Category: Newsletter

Petition to EPA Could Force Wisconsin to Take Action on Clean Water Act

The Swamp Stomp

Volume 15, Issue 44

Sixteen Wisconsin residents filed a petition on October 20th that could strip away the state’s authority over its waters, according to the Lacrosse Tribune. The 87-page petition accused the Wisconsin Department of Natural Resources of not following the federal standards set out in the Clean Water Act.

The main force behind the petition was Midwest Environmental Advocates, based out of Madison, Wisconsin, according to the Lacrosse Tribune. Midwest Environmental Advocates is a nonprofit environmental law center that specializes in Clean Water Act enforcement, according to their website. They have represented several groups with environmental interests in the past few years, including a group that fought against Richland Center Renewable Energy to reduce pollution into waterways around the lower Wisconsin River.

“Our petition for corrective action is important and justified because it has been over four years now and in many instances and much longer that both the DNR and the EPA have known that Wisconsin does not issue water pollution permits that are fully compliant with the Clean Water Act,” Tressie Kamp, staff attorney for MEA, said.

The petition against the Wisconsin DNR goes back to a letter from 2011 to the DNR that listed 75 omissions and deviations from federal requirements, according to the Lacrosse Tribune. An EPA spokesman said that 40 of those errors have been resolved.

“Is the state being held accountable or not?” MEA director Kimberlee Wright said. “Without effective government, we are compounding what our children and grandchildren will face in a world increasingly short of drinking water.”

Former DNR secretary George Meyer, who looked over the petition, was surprised by the scope of the allegations against the Wisconsin DNR, according to the Lacrosse Tribune.

“When it’s all put together like this, it’s hard to fathom how this could happen,” he said.

However, Adrian Stocks,  the DNR section chief for wastewater permitting, explained how the charges may not be as serious as they seem at first.

“Many of these end up being cases where we are rectifying our language to match federal language. A lot of them aren’t real substantial changes,” he said.

The petition itself refers to a much deeper problem, though. It claims that the governor of Wisconsin and the state legislature have limited the DNR’s ability to the point where they can no longer make informed decisions on water pollution issues.

If the petition does catch the attention of the EPA, it may take some time before we see any of the effects, however. Stocks said that changing a rule takes a minimum of 27 months if  “everything falls into the right place,” according to the Lacrosse Tribune. The alternate route would be an emergency rule-making process that was previously implemented for making changes to air pollution laws in Wisconsin. Stocks said that no emergency measures have been taken on water pollution yet.

Wright said, “[The petitioners are] asking the DNR to do a better job issuing their water pollution permits. If that can’t happen and if that can’t happen quickly, petitioners are asking EPA to start the process of taking back DNR’s authority to issue permits.”

Sources:

http://www.wkow.com/story/30310980/2015/10/20/petition-filed-with-epa-seeks-cleaner-water-in-wisconsin

http://midwestadvocates.org/news-events/news/petition-to-epa-wisconsins-fails-to-comply-with-clean-water-act/

http://lacrossetribune.com/news/state-and-regional/petition-urges-epa-to-force-wisconsin-to-obey-water-law/article_80578cd2-99e3-52e3-9020-3b2e0010d187.html

 

 

 

 

 

 

Federal Court Rules Against Fracking Regulations

The Swamp Stomp

Volume 15, Issue 43

A federal court in Wyoming ruled that the Bureau of Land Management does not have the authority to regulate hydraulic fracturing on September 30, according to E&E Publishing.

The BLM had plans to set stricter rules on disposing wastewater this summer, according to the Wall Street Journal. The new rules also would have required disclosing what chemicals are used in fracking. However, U.S. District Judge Scott Skavdahl shut these plans down by his ruling.

The main concern that he addressed was that Congress had never given the BLM authority to regulate fracking, according to the Wall Street Journal.

“Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through congressional action that the BLM can acquire this authority,” Skavdahl wrote.

Skavdahl said the Safe Drinking Water Act had given the EPA exclusive control over fracking regulations, according to E&E Publishing. However, the Energy Policy Act took away the EPA’s control over fracking in 2005, leaving regulations up to states and tribes to decide.

Skavdahl also felt that the BLM had not substantiated enough evidence to determine that fracking causes harm, according to E&E publishing. Skavdahl also said the BLM had not shown how the new rules they proposed would address the problems they said fracking caused.

“The Fracking Rule seems a remedy in search of harm,” Skavdahl said.

Critics of the ruling argue that the BLM has authority over oil and gas production on federal land, which includes fracking, according to E&E Publishing.

“BLM has well-established authority to regulate hydraulic fracturing and other downhole aspects of drilling on federal lands,” Earthjustice attorney Michael Freeman said.

A spokeswoman for the Interior Department said the BLM will follow the court’s ruling while they consult the Justice Department. They could appeal ruling if they wanted, according to the Wall Street Journal.

 

Sources:

http://www.eenews.net/stories/1060025657

http://www.wsj.com/articles/federal-court-blocks-obama-administration-hydraulic-fracturing-rule-1443641565

 

Waters of the State

The Swamp Stomp

Volume 15, Issue 42

On Friday, October 9, 2015 the United States Court of Appeals for the Sixth Circuit issued a stay of the US Environmental Protection Agency’s (EPA) and the US Army Corps of Engineers’ (Corps) new rule defining the scope of federal jurisdiction under the Clean Water Act (The Clean Water Rule). Until we hear otherwise, the Clean Water Rule is no longer in effect across the entire nation. The nationwide stay may be short-lived, and is contingent upon how the Sixth Circuit answers the key question regarding its own jurisdiction. There is a briefing on the jurisdictional issue is scheduled for completion on November 4, and the court indicated that its decision could be issued “in a matter of weeks.”

There are two sets of state lawsuits that have arisen as a result of the August, 28, 2015 Clean Water Rule. The first was alliance of 18 states (Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin) that filed motions with the Court seeking (1) a stay of the rule during the pendency of the court’s proceedings and (2) a ruling from the Sixth Circuit that it lacked jurisdiction to hear their appeals (enabling pursuit of their cases before the district courts). On July 28, 2015, the U.S. Judicial Panel on Multidistrict Litigation consolidated all Court of Appeals cases in the Sixth Circuit.

On August 27, 2015, the U.S. District Court for North Dakota granted such a motion filed by a second set of 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, North Dakota, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico). This was one day before the new Clean Water rules was set to go into effect. On September 4, 2015, the court clarified that the rule was enjoined only in the 13 plaintiff states, not nationwide. The EPA and the Corps promptly informed the public that enforcement of the new rule in all but the aforementioned 13 states would commence effective August 28, 2015. Enforcement would also pertain the 18 states in the other case.

The Sixth Circuit Court in a 2-1 decision issued a stay of the new Clean Water Rule on October 9, 2015. Two judges in the majority found that the petitioners had demonstrated a “substantial possibility of success on the merits of their claims,” specifically mentioning that it was “far from clear” that the new rule’s distance limitations were harmonious with the Supreme Court’s 2006 decision in Rapanos. The court also indicated that the process by which the distance limitations were adopted was “facially suspect” because the proposed rule did not include distance limitations, calling into question whether the final rule was a logical outgrowth of the proposal (as required under the Administrative Procedure Act). Finally, the court found that the government had not “persuasively rebutted” the petitioners’ argument that the rule’s bright-line distance limitations were devoid of specific scientific support.

In an interesting twist, the lone dissenting judge did not reach the merits of the petitioners’ motion, believing it was “not prudent for [the] court to act before it determines that it has subject-matter jurisdiction.” The majority of 2 countered that it had “no doubt” of the court’s authority to make orders preserving the status quo pending consideration of the outstanding jurisdictional question.

2015WoUSbooks

At the heart of this matter is the concept of states’ rights. The issue is that under the Clean Water Act the state makes the water quality decisions in regards to impacts to both waters of the US and waters that the state has legislated as jurisdictional by the state. As a not so minor point of fact, the Clean Water Rule has nothing to do with improving water quality. It simply designates what is and what is not regulated by the federal government. There is not one syllable in the rule that discusses how the implementation and enforcement of the rule will benefit water quality. We the regulated public are left to assume that if the federal government regulates the waterbody, it will by default become cleaner. It does not take much research to document that this is rarely the case. The recent disaster in Colorado comes to mind.

It is for this reason that under section 401 of the Clean Water Act the states are responsible for water quality decisions. The authors of the original Act recognized this for simple reason that water quality is best managed on a local level. It is simply not possible for a federal entity to have the sensitively to the local needs. This is underscored by another aspect of the Clean Water Act’s goal of transferring jurisdictional determination and permitting roles to the state. This is laid out in detail under section 404(g). It was never the intention of the Act’s authors for the federal government to perpetually run the Clean Water Act programs. Rather it was their intent to transfer this role to the states.

The EPA and Corps are on Constitutional shaky ground. At issue is the role of the federal government. In every wetland related Supreme Court case the Court has ruled based upon the Commerce Clause of the Constitution. The federal government can only regulate waters of the US in so far as the impacts to them effect interstate or foreign commerce. Unfortunately, the concept of significant nexus as defined by Justice Kennedy in the Rapanos case has been widely misinterpreted. A significant nexus to downstream waters has to effect interstate or foreign commerce in order to make a water body federally jurisdictional. Making the clean water “dirty” is not the same thing. The Commerce Clause must be satisfied to enable federal jurisdiction.

The states are not limited by the Commerce Clause. If the voting public in a state decides to pass legislation though their state representatives to protect a certain water body type, they are empowered to do this. However, this must take the form of legislation and not rule making. When the Supreme Court ruled in the SWANCC case that isolated wetlands (not commerce connected) are not federally jurisdictional, many state environmental departments tried to enforce rules to protect these types of wetlands. If there was not enabling state legislation, these rules fell apart.

The bottom line is the question as to whether the federal government can mandate regulation over land that would otherwise be regulated by the state without satisfying the Commerce Clause. There is also the small matter of the Administrative Procedures Act (APA) question as to the manner in which the rules have been vetted thought the public review process. It was sort of a bait and switch operation. However, this may delay the implementation of the Clean Water Rules but it most likely will not derail it. That matter is left to the state cases.

Suburban Waste May Be Turning Male Frogs Into Females

The Swamp Stomp

Volume 15, Issue 41

A study from Yale researchers published September 7 suggests that waste from suburban areas may be changing the sex of frogs in nearby ponds, according to Newsweek.

The study, led by Yale researcher David Skelly and doctoral student Max Lambert, found a connection between the ratio of male to female frogs in ponds and their proximity to suburban developments. The study, which took place in over 20 ponds in Connecticut, claimed that the chemicals from suburban waste are to blame for the changes, according to Michigan Radio.

According to Newsweek, the study reported that there were significantly lower amounts of female frogs in ponds in undeveloped areas compared to those near the suburbs. This could be coincidental, but Skelly’s team found hermaphroditic traits in many of the male frogs in these suburban ponds, suggesting that there is a change happening.

“So you have genetic males becoming, in terms of their morphology and perhaps their physiology, they’re turning into females because of the chemicals they’re encountering in the environment,” Skelly said.

confusedfrog

The study found that estrogen-mimicking chemicals from plants may be playing a large part in the changes. Specifically, it points to phytoestrogens, which are found in plants like clovers, soybeans and peanuts. Simply removing these from your yard may be releasing the chemicals into the surrounding environment, causing the sex change in nearby frogs, according to Newsweek.

However, Skelly said that there are a myriad of factors that could be leading to these changes, according to Michigan Radio.

“It’s everything from brake pads to components of plastics to — in other contexts, we’ve found that, you know, whatever goes into your domestic wastewater is likely to be getting in there,” he said.

Skelly said he wasn’t sure what this means for the frog population, but he did mention the importance of determining whether or not these new female frogs are sterile, said Michigan Radio.

As far as solving the problem, Skelly said that there wasn’t going to be one single solution due to the number of factors playing into the changes, according to Michigan Radio.

“We’re not going to be able to just get, for instance, you know plasticizers, like BPA, out of baby bottles or just de-register one kind of pesticide and take care of the problem,” he said. “Not that those things might not make some kind of a difference. But they’re not going to be comprehensive, effective solutions.”

 

Sources:

http://michiganradio.org/post/there-are-weird-things-happening-frogs-suburbs#stream/0

http://www.newsweek.com/female-frogs-estrogen-hermaphrodites-suburban-waste-369553

 

 

EPA Announces New Assumable Waters Sub-Committee

The Swamp Stomp

Volume 15, Issue 40

On Sep. 15, the Environmental Protection Agency announced the creation of a new sub-committee under the National Advisory Council for Environmental Policy and Technology (NACEPT). The new committee, called the Assumable Waters Sub-Committee, will provide recommendations on clarifying details for states or tribes attempting to assume permitting responsibilities under section 404 of the Clean Water Act.

Section 404 of the CWA currently outlines a program for regulating tidal waters, waters used for transport and their adjacent wetlands.  As it stands now, the program is largely administered by the Army Corps of Engineers. However, this section of the CWA allows for a state or tribe to assume the responsibilities of the program and administer it themselves. Currently, only New Jersey and Michigan have done this.

2015WoUSbooks

The EPA decided to make this sub-committee because states have said that section 404 does not provide enough details for them to estimate the cost of administering the program themselves. The purpose of the Assumable Waters Sub-Committee will be to make recommendations on how to clarify this to NACEPT.

By adopting the program, states will be able to have direct control over their wetlands. Also, those seeking a section 404 permit would only have to go to the state level for that permit.

The EPA’s website states, “The EPA fully supports states and tribes assuming permitting responsibilities for the aquatic resources under their jurisdiction.” It is possible that the creation of the Assumable Waters Sub-Committee is meant to encourage more states to assume the responsibilities of section 404.

To assume permitting responsibilities, a state needs to create a similar program to the federal one and submit it to the EPA. After the program is reviewed and accepted, the Army Corps of Engineers will no longer process permits for waters in that state. However, the program will still be subject to an annual review by the EPA.

The EPA’s website outlines this process in greater detail at http://water.epa.gov/type/wetlands/outreach/fact23.cfm. For more information on the creation of the Assumable Waters Sub-Committee go to http://www2.epa.gov/cwa-404/assumable-waters-sub-committee.

404(G)

 

Republican Congressman Moves to Impeach EPA Administrator

The Swamp Stomp

Volume 15, Issue 38

A Republican congressman introduced a resolution on September 11, 2015 calling for the impeachment of EPA Administrator Gina McCarthy, claiming she made false statements to Congress when she testified on the Clean Water Rule, according to Fox News.

“McCarthy not only broke the law by lying to Congress, but in doing so she also lied to the American people in order to force misguided and overreaching regulations, which have no scientific basis, down our throats,” said Rep. Paul Gosar, the Arizona congressman behind the resolution.

According to the Associated Press, Gosar accused McCarthy of perjuring herself several times while discussing details about the rule’s legal justification. A federal court ruling blocked the rule in 13 states already, but the EPA plans on going forward in the other 37 states.

One example that Gosar cited was on Feb. 4, when McCarthy said the EPA was “not expanding jurisdiction of the Clean Water Act, we are not eliminating any exemptions or exclusions in this proposal, we are in fact narrowing the jurisdiction of the Clean Water Act consistent with sound science and the law.”

Gosar said that the Clean Water Rule, “will kill hundreds of thousands of jobs and cause untold economic harm to communities throughout the country.” Critics of the rule claim that its implementation would put every body of water, down to a puddle, on private land under federal oversight, says Fox News.

However, the EPA said that the rule will only affect bodies of water with a direct and significant connection to larger bodies already under the jurisdiction of the EPA, according to Fox News.

The Dallas Morning News said that Gosar has the support of 18 other representatives, but the Republican members of the House are far from unified on the resolution.

A spokesman for House Majority Leader Kevin McCarthy said, “There’s no plan to impeach Gina McCarthy.” McCarthy, a California Republican, is not related to Gina McCarthy, the Associated Press said.

EPA spokeswoman Liz Purchia said the impeachment resolution, “has zero merit and is nothing more than political theater.”  She also called Gina McCarthy,  “a dedicated public servant who performs her duties with the utmost respect for the law.”

“Protecting public health and the environment for all Americans should not be a political issue,” said Purchia.

 

 

Study Shows Flood Risk Underestimated in Midwest by up to Five Feet

The Swamp Stomp

Volume 15, Issue 37

Washington University in St. Louis recently released a study that suggests federal agencies consistently underestimate historic 100-year flood levels on rivers by up to five feet in some areas. Such miscalculations have severe ramifications for future flood risks, flood insurance, and business development in an expanding floodplain.

PhD Robert Criss, a professor of geology in the Department of Earth and Planetary Sciences in Arts & Sciences and the author of the study, claimed, “This analysis shows that average high-water marks on these river systems are rising about an inch per year—that’s a rate then times greater than the annual rise in sea levels now occurring due to climate change.”

Criss continued to explain that his findings are important because many of the nation’s flood-control river levee systems are not designed to withstand flood levels that rise higher than the projected 100-year flood level, a key national index of potential flood severity. He warned that floods that exceed even a few inches over 100-year levee may potentially lead to cataclysmic events.

The Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) establish official 100-year flood levels by computing a series of complicated equations. Any levees that are constructed to withstand “100-year” levels and “100-year” flood zones are then delineated as such on FEMA’s detailed flood insurance maps.

Criss, however, has researched water flows on major rivers for decades now, and has long argued that any man-made river control systems, such as levees, locks, dams, and navigation-enhancing dikes have steadily elevated the risk of devastating flooding by constricting river channels and preventing floodwaters from flowing naturally into surrounding wetlands and floodplains.

In a 2008 study, Criss demonstrated that flood patterns along the Mississippi River near Hannibal, Missouri, already exceeded drastically the official federal flood risk calculations. Since that study was published, Hannibal has seen floods exceeding the “10-year” flood levels in 2009, 2010, and 2011; as well as experiencing stages officially designated as “50-year” floods in 2013 and 2014.

“Such outcomes are far too unlikely to be attributed to a nearly continuous succession of statistical flukes, and instead must be attributed to faulty calculation of flood risks. Many factors such as climate change and in-channel structures are causing flood levels to rise, so realistic estimation of future flood levels must take these changes into account,” Criss said.

Possibly the most significant part of Criss’ new study is the proposed new statistical equation for the analysis of environmental variables that are changing over time. He claimed, “Official calculations emphasize discharges (flows) in flood risk analysis, yet many compelling reasons show that water levels (stages) should be used instead. Stages are easily understood and are, in fact, the most relevant quantity. If floodwaters are encroaching a home, the owner is concerned about the water level, not about the discharge of the river.”

According to Criss’ equation, which gives more consideration to modern river conditions, the projected high water mark for a 100-year flood event on the St. Louis riverfront would be 51.5 feet—that is over 21 feet above the current flood stage.

Criss said, “The official calculations for the ‘100-year’ flood level at St. Louis are about 5.5 feet too low, primarily because they neglect both the tendency for the flood levels to increase over time and the increased volatility we’re seeing with extreme weather swings.”

Such a difference seriously calls into question the reliability of existing flood control systems. The current system in St. Louis was built to a height of 52 feet, and in 1993 flood levels were only two-and-a-half feet from overflowing the city’s flood wall system.

“In other words, if we experience another flood on the Mississippi of the proportions seen in 1993, it’s hard to say whether the floodwalls protecting St. Louis would be high enough to prevent extensive flooding in the downtown area,” asserted Criss.

Criss’ equation demonstrated similar miscalculations in a number of other Midwestern cities and towns along the Mississippi, Missouri, Ohio, and Illinois rivers. It may be time for these communities to reassess their flood protection systems in order to protect against higher flood crests.

Summer Storms

The Swamp Stomp

Volume 15, Issue 35

The new Waters of the US (WOTUS) rules went into effect last week. Well they sort of did. On August 27, 2015, one day before the rules were set to take effect, two WOTUS rules federal court cases where decided. One supported the rules and one did not.

United States District Courts in Georgia and West Virginia agreed with the Agencies that legal challenges to the Rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction. Therefore the rule stands and can move ahead on August 28, 2015.

The District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule. Under the order issued by the Court, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation. In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following 13 States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

The decision of the District Court was that the WOTUS rule is a risk to state sovereignty because it asserts federal jurisdiction over wetlands and waters that would normally be subject to state government regulation. In this case, the District Court determined that the states were likely to succeed on the merits as the EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the Clean Water Act. According to the court, the WOTUS rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in Rapanos.

There was and perhaps still is a lot of confusion about whether the remaining 37 states are still required to abide by the new WOTUS rule. EPA has been leading the charge on the rule and thus far provided no written guidance as a result of the Court’s ruling. However, a number of media sources including the NY Times, The Wall Street Journal, The Washington Post, The Hill, AP, and Reuters cite an EPA representative as a source. Some name the EPA spokesperson, some do not. So far there has been nothing formally published in the form of an official new release from EPA. The following is from the Wall Street Journal as quoted in The Hill.

“The Clean Water Rule is fundamental to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy,” EPA spokeswoman Melissa Harrison said. “EPA and the Department of the Army have been preparing to implement the rule on the effective date of August 28.”

The preliminary injunction, Harrison said, applies only in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“In all other respects, the rule is effective on August 28,” she said. “The agencies are evaluating these orders and considering next steps in the litigation.”

The Army Corps of Engineers posted an announcement on the headquarters website the following guidance.

“In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.”

“In all other States, the new Clean Water Rule is effective on August 28.”

I am not sure if a web post counts as guidance, but it is all we have to work with. The last published Corps Regulatory Guidance Letter (RGL) was in 2008. Now would be a good time to issue a new one. Permit decisions need to be made. I am not sure a web post under “latest news” meets the legal requirements of an interpretation of law.

Keep an eye on the EPA news release site as well as the Corps regulatory pages. It is safe to assume that the new rules will be enforced outside of the 13 dissenting colonies. Sorry I meant states. Does anyone else see the irony here?

Corps Asked to Confirm Its Limited Role in Clean Water Rule

The Swamp Stomp

Volume 15, Issue 33

Earlier this year, the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) released the Clean Water Rule. The rule was fashioned to aid the Clean Water Act (CWA) by clarifying which bodies of water deserved protection and are suspect to federal regulation. However, the exact role that USACE had in the final rule is now being questioned.

The rule has been met with much opposition from Republicans who hold the rule to be federal overreach. The oil and gas industry also oppose the rule as they think it will suppress development.

On July 27, 2015, U.S. Senator for Oklahoma James Inhofe, chairman of the Senate Environmental and Public Works Committee, released a letter to Jo-Ellen Darcy, assistant secretary for the USACE’s Civil Works program, requesting documents relating to the Waters of the U.S. (WOTUS) rule.

In the letter, Inhofe said, “While intersperse with staff recommendations and legal conclusions that I understand you wish to keep confidential…the facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final WOTUS rule, that the rule is lacking factual, technical and legal support.”

“I also was surprised to learn that, even though the rule was purportedly a joint effort of EPA and the Corps, it appears that the Corps did not receive the draft final rule until EPA submitted it to interagency review on April 3, 2015.”

Since releasing the letter, Inhofe claimed that a bill, the S 1140, has become the “the main vehicle in response to the WOTUS rule.” It calls for both the EPA and USACE to promulgate a revised WOTUS rule that would limit the amount of federal oversight. The bill has already been passed by Inhofe’s committee on July 16, and is now headed to the full Senate for approval.

The S 1140 bill will still include traditional navigable waters, interstate waters, and certain streams and wetlands, but it would exclude groundwater, isolated ponds, and other smaller bodies of water.

Inhofe claimed that based on a number of recently obtained documents—specifically, memos between Darcy and Major General John Peabody dated April 24th, April 27th, and May 15th—as well as a testimony given by Darcy on February 4th, “many of the determinations that purport to support expanded jurisdictions in the final WOTUS rule were not based on the experience and expertise of the Corps.”

In the memo from April 24, Darcy asserted that the final draft rule asserts jurisdiction under the Clean Water Act “over every ‘stream’ in the United States, so long as that stream has an identifiable bed, bank, and ordinary high water mark.  That assertion of jurisdiction over every stream bed has the effect of asserting CWA jurisdiction over many thousands of miles of dry marshes and arroyos in the desert southwest, even those ephemeral dry wastes, arroyos, etc. carry water infrequently and sometimes in small quantities if those features meet the definition of tributary.

In the same memo, Darcy also said that it “may be a challenge to identify a ditch that is a relocated tributary or excavated tributary,” and that “the draft final rule…characterizes literally millions of acres of truly ‘isolated’ waters (i.e. wetlands that have no shallow subsurface or confined surface connection with the tributary systems of the navigable waters or interstate waters) as ‘similarly situated.’”

On April 27, Darcy claimed that “the process followed to develop [the draft final rule] greatly limited Corps input,” before then stating in the May 15 memo that USACE “was not part of any type of analysis to reach the conclusions described; therefore it is inaccurate to reflect the ‘the agencies’ did this work or that is reflective of Corps experience or expertise,” and that USACE “also had no role in performing the analysis or drafting the technical support document.”

Furthermore, in Darcy’s testimony in front of Inhofe’s committee, she said that USACE “has never interpreted groundwater to be jurisdictional water or [that there is] a hydrologic connection because the CWA does not provide such authority.”

Therefore, Inhofe asserted, “Given [those] statements, please confirm that the Army does not have a record of field observations supporting the assertion of federal jurisdiction over ephemeral streams that do not have a surface connection to navigable water or over other geographically isolated bodies of water, by alleging a connection through a groundwater aquifer.”

Below-average ‘Dead Zone’ Anticipated for Chesapeake Bay in 2015

The Swamp Stomp

Volume 15, Issue 32

A research team from the University of Michigan forecasted a marginally below–average “dead zone” for this summer in the Chesapeake Bay.  While the results were only slightly lower than normal, it is still a significant finding for the nation’s largest estuary.

Released on June 23, 2015, by the National Oceanic and Atmospheric Administration, the 2015 Chesapeake Bay forecast indicates an oxygen-depleted, or hypoxic, region of 1.37 cubic miles–roughly 10 percent less than the long-term average.

The annual hypoxic region, or “dead zone,” in the Chesapeake Bay normally results due to farmland runoff containing nitrogen and phosphorus from fertilizers and livestock waste. Once areas become contaminated, fish and shellfish either leave the oxygen-depleted waters or die. Subsequently, “dead zones” threaten the bay’s production of crabs, oysters, and other important fisheries.

“These annual forecasts help to remind federal and state policymakers and the public that insufficient progress is being made to reduce the size of these low-oxygen regions,” said aquatic ecologist Don Scavia, director of the University of Michigan’s Graham Sustainability Institute. “The size of annual Chesapeake Bay dead zone has changed little over the past decade, which underscores the need for persistent management action to reduce the amount of nutrients flowing into the bay. The Environmental Protection Agency must keep states’ feet to the fire.”

Based on models developed by NOAA-sponsored researchers at the University of Michigan and the University of Maryland’s Center for Environmental Science, the hypoxia forecast works both with the nutrient-level estimates and stream flow data provided by U.S. Geological Survey (USGS). The USGS estimates indicate that only 58 million pounds of nitrogen were transported to the Chesapeake Bay between January and May 2015—29 percent below average amounts.

The predicted size of the “dead zone” is a result of the low river flow and below-normal nutrient loading from the Susquehanna River.

USGS associate director for water, William Werkheiser said, “Tracking how nutrient levels are changing in streams, rivers and groundwater, and how the estuary is responding to these changes is critical information for evaluating overall progress in improving the health of the bay. Local, state, and regional partners rely on this tracking data to inform their adaptive management strategies in bay watersheds.”

Besides nutrient-rich waters flowing into the bay, wind speed and direction, precipitation amounts, and temperature also affect the size of “dead zones.” In 2014, the sustained winds from Hurricane Arthur mixed the hypoxic zone water with the water, and oxygen, in the rest of the bay and dramatically reduced the “dead zone” to 0.58 cubic miles.

Donald Boesch, president of the University of Maryland Center for Environmental Science, claimed, “Forecasting how a major coastal ecosystem, the Chesapeake Bay, responds to decreasing nutrient pollution is a challenge due to year-to-year variations and natural lags. But we are heading in the right direction.”

Kathryn Sullivan, undersecretary of commerce for ocean and atmosphere and NOAA administrator, added, “These ecological forecasts are good examples of critical environmental intelligence products and tools that NOAA is providing to stakeholders and interagency management bodies such as the Chesapeake Bay Program. With this information, we can work collectively on ways to reduce pollution and protect our marine environments for future generations.”

If accurate, these predictions indicate that attempts to create healthier, less polluted waterways may be starting to pay off.