing population of San Bernardino. The college was planning on expanding its campus into an area where the threatened desert tortoise lives.  This expansion would have resulted in a “take” as described in the Endangered Species Act.  In order to mitigate damage to this species and to avoid a take, the college applied for a hazard conservation plan.    As part of the plan to mitigate the effects to the tortoise, the college designated an 85-acre area where the tortoise could be removed from potential harm, that now serves as a permanent tortoise preserve. In addition, the college monitors the preserve to ensure that there are no threats from predators or human activity. The college also minimizes human activities by providing a Tortoise Awareness Program for people that live in the area.  As a result of these actions in preserving wildlife, Copper Mountain College is recognized as environmental steward for the Mojave Desert ecosystem.   The intent of the Endangered Species Act was to promote organizations to act in same manner as Copper Mountain College.

A habitat conservation plan is required whenever a proposed project could potentially infringe on a listed species’ habitat and possibly threaten that species.   These plans do take time and effort to complete but the intention is to protect wildlife.   So next time that you are planning to do a project that may have an impact to the wildlife in the area, be sure to understand the regulations required for habitat conservation plans.

Will the Ogallala Aquifer Disappear?

The Swamp Stomp

Volume 16, Issue 19

The Ogallala Aquifer is one of the world’s largest shallow water table aquifers, located in portions of 8 states in the Great Plains and covering an area of 174,000 square miles.  Is this vast underground reservoir, which is used to irrigate the farmlands in the Great Plains,disappearing?  Like many other natural resources, the Ogallala Aquifer is finite—but it has not been utilized with the reality of the aquifer’s exhaustibility in mind.  In fact, for many years, the High Plains farmers who pumped the Ogallala to water their crops were entirely unaware that the water below them would not last forever.  These farmers, who provide around one-fifth of the total U.S. agricultural harvest and $20 billion worth of food and fiber, rely heavily on the Ogallala.  Some estimates show that 30% of the Ogallala’s water has already been used. Within the next 50 years, another 39% is expected to be depleted.  And scientists estimate that it would take 6,000 years to replenish the Ogallala naturally.  Factor in that many of these states receive only about 20 inches (or less) of rainfall annually, and it becomes very clear that the disappearance of the Ogallala Aquifer would devastate this farming region of the United States and those who are supplied with food by these Great Plains farms.

What can be done to improve sustainability?  Already, some farmers are switching from corn—the main crop grown in the region—to crops like wheat, sunflowers, and grain sorghum, because they require far less water than corn.  Some farmers are abandoning farming altogether and turning their land from crops back into natural grasslands, which cattle could graze. Leaving crop residue, instead of plowing fields after harvest, can reduce soil erosion and decreases soil evaporation.  This technique, which farmers across the Great Plains are using, can reduce moisture loss by one inch annually.  In response to this looming water crisis, research is being done to develop corn that requires less water and can survive droughts better. Engineers are also working on developing infrared sensors that can detect leaf temperatures and determine when crops need to be watered, so that farmers don’t waste water on crops that don’t need it.  Experimentation suggests that these sensors could save farmers two inches of water every crop season. The Natural Resources Conservation Service (NRCS), a branch of the Department of Agriculture, has recently invested $8 million in conservation of the Ogallala with the Ogallala Aquifer Initiative. The initiative has taken on projects such as building soil health by using cover crops and no-till, improving the efficiency of irrigation systems, and education on water conservation.  Still, these measures will only lengthen the time that farmers can pump the aquifer.  Because of its slow replenishment rate, pumping water from the Ogallala will likely never be truly sustainable.

Furthermore, the increase in demand for corn may negate any improvements in conservation.  The growing bio-fuel market, especially the plan to double the number of ethanol production facilities in the region, has created a great incentive for many farmers to continue, or even ramp up, corn production.  Because corn requires so much water—350,000 gallons per acre, over a 100-day growing period—the Environmental Defense Fund has estimated that the increase in corn production could require up to 120 billion additional gallons of water from the Ogallala Aquifer.  The Aquifer also provides municipal water to growing populations throughout the Great Plains region and many landowners, under a Texas law that grants unrestricted use of water under personal property, are piping groundwater from the aquifer to cities and towns.  On top of all of this, scientists predict that in coming years, the southern part of the region will receive even less annual precipitation.

While efforts will continue to be made to conserve the water in the Ogallala, many residents and farmers of the Great Plains are being forced to come to terms with the limitations of the aquifer.  Many are hopeful that the combination of government incentives, technological advances, and individual efforts to conserve water will extend the life of the aquifer, but as of now, it seems clear that the Ogallala has a limited lifespan.  For now, the Ogallala will continue to serve the Great Plains region as its major water source.

Measurement Error in Wetland Delineation

The Swamp Stomp

Volume 16, Issue 17

A few months ago, I was observing one of the Swamp School’s wetland delineation training courses in the field.   I was interested in some of the techniques that the students were using to collect data.  I watched several of them taking measurements and then entering those values into the data form.  Those values were then used calculate the prevalence index and dominance test and to evaluate hydrology and soil indicators.     All these measurements were then used to determine if the assessed area was considered a wetland.  The Army Corp of engineers would review the area at a later time and determine if these measurements were done correctly and if the assessment was accurate.

The first student I observed was reviewing the vegetation section of the data form.  She was determining the absolute percent cover of three tree species that were recorded in the data form.  Here observations were: River Birch – 34%, Red Maple 12%, and Black Oak – 6%.  Her wetland partner had the same tree species identified but his absolute percent cover values were quite different:  River Birch – 54%, Red Maple – 33% and Black Oak – 18%.  Why were their values so different?  Who was closer to the true values of absolute percent cover?    This is course led me to wonder that if both students were assessing the same area would their wetland conclusions be different?

In statistics, the variability that I observed is called “measurement error” and is present in all wetland delineations, as well as any process where measurements are taken by individuals.   Measurement error has two components:  accuracy and precision.  Accuracy is the difference between the average measured values and the true value.  Precision is how close all the measured values are to each other.   The graph below visually demonstrates the difference between accuracy and precision. Source: (http://kaffee.50webs.com/)

error1

Going back to our example of the percent cover, let’s assume that the true values were River Birch – 43%, Red Maple – 21% and Black Oak – 15%.  If we took the average of the percent covers for each person it would be Birch – 44%, Red Maple – 22% and Black Oak – 12%. So it would seem that the accuracy of all the assessors (average values) was good.  But the precision in the measurements (variability between assessors) was not very good.   If we had asked each person to measure the same percent covers multiple times (unknowingly of course) we could have also measured the variability within the assessors.

Why does this error in measurement exist?  The answer, in general terms, is that each operator has slightly different methods for calculating percent cover.  In order to correct measurement error, the wetland delineation team would have to improve the process of how the percent covers were estimated. For instance, they could have a written procedure that explains exactly how the process should work, including pictures that demonstrate different percent covers.

There are of course other measurements taken during a wetland delineation that have potential for measurement error.   Examples include measuring the soil depth and determining the color percentage for the soil section.  Or determination if hydrology indicators are present at the site, such as surface soil cracks or moss trim lines.

Error exists in all wetland delineation processes where measurements are taken.  You will not be able to eliminate all the error but you will need to take steps to ensure that the error is minimized.   Error in your measurements could lead you to making incorrect conclusions regarding the decision about a site being a wetland.   Sometimes these errors can cost your company thousands of dollars.

There are statistical methods available such as control charts, analysis of variance, and attribute assessments to quantify the amount of measurement error that exists in your processes. These techniques can be useful in assessing measurement error in any data collection process. Understanding the concepts of measurement error, the tools to measure it, and being able to improve your measurement processes will provide you with meaningful data which you can use to make fact-based decisions.

Watching out for venomous spiders

The Swamp Stomp

Volume 16, Issue 12

As we venture through the wetlands, forests, swamps and even our backyards this spring we need to be aware of spiders. These arachnids are nearly everywhere and are pretty hard to avoid. Since you’re likely to run into one of them sooner or later, you should be aware of the potential dangers. There are a variety of spiders whose bite that will result in swelling, itching, and moderate pain. There are also a few spiders whose bite can be quite dangerous, so it’s a good idea to learn something about these arachnids.

In the U.S., the most common spiders that can cause harm are the black widow and the brown recluse. Although it is not likely that you will die from a bite from one of these spiders, you need to be aware of the danger and how to prevent exposure to them.

The brown recluse and black widow spiders both have special markings on their bodies that can help identify them. Brown recluse spiders are typically brown with a violin shaped marking pointing towards the abdomen on their heads. Another defining characteristic of this species of spider is that they have six eyes instead of the usual eight. In terms of size, these spiders can be anyway from Ÿ to ž inches across their bodies. Black widow spiders can be easily identified by their shiny, black bodies and red hourglass shaped marking on the underside of their abdomen. However, it is important to keep in mind that this marking can range in color and the shape can sometimes be closer to a dot. Black widows are typically ½ inch in size.

Brown recluse spiders are found throughout the United States, but predominantly in the South. These spiders like to build their webs in small, dry hideaway spots, but can also be found in piles of leaves or under logs and rocks. Black widow spiders are common throughout the entire United States, but are mostly likely to be found in the southern and western states. They often live underneath things like woodpiles, debris piles, stones, and sheds. However, black widows can be found inside in places like basements and crawl spaces. So be aware of them even inside your house.

If you’re working in an area where you’re likely to encounter these spiders, it is vital to protect yourself from potentially getting bitten. To ensure safety, take the following precautions:

  • Be able to identify these spiders. Proper identification can be one the most effective strategies to avoid getting bitten.
  • Shake out clothing that’s been outdoors.
  • Inspect clothing and tools before use.
  • Wear protective clothing, like long sleeved shirts, long pants, hats, gloves, and sturdy boots while working in proximity to these spiders’ habitats.
  • Reduce empty space between stacked materials and clear debris, as these can provide excellent hiding spots for spiders.

If you have been bit by a spider, check your symptoms to make sure it is not a venomous black widow or brown recluse. Some symptoms of spider bites can include itching or rash, pain around the bite area, muscle pain or cramping, red/purple bite or blisters, increased sweating, difficulty breathing, headache, and fever or chills. If you are experiencing any of these symptoms, seek medical help. Although extremely rare, you can die from a venomous spider bite!

While brown recluse and black widow spiders can pose a threat in the work place and everyday life, with proper safety techniques they can be avoided. Just be mindful of when you are in one of their habitats or near a place where these little creatures prefer to reside.

Sixth Circuit Court Agrees to Hear Challenges to WOTUS

The Swamp Stomp

Volume 16, Issue 10

On February 22, the U.S. Circuit Court of Appeals for the Sixth District agreed to hear consolidated arguments against the Waters of the United States rule. This comes after the injunction made by the court last year, that postponed challenges against the rule until various legal issues could be solved.

This development comes after the same district court heard arguments for and against consolidating the various cases against the WOTUS rule on December 8 of last year. Those in favor of implementing the rule argued that consolidating the cases and having the Sixth Circuit review them as one would streamline the process to a final ruling. Those against the rule wanted the individual federal district courts to each review the cases, so that the rule could undergo more scrutiny. This new ruling means that the Sixth Circuit will be the only court making a decision for now.

The National Law Review reported that the court cited its ruling in National Cotton Council v. EPA in its decision to hear the challenges. The ruling of the 2009 case set precedent for the Sixth Circuit reviewing cases on the affecting of granting and denying permits. The court decided that since these new cases will directly impact permitting rules, and therefore it has jurisdiction over the arguments on the WOTUS rule.

Despite disagreeing with the Sixth Circuit’s decision in National Cotton Council v. EPA, Judge Richard Allen Griffin agreed with the court’s decision this time, due to the precedent set by the previous case, reported KTIC Radio.

“I concur in the judgment holding that we possess subject-matter jurisdiction in this case; thus, I join in denying petitioners’ motions to dismiss. However, I do so only because I am required to follow our precedentially-binding decision, National Cotton Council of America v. U.S. E.P.A., 553 F.3d 927 (6th Cir. 2009). Were it not for National Cotton, I would grant the motions to dismiss,” he wrote.

Paul Beard, a California attorney with Alston and Bird’s environment, land use and natural resources practice group, said that the court had reached the wrong decision. He stated that this ruling will bring the challenges to the Supreme Court faster, as well. However, he did not express optimism at his view on how the rule will be decided.

“With Justice Scalia’s untimely passing, the court’s 5-4 balance in favor of robust review of sweeping environmental rules like the WOTUS rule is no more,” Beard said.

The National Law Review also reported that this decision is significant because of recent event in the Eleventh District Court. There, 11 states were attempting to overturn a decision by a Georgia district court that had a concurring opinion with the Sixth Circuit’s decision. The final decision for that had been put on hold until the Sixth Circuit made one.

Sources

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/22/sixth-circuit-claims-jurisdiction-to-hear-merits-of-challenge-to-epa-waters-of-the-united-states-wotus-rule/

http://www.natlawreview.com/article/sixth-circuit-agrees-to-hear-challenge-to-clean-water-act

http://kticradio.com/agricultural/sixth-circuit-court-to-hear-wotus/

Lead: A Threat to Children and Adults Alike

The Swamp Stomp

Volume 16, Issue 9

The disaster in Flint, Michigan has raised awareness for rising levels of lead in drinking water. Some reports say that our very own Allegheny River may have near-toxic levels of lead in the water, which raises questions as to how much this can affect one’s health.

What makes the situation in Flint so perilous is the fact that the lead that is in the water is originating from the pipes. In 2014, the town’s water source was switched from Lake Huron to the Flint River. Pipes were used that were not properly treated against corrosion, so throughout the years, the pipes have worn down and leaked literal poison into the water. There are very legitimate fears that the high levels of lead in the children of Flint’s bloodstreams, may lead to permanent neurological damage. The state of Michigan, the Environmental Protection Agency, and the federal government are seeking towaterprosecute the officials responsible for the decisions that led to the water crisis.

Lead works as a poison in the body, mimicking the actions of important vitamins and minerals such as calcium, iron, and zinc. As a result, lead can cause severe mental alterations as the brain has decreased oxygenation and decreased muscle function, since calcium is vital for healthy muscle contractions. Lead is odorless, tasteless, colorless, and virtually undetectable until symptoms start to occur. The only way that lead can affect you is if it is ingested, which is why it is important to check one’s home for lead paint, especially if there are children in the home.

After reports indicated high levels of lead in Pittsburgh water sources, the Pittsburgh Water and Sewer Authority (PWSA) began testing our own pipes for corrosion and came up with a safeguard against the poisoning of our water supply, the decision to switch from caustic soda to soda ash, a chemical that will create a film over the pipes to prevent corrosion.

In a report by the Pittsburgh Post-Gazette2, John Jeffries, supervisor of the county health department’s Public Drinking Water & Waste Management Program, said, “I think this is a good opportunity for people to understand the water systems of Allegheny County have been using the same sources for a very long time, and they are comfortable treating those to meet rules and regulations… For what it’s worth, I drink the tap water.”

Symptoms of lead poisoning in children include developmental delays, irritability, hearing loss, nausea, vomiting, abdominal pain, loss of appetite, and weight loss. In adults, symptoms include high blood pressure, muscle pain, joint pain, decline in mental functioning, miscarriages, and constipation. If you present with the symptoms above, it is important to get help right away.  Treatment for lead poisoning is Chelation Therapy, a process of ingesting a chemical and excreting the lead through the urine. In severe cases, EDTA therapy is used, where an even harsher chemical is used to excrete the lead.

It is important for people to understand the true danger of lead, especially lead in the drinking water, and be vigilant for signs and symptoms of possible toxicity. Hopefully, as the investigation in Flint continues, proper actions may be taken to resolve this very critical issue.

 

Bridget Seelinger is the editor-in-chief of The Scope, a publication of the Duquesne University Student Nurses Association. 

 

Article originally published at: https://duquesnescope.wordpress.com/2016/02/24/lead-a-threat-to-children-and-adults-alike/

 

References

Lead Poisoning, FAQ. (2015, January). Retrieved February 27, 2016, from http://dhss.delaware.gov/dhss/dph/files/leadpoisonfaq.pdf

Delaware Department of Health
Belculfine, L., & Daly, J. (2016, January 22). Pittsburgh water-sewer authority using new lead-fighting chemical. Retrieved February 27, 2016, from http://www.post-gazette.com/local/city/2016/01/22/Pittsburgh-water-sewer-authority-using-new-lead-fighting-chemical/stories/201601220121
Lead poisoning. (n.d.). Retrieved February 27, 2016, from http://www.mayoclinic.org/diseases-conditions/lead-poisoning/basics/definition/con-20035487
Photo from Wikipedia

Supreme Court Blocks Power Plant Regulations

The Swamp Stomp

Volume 16, Issue 8

The Supreme Court delivered a severe blow to President Obama’s climate change plans when it blocked new regulations on coal-fired power plants on February 9. According to the New York Times, the decision is the first time the court has ever blocked a regulation before it has been reviewed by a federal appeals court. The fact that they put off the decision means the court probably has some skepticism about the new regulations.

According to Fox News, the new regulations would have required carbon-dioxide emissions at plants to be cut by one third by 2030. Republicans had called the regulations an “unprecedented power grab”, noting that the implementation would have been extremely costly. The plan included closing some power plants and increasing production of wind and solar energy.

“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” Attorney General of West Virginia Patrick Morrisey said.

Supporters of the regulations stressed the importance of combating climate change. Solicitor General Donald B. Verrilli was among them.

“Climate change is the most significant environmental challenge of our day, and it is already affecting national public health, welfare and the environment,”Verrilli wrote to the Supreme Court.

Although the rules would not go into effect until 2022, many states argued they had already diverted resources or spent money in preparation for the regulations. A few companies already blamed the new rules for them declaring bankruptcy. A group of utilities told the New York Times, “Some of the nation’s largest coal companies have declared bankruptcy, due in no small part to the rule.”

Environmentalist groups and solar and wind power companies pointed to other factors as the reason for coal’s recent decline.“These changes include the abundant supply of relatively inexpensive natural gas, the increasing cost-competitiveness of electricity from renewable generation sources such as solar and wind power, the deployment of low-cost energy efficiency and other demand-side measures, and increasing consumer demand for advanced energy,” a coalition wrote.

This decision by the Supreme Court is not the last choice on the case. They will begin to hear arguments on June 2, which is relatively quick compared to previous cases.

Sources:

http://www.foxnews.com/politics/2016/02/09/supreme-court-puts-obamas-power-plant-regs-on-hold.html

Obama Vetoes Attempt to Overturn Clean Water Rule

The Swamp Stomp

Volume 16, Issue 6

 

2016-02-08_12-19-30

President Obama vetoed a bill that would have blocked the Clean Water Rule on January 19, reported USA Today. The bill, which was proposed by Republicans last year, would have repealed EPA definitions of what constitutes federally regulated waters.

“Because this resolution seeks to block the progress represented by this rule and deny businesses and communities the regulatory certainty and clarity needed to invest in projects that rely on clean water, I cannot support it,” Obama said in a message to Congress.

The sponsor of the bill, Sen. Joni Ernst, a Republican from Iowa, said that bill was a necessary step against a “blatant power grab by the EPA,” reported the Washington Times. Many Republicans shared Ernst’s sentiment that the definitions put forth by the EPA were too broad.

Supporters of the rule argued that these definitions allowed for the government to oversee waters that people may not ordinarily think could lead to drinking water. Obama addressed this in his message to Congress, stating, “Too many of our waters have been left vulnerable. Pollution from upstream sources ends up in the rivers, lakes, reservoirs, and coastal waters near which most Americans live and on which they depend for their drinking water, recreation, and economic development.”

Republicans used a seldom used law, known as the Congressional Review Act, to propose the bill, according to USA Today. The Congressional Review Act allows for Congress to overturn laws made by federal agencies if they can pass a bill in both houses. The bill achieved this when it passed in the House of Representatives last month, receiving votes from every Republican member and three Democrats.

The veto, however, is likely to kill the bill entirely, as Republicans lack the two-thirds majority required to override a presidential veto. Congressional Republican remain determined to repeal the rule. According to USA Today, Ernst said she would continue to look for ways to undo the rule.

“We all want clean water,” Ernst said. “This rule is not about clean water. Rather, it is about how much authority the federal government and unelected bureaucrats should have to regulate what is done on private land.”

The Clean Water Rule also remains in the court system, and it has already been overruled by two courts. Republicans are optimistic that it will eventually be overturned, reported the Washington Times.

Sources:

http://www.washingtontimes.com/news/2016/jan/19/obama-vetoes-measure-blocking-epas-new-rule-waterw/

http://www.usatoday.com/story/news/politics/2016/01/19/obama-vetoes-attempt-kill-clean-water-rule/79033958/