The Swamp School

The local Raleigh, NC newspaper, The News and Observer published a front page story on natural gas exploration in this past Sunday’s edition.  This is becoming a real story and opens the debate to frac or not to frac.

The main points in this debate are focused on two major things.One is how much money this will bring into the state.The second is how to determine what the environmental consequences of fracing are.

I have spent most of my summer in the Northeastern Pennsylvania training engineers, scientists, surveyors and students on the intricacies of wetlands associated with the Marcellus formation.This formation is extensive and extends from New York to Virginia.The amount of work being done in PA is impressive.

The economic engine that is driving this is jobs.This table if from a study done by the PA Department of Labor that summarizes the over 214,000 jobs created last year due to the natural gas exploration in the state.

Yes, I said 214,000 jobs.

Wetland delineation and waters assessment are major concern in this area.This fall, The Swamp School is offering two classes in the Carolinas to expand on some of the nuances of wetland delineation in the region.Please check our class schedule for more information.We have launched a new How to Get a Job program.

More details ==> HERE

I thought that it might help to define some of the key aspects of watershed and flood studies so that we are all on common ground.  To start we need to discuss what happens in a flood and what then identify what the component parts of a flood are.

First we need to address whether flooding is good or bad.  If you ask the folks in New England I am sure your will get a unanimous and perhaps colorful response that floods are bad.  In today’s landscape floods are bad.  They result in significant property loss and sometimes even loss of life.  This is a terrible thing.  The natural response is to find new and better ways to prevent flooding.

However, floods are a natural part of the environment.    For thousands of years man has relied on flooding to replenish farm fields.  Floods served to fertilize the soil and help with early agriculture.  I find it ironic that today farmers do everything in their power to prevent flooding.  Their ancestors worked the land that was nearest the river so that they could benefit from the flooding.

When a flood occurs, the energy from what we call the floodway overtops the bank into the floodplain.  The energy in the floodway is concentrated and is only dissipated when the water reaches the floodplain.  This is a transference of concentrated energy into a dissipated lower energy system.

In a stable system the flood will occur in such a manner to neither cause erosion or deposition in the stream floodway.  The stream channel neither agrades or degrades.  This can only occur at the critical bankfull event.

The bankfull event is a small flood event.  There is a precise pressure point at which the energy within the floodway will not cause damage to the stream.  At the exact point at which the energy builds up to a damage point, the stream floods and the energy is spread out across the floodplain.  Every stream, river and creek has a bankfull threshold.   The problem to today is can the stream flood safely?

In most circumstances, today’s streams do not flood by design.  In fact most small events that would have ordinarily flooded are confined to the stream channel.  The result is that when these streams now flood they do so in record amounts.  This is a buildup of potential energy that when transferred out into the floodplain as kinetic energy results in the devastation we have seen in the last few weeks.

The problem we have today is that these streams will flood despite all of our efforts to contain them.  Now we have put structures and lives in the floodplain.  These are bound to be impacted as a result.

The solution to this is a difficult one.  You cannot stop it from raining.  Nor would you want too.  The homes and business are in the floodplain.  FEMA is just about broke so there is no money to buy out the properties.  What are we to do?

It seems that we have three choices.

1.  Do nothing – This has been the plan for some time.

2.  Relocate out of the floodplain – Very, very expensive

3.  Construct a miracle flood control project – Item 1 is looking better and better.

I would like to see if we can get a discussion going on this one.  What are some ideas to manage the floods we have seen in the last few weeks?

Please add your comments, thoughts or ideas.  We need your help with this one so please comment on the post.

Thanks,

Marc

Hello,

I just returned back from a 10 day stay in northern New Jersey. I wanted to relay to you a few observations of my adventure. As you may recall, Hurricane Irene paid us a visit. here in North Carolina most of the devastation was limited to the coastal areas. The damage was significant but it is something most of the folks in NC are experienced with. It is not that they are used to it. I do not know how one would get used to losing a home. However, they were prepared and are now working to get their lives back together.

New Jersey is looking at a something a bit different. The coastal areas were more or less spared. I have relatives in the coastal town of Belmar, that really did not see much damage. My in-laws in Blairstown which is close to 100-miles to the west of the shore have been without power for over a week. They did not see much hurricane damage, they had rain. Lots and lots of rain. In fact it has been raining most of the summer.

The damage to north Jersey is significant. The photo below (courtesy of the Star Ledger) is Interstate 287 in Boonton. The Rockaway river has washed away the north bound lanes. This backed up traffic for miles and days. At one point porta potties were set up along the highway and gas was being sold along the roadway. It was a mess.

In Denville, the entire down-town went under water. US Route 46 was impassible as the mighty Rockaway flooded the town. I saw large dumpsters floating down the river.

More recently, the town of Lincoln Park was flooded by the Passaic. Actually most of north Jersey was flooded by the Passaic. In Little Falls, NJ the flood stage of the Passaic is around 7 feet. It crested at over 14 feet. As of the date of the article the river has still not receded below flood stage.

As the cleanup begins there are many issues facing folks in these soaked areas. Foremost in many people’s minds is the issue of property loss. Thankfully, loss of life was minimal but tragic none the less. I believe 45 people lost their lives to the storm. This is far less than what happened in Katrina but the loss is still very sad. We knew the storm was coming and in New Jersey the Governor urged (rather colorfully) to seek higher ground.

I am focusing on New Jersey because it is a very good example of the problems we are faced with in urban watershed management. The storms and rainfall are unusually high this year and last year. Property loss is well into the millions if not billions. Communities have been destroyed. Life has changed.

In the following weeks we will be presenting a series on urban watershed management. There are many issues and controversy over how to best address the problem. We will use some of the towns in New Jersey as an extreme example of what worked and what did not. We will suggest ways in which some of the damage can be mitigated and avoided in future events. Perhaps this was an isolated event, but weeks later the rivers are still cresting and its going to rain again on Thursday. Stayed tuned.

The couple wanted to build a picturesque Idaho home. Instead they were accused of building on a wetland. Now the Supreme Court will hear their case

By Greg Stohr  Bloomburg Businessweek

When Mike and Chantell Sackett paid $23,000 for a lot near the banks of Priest Lake in northern Idaho in 2005, they thought they were buying the site for a picturesque new home. They got a lot more: a long feud with the Environmental Protection Agency and now a Supreme Court case that could bolster the rights of landowners facing costly demands from the federal government.

Four years ago the Sacketts were filling in their lot with dirt and rock, preparing to build a simple three-bedroom home in a neighborhood where other houses have stood for years. Then three federal officials showed up and demanded they stop construction. The agency claimed the .63-acre lot was a wetland, protected under the Clean Water Act.

The Sacketts say they were stunned. The owners of an excavation company, they had secured all the necessary local permits. And Chantell Sackett says that before work began, she drove two hours to Coeur d’Alene, Idaho, to consult with an Army Corps of Engineers official. She says the official told her orally, though not in writing, that she didn’t need a federal permit. “We did all the right things,” she says.

The EPA issued an order requiring the Sacketts to put the land back the way it was, removing the piles of fill material and replanting the vegetation they had cleared away. The property was to be fenced off and the Sacketts would be required to submit annual reports about its condition to the EPA. The agency threatened to fine them up to $32,500 a day until they complied.

The Sacketts instead tried to get a hearing in federal court, seeking a declaration that their property wasn’t a protected wetland. The plot is not connected either to the lake or a nearby creek, though Mike Sackett, 45, says part of the land got “wet” at times in the spring. “We sued because we wanted our day in court to say, ‘This is not a wetland,’ ” he says. Two lower courts turned the couple away, saying they could not make that argument until the EPA asked a federal judge to enforce the order. That left the Sacketts in limbo. Restoring the property as the EPA demanded made no sense to them. It would cost hundreds of thousands of dollars, they say, and if they ultimately won the case they’d have to clear the land a second time. But defying the order potentially meant racking up $32,500 in fines each day—and perhaps criminal liability if they continued with construction—while they waited for the EPA to decide whether to pursue the case. “It’s an unenviable choice,” says Damien M. Schiff of the Pacific Legal Foundation, a Sacramento-based property rights group that is representing the couple for free. “It’s really almost no choice at all.”

The Sacketts appealed to the Supreme Court, asking for the right to go straight to a federal judge. The high court agreed to hear the case in its fall term. It is being watched closely by environmentalists and property rights activists because of its potential scope. A ruling in the Sacketts’ favor would blunt one of the agency’s favorite enforcement tools. Each year it issues up to 3,000 “administrative compliance orders” to businesses and individuals, demanding an end to alleged environmental violations and applying enough pressure that those who are accused typically give in before the agency has to justify the action before a judge.

“The compliance order tool is one of a few mechanisms that EPA has to resolve, and resolve quickly, pollution problems,” says Jon P. Devine, a senior attorney with the National Resources Defense Council. The EPA argues the rules are reasonable. While fines may accrue, they won’t actually be assessed until the Sacketts have a chance to make their case to a judge, it says. Agency officials declined to be interviewed.

In taking on the case, the high court told the two sides to discuss in their filings whether the EPA’s procedures are so unfair that they violate the Sacketts’ constitutional right to due process. A ruling in favor of the landowners on those grounds would reverberate beyond the EPA, potentially forcing both state and federal agencies to seek court permission before trying to enforce rules.

Some environmental advocates believe the agency made a mistake in letting a case with such appealing plaintiffs reach the Supreme Court. The Sacketts haven’t dared to touch their land since the dispute began. Their dream house is on hold; they live in a rental nearby. It’s a problem for the EPA that the Sacketts “feel like the mom and pop who are getting the heavy hand of government brought down on them,” says Catholic University law professor Amanda Cohen Leiter, who sides with the agency. “I can imagine the court being sympathetic to these particular plaintiffs and issuing … an overbroad ruling as a result.”

The bottom line: The Supreme Court could turn a minor land dispute between an Idaho couple and the EPA into a far-reaching case on government power.

Supreme Court to Review Wetlands Enforcement Decision

July 1, 2011 12:39 PM | Posted by Miller, Jeff |

On June 28th, the U.S. Supreme Court accepted for review a 2010 decision in a wetlands case out of Idaho. The issue in the case is whether an alleged violator may seek review of an EPA administrative order before the agency enforces the order. Because there are penalties associated with failing to comply with administrative orders, recipients risk incurring additional penalties if they refuse to comply in order to provoke enforcement in order to obtain judicial review of the underlying matter (i.e., is there a jurisdictional wetland on the property). The 9th Circuit, it its 2010 decision, held that the Clean Water Act precludes pre-enforcement review and that the lack of such review does not violate the Constitution.

The property owners in the case own a lot near Priest Lake in Idaho. They filled about .5 acres of a .63 acre property without first obtaining a permit. The EPA then issued a compliance order, alleging that the property is a wetland and ordering the owners to remove the fill and restore the property to its original condition. The property owners disagree that the EPA has jurisdiction over the property.

Because all the circuit courts that have reviewed the issue have held that the Clean Water Act precludes pre-enforcement review of such orders, it is somewhat surprising that the Supreme Court decided to review this decision. The Court recently declined to review a 2010 decision by the DC Circuit in which the court rejected General Electric’s argument that unilateral CERCLA cleanup orders without pre-enforcement review violate the Due Process Clause. Thus, it seems likely that the Court is interested in the 9th Circuit’s interpretation of the Clean Water Act and not the property owners’ constitutional arguments.

You have spent hours if not days designing your wetland. You have worked out the water budget to the nearest quart. You have selected plant species and habitat types for specific wildlife utilization. Everything looks great! What could possibly go wrong?

Much of the success of a wetland restoration project comes down to the implementation of the design. There are several fatal flaws in the way projects are implemented. I will just focus on just one issue for today.

When a project is let (a construction award) it usually goes to the lowest qualified bidder. It is a very rare circumstance that even using the design build approach, that the designer will actually build the wetland. Usually, there are several outside contractors (grading, planting, seeding, E&S, etc.) retained to implement the project. Sometimes this is done by a general or master contractor. The general contractor subs the work to several smaller specialty contractors.

This is not a bad way to proceed. Quite frankly, it is a rare circumstance when the general contractor even owns any equipment. This is usually rented from a local rental company. Most construction projects are done this way. Think about how a house is built. There are separate electrical, plumbing, framing , roofing, etc. contractors.

So what is the problem with using this model to build a wetland? In theory there should not be a problem if the plans and specifications are sufficiently detailed. More about this in a future post.

The problem comes down to one of the least expensive materials. Oftentimes, there are detailed planting specifications provided to the landscape contractor. The specific genius and species are provided along with plant form (size of container) and on occasion recommended nurseries.

One aspect of the Swamp School is the fact that we also have a wetland plant nursery. As a result, we get sort of an insiders’ view of the mitigation business. A typical call from a landscape contractor would be similar to the following. “Hello, I am bidding a job today at 2 PM (it’s 11 now) and I need prices and availability for several thousand of the most esoteric plants you have ever heard of. I need 10 thousand of this and 30 thousand of that, etc.” The project will be awarded next week.

Given enough time, a quality nursery could propagate just about any common or sometimes special wetland plant. Usually a year is needed for a large contract growing arrangement. Unfortunately, we do not have a year, we have a few days.

Back to the call. “Just give me prices and I will see what I can do.”

The nursery gives the contractor prices and never hears from them again.

Now the assumption is that the contractor did not win the bid. Actually they did. They may have even used the nursery’s numbers. But, the job still starts next week. What did they do?

They called Florida. Florida is one of the biggest wetland plant suppliers in the country. They have the advantage of a year round growing season and almost free labor. Consequently, the local nurseries cannot complete with them on price. The landscape contractor gets the material from Florida and gets to keep the difference in the local price as profit.

Now this would seem to be a legitimate business approach. However, there is one MAJOR sticking point. Almost all wetland mitigation plans require nursery stock to be acquired from local nurseries. This is usually within a couple of hundred miles from the project site. The reason for this is well documented. Many wetland plants are ecotypical . Meaning, that they will not survive or reproduce if the seed is from an area outside the project site ecoregion. Not all wetland plants do this, but many do. Consequently, when a landscape contractor plants material from Florida in a project in Pennsylvania, guess what. It dies and the project fails.
So who is checking? Is there not some provision in the plans that say not to do this?

The short answer is nobody is checking. The Corps relies on the designer and the designer passes this onto the contractor. A contractor who then subs this out to someone else. If the designer does go out to the site, they do not have any contractual authority to demand that the sub to the sub to the sub document where the plants came from. Odds are they would not know anyway because it was ordered by someone in another state.
Do you see the problem? If the designer does take an interest in the project implementation odds are that they will start staring down the barrel of a change order if they make an issue of the plants. So it becomes a don’t ask, don’t tell approach. Hopefully some of the plants will make it. Heads up, they won’t.

If you want to see an even better version of this check out a government contract. The designer may not even be part of the implementation. A project could have been designed 5 years prior and is now just being built. Nobody even knows who came up with the original design.

If a designer has the ability to participate in a meaningful way during construction, you will have a successful project. If it is left to the whim of contracts and contractors you will not. It is just that simple. Don’t look to the Corps for any type of enforcement on this . They will just declare the project a failure and you get to start over.

If you have any stories you would like to share to either validate or dispute this issue, please reply to this email. I would like to post these on our blog.

A couple of weeks ago, I sent out a survey about profit and the wetlands business. A number of subscribers responded with a fairly positive and upbeat message. It is OK to make a couple of bucks in the wetlands business. I thought you would want to know. I found it interesting that a number of respondents to the question were genuinely offended that I would even imply that profit was bad. I didn’t by the way.

The last couple of Swamp Stomp issues have been focused on why wetland mitigation often fails. Is there a connection between failure and profit? It would seem to me that without a profit motive there is no way a project could succeed. Now here is the kick. I am not necessarily talking about money. Even if I was, what is money anyway? It is quite simply a vehicle to exchange goods and services. If ones’ work is valued, money and profit are the natural by-product of good work. So we need to look at why projects fail and why we do not make any money on these same projects.

This is a bit philosophical, but here goes. First we have to agree on what is our role as project designers. The project when constructed is a product of our minds. It is conceived by us and then engineered to meet specific project parameters. But first we must see it in our mind. Too often we are asked to jump right into a project without this visualization exercise. There is no clear singular vision of what the project will be.

So why is this? If I were to ask an architect to design a building there would be a concept phase of the project. The architect would create sketches of the building depicting his vision for the project. It would then progress into various deign phases until engineering drawings were created and the building could then be constructed.

The premise of the building scenario is that using our mind we can create amazing accomplishments. So why do so many ecological sites fail? The reason is simple. We do not believe that we have ability to recreate a natural system that is as good as or even better than the one that was lost. Having participated in numerous agency meetings, the assumption always is that what was lost cannot be replaced and the project will at best be a poor depiction of what was once a great ecosystem. That is the goal of the project. Whether it is stated or not, that is how we start the design of the project. Guess what? That is exactly what we build.

Perhaps we need to recognize that our minds are amazing. There has been nothing we have set our minds to that we have not been able to accomplish. Medical cures, technology innovations, and the like are being discovered every day. Every innovation started with a thought. We need to accept and rejoice in our ability to solve our own problems. We need to ignore the naysayers and get to work. We can build great projects. Imagine success. Think.

To begin, mitigation (stream, wetland, buffer, nutrient, carbon, etc.) is an active effort to replace a soon to be lost natural resource. Generally, this is done using either a geographic or tonnage metric. An acre of wetlands will be filled in and two or more acres of wetlands will be constructed to mitigate the loss.

Now this may seem like a laudable effort. However, history has shown that many of the mitigation sites have failed. The benchmark for these projects varies. It is usually some sort of empirical data measurement. Wetlands are usually measured against achieving a certain hydrologic frequency and duration standard (i.e. 5% for the growing season) and a specific planting survivability. For example, if a two-acre mature forested wetland is destroyed a four-acre newly constructed wetland will serve as the mitigation. The wetland will need to remain inundated for approximately 10 days and it will be planted with bare root seedlings at the rate of 320 stems per acre. At the end of 5 years, the site will need to have at least 270 stems per acre and the hydrology will suggest and average of 10 days of contiguous inundation as an annual average.

So if this is accomplished why would it be considered a failure? First, what was lost? The site was a mature system. Bare root seedlings are not going to replace a mature system. Second, what was the site hydrology? The assumption is that all wetlands must be inundated or saturated for at least 5% of the growing season. This is the standard for delineation. However, did anyone actually measure this? Probably not. Third, what functions was this mature system providing? This is almost never addressed. There are some basic percepts that we use, but actual field assessment of the functional loss is not done. Even if it is, how are these wetland functions replaced in the new mitigation site?

Quite frankly, it is not possible to mitigate the functions lost from the mature wetland with an overplanted stormwater management pond. Especially if the functions lost are not even known. The benchmark for success is simply the site holds water and the plants are not dead. Don’t ask questions.

Each of the natural systems that we mitigate provides a number of functions. The key is to identify what functions we are trying to replace or restore. This requires that we establish goals based upon an understanding of what was lost. I recently ran across a vernal pool mitigation project in Virginia that was very successful. The benchmark was whether a certain species of concern would naturally colonize the site. This was a specific goal and specific result ensued. We actually saw the species in the site!

Development in and around these unique natural systems are a fact of life. Therefore it is imperative that we strive for success. It is not possible to quantify each and every function. However, it is possible to identify specific goals and develop a means to achieve these goals. Using broad brush generalized concepts as a benchmark will generate ambiguous results with no way to measure success. We are left with oversized dry ponds with a bunch of dead sticks stuck in them. The key to success is clear, specific and measurable goals. Sort of like life.

The local Raleigh, NC newspaper (The News and Observer) is featuring a series of articles about wetland and stream restoration projects in the state. The short version is best summarized by the title of the first article, “State spends $140 million on faulty water projects.” No pulling punches here.

At issue is the state run “Ecosystem Enhancement Program” known as EEP. This program was set up to expedite highway construction by streamlining the impact and mitigation process. The idea was to identify the anticipated impacts and then implement mitigation ahead of the impacts. It was a great idea then and a pretty good one now. The problem is in the execution of the mitigation projects. There is a serious disconnect between the site selection, design, construction and monitoring. Most of the EEP projects are done by multiple firms. A firm would be hired to find sites, another to design, a third to construct and a fourth to monitor. Oftentimes the monitoring would also include multiple firms over many years.

Two state audits were done in the Fall of 2010. They found that 1 in 4 wetland acres have failed and that 1 in 4 stream feet have also failed. That is quite a lot and should be a major concern to all of the permittees that used EEP for mitigation. Under the federal mitigation rules (33 CFR Parts 325 and 332 and 40 CFR Part 230), a stream or wetland impact must be mitigated. It remains the responsibility of the permitee to ensure that whatever means for mitigation was used is successful.

By using an in-lieu fee program like EEP, the permittee does transfer the mitigation “liability” to the mitigation bank sponsor.  The bank sponsor must provide sound financial protections to ensure that the bank is operating as anticipated and that the mitigation put in place is successful.    What is not clear at this time is what happens when there are numerous failures like those in NC.  Other environmental regulations and case law point back to the permittee for compliance.   The RCRA type “cradle to grave” responsibility is more or less a standard in environmental law.  This puts compliance back on the permittee despite the contractual agreement with the mitigation bank indicated in the mitigation banking rules.  There is also a clause stipulating that it is up to the Corps to approve the credits.  If these mitigation banks are not working, how can the credits be approved?

According to the state audit, most of the mitigation failures relate to lack of oversight, projects too far away from the impact area, and little to no maintenance performed to keep the project in compliance.

Over the last decade or so, the State of North Carolina has spent nearly half a billion (with a B) dollars on mitigation projects and programs. Given this expenditure one would expect that we have the cleanest, healthiest natural streams and wetlands in the country. Sadly, this is not the case.

To learn more about this developing story, please check out this N&O article and follow the developing story. The link to this story can be found ==> HERE.