Get Adobe Flash player

Waters of the US

New EPA Rules
Now Published!
Comments Due

Click HERE to comment.


Countdown Clocks

Search

Loading

A+ Rating


BBB

Mobile Version

Mobile

WetlandToolBox.com

Consulting Info

Do you have an environmental question or issue? We are here to help. Schedule a time with our team to discuss your concern. Initial consultation is free.

Please use our online scheduler to reserve your meeting time.

Schedule Now!

2012 Field Guide

Free Downloads

Please register to get your FREE downloads. Its FREE!

  • Hydric Soil Guide
  • Planting a Wetland Mitigation Site
  • Donate to the Swamp

    blog post

    Agricultural Exemption Under Section 404(f)(1)(A) Of The Clean Water Act

    Docket ID: EPA-HQ-OW-2013-0820

    Agency: Environmental Protection Agency (EPA)

    Comments Due:  June 5, 2014

    Summary:

    The purpose of this interpretive rule is to clarify the applicability of the exemption provided under Section 404(f)(1)(A) of the Clean Water Act (CWA) to discharges of dredged or fill material associated with certain agricultural conservation practices based on the National Resources Conservation Service (NRCS) conservation practice standards that are designed and implemented to protect and enhance water quality.

    Definition of “Waters of the United States” Under the Clean Water Act

     Docket ID: EPA-HQ-OW-2011-0880

    Agency: Environmental Protection Agency (EPA)

    Comments Due: 7/21/14

    Summary:

    After U.S. Supreme Court decisions in SWANCC and Rapanos, the scope of “waters of the US” protected under all CWA programs has been an issue of considerable debate and uncertainty. The Act has a single definition for “waters of the United States.” As a result, these decisions affect the geographic scope of all CWA programs. SWANCC and Rapanos did not invalidate the current regulatory definition of “waters of the United States.” However, the decisions established important considerations for how those regulations should be interpreted, and experience implementing the regulations has identified several areas that could benefit from additional clarification through rulemaking. U.S. EPA and the U.S. Army Corps of Engineers are developing a proposed rule for determining whether a water is protected by the Clean Water Act. This rule would make clear which waterbodies are protected under the Clean Water Act.

    Hydrophytic Cover Index (HCI)

    Swamp Stomp

    Volume 14, Issue 16

    Last month the US Army Corps of Engineers (Corps) published several documents about how wetland vegetation is determined. They are reexamining the calculations and methods that we use to make wetland determinations. Some of the factors that the Corps considered for these studies include the importance of dominance (or not), plot sizes, the impact of stratum, and plot shape. All of these observations and conclusions are intended to be included in a new Corps wetland delineation manual.

    This week we will discuss the document that focuses on the comparison between the formulas that are used to determine the presence or absence of a wetland plant community. The document is entitled,” Examining Discrepancies Among Three Methods Used to Make Hydrophytic Vegetation Determinations for Wetland Delineation Purposes,” (Lichvar and Gilrich, 2014).

    The purpose and need statement for this document is quite clear. In the past there have been discrepancies between the use of the dominance test (DR) and the newer prevalence index (PI). The dominance test dates back to the original Corps Wetland Delineation Manual (1987). The prevalence index is now used in all of the regional supplements; however it first made its appearance to the regulatory scene in the 1989 Federal Manual. It was buried deep in the Federal Manual appendix as an advanced wetland delineation method.

    There is a new method under consideration for replacement of both of these calculations. It is called Hydrophytic Cover Index (HCI). At present this method remains unpublished and is not to be used with any current wetland delineations. It will most likely be published in the Federal Register as part of the new Corps Wetland Delineation Manual. However, it is an interesting approach that appears to have much promise. Chief among its features is the elimination of the 50/20 rule for determining dominance. Have you ever tried to explain to a non-wetland person at a cocktail party what the 50/20 rule is? Well I have and it is not fun. For some reason, I do not get invited to many cocktail parties anymore.

    There are several variables that were discussed in the Corps report that are interesting. Factors like number or strata, odd or even numbers of species, and plot size all had impacts on the traditional methods of determining a wetland plant community. It seems that the more strata you have the more likely you are going to find a wetland plant community. It also appears that plant communities that have odd number of species were more likely to be a wetland community than even numbered populations. In theory, these factors should have no bearing on the presence or absence of a wetland plant community. However, it appears that it does, hence the need to fix the problem.

    The Hydrophytic Cover Index (HCI) method was compared to both of the existing in use methods. There were three tests. The first one compared bottom line results. In this test each method was run on data collected by the Corps in the field. The first test showed that the use of the HCI resulted in more areas being called hydrophytic. The PI (69%) and the DR (76%) produced significantly smaller percentages of hydrophytic vegetation determinations than the Hydrophytic Cover Index (HCI) (80%) produced.

    The second test compared all three tests with the total number of all species found in the field. In situations where greater than 50% of the species were identified as Obligate (OBL), Facultative Wet (FACW) or Facultative (FAC) the HCI tested positive for hydrophytes 100% of the time. When the numbers of species with OBL. FACW and FAC indicators were less than 50% the HCI tested negative for hydrophytes 100% of the time.

    The third test looked at the even versus odd number of species that were calculated using all three methods. The DR test seems to show that if you have an even number of species examined, there is a 10% decrease the area passing the DR test. The HCI and the PI tests did not seem to show this bias.

    The actual procedure for using the HCI test was not described in the report. The formula was provided and is:

    HCI = (Sobl + Sfacw + Sfac)/(Sobl + Sfacw + Sfac + Sfacu + Supl) × 100

    All of the species identified in the study area are to be counted and run though this equation. It does not appear that the vegetation is separated into stratum (tree, shrub, herb, & woody vine). Dominance is also not calculated.

    You should be able to use the data that you currently collect for The PI test to run this equation. It is fairly simple and very quick.

    If the Corps and perhaps EPA decide to use this equation, it will be part of a new manual and put out for public comment. Until then the HCI method is not to be used for jurisdictional determinations. However, it might be worth your while to try it out on a few projects to see if there is any significant difference in the results. It would also be interesting to correlate the presence or absence of hydric soils and hydrology indicators with the HCI result. This would make comments to the new method a lot more meaningful and scientific when the time comes for the public to respond.

    Have a great week!

    Marc

    Changes to the National Wetland Plant List

    Swamp Stomp

    Volume 14, Issue 15

    Changes to the National Wetland Plant List

    I have been checking twice a day on the federal regulations.gov site to see if the new EPA waters of the US rules have been posted.  As of April 14, 2014 they have not.  I sat in on a webinar with EPA last week and they had said that they would be in the federal register by the end of last week (4/11/14).  As soon as they are posted I will send out a quick note to all of our newsletter subscribers.

    There has been some grumbling in Congress about these new rules.  However nothing has moved forward or backward.  It is Congress after all.  They are now in recess.  Perhaps now would be a good time to publish the new rules while they are on break.  We will keep an eye on it.

    There has been one more important wetland update that happened this month.  On April 3, 2014 the new 2014 National Wetland Plant list was published.  This new list has some significant changes in it and it to be used on all active wetland delineations.  There is some “grandfathering” for projects currently under review however; it is the intention of the Corps to require this list to be in full use by May 1, 2014.

    The following is a summary of the rating changes from 2013 to 2014.

    Region*

    Type

    OBL

    FACW

    FAC

    FACU

    Total

    AGCP

    new

    13

    16

    8

    6

    43

    range ext.

    29

    28

    50

    50

    157

    AK

    new

    2

    2

    0

    0

    4

    range ext.

    4

    4

    3

    12

    23

    AW

    new

    8

    10

    5

    12

    35

    range ext.

    29

    16

    30

    51

    126

    CB

    new

    0

    0

    0

    0

    0

    range ext.

    2

    2

    2

    3

    9

    EMP

    new

    8

    11

    7

    9

    35

    range ext.

    40

    59

    53

    57

    209

    GP

    new

    2

    2

    2

    3

    9

    range ext.

    36

    34

    52

    53

    175

    HI

    new

    0

    3

    1

    0

    4

    range ext.

    2

    4

    3

    7

    16

    MW

    new

    4

    3

    2

    5

    14

    range ext.

    16

    38

    29

    40

    123

    NCNE

    new

    15

    16

    6

    14

    51

    range ext.

    24

    29

    25

    56

    134

    WMVC

    new

    2

    8

    8

    7

    25

    range ext.

    24

    26

    25

    27

    102

    National

    new

    54

    71

    39

    56

    220

    range ext.

    206

    240

    272

    356

    1,074

    These species were reevaluated using challenge study protocols. An asterisk indicates that a species was formally challenged with a written challenge proposal. The remaining species were informally challenged via email inquiries.

    Species Region Pre-Challenge Rating Decided by Post-Challenge Rating
    Alliaria petiolata (Bieb.) Cavara & Grande AGCP FACW National Panel FACU
    * Aristida beyrichiana Trin. & Rupr. AGCP —- Regional Panel FAC
    Helianthus tuberosus L. AGCP —- National Panel FACU
    Lonicera japonica Thunb. AGCP FAC National Panel FACU
    * Agalinis calycina Pennell. AW —- Regional Panel OBL
    Helianthus tuberosus L. AW —- National Panel FACU
    * Pogogyne clareana J.T. Howell AW FACU Regional Panel FACW
    Helianthus tuberosus L. EMP —- National Panel FACU
    Sambucus nigra L. EMP FACU Regional Panel FAC
    * Agalinis calycina Pennell. GP —- Regional Panel OBL
    *Amaranthus tuberculatus (Moq.) Sauer GP OBL Regional Panel FAC
    Ambrosia trifidia L. GP —- Regional Panel FAC
    Helianthus tuberosus L. GP —- National Panel FACU
    Helianthus tuberosus L. MW —- Regional Panel FACU
    Centaurea jacea L. NCNE —- Regional Panel FACU
    Helianthus tuberosus L. NCNE —- National Panel FACU
    Viburnum nudum L. NCNE FACU National Panel FACW
    Helianthus tuberosus L. WMVC —- National Panel FACU

    There are also three new important documents about plants and wetland delineations posted on the National Wetland Plant List site.  The first one has a direct relationship to the “page 29” wetland delineations discussed in the new EPA rules.   The document is entitled “Use of LiDAR to Assist in Delineating Waters of the United States, Including Wetlands,” March 2014.  The intention of this program is to reduce the amount of field work necessary to do wetland delineations.  I am OK with using LiDAR to “assist”, but don’t take away my soil auger!

    The second document is entitled,” Field Testing New Plot Designs and Methods for Determining Hydrophytic Vegetation during Wetland Delineations in the United States,” March 2014.  This one is focused on a new way to calculate the presence of wetland plants by using a new model called Hydrophytic Cover Index (HCI).

    The third plant document of the month is entitled, “Examining Discrepancies Among Three Methods Used to Make Hydrophytic Vegetation Determinations for Wetland Delineation Purposes,” March 2014.  This document compares what we do now using the dominance test and prevalence index with the new HCI test in the aforementioned document.

    We will be reviewing each of these in our upcoming newsletters.

    Have a great week and Happy Easter!

    Best,

    Marc

    Using a Laser Level for Ecological Studies

    Swamp Stomp

    Volume 14, Issue 14

    The Swamp School Guide to Using a Laser Level for Ecological Studies

    The use of a survey grade level is critical for obtaining accurate measurements of various biological features, biological benchmarks, etc.  This information is used for many purposes including stream restoration, coastal restoration, wetland restoration, and other design purposes.

    There are two types of levels used for construction and design.   The older of the two is known as the Dumpy level.  This level is like a spotting scope with cross hairs.  It is highly accurate (despite its name) and also has an added advantage of being able to measure distance.  However, it does require much more work to operate and is limited to a range of about 30 feet.  It also requires two people to operate.

    Laser levels are the other commonly used measuring tool and are a great improvement over the Dumby levels.  The major benefit is that the distance away from the level is pretty much as far as you can see.  This reduces the number of station moves and speeds the process along.  You also only need to have one person to operate the level.

    There is a third option which is to use a surveyor total station.  This however, is a very complicated process and usually beyond the level of detail needed for most biological assessments.  A corollary to this is the use of GPS.  GPS is great for x and y coordinates, but it is often meters off on the elevation (z).

    Laser Levels

    You do not need to spend a lot of money to purchase a quality laser level.  You can often find these for sale in big box home improvements stores and hardware stores.  They are around a couple of hundred dollars.  You can also rent one from a survey supply shop for about $20-$30 per day.  They will also be happy to sell you one if you need to use it more than just a few times.  Survey grade levels are usually in the $500 to $1000 range.  This is worth the investment if this type of work is a regular thing for you.  Also, do not cheap out on the box.  The level will get bounced around so you will need a quality instrument case.  This is sometimes a problem with the home center levels.

    The laser receiver is usually included with the laser level.  This is a little box that attaches to the survey rod with thumb screws.  It takes batteries and makes a tone when the laser beam from the level hits it.

    You also need legs.  The level should be placed upon a quality tripod.  This is not the same type as you use for a camera.  Survey grade tripods are usually made of wood or aluminum and have steel spikes to set it into the ground.  The legs are adjustable so that you can level your level.  The level should be about chest high when mounted so the tripod needs to be 4-5 feet high when set up.

    Next on your shopping list is a survey rod.  You want to get the smallest rod that will serve the purposes of the site work you are doing.  A 12 foot rod is much better than a 25 foot rod if you only need to go up a few feet.  The bigger the rod the more sway you have and the measurements will be less accurate.  However, if you have a steep slope on you site a bigger rod may be necessary.

    You will also need a measuring tape or carpenters rule.  It is better to get one that is calibrated to 1/10’s of a foot rather than inches.  The survey rod is almost always in 1/10’s of a foot, however make sure you are not using some sort of metric rod.  That really clean rod in the back of the tool closet that nobody uses might be there for a reason.

    Set Up

    The first thing that you want to do is take a walk around the area that you need to survey.  You want to find the best place to set up the level so that you do not need to move it more than necessary.  Keep an eye on slope, trees and other obstructions.  The level needs a clear line of sight.  You can clear some of the vegetation away, but it is usually easier to find a spot that would require the least amount of work to get your shots.  The tripod should be set up above the highest point you are going to survey.  You need to include the height of the level receiver on the rod when you are making this estimate.  This translates to about 5 feet above your highest point.  The level needs to be able to “see” the receiver.  If the level is set is too low it will shoot below the receiver mounted on the rod.  You can move the receiver down, but that would require that you recalculate for those shots.

    Keep the level in the box until you are ready to place it on the tripod.  Do not attach it to the tripod and then walk around with it.  It should be boxed when moving it around the site.

    Set the legs up on as level a surface as you can.  Adjust the legs so that the level mounting plate is fairly level.  You can use a hand level to do this or the bubble level on the laser level itself.

    The laser level attaches to the tripod by way of a large screw below the mounting plate.  Do not tighten this too much until you have leveled the level.  There are three or four leveling screws on the level.  There is also a glass bubble level on the mounting plate.  Adjust the leveling screws so that the level is dead on level in all directions.  This will require that you spin the level around and make adjustments.  If you have attempted to level the tripod before you mounted the level, this will go fairly quickly.  It is critical that the level be mounted level.  Otherwise your data is junk.

    Instrument Height

    There is usually a marking on the level where you should measure downwards to the ground.  We are also going to determine height of instrument using the back site, but you should always measure the distance from the instrument to the ground.  We don’t really use this data, but it seems that it is always done.  It is sort of a cross check.

    Backsight

    You should place a project benchmark somewhere near the level set up.  This serves as your project control and can be surveyed for real later if you need to derive actual elevation points from your level runs.  This control should be set using a pin, rod, pipe or other relatively permanent maker.  Wooden stakes do not work as they can be easily removed or damaged.

    The backsight elevation is any number that makes sense.  The convention is to set it at 100.  You may come back later in drag control onto the site to determine the actual elevation, but that is not necessary for this type of work.

    The laser level indicator should be attached to the rod, usually at the tip.  Note the location of the indicator.  For example it is on the rod at 4.5 feet.  Most telescopic rods have a height indicator on the back of the rod.  As you raise the rod the height indicator numbers will change.  Be careful to raise the rod in the proper order.  This varies with some rod types so be sure to check with the manufacturer on the use of the rod.

    A Direct Elevation Rod or a “ Lenker Rod ” is the most common type and has numbers in reverse order on an  graduated strip that revolves around the rod on rollers. Figures run down the rod and can be brought to a desired reading—for example the elevation of a point or benchmark. Rod readings are preset for the backsight, and then, due to the reverse order of numbers, foresight readings give elevations directly without calculating backsights and foresights.

    Turn the laser on and position the rod on the benchmark and raise the rod until you hear a steady tone.  You will usually hear a slow chip when you are just below the laser bean and a fast chirp when you go past it.  Note the rod reading.  That is your backsight reading.  Add the elevation from the benchmark rod reading and you have your height of instrument (HI).

    For example.  Your benchmark is elevation 100.  Your rod reading on that benchmark is 4.06.  Therefore your Height of Instrument (HI) is 104.06’.  Your benchmark elevation should be lower than the instrument ground location.  Otherwise you need to adjust the detector and do some more math.   It can be done, but it takes more time.

    Now you are ready to go to work on the foresights.

    Position the rod directly on the ground at each feature shot.  The rod should be straight up and down.  There are plumb levels you can attach to the rod to help you.  Some laser detectors will also beep at you if you are too far out of plumb.

    Raise the rod until you hear that steady tone.  Note the rod reading.  Make sure that you raised the rod in the right order and that the numbers are being read correctly.  Usually, this is a matter checking reality.  If your rod reading suddenly jumps by 5 feet from the last point you may have raised the rod sections in the wrong order.

    Record each feature and provide some notes.  A level book works great for this.  This is an example of a level book set up.

    Set  Up  1

    Station

    BS

    HI

    FS

    Elev

    Notes

    (feet)

    (+)

    (-)

    4.06

    104.06

    100

    Benchmark

    6.63

    0+25

    97.43

    MT

    5.35

    0+50

    98.71

    MHW

    At each feature subtract the foresight (FS) from the Height of Instrument (HI) to derive the elevation.

    In this example we have a 1.28’ difference from mid tide (MT) to Mean High Water (MHW).  We can therefore assume that our total tidal exchange would be 2.56’ from Mean Low Water (MLW) to MHW.

    We would need to check many other points.  Usually for a biological benchmark survey we would to stationing along a cross section.  Each feature would be relative to the feature type and its location on the cross section.  In our example above the distance from the MT to MHW is 25’.  This is measured by setting a fixed staring point at 0+00 and measuring along that line.

    If you need to move the level you will need to calculate a new HI.  Make sure to reference the setup with the data.  Start a new table for a new set up.

    Finally, if you need to determine the real elevations of your features survey the benchmark.  This will require a surveyor to locate nearby elevation control and drag that onto the site using traverse lines.  You can also use high end GPS for this.  In our example above the real elevation for the benchmark is 456’ NAVD 88.  Our new HI is 460.06.  We need to make sure we cite the vertical data source.  In this case it is North American Vertical Datum of 1988 (NAVD 88).  Therefore our MT is 453.43’ NAVD 88 and the MHW is 454.71’ NAVD 88.  You can do this for all of the data associated with the benchmark.

     One final note of caution

    If you are doing level runs for design purposes you may or may not need a licensed land surveyor to sign off on them.  However, if you are doing any floodplain calculation work you will most likely need the help of a licensed surveyor.    Some jurisdictions allow licensed professional engineers to do this as well.  This is a matter of state and federal law so be careful and ask questions.

    What happened to the Commerce Clause?

    Swamp Stomp

    Volume 14, Issue 13

    What happened to the Commerce Clause?

    I know in last week’s newsletter I promised to go over how to use a level for wetland and stream work. However last Tuesday the EPA and the Corps released a prepublication of the new Waters of the US rules. This past Friday the Corps circulated an internal memo to the field offices about what was going on. So, I thought we might deviate from our level work and jump into these new rules for a bit. Never fear, the official Swamp School Guide to Using a Laser Level for Wetland and Steam Work will be published in next week’s newsletter.

    At 370 pages long the new rules weigh in at 2.4 pounds and just shy of an inch thick if you print them double sided. It cost me about $25 just to print them. I did get a little fancy and had them bound, so add another 3 dollars for that.

    The stated intention of the new rules is to clearly define what exactly is a waters of the United States. This seems simple enough. Not really. This has been that focus of a number of Supreme Court cases over the last couple of decades. The most infamous is the Rapanos and Carabell case of 2006. This brought us new concepts like significant nexus and traditional navigable waterways. Everyone has been confused ever since. So it is not necessary a bad thing to try to clear this up.

    However, there is the issue of what makes the federal government think it has the right to tell someone what they can or cannot do on their land. If that land is a waters of the US pay attention to the “of the US” part. That means it is within the federal governments purview or shall we say jurisdiction to tell you what you can or cannot do on your land.

    How did that happen you ask? It is a little thing called the Commerce Clause found in Article 1, Section 8, Clause 3 of the Constitution of the United States. This clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: The Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.

    The significance of the Commerce Clause is described in the Supreme Court’s opinion in Gonzales v. Raich, 545 U.S. 1 (2005):

    “The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

    The interpretation of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American citizens.

    The Commerce Clause has been used to identify what waters are subject to regulation by the federal government. In the United States v. Rands, 389 U.S. 121 (1967), the 1967 Rands decision states:

    “This power to regulate navigation confers upon the United States a dominant servitude, FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.”

    In 1948 the federal Water Pollution Control Acts was enacted to exercise some federal oversight of state and location actions regarding waters. However, it lacked any authority enforce or permit these activities. It became more of an encouragement rather than an enforcement program. This is why we now have a Clean Water Act.

    The existing definition of waters of the US is limited to waters that directly or in some case indirectly affects interstate or foreign commerce. This “commerce connection” is required because the Clean Water Act is limited to those types of waters. Specifically, it is limited to traditionally navigable waters as discussed in the Rapanos case.

    However, in looking at some of these older laws it would appear that there may be authority to expand beyond those waters thought to be traditionally navigable. At least the EPA and the Corps think so. Perhaps that is why the legal authority is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq. It is generally accepted that the Clean Water Act is a body of amendments to the 1948 law. However, one interpretation of the 1948 law gives the federal government the authority to encourage clean water programs. However, what remains unclear is if this encouragement was codified in the passage of the 1972 amendments known as the Clean Water Act. If this was the case, they why did the Supreme Court limit EPA and the Corps to waters subject to interstate or foreign commerce. I can’t image that they missed this.

    [PRESS RELEASE] New EPA and Army Corps Wetland Rules

    WASHINGTON, DC.  On Tuesday, March 25, 2014 the US EPA and the US Army Corps of Engineers announced the prepublication of the new “Definition of Waters of the United States under the Clean Water Act.”  This new rule should be published in the Federal Register very soon and has a Docket No. EPA-HQ-OW- 2011-0880.

    The purpose of this new rule is to clarify what areas are defined as waters of the United States and therefore subject to regulation by the EPA and the Corps.  At 370 pages long this new rule is extensive and in many ways changes what many have come to know as jurisdictional areas.

    The Swamp School has been following the progression of this new rule ever since it was announced that it was coming in September 2013.  We have put on a number of live classroom workshops around the country to educate the principal stakeholders about this new rule and what its implications are.  As a result of this workshop series, we have come to understand the questions and concerns voiced by many of the stakeholders.

    To help you better understand the implications of these new rules and also to help you avoid reading 370 pages of mind numbing text, we are offering a series of live, interactive webinars.  In less than two hours we will cover topics such as:

    • Are onsite wetland delineations a thing of the past?
    • When is a ditch a waters of the US?
    • Whatever happened to the commerce clause?
    • What are the implications does this new rule have on states’ rights?
    • How far beyond the ordinary high water (OHW) mark is considered jurisdictional?
    • What agricultural exemptions will remain?
    • Plus a whole lot more!

    Industries that are directly affected by this new rule include anyone who owns, works on, or plans to develop land including:

    • Utility Transmission
    • Energy Exploration and Development
    • Real Estate Development
    • Agriculture
    • Homebuilders
    • Consultants
    • Plus, anyone who wants to build a deck, shed, driveway or swimming pool on their property

    We are offering series of online webinars at various times and dates to make sure that you can attend.   The public comment period for these ends 90-days from the date of publication in the Federal Register.  We want to make sure that you have a chance to educate yourself about these rules before this comment period closes.  We will be adding more sessions as demand requires.  Our schedule can be found to the right of this news release.

    Hurry and sign up today.  We are expecting a very large group for each of these sessions.  Due to the technological challenges of a large webinar group, we have a limited number of seats available.  So, we want to make sure that you do not miss this by reserving your seat early.

    If you cannot make one of these times we will be offering a limited time rebroadcast for about a week following the live presentation.  Just sign up for one of the dates and more information about the rebroadcast will be provided.

    Lastly, exercise your American rights and please provide comments to these rules.  Go to regulations.gov and enter in EPA-HQ-OW- 2011-0880 in the search box.  As soon as the regulations are published you will be able to provide comments.  In many places the EPA and Corps are specifically soliciting comments about various aspects of this new rule.   Pay particular attention to the change from routine field wetland delineations to a desktop analysis found on page 29.  This could have a significant impact to your wetland delineation business.

    wousbutton

    Biological Benchmarks

    The Swamp Stomp

    Volume 14, Issue 12

    A biological benchmark is a concept I first ran into while working in the Chesapeake Bay region.  They are used in shoreline restoration using native grasses.  These are often called living shorelines or vegetative erosion control.

    The concept of biological benchmarks is based upon empirical data and direct observation of natural plant communities.  The issue relates to specific hydroperiods that the native plants can tolerate.  This results in an establishment of a given plant community based upon a frequency and duration of inundation by water.  Many plant species have highly specific hydroperiod tolerances that can be measured in the field and extrapolated elsewhere.

    Source:  Wikipedia

    Source: Wikipedia

    The best example of plants with highly specific hydroperiods  are represented by the coastal Spartina genus.  Two of the Spartina species in particular include Spartina alterniflora (cordgrass) and Sparitna patens (salt hay).  Both of these species occur in the intertidal zone and are found all along the east coast and the Chesapeake Bay.  They are salt marsh grasses and also tolerate some salt water.

    What makes the two species of Spartina unique is that they only grow in two very distinct regions of the intertidal zone.  S. alteniflora is found between mid tide (MT) and extends up to mean high water (MHW).  S. patens picks up from there and occurs between mean high water (MHW) and mean high high water (MHHW) or spring tide.  What is amazing about this is that both of these species do not vary more than 0.1 feet in elevation from these tidal zones.  They are very precise about where they will live.

    To establish our biological benchmarks we need to make sure that our study area is not under any major stress.  This mostly comes in the form of bank erosion and herbivory.  If either of these is excessive the area may not yield accurate results.  I also use a fetch rule of thumb.  Fetch is the distance from the shoreline across open water.  This is measured perpendicular to the shore line.   If the fetch is more than one (1) mile, I do not consider the site suitable for further study.  The wave action is just too great.  High boat traffic can also be a problem.  What usually happens in this circumstance is that my mid tide elevation is missing.

    Once we have satisfied the disturbance issue we can start measuring.  We need to take a number of elevation shots using a level of the extreme limits of both the S. alterniflora and S. patens.  This is usually done using a laser level.  First establish and back site a site benchmark.  Get your instrument height and then you are ready to start measuring  fore site elevations.  Each fore site shot should be corrected and converted based upon the site benchmark.  I usually set this at elevation 100.  I will cover how to do this in next week’s newsletter.

    You should see a consistent range of elevations that can be extrapolated to MT, MHW and MHHW.  This can be cross checked against the published tide tables for your region.   If you have a two (2) foot tide range then the elevation change from MT to MHW should be one (1) foot in height.  The cordgrass should confirm this.

    You may ask why all the bother if we have the tide tables?  The answer relates to tidal restrictions and local variations.  The tide tables will tell you what the exact elevation is at a given tide gauge.    However, in survey terms you would need to drag that control across the water to your site.  If there are no restrictions and you are relatively close to the gauge you may be able to do this.   However, one bridge or culvert between you and the gauge can have a dramatic effect on the tidal exchange.

    I had a project in upstate New York on the Hudson River that had a major problem with tidal restrictions.  It was a freshwater tidal marsh and had about a 1.5 foot tidal exchange at the gauge near West Point, NY.  The gauge was across the river but close by.  The marsh restoration designers had based there plant species selection and placement based upon the use of the gauge.  Unfortunately, they missed the fact that there was a railroad crossing bridge between the marsh and the river.  The bridge impinged the tidal flow into and out of the marsh by close to a foot.  The result was that the tidal exchange inside the marsh was about 0.75 feet rather than the calculated 1.5 feet.   Now this may not sound like a big difference, but it would result in the marsh planting being placed about a foot above the waterline.  This would be bad as the plats were all emergent species and required frequent inundation.  That is hard to do if you are a foot above the waterline.

    Biological benchmarks saved the day.  We were able to establish the proper elevation for the new marsh based upon the observed limits of a few selected freshwater tidal species.   There is a species of Typha that is unique to the region that served as a great biological benchmark indicator species.  The end result was the design was lowered by about a foot and all the plants are happy.

    The trick to all of this is the need to understand what the plants require.  Once you understand what the plants need the rest falls into place.

    Have a great week!

    Marc

    Stock Ponds and the EPA

    The Swamp Stomp

    Volume 14, Issue 11

    We have another wetland violation case to talk about.  This story broke last week and is about a small landowner, Mr. Allan Johnson who had built a stock pond on his property.  The case has not gone to court, but in an unusual turn of events three US Senators offered to help Mr. Johnson by sending a strongly worded letter to EPA.

    So here is what happened.  Mr. Johnson owns a small 8-acre farm in Wyoming.  He wanted to construct a stock pond on his property and went to the state for the required permits.  No you may ask, why did he not go to the Corps or EPA?  The answer is that under Section 404 (f) (1) (c) stock ponds are exempt.  The reason they are exempt relates to water quality impairment.  If it is determined that there is no degradation to water quality then they fall under the farm exemption.  This determination is made by the state.  He did go to them.

    This is the current Clean Water Act rule on this point.

    Clean Water Act Section 404 (f)(1)(c)

    (f) (1) Except as provided in paragraph (2) of this subsection, the discharge of dredge or fill material -

    (C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;

    (2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.

    Back before the new EPA rules started floating around the state made the water quality calls.  This was something called a section 401 water quality certification.  I used the term “was” because under the new rules it does not seem that the state needs to get involved anymore.  EPA has it covered.  Separation of powers is so inconvenient and inefficient.  Sorry,  I digress.

    In 1987 the Corps had issued a now expired regulatory guidance letter (RGL) that detailed the terms and conditions in which a stock pond would be exempt.  Its focus was on the physical extent of the pond and how it was to be used.  The Corps was concerned about the construction of the stock pond for other uses such as residential amenities.   There is a quote that is worth mentioning.

    “For Section 404(f)(2) to apply, the construction or maintenance activity must bring a water into a use to which it was not previously subject and impair the flow or circulation or reduce the reach of such waters. Both of these determinations are judgment calls which must be made in a reasonable fashion. It could be argued that one shovel-full of material placed in waters of the U.S. would reduce the reach. Such an argument is not reasonable and would defeat the purpose of the exemption. “

    However, the RGL is no longer in use.  The impacts to the streams became the new focus of the Corps, but the exemption till remains today.

    So how are the waters deemed impaired?  That is up to the state.  Section 401 of the Clean Water Act is all about the states roles in deciding water quality impact.  Sections 404 only deals with discharge of dredge and fill material.  This has just become a state’s rights issue.  By the way, Mr. Johnson received all of the required state permits.

    So what is a stock pond?

    A stock pond is nothing more the blocking up of a small stream to create a pond.  These are often referred to as farm ponds.  There is usually some excavation to deepen the pond.  In order to fall under the exemption, the pond must serve an agricultural purpose.  Activities such as irrigation, live stock watering, and minor flood controls are all examples of stock ponds.  They can also serve some passive recreational uses such as a fishing hole or swimming pond, but that cannot be their main purpose.

    So what went wrong?

    On January 30, 2014 the US EPA issued a compliance order stating that Mr. Johnson placed fill material into a waters of the US.  On October 11, 2012 the US Army Corps of Engineers conducted a site inspection of Mr. Johnson’s pond.  They found that approximately 12 cu yards of material was placed below the ordinary high water mark of Six Mile Creek.  The Corps further estimated that 40 feet of stream was filled and an additional 745 feet of stream was inundated by the new pond.  On October 26, 2013 the Corps notified Mr. Johnson that a standard Clean Water Act permit would be required.  Can we assume that means a nationwide permit?

    It does not appear the Mr. Johnson responded to the Corps.  However, in numerous news articles about this case he has stated that he contacted the state engineer and received the necessary state permits.  As a result on February 7, 2013 the Corps turned this case over to EPA for enforcement.  In case you were wondering how the Corps enforces wetlands cases now you know.  They do not.  The EPA does.

    On May 20, 2013 the USEPA conducted a site inspection of the pond and found that the 40 foot stream reach was impacted by the pond dam and that 785 feet of stream (40 feet more) had been impacted by the pond.  Maybe it rained.

    Now there are several troubling points about this case.  First was the Corps or EPA invited onto Mr. Johnson’s property?  If not, did they have a warrant, signed by a judge?  Neither the EPA nor the Corps can enter onto a property unless they have probable cause and this may still require a written warrant.

    The second point is related to the Sackett case two years ago.  The EPA is demanding in its compliance order that certain remedies must be implemented or Mr. Johnson faces a $75,000 per day fine.  It is important to note that the Supreme Court unanimously found in the Sackett case that the EPA must follow the Administrative Procedures Act rules with regards to 404 violation cases.  The compliance order does mention this as the very last item.  The good news is that he can bring this case to a judge ahead of an enforcement action.

    The EPA did state in its compliance order that Mr. Johnson should retain the services of a consultant to determine if the waters in question are waters of the US.  Unlike the Sacketts, I do not think this is in dispute.  Rather, the issue is the type of device that he constructed.

    This brings me to my final point.  The entire issue is related to whether Mr. Johnson built a stock pond or a dam.  I do not know how you build a stock pond without a dam so I can easily see his point.  However, what concerns me is the fact that there was some sort of state approval of the structure. Presumably, the state felt it was a stock pond.  Under the rules for stock ponds a state permit is required.  By all accounts, Mr. Johnson followed those rules.  Is the State of Wyoming’s determination that this is a stock pond in question?  If so, should the violation be directed at the state?  Can EPA override the state’s determination right now?

    Coming Soon to a Farm Near You

    Don’t worry, once the new waters of the US rules go into effect this issue will be crystal clear.  The state will have no say in the matter and Mr. Johnson is looking at some major fines.

    Keep an eye our for the new rules.  This is an example of what is coming.

    2014 EPA Water Rule Changes

    The Swamp Stomp

    Volume 14, Issue 10

    As of the end of 2013, the US EPA has announced 134 new and modified agency rule changes.    It is a health list when compared to the 53 new rules in 2012.  They have been quite busy.  The rules are separated into major areas that include: air, chemical safety, solid waste and water.  The vast majority of these new rules are focused on greenhouse gas emissions, client change and the like.  However, water issues are quite significant.  There are 14 new water rules under consideration and include the definition of “Waters of the United States” Under the Clean Water Act.

    To help you sort though all of this I have included the 14 water rule changes along with a brief summary of each one.

    epa

    Pre-rule Stage

    RID:  2040-AF43

    Title:  NPDES Regulations to Address Water Quality Impacts from Forest Road Discharges

    Summary:  The EPA is exploring the use flexible non-permitting approaches under the Clean Water Act to regulate certain discharges of stormwater from forest roads, including logging roads, in order to address water quality impacts from those discharges. The EPA recognizes that effective best management practices (BMPs) exist that protect receiving waters and minimize impacts. The EPA is considering approaches that leverage effective BMP programs.

    RID:  2040-AF46

    Title:  Section 610 Review of National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines Standards for Concentrated Animal Feeding Operations

    Summary:  The EPA promulgated revised regulations for Concentrated Animal Feeding Operations (CAFOs) on February 12, 2003 (68 FR 7175). The “2003 CAFO Rule” expanded the number of operations covered by the CAFO regulations and included requirements to address the land application of manure from CAFOs. The 2003 CAFO Rule required all CAFOs to seek NPDES permit coverage.

    Proposed Rule Stage

    RID:  2040-AD39

    Title:  Uniform National Discharge Standards for Vessels of the Armed Forces – Phase II

    Summary:  CWA section 312(n) directs EPA and DoD to establish national discharge standards for discharges incidental to the normal operation of a vessel of the Armed Forces. The proposed standards will apply to approximately 6,000 vessels of the Armed Forces and are intended to reduce the adverse environmental impacts associated with the discharges, stimulate the development of improved pollution control devices, and advance the development of environmentally sound ships by the military.

    RID:  2040-AF03

    Title:  Development of Best Management Practices for Recreational Boats under Section 312(o) of the Clean Water Act

    Summary:  The Clean Boating Act amends section 402 of the Clean Water Act (CWA) to exclude recreational vessels from National Pollutant Discharge Elimination System permitting requirements. In addition, it adds a new CWA section 312(o) directing EPA to develop regulations that identify the discharges incidental to the normal operation of recreational vessels (other than a discharge of sewage) for which it is reasonable and practicable to develop management practices to mitigate adverse impacts on waters of the United States.

    RID:  22040-AF16

    Title:  Water Quality Standards Regulatory Clarifications

    Summary:  EPA proposed changes to the water quality standards (WQS) regulation to improve its effectiveness in helping restore and maintain the Nation’s Waters. The core of the current WQS regulation has been in place since 1983.  These revisions will allow EPA, States, and authorized tribes to better achieve program goals by providing clearer more streamlined requirements to facilitate enhanced water resource protection.

    RID:  2040-AF25

    Title:  National Pollutant Discharge Elimination System (NPDES) Application and Program Updates Rule

    Summary:  EPA plans to propose regulations that would update specific elements of the existing National Pollutant Discharge Elimination System (NPDES) in order to better harmonize regulations and application forms, improve permit documentation and transparency, and provide clarifications to the existing regulations. In this effort EPA plans to address application, permitting, monitoring, and reporting requirements that have become obsolete or outdated due to programmatic, technical or other changes that have occurred over the past 35 years.

    RID:  2040-AF30

    Title:  Definition of “Waters of the United States” Under the Clean Water Act

    Summary:  After U.S. Supreme Court decisions in SWANCC and Rapanos, the scope of “waters of the US” protected under all CWA programs has been an issue of considerable debate and uncertainty. The Act has a single definition for “waters of the United States.” As a result, these decisions affect the geographic scope of all CWA programs. SWANCC and Rapanos did not invalidate the current regulatory definition of “waters of the United States.” However, the decisions established important considerations for how those regulations should be interpreted, and experience implementing the regulations has identified several areas that could benefit from additional clarification through rulemaking. U.S. EPA and the U.S. Army Corps of Engineers are developing a proposed rule for determining whether a water is protected by the Clean Water Act. This rule would make clear which waterbodies are protected under the Clean Water Act.

    RID:  2040-AF48

    Title:  Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures

    Summary:  This regulatory action would amend “Guidelines Establishing Test Procedures for the Analysis of Pollutants” at 40 CFR part 136 to approve test procedures (analytical methods) for use by testing laboratories for water monitoring. These test procedures are used to implement the National Pollutant Discharge Elimination System (NPDES) program unless an alternate procedure is approved by a Regional Administrator. The regulation would also revise, clarify, and correct errors and ambiguities in existing methods and the water monitoring regulations.

    Final Rule Stage

    RID:  2040-AC84

    Title:  National Pollutant Discharge Elimination System (NPDES): Use of Sufficiently Sensitive Test Methods for Permit Applications and Reporting

    Summary:  EPA is launching an effort to update specific elements of the existing NPDES regulations in order to provide clarifications related to the NPDES permit application and NPDES permit monitoring analytical detection level requirements.

    RID:  2040-AE95

    Title:  Criteria and Standards for Cooling Water Intake Structures

    Summary:  Section 316(b) of the Clean Water Act (CWA) requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts. Under a consent decree with environmental organizations, EPA divided the 316(b) rulemaking into three phases. All new facilities except offshore oil and gas exploration facilities were addressed in Phase I in December 2001. In July, 2004, EPA promulgated Phase II which covered large existing electric generating plants. In July 2007, EPA suspended the Phase II rule following the Second Circuit decision.  In light of the Supreme Court 2009 decision and its recognition that EPA has broad discretion in its 316(b) regulations, EPA initiated consultation with the Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the Endangered Species Act. EPA and the Services began informal consultation in 2012, but concluded in 2013 that formal consultation was necessary. In order to accommodate the regulatory 135-day time frame for formal consultation, plaintiffs agreed to a modification to the settlement agreement, extending final rule deadline to November 4, 2013.

    RID:  2040-AF14

    Title:  Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category

    Summary:  EPA establishes national technology-based regulations, called effluent limitations guidelines and standards, to reduce discharges of pollutants from industries to waters of the U.S. These requirements are incorporated into National Pollutant Discharge Elimination System (NPDES) discharge permits issued by EPA and States and through the national pretreatment program.

    RID:  2040-AF21

    Title:  Water Quality Standards for the State of Florida’s Estuaries and Coastal Waters

    Summary:  EPA is under a Consent Decree deadline to sign a notice of final rulemaking for numeric nutrient water quality criteria (which are elements of water quality standards) for the State of Florida’s estuaries and coastal waters by September 30, 2013. Pursuant to a judicial order, EPA’s obligation to sign a notice of final rulemaking for numeric nutrient water quality criteria for flowing waters in south Florida (including canals), tidally influence segments, and the downstream protection values for flowing waters into estuaries by September 30, 2013 has been stayed until 30 days after the court rules on EPA’s motion to modify the Consent Decree to relieve EPA of its obligation to finalize criteria for those waters.

    RID:  2040-AF39

    Title:  Water Quality Standards for the State of Florida’s Streams and Downstream Protection of Lakes: Remanded Provisions

    Summary:  This final rule addresses an order by the U.S. District Court for the Northern District of Florida from February 18, 2012, which remanded to the EPA two portions of its numeric water quality standards for nutrients in Florida that were promulgated and published on December 6, 2010. This rule promulgates criteria for the remanded provisions and provides additional explanation: the flowing waters criteria derived using the reference condition approach for Florida streams and for the derivation of the downstream protective values (DPVs) for unimpaired lakes. Per the terms of the Consent Decree, EPA signed for publication in the Federal Register proposed criteria on November 30, 2012.

    RID:  2040-AF44

    Title:  Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category

    Summary:  This action will address revisions to the effluent guidelines and standards for the construction and development (C & D) point source category 40 CFR 450. The C&D rule was issued on December 1, 2009 and became effective on February 1, 2010. This action would revise several of the non-numeric portions of the rule in response to litigation.

     

    Chesapeake Vendors

    Chesapeake (CHK) Vendors

    The Swamp School’s Wetland Delineation Program satisfies the Qualified Individual (QI) Waters of US Training Certification Requirement.

    WoUS Webinar Series

    Free Webinar

    Mini Webinar

    Free Wetland App

    New Regional Supplement
    Wetland Plant App

    Swamp App

    Get It Here
    FREE

    Free Newsletter

    Weekly Swamp Stomp



    Newsletter

    Click to Subscribe

    It's Free!

    Financial Aid

    Calendar

    Keep Up With All of Our Classes

    Wetland Classes

    Free Plant Guides

    Customer Support

    Help Frog

    Contact Us

    Toll Free
    877-479-2673

    The Swamp Store

    Swamp Store

    Stop in to sign up for a class or just browse some of our cool Swamp Stuff!

    WET Mission

    Rate Us

    Please rate our site.