Tag: wetlands

Scout Motors is Filling In a Lot of Wetlands

COLUMBIA, S.C. — Environmental advocates are closely monitoring the developments at the site of the massive electric vehicle plant slated for Blythewood in Richland County, with growing concerns about its impact on the delicate wetlands in the area.

Construction crews are back to work after receiving a permit from the U.S. Army Corps of Engineers, allowing them to resume work that had initially been halted due to worries about wetlands damage.

This project has garnered significant attention, particularly after a report by WIS 10 news suggested that the Scout site could potentially impact a staggering 70,000 acres of wetlands, nearly 40,000 acres of ponds, and approximately 35,000 linear feet of tributaries. However, it’s important to note that this report is highly inaccurate and continues to be the top result in Google news searches related to the project.

While the correct figures are somewhat lower, they are still concerning. The USACOE’s permit will authorize the filling or disturbance of 74 acres of wetlands, 38 acres of ponds, and 7 miles of creek.

The new Scout Plant is situated off Interstate 77 in the northern part of Richland County, but questions and apprehensions loom large regarding its potential environmental impact, and the community is eagerly awaiting answers.

Blythewood Mayor Sloan Griffin shared his thoughts, saying, “It’s scary. Change is always accompanied by uncertainty. There are two sides to every coin – heads and tails. Some are excited, looking forward to the promise of 4,000 jobs and increased business opportunities in Blythewood, thanks to Scout.”

Construction will soon resume on the vast 1,600-acre site in Blythewood, where the Scout Motors manufacturing plant is set to be located.

Last September, Scout had to pause its work following concerns raised by the Environmental Protection Agency (EPA), which had identified evidence of wetlands damage even before the permit was issued.

Additionally, there’s a noteworthy finding indicating that one of the archeological sites, known as 38RD1468, is recommended for inclusion in the National Register of Historic Places (NRHP) under Criterion D. It holds potential for yielding significant insights into the area’s prehistory. However, it’s important to mention that there was not enough data collected during the Phase II investigations to determine its eligibility under other criteria (Criteria A, B, and C).

The Scout Motors project is undeniably intriguing. They are embarking on the production of electric trucks, a technology yet untested in the transportation of goods. This raises questions about the necessity of destroying 75 acres of wetlands for an unproven technology that may or may not compete effectively with traditional trucking methods. While the transition away from fossil fuels is commendable, it’s crucial to ponder whether it should come at the significant cost of our natural environment. Surely, alternative locations with less environmental impact could have been considered for this venture.

A day in the life of a wetland scientist

In the field, the wetland scientist engages in a variety of specialized tasks, including soil sampling to identify hydric soils, conducting thorough vegetation surveys, and assessing wetland hydrology through both direct and indirect means. These activities require a keen eye for detail, extensive knowledge of wetland ecosystems, and the ability to work effectively in challenging outdoor conditions. Additionally, the role involves meaningful interactions with local communities, landowners, and regulatory bodies, emphasizing the importance of wetlands in ecological balance and sustainable land use.

The day of a wetland scientist is not just about fieldwork; it also involves critical analysis and documentation back at the office or lab. Here, the scientist delves into data interpretation, report writing, and consultation with environmental experts, ensuring that their findings contribute to broader conservation efforts and comply with environmental regulations. The narrative also emphasizes the importance of continuous learning and professional development in the field of wetland science. This commitment to staying abreast of the latest research, technological advancements, and regulatory changes is vital for effective wetland management and protection.

  • Early Morning Research and Preparation: The scientist’s day begins with reviewing satellite images, wetland delineation protocols, and local environmental regulations. They ensure that all their equipment, including soil coring tools and water quality kits, is ready for the day.
  • Travel to the Wetland Site: The journey to the wetland site might be an adventure, often traversing through less-traveled paths. The scientist plans their route, considering the day’s objectives and the logistics of reaching the site.
  • Initial Site Assessment: Upon arrival at the wetland, the scientist conducts an initial survey, looking for visible indicators of wetland boundaries and making preliminary notes.
  • Detailed Wetland Delineation Work: The morning is spent in intense fieldwork, including soil sampling, vegetation identification, and hydrology assessment, to accurately delineate the wetland boundaries.
  • Fun and Exploratory Lunch Break: By midday, it’s time for a well-deserved break. The scientist often takes this opportunity to explore local eateries, enjoying the chance to discover unique and interesting restaurants in the area. This lunch break becomes a mini-adventure, offering a delightful pause from the fieldwork and a chance to savor the local cuisine.
  • Post-Lunch Delineation and Data Collection: After lunch, the scientist returns to the field, possibly revisiting certain areas for additional verification or moving to new sections for further delineation.
  • Community Interaction and Educational Outreach: The afternoon may also include interactions with local communities, landowners, or educational groups, discussing the day’s findings and the importance of wetland conservation.
  • Return to Base for Analysis and Reporting: Back at their office or lab, the scientist analyzes the collected data, begins processing samples, and starts drafting reports based on the day’s delineation work.
  • Consultations and Collaborations: The scientist might consult with environmental agencies or collaborate with colleagues, ensuring that the delineation aligns with regulatory standards and contributes to broader environmental research.
  • Evening Review, Planning, and Networking: The day concludes with a review of the work done, updating project files, and perhaps participating in professional networking activities, staying connected with the wider scientific community.
  • Continued Learning and Research: The scientist spends time in the evening catching up on the latest research in wetland ecology and planning for future professional development opportunities.
  • Relaxation and Personal Time: Finally, the scientist unwinds, reflecting on the day’s work and the culinary adventure they enjoyed at lunch, recharging for the next day’s challenges.

Army Corps Halts Coverage Under Nationwide Permits

Several weeks ago, landowners and permit applicants received an email notification regarding the Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). Namely, according to the notice, the Army Corps of Engineers (Army Corps) would not clarify any coverage requests under a variety of CWA Section 404 NWPs.

The Clean Water Act Section 404 NWPs are the general permits that authorize activities under the previously mentioned act, which “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.”

In the email from the Army Corps, it is stated: 

We were informed today that due to the decision of the United States District Court for the Northern District of California on October 21, 2021, to remand USEPA’s 2020 CWA 401 rule with vacatur, the U.S. Army Corps of Engineers is not finalizing any permit decisions that rely on a certification or waiver under the 2020 rule at this time. The Corps is working to provide more refined guidance that provides a way forward that allows us to finalize permit decisions. (Emphasis added) 

All interested parties can find this informal notification on at least one government website in the “Latest News” section.

However, following the current developments, the agency has not issued a formal notice or press release yet, which has halted coverage under its NWP program. The Army Corps finalized the NWPs list in January 2021, and the entire list went through formal notice and comment rulemaking. Before being issued, the NWPs were subject to the CWA Section 401 certification process. Nevertheless, this move affects the following 16 NWPs:

12. Oil or Natural Gas Pipeline Activities
21. Surface Coal Mining Activities
29. Residential Developments
39. Commercial and Institutional Developments
40. Agricultural Activities
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
48. Commercial Shellfish Mariculture Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
55. Seaweed Mariculture Activities
56. Finfish Mariculture Activities
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances

Information worth mentioning is the fact that the Army Corps’ notification was published weeks after EPA’s announcement that the Northern District of California court decision “requires a temporary return to EPA’s 1986 rule until EPA finalizes a new certification rule.” It is still unclear why the N.D. of California decision would result in a nationwide vacatur of the 401 Rule or why that court decision would affect NWPs. The NWPs were properly promulgated, and the procedure was based on the law that was in effect at the time. To date, there is no official explanation by any agency. In fact, there is no consideration or conclusion by any court that NWPs, or the Section 401 certifications issued for them, are unlawful.

Another circumstance that raises questions is the Senate vote 92-5 to confirm Michael Connor to serve as the assistant secretary of the Army for civil works. The notification was issued on the same date as the confirmation of Mr. Connor, so it is unknown whether he ordered the halt in permitting. Without any doubt, Mr. Connor has the power to make headway on the administration’s infrastructure, resilience, and climate goals, which in fact, will be hindered by the significant uncertainty left on its account. We can summarize that, until further notice, NWP coverage will not be granted for stormwater management projects, land- or water-based renewable energy projects; or electric, telecommunications, or water utility line activities, as well as residential, commercial, industrial, agricultural, and recreational activities.

In the meantime, until the government comes up with a solution and a decision on this matter, landowners and project proponents have an option to apply for an individual CWA Section 404 permit. The NWP process is designed to streamline the process for those activities with minimal environmental impact. As for comparison, the NWP process usually takes 60 days to be finished, while an individual permit can take up to one year or more. Annually, the Army Corps grants CWA Section 404 general permit coverage for more than 50,000 activities, and in the same period, issues on average 2,500 individual CWA 404 permits.     

This Army Corps’ notification raises many questions. First of all, it is unknown how long it will last the process of “providing more refined guidance”? Is there a need for changes and new programmatic Section 401 certifications for the NWPs mentioned above? Will the agency be on the lookout for those certifications before coverage can be granted? If the answer is YES, what changes will follow? There are two possibilities for the development: re-promulgation of NWPs, which would include new certification conditions; and the second option is the agency to strive for adding new conditions without going through the rulemaking process? Until the EPA comes up with a new certification rule, it remains unclear whether the agency will require each of the activities authorized under CWA Section 404 to receive an individual Section 401 certification.  

Property owners and project proponents are directly affected by this situation because of the potentially delayed certification process with individual permit applications. This, however, is quite a different sort of problem than halting coverage under already-issued NWPs. 

There has also been some unofficial information that the Corps has already reinstated the Nationwide permit review. However, as they have not confirmed that the Nationwide permits were put on hold they have not announced any further updates. There is a lot of confusion on this matter and it is highly recommended that you check with your local Corps District to confirm if the Nationwides in question are available for your region. There seems to be a high variability between districts as to the status of the the Nationwide program.

What’s next for WOTUS after judge drops Trump’s 2020 NWPR rule?

Back in 2020, the Navigable Waters Protection Rule (NWPR) promulgated by the Trump administration significantly reduced the coverage of the water bodies in the United States. For many environmental organizations, agricultural and specialty crop stakeholders, this decision was inadequate, and Trump found himself the target of criticism. In contrast, developers and industry stakeholders welcomed this decision with open arms.

Nevertheless, as the political set is changing, the decisions issued by the Administration undergo changes as well. Quickly after taking the service, President Biden took steps toward repealing the Trump-rule. After reviewing the actions taken by Trump Administration, the key term in the Clean Water Act (CWA) is changing for another time. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on June 9, 2021, made a joint announcement that they intend to examine and make alterations to the WOTUS rule. Biden Administration explained that these alternations are driven by the inconsistency and certain obstacles to the new scientific and environmental policy aspirations. Additionally, Corps and EPA had sizeable concerns about the NWPR and established an unavoidable need for changes. They intended to replace the NWPR through the rulemaking process.  

Almost three months later, On August 30, 2021, the U.S. District Court for the District of Arizona entered an order in Pasqua Yaqui Tribe v. EPA, so now things have moved in the planned direction, and the Biden administration can take a short break. The federal court ruling made a decision to put an end to the Trump-era Clean Water Act rule. It is not specified whether the Arizona district court’s order would apply locally or nationwide.       

As Judge Rosemary Márquez of the U.S. District Court for the District of Arizona ruled, the decision to withdraw the federal protection for streams and wetlands across the country was defective and too flawed to keep in place. The decision made by the federal court effectively puts an end to the Trump era and is a fundamental change that affects the entire nation. Consequently, the Navigable Waters Protection Rule is not currently in effect.

While the Navigable Waters Protection Rule is one of the most controversial decisions of the previous Administration, according to many, the new regulatory go in favor of both developers and farmers. At the same time, the EPA is spared from punishment by ruling out the Trump-rule, as the agency is preparing a replacement for the NWPR. 

In an email, the former EPA Office of Water attorney, Mark Ryan, said that: “The immediate effect is a nationwide vacature of the 2020 rule. There will be an appeal. Assuming the judge’s order is not stayed on appeal, then EPA will not have to go to the trouble of repealing the 2020 rule, and can move straight to drafting the new rule (which is almost certainly underway already).”

When it comes to the ruling and determining which “waters of the United States” are qualified to undergo federal protection under the Clean Water Act, the EPA and the Army Corps of Engineers consider implementing the 1986 regulation, which George W. Bush interpreted in the Agencies’ 2008 guidance. Legal experts explain that there is quite a big difference between restoring the Clean Water Rule and reverting to the pre-2015 status quo.  

This change makes some space and relieves EPA of unnecessary obligations. Therefore, instead of revoking the previous regulation, the EPA can focus its efforts and resources to anew the definition of “water of the U.S..” Ryan stated: “I think this relieves a bit of the pressure. Now they have one, not two big rulemakings to deal with.”

The most recent update about the EPA’s decision is that the agency currently discusses and evaluates the ruling. Timothy Carroll, the EPA spokesperson, stated that there aren’t any further comments on the final decision.  All things considered, the recent changes leave many open questions. The one most commonly asked is whether there will be a return to the 2015 Obama rule?! Do the industry stakeholders intend to appeal the vacatur order to support the NWPR? Will the Ninth Circuit limit the extent of the vacatur to Arizona? How do these decisions impact the current regulatory landscape?

State and Federal Policies Contribute to Wetland Loss

Swamp Stomp

Volume 15, Issue 3

For years, Massachusetts has actively attempted to prevent the destruction of swamps, marshes, seasonal ponds, and other wetlands. These areas protect numerous threatened species, filter pollution, and control floodwaters. This policy began three decades ago when developers became required by law to replace almost every square foot of wetlands destroyed in the process of building houses, parking lots, and shopping malls.

Today, however, according to an examination by the New England Center for Investigative Reporting, the state’s landscape is littered with examples of the policy’s failure. Many of the areas created as replacement wetlands are now dry land, filled with invasive species, or much smaller than intended. Others, built near roads and sidewalks, degraded from pesticide control or foot traffic. Furthermore, due to a lack of vigor in carrying out the policy, some developers never even fulfilled their promises to replace the wetlands they destroyed.

The rate of wetland construction failure is not amiss to specialists, some of whom have joked that the best way to identify sites is to spot abandoned shopping carts and old tires. Matt Schweisberg, head of Wetland Strategies and Solutions, an environmental consultant firm in Merrimac, and former chief of the New England wetlands protection program for the U.S. Environmental Protection Agency, when asked if replacement wetlands match the ecological function of the areas destroyed, asserted, “It’s almost a blanket assumption that they don’t work.”

According to the preliminary results of a University of Massachusetts Amherst study, only 51 of the 91 wetland projects that researchers were given permission to access were successfully built—and some of these were much smaller than originally planned. In 28 cases, the developer attempted to build the wetland unsuccessfully, and in 12 cases, the wetland was never built at all.

These numbers reflect a string of long-running problems plaguing the state wetlands program, including: an administration that is ill-equipped to enforce the law and monitor sites, state budget crunches that have delayed some long-planned improvements, and challenges in building wetlands in areas that have always been dry.

The policy’s failure up to this point has led many regulators to rethink the policy all together. Now that the economy has begun to improve, large tracts of affordable dry real estate have become hard to find. An alternative that is under consideration is that instead of replacing the wetlands destroyed in construction, developers would have to contribute to a fund that would be used to create larger, more meaningful wetlands elsewhere.

A decision is expected soon due to the U.S. Army Corps of Engineers’ decision to allow developers to contribute to a fund used to build and preserve existing wetlands. Therefore, unless Massachusetts changes its policy, then its regulations would conflict with federal policy.

Municipal officials are worried, however, that a move away from the current policy would do little to benefit the communities that have lost their wetlands to construction. Furthermore, developers are concerned that the required contributions to the federal fund would prove too expensive.

Michele Restino, conservation agent for the city of Taunton, claimed, “The replication areas need to be next to what is destroyed. If it goes to Boston (or elsewhere), how does it do any good here?”

The director of the wetlands and waterways program at the Massachusetts Department of Environmental Protection, Lealdon Langley, however, thinks that the current policy approaches wetland preservation in the wrong way.  He asserted, “There are plenty of places where things can go wrong. We think it’s important to put emphasis on avoidance, and then reconstruction. We want to keep wetlands intact.”

Massachusetts’ “no net loss” policy for wetlands may be one of the stricter state policy’s regarding wetland preservation, but many of its shortcomings are applicable to a number of states. Appropriate funding and maintenance, as well as finding a location that can support all the complexities of wetland replication, must be available when constructing new wetlands. Furthermore, efforts must be made to preserve natural wetlands to ensure environments don’t lose the benefits wetlands provide. The new federal policy allows for greater attention and care to be given to larger wetland systems, however, it could also mean the extinction of wetlands from some environments entirely. A middle ground must be found to ensure wetland loss does not become a major problem in certain areas, and that also provides funds for the preservation and maintenance of all wetland systems.

Beavers Benefit Bare Banks

Swamp Stomp

Volume 14, Issue 47

Often thought of as vermin, beavers have been trapped and shot, while their dams have been destroyed by dynamite and bulldozers. However, the dry climates that have caused droughts throughout the West have brought beavers back to the forefront of landscape preservation.

By creating their dams, beavers raise the water table along rivers, which supports the tree and plant growth that stabilizes banks and prevents erosion. The dams also contribute to improved fish and wildlife habitats, and encourage richer soil to develop. However, in the dryer parts of the country that have been suffering from severe droughts, the most beneficial contribution of beavers is the water their dams collect.

Before beavers were considered pests, the tens of millions of semi aquatic rodents that dwelled in North America formed an integral part of the hydrological system in North America. Jeff Burrell, a scientist for the Wildlife Conservation Society in Bozeman, Montana, described how important the beaver once was for environmental stability. He said, “The valleys were filled with dams, as many as one every hundred yards. They were pretty much continuous wetlands.”

However, by 1930 the beaver population dropped to less than 100,000—most of which dwelled in Canada—because of fur trapping. Since then the number of beavers has bounced back to an estimated 6 million, and an appreciation for beaver dams has begun to grow.

Lately, hydroelectric and reservoir dams have been heavily criticized because of the extensive changes they cause to the natural environment. The benefits of beaver dams, both natural and artificial, have, subsequently, become an attractive alternative. In fact, the demand for natural damming has risen so much over recent years that government agencies sponsor workshops on the West Coast to train wetland workers how to attract beavers.

Burrell claimed that as long as beavers are able to help, we should take advantage of the resource. He said, “We can spend a lot of money doing this work, or we can use beavers for almost nothing.”

Beavers are the ecosystem’s natural engineers. Each time a family of beavers moves to a new territory, it begins a new dam in order to create a pond and shelter. As the water trapped behind the dam increases because of the buildup of twigs, mud, and stones, the entrance to the beaver’s shelter becomes submerged underwater, and thus protected from predators.

The new pond nourishes the nearby willows, aspens, and other trees, as well as providing a safe place for fish that require slow moving water. Land creatures such as deer, elk, and songbirds benefit from the grasses and shrubs that grow as a result of the pond.

The greatest benefit of the pond, however, is the increased levels of underground water. The boosted water supplies would considerably lower the groundwater costs for farming. Cheaper water preservation will be crucial going forward, especially in areas suffering from drought. Burrell claimed, “People realize that if we don’t have a way to store water that’s not so expensive, we’re going to be up a creek, a dry creek. We’ve lost a lot with beavers not on the landscape.”

The danger of allowing beavers to dam streams freely is that their damming may cause floods in residential and urban areas; if unchecked beavers can be destructive to ecosystems that are not already short of water. Therefore, it is important to only encourage beaver activity in areas that need help managing and retaining water.

Beaver activity has been increased in arid climates such as those found in Arizona. However, the consequences of doing so are largely unknown. Julian D. Olden, an ecologist at the University of Washington, discovered that beaver ponds made in Arizona proved to be ideal habitats for invasive fish, such as carp, catfish, and bass, which will eventually overrun the native species. He concluded, “There’s a lot of unknowns before we can say what the return of beavers means for these arid ecosystems. The assumption is it’s going to be good in all situations, but the jury is still out, and it’s going to take a couple of decades.”

It appears clear that beaver activity is not recommended in all situations, but the positives of allowing beavers to dam water supplies in low-water-areas seems to outweigh the negatives. As mentioned by Olden, the overall consequences will only be able to be gauged after a large amount of time has passed. Until then all we can do is hope that the positives continue to outweigh the negatives.

EPA’s Proposal to Define its Jurisdiction over Bodies of Water

Swamp Stomp

Volume 14, Issue 39

EPA’s Proposal to Define its Jurisdiction over Bodies of Water

In March, the Environmental Protection Agency (EPA) proposed that a rule be implemented to establish more clearly which bodies of water—for example, wetlands and streams—actually fall under the Clean Water Act, and, subsequently, under their own authority. The proposal became a controversial topic that forced Gina McCarthy, the EPA Administer, to claim that the rule does not significantly expand the EPA’s current authority to those bodies of water that lay outside of the agency’s jurisdiction.

Such a statement only added to the debate, however. Republicans argue that the rule grants the EPA too broad a reign, and that inconsequential bodies of water will become subject to federal regulation. Pennsylvania Representative Lou Barletta asserted, “I have heard from many of my constituents that this rule would force them to prove that large mud puddles and ditches on their property are not federally regulated waters…sometimes, a mud puddle is just a mud puddle.” Perhaps the regulation of inconsequential bodies of water is exactly what McCarthy meant to allude to when she said that the new rule would not “significantly” expand the EPA’s authority.

Democrats, however, appear somewhat split on the issue. The larger percentage of Democrats dismiss the Republican concern as excessive use of hyperbole. Oregon Representative Peter DeFazio, the top Democrat on the House Natural Resource Committee, claimed that if such concerns were taken seriously, then not only have we “departed from reality,” but have also returned to “the earlier era of the 2003 and 2008 guidance.” Other Democrats, however, such as West Virginia Representative Nick Rahall—the top Democrat on the House Transportation Committee—agreed with the Republicans that such a rule may result in federal overreach. He stated, “The only certainty that these regulations provide is the sure knowledge that under them, anyone undertaking any activity so much as a ditch in the United States will have to deal with the bureaucracy known as the EPA.”

This debate remains far from over, however. In early September, the House passed legislation that would prevent the EPA from implementing their proposed rule with a vote of 262 to 152. The bill would block the EPA from using their proposal in any way regarding the Clean Water Act.

Obama’s administration, however, “strongly opposes” the bill, and will advise that President Obama veto’s the bill if it reaches his desk. The Obama administration is allegedly only interested in protecting the waterways from pollution. They claimed that “clarifying the scope of the Clean Water Act helps to protect clean water, safeguard public health, and strengthen the economy.” They continued by asserting that the bill not only “would derail current efforts to clarify the scope of the Clean Water Act, hamstring future regulatory efforts, and create significant ambiguity regarding existing regulations and guidance,” but would also “sow more confusion and invite more conflict at a time when our communities and businesses need clarity and certainty around clean water regulation.”

This debate is set to continue, and with the threat of a presidential veto looming overhead, it may prove to be a significant issue in upcoming elections.

Restored Wetland Site Homes Vulnerable Species

Swamp Stomp

Volume 14, Issue 38

The amount of Chlidonias niger, commonly known as the black tern, found in New York has rapidly decreased since the 1960’s. The levels have lowered by such a significant degree that New York now considers the bird endangered within its state. The black tern has yet to reach this level of scarcity on a global basis, however, the species is being closely monitored as its global population also continues to decrease.

The black tern nests in shallow freshwater wetlands; the combination of open water and emergent vegetation provide ideal feeding and breeding grounds for the swallow-like bird. The marshes in New York, among other northern states, however, have become overrun with vegetation and, subsequently, are now unsuitable habitats for the black tern.

The 1960’s saw a number of dams constructed on the St. Lawrence River. These dams generate hydropower, maintain the water levels for commercial shipping on Lake Ontario, and prevent shoreline real estate from flooding. However, the dams also limit the annual water fluctuations within the marshes, allowing for dense vegetation to establish itself.

Records indicate that nesting sites in New York decreased by 57% between 1989 and 2004. Furthermore, the New York State Breeding Bird Atlas displayed 40% fewer black tern breeding areas in 2000-2005 than there were in 1980-1985. The largest explanation for such declines is the degradation of suitable breeding locations.

Seneca Meadows, Inc. owns the largest active landfill in New York, and in 2007 created a 600 acre wetland preserve to replace the 70 acres of wetlands that it destroyed in an expansion project. The current state standard for mitigation in New York is 3:1, however, Seneca Meadows opted for a much larger project given the potential impact the project could have due to its proximity with the Montezuma Wetlands Complex.

Applied Ecological Services (AES) were placed in charge of the project and restored 24 acres of grasslands, 157 acres of wooded wetlands by using invasive species management, and 419 acres of wetlands by altering hydrology and plantings. The once farm fields were transformed into robust wetlands and meadows.

Since the completion of the project, black terns have been spotted in the wetlands during surveying. It is expected that their appearance is a result of the proximity to the Montezuma National Wildlife Refuge, an area within the Montezuma Wetlands Complex. The restored wetlands provide great opportunity for the black tern to forage, feed, and reproduce.

The wetland preserve is also home to several grassland species that have showed significant signs of decline due to many grasslands in New York being converted to agriculture or reverted to forests. A few of these animals include bobolinks, grasshopper sparrows, and savannah sparrows.

Furthermore, it is not only animals that are benefiting from the wetland preserve. There are also a variety of plants that are now flourishing within the wetlands. Sedges, rushes, arrowheads, and pickerelweed are all growing healthily within the preserve. The seeds of these plants have been harvested and used to restore similar habitats in the neighboring Montezuma Wetlands Complex.

The restoration of the wetland habitat in New York, therefore, is actively contributing to the preservation of both animal and plant species that are native to the land.

USACOE Changes National Wetland Plant List (again)

Swamp Stomp

Vol 13, Number 40

Sometime between July 17 and July 22, 2013 the US Army Corps of Engineers published the 2013 National Wetland Plant List (NWPL) update. If you did not hear about this you are not alone. For the record the 2013 list was not published in the Federal Register. The previous list was published in the Federal Register for the 2012 NWPL. I only found 2013 list by pursing the NWPL website and saw a new link for the 2013 list.

This is a significant change especially in light of this “fact sheet” dated July 22, 2013.  The last statement is significant.

“Implementation: The Federal agencies will use the 2013 NWPL on all new Jurisdictional Determinations after September 1, 2013. Any delineations underway using the current list will be accepted, please just reference which list was used in your documentation.”

So what has changed?

2013NWPL

In short these are the numbers. The new list contains 7937 plant species, which is a reduction of 263 from the 2012 list. The majority of deletions were the removal of some upland species, taxonomic splits, merged species, and three errors. There were 12 requests for re-evaluation of indicator statuses and in seven of those species, the indicator status changed. All of these modifications accounted for 327 indicator status changes.

Now this may not sound like a big deal however the use of the list is a concern. The implementation statement above could be construed as a “rule.” I assume it is as your delineation will not be accepted if you do not use the new list.

Webster defines a rule as:

  1. a prescribed guide for conduct or action
  2. the laws or regulations prescribed by the founder of a religious order for observance by its members
  3. an accepted procedure, custom, or habit
    1. a usually written order or direction made by a court regulating court practice or the action of parties
    2. a legal precept or doctrine
  4. a regulation or bylaw governing procedure or controlling conduct

So can we assume if we are directed to use the new list that would constitute a rule? The veiled threat that the Corps will not review your delineation seems to constitute a reprimand if you do not follow the rule.

According to the “A Guide to the Rulemaking Process”, prepared by the Office of the Federal Register in 2011, a rule is:

“The proposed 
rule, or Notice of Proposed
 Rule Making
 (PRM), is the official
 document that announces and explains the agency’s plan to address a problem or accomplish a goal. All proposed rules must be published in the Federal Register to notify the public and to give them an opportunity to submit comments. The proposed rule and the public comments received on it form the basis of the final rule.”

Following the announcement that a new rule is proposed the public is the afforded the opportunity to comment on the rule. This can vary from 30-60 days.

The 2012 list went through the entire rulemaking process. The public comments were published and the draft list was finalized and published in the Federal Register as a final rule on May 9, 2012 (Federal Register / Vol. 77, No. 90).

The 2012 Federal Register notice does address the issue of updates to the 2012 list.

“The updating and maintenance of the NWPL will continue annually. Updates will include changes in nomenclature and taxonomy obtained from Biota of North America (BONAP), newly proposed species, changes as needed based on the results from challenges made to species wetland ratings, dataset analyses for regional and national-scale evaluations of wetland ratings, reevaluations of wetland ratings based on GIS and floristic provinces analyses, considerations of any new subregions, and several continuous quality control steps. These types of updates and maintenance steps will follow the same protocols used in the development of the 2012 NWPL update. Coordination will occur between the national and regional panels, the public and others, and the National Technical Committee for Wetland Vegetation as needed.”

At issue is the “using the same protocols…” and “Coordination will occur between …the pubic…”

What was put forth in July was a mandate not coordination. Who is the National Technical Committee for Wetland Vegetation and why do they get independent control over this list? I do not believe the intent of the 2012 publication was to give the Corps perpetual and unilateral control over what is and what is not a wetland plant species without any public involvement.

Perhaps you are wondering why I am getting so mad about this list. The issue is that vegetation identification is the most difficult of wetland assessment skills to master. The annual need to keep changing the names and indicators of the plants without any public input adds to the confusion of wetland plant identification. This translates into bad delineations. Virtually none of the commercially published and university published field guides contain the same names of many of the species listed in the 2013 list. Want proof? Look up poison ivy.

For your convenience we have posted all of the Wetland Plant Lists for each Regional Supplement on our Facebook Page. If you would like to download any of these just “like us”, fill out the form and download away. These documents are stored on the Swamp School servers so government shutdown or not you can always get them. Plus, they are FREE!  Well they are not really free.  You paid for them with your tax dollars, but I am not going to charge you for them.  😉

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USACOE suspending the existing general permits

Swamp Stomp

Volume 13, Issue 35

I bet that got your attention. I guess I should note that this is limited to the New England district. That is still a pretty big area and a very large population affected.

The following is a press release from the Corps. The important date is this Wednesday, as in tomorrow. Comments are due then.

Nationwide B

CONCORD, Mass. – The U.S. Army Corps of Engineers, New England District has proposed suspending the existing general permits in each of the six New England states and issuing the New England General Permit (NE GP) to authorize certain activities that require Department of Army permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act of 1899, and Section 103 of the Marine Protection, Research and Sanctuaries Act.

The Corps has extended the public comment period to Aug. 28, 2013. Here is a link to the proposal: http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/NEGP-PN.pdf. The original notice was issued on June 13, 2013 with a 45-day comment period. The comment extension is to allow inviduals and groups more time to submit their comments.

The NE GP would authorize activities in waters of the U.S. within the boundaries of and/or off the coasts of the six New England states (Massachusetts, Rhode Island, Connecticut, New Hampshire, Vermont and Maine), including activities occurring within the boundaries of Indian tribal lands that have no more than minimal adverse effects on the aquatic environment.

When GPs were first used in New England in the 1990s, they provided the Corps with significant efficiency, allowing a more streamlined review of minor projects under Section 10 and Section 404. At that time, it made sense to have a separate GP in each state as there were vast differences in state programs and priorities. Over time, however, both the Corps Regulatory program and state wetland programs have evolved. It now makes sense to develop a regional general permit that will continue to maintain a high level of environmental protection while allowing the Corps to streamline processes in New England, reduce regulatory redundancy, ensure consistent compliance with national policy, and alleviate a significant administrative burden for its staff, which currently must reissue each of the six state GPs every five years.

This also would facilitate permit review by partner tribal nations and agencies, be more user-friendly for the regulated public, especially those working in multiple states, and encourage consistency in wetlands and waterway regulation in New England while allowing for flexibility in establishing special conditions, thresholds, and processes that are important to individual states.

The proposed NE GP will not result in significant substantive changes to how activities in waters of the U.S. are regulated in the New England states. The NE GP organizes eligible work into activity-specific categories. This is intended to satisfy the requirements of Section 404(e) of the Clean Water Act, which allows the Corps to issue general permits for activities that are similar in nature and will cause only minimal individual and cumulative adverse environmental effects. Identifying specific activities will allow the Corps to adequately assess cumulative impacts of permitted activities, as well as fully assess impacts on threatened and endangered species.

General Permits are encouraged under the Clean Water Act as a way to streamline state and Federal regulatory programs. The District has had success with streamlining these programs with the use of GPs in New England (in Connecticut since 1990, in Maine since 1983, in Massachusetts since 1993, in New Hampshire since 1992, in Rhode Island since 1997, and in Vermont since 1997).

The public notice with the proposed New England General Permit (NAE 2013-00714) can be reviewed at

http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/NEGP-PN.pdf.

Public comments on this proposal should be submitted in writing by Aug. 28, 2013 to the U.S. Army Corps of Engineers, New England District, Regulatory Division (ATTN: Greg Penta), 696 Virginia Road, Concord, MA 01742-2751. Additional information is available from Greg Penta at 978-318-8862 or toll free 800-343-4789 or 800-362-4367 (if calling in Massachusetts) or by email to gregory.r.penta@usace.army.mil. Those who are interested in attending a question and answer session on this topic should contact Greg Penta.