How To Get Hired in Wetlands

With recent graduates entering the professional world, I thought it might be helpful to offer some advice on entering the wetland job market. Several of our subscribers either work in a related wetland science field or are interested in wetland studies. If you know any recent graduates looking to start their wetland career, please pass this post on!

First, I want to congratulate you on your hard work. You are probably now wondering “What can I do to get a job?”

The answer is simple; you need “real world” training. No matter your field, you need to look at the required skill sets for a prospective job and get them now. This applies to all industries, not just wetland science.

I am sure the last thing you want to hear is that you need more schooling. Four years of college should be enough to get started. However, no matter what job you are looking at, your employer will require that you either get on-the-job training or attend a training workshop. More often than not, a college degree opens the door to a job, but it does not give you all of the required skills.

A simple example is found at your local supermarket. Generally, supermarkets have at least one week of employee training before they face the public. You could have an MBA but not know how to run the register or which aisle you can find peanut butter. Supermarkets have a treasure hunt for groceries as part of their training to learn the store layout. Add in the inventory reporting, human resource compliance, how to deal with U-scan, etc., and it can be quite a lot. None of which you are going to learn in college. Each new employee needs to undergo the training process, which takes time.

How does this translate to wetland science?

Right now, we are at the beginning of wetland delineation season. Employers need to increase their work crews for the busy season and hire new recruits for projects that have already started.

So, what can you do?

Get trained now! Enroll in an introductory wetland delineation class. Having a wetland delineation training certificate on your resume puts you ahead of other job seekers.

Why?

You can start working on billable work almost immediately. In addition, you have saved the company the tuition, any class-related travel expenses, and the most expensive aspect of training, non-billable hours. This can represent thousands of dollars the company does not have to spend. By going into the job interview with this training, you are the most cost-effective hire they will consider, and you can start making them money right away.

We at the Swamp School obviously have a stake in this, but we want to help you get a job. As part of our training program, we provide you with many job resources and are happy to discuss any job-seeking advice we can offer. Give us a call or start a chat if you need any help.

New Update: Sackett v. EPA 2023

On May 25, 2023 the Supreme Court of the US (SCOTUS) issued its unanimous decision on the Sackett v. EPA case. The Courts 9-0 opinion was focused on whether the USEPA could claim Water of the US (WOTUS) jurisdiction on the Sackett’s land using the 2006, Kennedy Significant Nexus (SN) test. The Kennedy SN test arose from a precarious SCOTUS case where the Court was not able to arrive at a majority decision. The fractured 4-1-1 plurality resulted in a US Army Corps of Engineers (USACE) SN guidance that has been in use since 2007.

The Sackett SCOTUS ruling limits the extent of federal jurisdiction to navigable waters and wetlands that are directly connected to these same waters. The wetlands should be “indistinguishable” from the navigable waters. The majority (5) of the Justices supported this reason for restricting EPA.

However, while all nine Justices agreed on the extent of jurisdiction, four of the Justices disagreed with the rational as to why the significant nexus test was inappropriate. These Justices were concerned with the Court being at the center of national environmental policy. This, in their opinion, should be left to Congress.

WOTUS has a long history of debate. At issue is the extent of federal jurisdiction over inland waters that extend beyond riverbanks of navigable waters. The Clean Water Act does not define what a WOTUS is, and it has been the practice of over 40 years to leave that definition to the USEPA and the USACE. This has taken the form of nearly a dozen different WOTUS definitions and guidance that changes with each Presidential Administration. This year the Biden Administration has released a WOTUS rule that uses both the SN test as well as the physical connection test. The latter is now rejected.

The USACE has conveniently issued a new Ordinary High Water Mark (OHWM) manual this year. This manual’s purpose is to define the extent of OHWM in the absence of wetlands. It is in an interim phase which means that it should be used to support an OHWM delineation in addition to the 2005 OHWM definition. Going forward it is easy to see that the OHWM establishment and the extent of wetlands are now legally connected. The wetlands extent must be “indistinguishable” from the OHWM indicators. Perhaps in writing the new manual the USACE had some hint of what the SCOTUS was likely to do. The USACE also lost their WOTUS battle in the 2001 SWACC case with almost the same legal nexus issue as Sackett.

The Justices have called out Congress again asking for a national environmental policy and a clear definition of what the extent of federal jurisdiction should be. This was asked for in 2006 and thus far Congress has been silent on the issue.

Farmers are one of the largest groups to push for WOTUS reform. While the Sackett decision may appear to be a win for the farmers, it really is not. Wetlands are specifically protected by the US Department of Agriculture (USDA) by means of farm subsidy contracts. Simply put, when a farmer agrees to receive federal farm subsidies, the farmer has also agreed to not impact wetlands. This provision of the farm subsidy contract has been in force since the Swamp Buster provisions were revoked in 1990. The USDA does not distinguish between jurisdictional and non-jurisdictional wetlands. USDA wetlands are defined by the Food Security Act Manual which includes and expands on the USACE definition of wetlands. The only relief the farms may receive from the Sackett Decision is that they may not be prosecuted by EPA for isolated wetland impacts. However, they will have to refund their farm subsidies which can run into the millions if they impact a USDA wetland.

One last point regarding some of the rhetoric that is already churning in the media. None of the WOTUS definitions have anything to do with making the water cleaner. It is simply a defines the extent of federal jurisdiction. The assumption is that if the water is regulated it will be cleaner. History seems to work against this precept. The USACE is tasked with developing a permit program to fill in WOTUS. This does not make anything cleaner. The USEPA’s role seems to be unclear. Environmental protection is their mandate, but the tools to nationalize this are limited. Most if not all of the wetland protections come from state laws and rules. It was always the intent of Congress to leave the water quality issues to the state. Perhaps we should look to our local elected officials for leadership in the Waters of the State debate.

Going forward it is unclear if the EPA and USACE will issue new regulations. Regulations are usually issued as an interpretation of a Congressional Act. The SCOTUS ruling seems fairly clear and may not necessitate the need for further regulations. Even if it does, it would be close to a year before a regulation could be authorized due to the nature of the process.

Several Justices were concerned that the federal government’s rules should not require experts to interpret. Their decision should be clear enough that anyone should be able to implement it. However, the process of identifying a wetland is still a technical one that does require an expert. Furthermore, it could be argued that if the Justice’s concerns were realized then we would also have no need for accountants, CPAs, or even attorneys. To that end, our jobs as wetland professionals are safe.

Reliable and Strategic Habitat Conservation

What Is Habitat Conservation?

The most common definition for habitat conservation is a management practice that creates plans for preserving, protecting, and restoring habitats and is responsible for preventing species extinction, fragmentation, or reduction in range.

History of Habitat Conservation

For centuries, nature was viewed as a resource for economic gain and controlled by government rules and regulations. The 18th and 19th centuries marked the beginning of the conservationist ideology. The ideology included three core principles: 

  • Identifying human activities that impact the environment
  • Ensuring environmental preservation for future generations
  • Conducting conservation efforts responsibly

The first regulatory application of conservation principles was established in the forests of British India. Sir James Ranald Martin was a pre-eminent British military surgeon in India. He encouraged the notion that there are links between human and environmental health. He published medico-topographical reports demonstrating damage from large-scale deforestation and desiccation. Martin used his research to lobby for forest conservation activities in British India.

In 1842 the Madras Board of Revenue, led by botanist Alexander Gibson, started local conservation efforts in British India. This forest conservation program was adopted based on scientific principles, making it the first case of state conservation management of forests. In 1855, Governor-General Lord Dalhousie introduced the first permanent and large-scale forest conservation program in the United States and other colonies. This program promoted the inception of the world’s first national park in 1872: Yellowstone National Park.

By the mid-20th century, people began to appreciate the value of nature itself rather than focusing on the economic benefits. Various movements and activist groups raised awareness to protect natural capital. Several countries, including the United States, Canada, and Britain, enacted legislation to protect the most fragile environments and ecosystems.

The Importance of Habitat Conservation

Today, governments and non-governmental organizations worldwide are creating policies focused on protecting habitats and preserving biodiversity. The commitment and daily actions of volunteer associations in local communities make an enormous difference in ensuring that future generations understand the importance of natural resource conservation.

Habitats serve a multitude of organisms, and therefore it is of utmost importance to preserve them. Several reports have documented habitat loss in fragile ecosystems, such as coastal and inland wetlands, coastal sage scrub, oak woodlands, vernal pools, and free-flowing rivers. Moreover, many endangered species are found in these habitats. Degraded or reduced habitat area leads to species extinction. The fundamental relationship between habitat and species requires habitat protection to conserve biological diversity.

Strategic Habitat Conservation (SHC)

U.S. Fish and Wildlife Service (USFWS) created the SHC approach to establish self-sustaining wildlife populations with landscape and system sustainability. This adaptive management framework informs decisions to expand resources for wildlife species or species groups in priority landscapes with biological importance. The SHC identifies and selects areas or regions and decides where and how to deliver conservation effectively and achieve predicted outcomes, which are crucial in sustaining endangered species, fish, and wildlife populations.

The strategic conservation of habitats is an ongoing process that includes biological planning with measurable outcomes. The objectives of the SHC design include different management practices and ecological functions for various species. Additionally, monitoring, research, and evaluation are the basis of every decision, grounded in the best science available.      

Partnerships with the U.S. Geological Survey, State and Tribal wildlife agencies, conservation organizations, landowners, and other individuals and organizations with extensive knowledge of the issues allow SHC to assess the risk better and provide effective solutions for landscapes that need conservation.

Strategic Conservation Framework

Through strategic habitat conservation, the USFWS takes strategic, accountable, and adaptive action toward conserving ecosystems. The consistent use of this framework enables the workforce to create a solid plan and creative design and deliver strategically planned conservation actions. Moreover, shared outcomes help members to operate in a more coordinated and collaborative way. The science-driven conservation framework enables project transparency and an extensive, detailed decision-making process.

Strategic habitat conservation focuses on large-scale projects in wildlife and natural resource conservation. Some of the program goals with the SHC include land conversion efforts; improving environmental conditions that impact wildlife; providing reports for the increased public demand for transparency and interagency collaboration; sustaining species, populations, communities, and systems instead of the management of separate resources components; implementation of science-intensive approaches.

Sources

Arcata Fish and Wildlife Office. (n.d.). Strategic Habitat Conservation. U.S. Fish and Wildlife Service. Retrieved from: https://www.fws.gov/office/arcata-fish-and-wildlife/strategic-habitat-conservation

Wetlands Proven to Withstand Hurricanes

As hurricane season draws near, studies show that coastal wetlands can mitigate property damage from flooding and storms, saving taxpayers millions of dollars annually in averted losses.

The study, jointly conducted by researchers from the University of California Santa Cruz and scientists from private insurance, conservation, and engineering groups, assessed the value of the ecosystem services provided by wetlands to mitigate flood damage in the northeastern United States caused by Hurricane Sandy in 2012. The researchers estimated that $625 million of property damage was prevented by coastal wetlands. From Maine to North Carolina, the study found an average 22% reduction of damages for each of the areas assessed.

Their findings established a clear, positive correlation between wetlands and the value of nearby properties. They also found a positive correlation between wetland areas and averted losses due to flooding. This correlation was consistent in heavily urbanized coastal areas that had lost most of their wetlands, such as New York, where wetlands cover only 2% of the land yet still saved the state $140 million.

Wetlands as a buffer

Wetlands can serve as a buffer between the ocean and inland properties. As the storm surge produced by a hurricane moves onto the land, wetland vegetation significantly reduces the wave energy and height, with some wetlands attenuating surge action by up to seventy centimeters per kilometer.

Despite the profound ecosystem service value, only about 3% of private and public investments in coastal infrastructure go toward wetland restoration. The remaining 97% goes toward “grey” infrastructure, such as concrete seawalls that can be expensive to maintain and often only redirect flood water to other areas, potentially exacerbating the damages to life and property.

Aside from damages caused exclusively by hurricanes, the researchers also measured the annual flood mitigating benefits derived from salt marshes in Barnegat Bay in Ocean County, New Jersey. They found that properties buffered by wetlands experienced an average of 16% fewer losses than those not buffered from the ocean by wetlands, suggesting that wetland restoration is a sound investment even if few hurricanes make landfall in the region.

How can we plan ahead?

An affiliated report by Lloyd’s Tercentenary Research Foundation assessed strategies for funding wetlands restoration initiatives. The restoration strategies included investing in flood-mitigating wetland restoration and conservation before a catastrophic weather event, which would reduce the price of insurance premiums and securities, allowing the resulting savings to pay for the initial costs of restoration. Then, after a natural disaster does occur, a portion of the public and private recovery and rebuilding funds would be allocated towards further wetland restoration efforts, making the coasts even more resilient and reducing flood insurance premiums further.

By quantifying the monetary value of the ecosystem services provided by wetlands, wetland conservation is legible to politicians, investors, and laypeople. This understanding will lead to an increase in wetland management for the benefit of humans and ecosystems alike.

Sources:

Siddarth, N., et al. (2017). The Value of Coastal Wetland for Flood Reduction in the Northeastern USA. Scientific Reports, 7 (9463). Retrieved from https://www.nature.com/articles/s41598-017-09269-z

Stephens, T. (2017). Coastal wetlands dramatically reduce property losses during hurricanes. University of California Santa Cruz Newscenter. Retrieved from https://news.ucsc.edu/2017/08/coastal-wetlands.html

New Executive Order: Environmental Justice For All

Getty Images

Reprinted from Environmental Law and Policy Monitor.

Executive Order 14095

On April 21, President Biden signed Executive Order No. 14096 (EO), titled “Revitalizing Our Nation’s Commitment to Environmental Justice For All.” The EO builds on prior executive orders by President Biden related to environmental justice, racial equity, and climate change, as well as on the original executive order on environmental justice issued in 1994 by President Clinton (Executive Order No. 12898). Overall, the EO establishes a stronger framework with specific milestones for implementing environmental justice across federal agencies. Below is a summary of the EO’s key provisions.

The EO reaffirms the whole-of-government approach to environmental justice (EJ). Several aspects of the new order stand out. First, it stresses the enforcement of environmental and civil rights laws as important tools to achieve EJ. Second, the order provides a new, broader definition of EJ, which expands the protected categories to include Indigenous populations and individuals with disability, and it includes affordable housing as an element of achieving EJ. Third, the order shifts the standard for EJ from preventing disproportionate and significant/high adverse human health and environmental effects to disproportionate and adverse effects. Fourth, the EO explicitly identifies climate change and cumulative impacts as effects that must be addressed.

How Are Federal Agencies Impacted?

Reporting requirements are established by the EO for EPA and DOJ. EPA is required to report annually to the Council on Environmental Quality (CEQ) and the White House Environmental Justice Interagency Council on its reviews of state air permitting actions. DOJ is required to assess agency efforts to ensure compliance with civil rights laws and report annually to CEQ regarding pending or closed litigation.

The EO requires each federal agency to develop an EJ Strategic Plan within 18 months, and such plans must be posted online. EJ Strategic Plans are to establish agency goals, vision, and priority action items, and outline how regulations, policies, or permits could be used to improve accountability. The EJ Strategic Plans should consider requiring public reporting by regulated entities, expanding the use of pollution measurement tools (e.g., fence line monitoring), and removing exemptions and waivers that may undermine EJ goals. After submitting their EJ Strategic Plans, agencies will be required to submit an EJ Assessment to CEQ evaluating the effectiveness of the plans.

Executive Office of Environmental Justice

The EO establishes the White House Office of Environmental Justice within CEQ. This office will be led by a Federal Chief Environmental Justice Officer to be appointed by President Biden. This office is in addition to the already existing White House Environmental Justice Advisory Council.

The EO also establishes an EJ subcommittee of the National Science and Technology Council, which is an advisory agency within the White House. The EJ subcommittee will focus on research and data sharing and will prepare an annual EJ Science, Data, and Research Plan. The purpose of the plan is to analyze gaps in the science, identify opportunities, and provide recommendations to agencies. The EO also adds extra members to the existing White House Environmental Justice Interagency Council and requires it to create a public, internet-based clearinghouse containing EJ materials.

Within six months, CEQ must issue interim guidance for agencies regarding implementation of the EO.

Sources

De Las Casas, V., Wortzel, A., & Noble, C. (2023). President Biden Signs Executive Order on Environmental Justice. Environmental Law and Policy Monitor. Retrieved from https://www.environmentallawandpolicy.com/2023/05/president-biden-signs-executive-order-on-environmental-justice/#more-5497

Duck Stamps and Wetland Protection

2022 Federal Duck Stamp Contest Winner Artist: Joseph Hautman; Species: Tundra Swans.

The Migratory Bird Hunting and Conservation Stamp Act, commonly known as the Duck Stamp Act, is a conservation revenue program within the U.S. Fish and Wildlife Service (USFWS) that’s been in effect since 1934. Duck Stamps are licenses required for any waterfowl hunters in the U.S. The funds from Duck Stamp sales are directed toward wetland restoration and conservation efforts throughout the USFWS’ national wildlife refuges. Over the program’s lifetime, Duck Stamps have raised over $1.1 billion in sales. On average, the program generates over $40 million each year.

Duck Stamp Art Contest

While the Duck Stamp primarily acts as a hunting license, the stamps have become a beloved collector’s item for wildlife conservationists and artists. The USFWS holds an annual art contest for wildlife artists to design the Duck Stamp. There are over forty species of waterfowl eligible for the Duck Stamp. Contestants can choose from five species selected by the USFWS to depict in their design. The 2023 contest is open and accepting submissions through August 15, 2023.

For the 2023 contest, the eligible species include:

  • Snow Goose
  •  American Black Duck
  •  Northern Pintail
  •  Ring-necked Duck
  •  Harlequin Duck

Wetland Conservation

Last week, the USFWS stated they would receive over $146 million in funding from the Migratory Bird Conservation Commission to conserve and restore 242,000 acres of wetlands. Over $20 million of the available funds is attributed to Duck Stamp sales.

These funds will be used to purchase waterfowl habitat at the following national wildlife refuges:  

  • Cat Island National Wildlife Refuge in Louisiana – $1,466,000 to acquire 548 acres.
  • Clarks River National Wildlife Refuge in Kentucky – $6,621,000 to acquire 2,482 acres. 
  • Green River National Wildlife Refuge in Kentucky – $11,372,000 to acquire 1,335 acres.
  • Silvio O. Conte National Fish and Wildlife Refuge in New Hampshire – $1,066,450 to acquire 797 acres.
  • Willapa National Wildlife Refuge in Washington – $1,255,248 to acquire 239 acres.

Sources

Kauffman, V. (2023). Interior Department Announces More Than $146 Million for Wetland Conservation Projects and National Wildlife Refuges. US Fish and Wildlife Service. Retrieved from https://www.fws.gov/press-release/2023-04/more-146-million-wetland-conservation-projects-and-national-wildlife-refuges

US Fish and Wildlife Service. (n.d.). 2023 Federal Duck Stamp Art Contest. Retrieved from https://www.fws.gov/sites/default/files/documents/2023%20Federal%20Duck%20Stamp%20Art%20Contest%20regulations%20v2.pdf

House falls short in move to override WOTUS-rollback veto

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

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

NC Decision Makers Voice Concern

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

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

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

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

Stakeholder Groups Weigh-in

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

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

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

WOTUS Over The Years

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

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

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

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

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

What’s Next?

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

Elsewhere, the rule took effect March 20.

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

Half Of The U.S. No Longer Subject To The New WOTUS Rule

On April 12, 2023, Daniel L. Hovland, a federal judge in North Dakota, temporarily blocked the implementation of the latest “Waters of the United States” (WOTUS) rule. This action affects 24 states and is on the heels of a previous ruling by Jeffrey Vincent Brown, another federal judge for the southern district of Texas, that now excludes Texas and Idaho from the new WOTUS rule. At issue is the codification of the significant nexus test. According to two judges, the new 2023 rule that the balance of harms weighs towards the States. It benefits the public to “ensure that federal agencies do not extend their power beyond the express delegation from Congress.”

Where is WOTUS not in use?

  • West Virginia
  • North Dakota
  • Georgia
  • Iowa
  • Alabama
  • Alaska
  • Arkansas
  • Florida
  • Indiana
  • Kansas
  • Louisiana
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • Ohio
  • Oklahoma
  • South Carolina
  • South Dakota
  • Tennessee
  • Utah
  • Virginia
  • Wyoming
  • Texas
  • Idaho

Implications for these states

The impact of the outcome of the Sackett case by the Supreme Court (SCOTUS) is the driver for these two decisions. At issue there is a need to have a new rule before the SCOTUS ruling. A revised rule will clarify whether the Rapanos version of the “significant nexus” test is an appropriate exercise of the EPA’s jurisdiction under the Clean Water Act.

Neither the federal government nor the States know what the controlling test is, and Supreme Court precedent to date has been of scant assistance.  Hopefully, the Supreme Court decision in Sackett will provide some clarity.  The outcome of the Sackett  case may have significant implications for the EPA’s authority to determine jurisdictional waters under the Clean Water Act.  It may also determine the EPA’s ability to enforce the 2023 WOTUS Rule.  Until then, every state will continue to swim in waters of uncertainty, ambiguity, and chaos.

Daniel L. Hovland, District Judge United States District Court

Which definition are they using?

Working in these states is a bit unclear as to which definition should be used. Presumably, the last standing definition was the WOTUS recodification rule of 2019. This rule preceded the infamous 2020 Navigable Waters Rule, which was remanded and vacated in 2021.

It will be difficult to obtain permits and authorizations if federal agencies can’t use the 2023 WOTUS rule in half of the U.S. There is no clarity as to what constitutes a jurisdictional water body, making permitting almost impossible.

We expect a decision on the Sackett case from SCOTUS by the end of the term in June. Even if the Court provides a decision, there is no doubt that the next set of court cases against EPA and the Corps will be to challenge that the 2023 rule is inconsistent with the SCOTUS decision, whatever it may be.

Sources

Fischler, J. (2023). Federal judge temporarily blocks new Biden WOTUS rule in two dozen states. Ohio Capital Journal. Retrieved from: https://ohiocapitaljournal.com/2023/04/18/federal-judge-temporarily-blocks-new-biden-wotus-rule-in-two-dozen-states/

EPA To Impose New Auto Emission Limit

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

Here’s What We Know

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

Supply-Chain Constraints?

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

Could This Improve Wetland Functions?

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

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

Sources

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

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

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

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

Press Release: Update on East Palestine Derailment

Environmental Protection Agency, n.d.

On March 31st, the U.S. Environmental Protection Agency (EPA) and in coordination with the U.S. Attorney’s Office for the Northern District of Ohio, the Environment and Natural Resources Division of the U.S. Department of Justice filed a complaint against Norfolk Southern Railway Company for the train derailment in East Palestine, Ohio. The complaint details the derailment as an illegal discharge of pollutants and hazardous substances under the Clean Water Act (CWA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Press Release:

This action follows EPA’s issuance on Feb. 21, 2023 of a Unilateral Administrative Order under CERCLA to Norfolk Southern requiring the company to develop and implement plans to address contamination and pay EPA’s response costs associated with the order. 

“From the very beginning, I pledged to the people of East Palestine that EPA would hold Norfolk Southern fully accountable for jeopardizing the community’s health and safety.” 

“No community should have to go through what East Palestine residents have faced. With today’s action, we are once more delivering on our commitment to ensure Norfolk Southern cleans up the mess they made and pays for the damage they have inflicted as we work to ensure this community can feel safe at home again.”

EPA Administrator, Michael S. Regan

“When a Norfolk Southern train derailed last month in East Palestine, Ohio, it released toxins into the air, soil, and water, endangering the health and safety of people in surrounding communities.” 

“With this complaint, the Justice Department and the EPA are acting to ensure that Norfolk Southern is held accountable for the harm it has caused and continues to inflict on the residents of East Palestine.”

Attorney General, Merrick B. Garland

“Last month, the East Palestine community was upended by a horrific train derailment. By filing this complaint today, we are demanding accountability from Norfolk Southern Railway for the harm this event has caused.” 

“We will tirelessly pursue justice for the people living in and near East Palestine, who like all Americans deserve clean air, clean water, and a safe community for their children.”

Assistant Attorney General, Todd Kim, of the Justice Department’s Environment and Natural Resources Division

To Recap:

On Feb. 3, 2023, a Norfolk Southern Railway Company train carrying hazardous materials, including hazardous substances, pollutants and oil derailed in East Palestine, Ohio. The derailment resulted in a pile of burning rail cars, and contamination of the community’s air, land, and water. Residents living near the derailment site were evacuated. Based on information Norfolk Southern provided, the hazardous materials contained in these cars included vinyl chloride, ethylene glycol monobutyl ether, ethylhexyl acrylate, butyl acrylate, isobutylene, and benzene residue. Within hours of the derailment, EPA and its federal and state partners began responding to the incident, including providing on-the-ground assistance to first responders and conducting robust testing in and around East Palestine.

The fire caused by the derailment burned for several days. On Feb. 5, monitoring indicated that the temperature in one of the rail cars containing vinyl chloride was rising. To prevent an explosion, Norfolk Southern vented and burned five rail cars containing vinyl chloride in a flare trench the following day, resulting in additional releases.

Since EPA’s issuance of the Unilateral Administrative Order to Norfolk Southern, EPA has been overseeing Norfolk Southern’s work under the order. As of March 29, 2023, 9.2 million gallons of liquid wastewater has been shipped off-site, and an estimated 12,932 tons of contaminated soils and solids have been shipped off-site.

EPA and other federal agencies continue to investigate the circumstances leading up to and following the derailment. The United States will pursue further actions as warranted in the future as its investigatory work proceeds.  

Source:

Environmental Protection Agency (EPA). (2023). EPA and Justice Department File Complaint Against Norfolk Southern Railway Company for Unlawful Discharge of Pollutants and Hazardous Substances in East Palestine Derailment. Retrieved from https://www.epa.gov/newsreleases/epa-and-justice-department-file-complaint-against-norfolk-southern-railway-company