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Owners Whose Property is Labeled “Wetlands” May Seek Judicial Review

The Swamp Stomp

Volume 15, Issue 17

The Army Corps of Engineers named property in Minnesota owned by The Hawkes Co., Inc., Pierce Investment Company, and LPF Properties as “wetlands” under a “Jurisdictional Determination.” This decision meant that the Corps gained regulatory authority over the land. The companies, however, appealed and brought a legal challenge over the regulatory finding.

The appeal, spearheaded by Pacific Legal Foundation (PLF) representatives, argues that Jurisdictional Determinations, “wetlands” designations under the Clean Water Act, are final agency actions subject to judicial review.

This latest attempt to appeal decisions about what properties deserve to be labeled “wetlands” follows the Sackett v. EPA landmark decision in 2012, whereby the Supreme Court ruled unanimously that if the EPA effectively seizes control of private property by declaring it as “wetlands,” then the landowners hold the right to a direct and meaningful judicial review.

The case was a result of the EPA issuing a “compliance” order directing Mike and Chantell Sackett to immediately stop the construction of their house, and to return the land to EPA standards. The Sackett’s land is 500 feet away from Priest Lake in Idaho, and the two are separated by another house and a road. It would have cost the Sacketts $27,000—$4,000 more than they paid for the land—in order to comply with the order.

When describing the process, Mike Sackett claimed, “As this nightmare went on, we rubbed our eyes and started to wonder if we were living in some totalitarian country.” This message was echoed by his wife, who said, “Bullying—that’s what the EPA does. They came into our lives, took our property, put us in limbo, told us we can’t do anything with it, and then threatened us with fines.”

Despite being told by the EPA that they could not get a direct court review, and if they failed to obey the “compliance” order then they would be charged with fines of up to $75,000 per day, the Sacketts appealed and won.

Damien Schiff, PLF Principal Attorney, said afterwards, “EPA is not above the law. That’s the bottom line with today’s ruling.” Mr. Sackett then added, “The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years. Now the Supreme Court has come to our rescue.”

Following this precedent that allows landowners to appeal directly to the judiciary from a federal wetlands “compliance order,” PLF, arguing on behalf of the Hawkes Co., Inc., Pierce Investment Company, and LPF Properties, convinced the Supreme Court to rule that landowners hold the right to judicial review when federal regulators label their land as “wetlands” subject to federal control.

M. Reed Hopper, PLF Principal Attorney, said, “This historic ruling is great news for everyone who values accountability in government and Americans’ access to justice. When Clean Water Act officials assert control over someone’s private property, they should be prepared to defend, in court, their claim that the property is, in fact, jurisdictional wetlands. Their decisions should not be insulated from scrutiny and examination, as if the regulators were a law unto themselves.”

This ruling underscores the importance of keeping accurately documented wetland delineations. Now, any project may end up in court to be reviewed, and the delineator will need to defend their work by presenting proper and up to date paperwork.

EPA to Release Final Clean Water Rule

Swamp Stomp

Volume 15, Issue 16

On April 6, 2015, Gina McCarthy and Jo-Ellen Darcy of the Environmental Protection Agency (EPA) published a blog post claiming that public concern over the Clean Water proposal is helping to shape the final rule.

A draft of the rule was sent to the Office of Management and Budget on April 3, 2015 for interagency review. McCarthy refused to divulge what changes were made to the rule. She said, “Since it’s not final yet, we can’t speak to every detail.”

However, McCarthy did claim that the “spirit of the rule” can be reduced to three simple facts. “First,” she said, “people depend on clean water: one in three Americans get their drinking water from streams currently lacking clear protection.”

“Second, our economy depends on clean water: manufacturing, farming, ranching, tourism, recreation, and other major economic sectors need clean water to function and flourish,” she continued.

“Third, our cherished way of life depends on clean water: healthy ecosystems support precious wildlife habitat and pristine places to hunt, fish, boat, and swim.”

The draft of the Clean Water Rule was first released a year ago. Over one million public comments from farmers, ranchers, manufactures, business owners, hunters and anglers, and many others have since made their way to the EPA. McCarthy assured the public that “in the final rule, people we see that we (the EPA) made changes based on those comments, consistent with the law and science.”

Then, without disclosing any specific aspects of the newly drafted rule, McCarthy did share in the blog post the following points that the EPA were considering when writing rule:

  • Better defining how protected waters are significant. A key part of the Clean Water Rule is protecting water bodies, like streams and wetlands, which have strong impacts downstream – the technical term is “significant nexus.” We will respond to requests for a better description of what connections are important under the Clean Water Act and how agencies make that determination.
  • Defining tributaries more clearly. We’ve heard feedback that our proposed definition of tributaries was confusing and ambiguous, and could be interpreted to pick up erosion in a farmer’s field, when that’s not our aim. So we looked at ways to refine that definition, be precise about the streams we’re talking about, and make sure there are bright lines around exactly what we mean.
  • Providing certainty in how far safeguards extend to nearby waters. The rule will protect wetlands that are situated next to protected waterways like rivers and lakes, because science shows us they impact downstream waters. We will provide a clear definition about what waters are considered adjacent waters.
  • Being specific in the protection of the nation’s regional water treasures. We heard concerns that the category we called “other waters” in the rule was too broad and undefined. We’ve thought through ways to be more specific about the waters that are important to protect, instead of what we do now, which too often is for the Army Corps to go through a long, complicated, case by case process to decide whether waters are protected.
  • Focusing on tributaries, not ditches. We’re limiting protection to ditches that function like tributaries and can carry pollution downstream—like those constructed out of streams. Our proposal talked about upland ditches, and we got feedback that the word “upland” was confusing, so we’ll approach ditches from another angle.
  • Preserving Clean Water Act exclusions and exemptions for agriculture. We will protect clean water without getting in the way of farming and ranching. Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.
  • Maintaining the status of waters within Municipal Separate Storm Sewer Systems. Some state and local governments raised questions about waters within these permitted systems. We listened carefully as we did not intend to change how those waters are treated and have considered ways to address this concern. We will also continue to encourage the use of creative solutions like green infrastructure and low-impact development, as many of these communities have advocated.

It is surprising that while many of these considerations deal with clarifying issues, none of the changes made to the rule were publicly released. Instead, the EPA sent the rule to the White House for review. It is expected that this final rule will be passed in a matter of weeks, allowing no time for public comment. Considerations and intent are valuable, but not as valuable as the specific words written in the rule. By sending the rule for official review without releasing any specifics, and not opening the rule up for any public comment, the EPA has simply worked around public opinion and will have a rule passed that may or may not be similar to the one previously proposed.

EPA Admit “Waters of the U.S.” Could Have Been Handled Better

Swamp Stomp

Volume 15, Issue 15

During the National Farmers Union convention in Wichita on March 16, 2015, U.S. Environmental Protection Agency Administrator Gina McCarthy expressed regret about how the EPA handled the controversial “Waters of the U.S.” rules.

Following U.S. Department of Agriculture Secretary Tom Vilsack, McCarthy spent the majority of her 30-minute speech claiming that she wished her agency had done a better job of explaining how EPA defined which bodies of water were regulated under the Clean Water Act.

McCarthy asserted, “I’m really concerned that we weren’t crystal clear out of the gate, not just about what we intended to do but about what we intended not to do, because it left all kinds of room for people to wonder not just what the words said but what we are trying to accomplish.”

Despite her regret over how the effects of rule were communicated, however, McCarthy is adamant that the EPA’s end goal will be met and the final rule be issued.  She said that the rule is currently on its way to the Office of Management and Budget and is expected to be issued this spring.


After recent U.S. Supreme Court rulings, EPA is currently rewriting the rule, but McCarthy remains adamant that the need for the rule is clear. However, she did attempt to clarify what the rule would and would not intend to do. She provided the following assurances:

  • In response to numerous criticisms, McCarthy assured the public that EPA would not regulate puddles, land, or Fourth of July fireworks.
  • Addressing the worry that regulating “tributaries” could mean just about anything, McCarthy stated that EPA has established clearer definitions.
  • The rule does not include erosional features.
  • McCarthy claimed that roadside and irrigational ditches are not included, but ditches that are natural and constructed streams that can carry pollution downstream and act like tributaries are included.
  • Waters initially labeled as “other waters”—a term McCarthy conceded was too ill-defined—are in the process of being more narrowly stated by officials using their “best judgment.” However, the results of clarifying vague terms with even vaguer qualifications will most likely do little to quell concerns.

The main message of McCarthy’s speech was that farming and ranching should remain unaffected by the rule. “The exclusions and exemptions for agriculture . . . this rule we will not touch,” she said.

During Vilsack’s address, farm productivity was a major talking point. Farmers today are 12 times more productive then they were in 1950. Subsequently, Americans only spend 10 percent of their income on food, 15 to 20 percent less than many of the other countries in the world.

Vilsack also raised many concerns, including how to best introduce the next generation of farmer to the profession, labeling country origin of beef and pork in supermarkets, and how to best develop tools and support conservation and local agriculture, such as farmers markets.

“This isn’t just about farming. This isn’t just about agriculture. This is about rural life and maintaining the value system alive and well in the rural communities.”

While Vilsack is not forwardly addressing the “Waters of the U.S.” rule, he is assisting McCarthy paint an image of what the rule intends to do. The ambiguity of McCarthy’s speech did little to rid farmers and ranchers of their concerns, and her acknowledgment that the rule was not communicated as well as it could have been is somewhat diminished by “clarifying” points with terms that themselves are ambiguous.


New Mapping of Great Lakes’ Wetlands

Swamp Stomp

Volume 15, Issue 14

A new and comprehensive map of the Great Lake region’s coastal wetlands has been released by the Michigan Tech Research Institute that manipulates fluorescent bands of color to outline the great lakes. This new map is the first of its kind applied to such a broad scale, and is the only one that outmaneuvers political boundaries by displaying both Canadian and US wetlands along the more than 10,000 miles of shoreline.

The Michigan Technological University focuses a great deal of attention on the Great Lakes, and this coastal map is evidence of years of work expanding on previous maps created through the Michigan Tech Research Institute (MTRI).

Laura Bourgeau-Chavez, MTRI research scientist and the project leader for the wetlands map, claimed that having a standard method of mapping all of the regions wetlands, free of any inconsistencies that could affect data analysis and the implementation of management strategies, was crucial. She said, “This is the first map to span the entire basin, and it’s important to have a consistent map over the entire area.” She continued to claim that inconsistencies occur “if you don’t know the accuracy of the map or how it’s changing from one place to another.”

Wetlands are effect by a lot of change each year, some natural changes, but mainly as a result of human interaction. Bourgeau-Chavez asserted, “We’ve lost more than 50 percent of coastal wetlands in the Great Lakes over the past century. The wetlands are very important because they serve as filtration as well as habitat—and a lot of them are being degraded.”

The map uses satellites that are orbiting at roughly 200 miles above the earth’s surface to map the wetlands using remote sensing, a term used to represent imagery and measurement techniques collectively. By studying the area from a distance, a lot of ground is able to be covered quickly and easily.

Bourgeau-Chavez and her team used three-season PALSAR remote sensing data, a 23 cm wavelength Synthetic Aperture Radar (SAR). SAR is especially helpful for mapping wetlands because the technique is capable of distinguishing flooded ground, vegetation’s vertical structure, soil moisture, and the total mass of vegetation. All of these wetland aspects may vastly differ between seasons, so the satellite data was collected in each season except winter.

Remote sensing is not foolproof, however. Mixed readings, caused by overlapping pixels in data, blurred some of the maps boundaries, and, subsequently, made vegetation difficult to distinguish. Therefore, Bourgeau-Chavez and her team supplemented the remote sensing data with extensive field checking at over 1,400 separate field sites. It is only through field visits that the predominant vegetation, which is important for tracking invasive species like Phragmites and cattails, can be verified.

Field visits also allowed the researchers to map the different types of wetlands that were not separated by remote sensing. For example, the map displays peatlands as separate wetlands, because the bogs are sometimes mined for peat, and, therefore, contain large amounts of carbon.

Bourgeau-Chavez says, “An emergent wetland that doesn’t have any, or very little, peat at the surface is very different from a peatland with peat that is meters deep.”

There are many other factors considered in land use management other than monitoring urban and agricultural proximity, invasive species, and different water types, so a variety of uses were incorporated into the mapping interface. Viewers are also able to simply view the data they are searching for by clicking on the button below the legend.

Susan Hedman, EPA’s Region 5 Administrator and Great Lakes National Program Manager, said, “This Great Lakes Restoration Initiative project—made possible by an EPA grant—produced updated coastal wetlands maps that will help the United States and Canada better target efforts to restore critical habitats and to protect native aquatic and terrestrial spaces in the Great Lakes Basin.”

This map is a step forward in attempts to accurately map out constantly changing wetlands. The satellite imagery is able to stay up-to-date with changes to the region, and thus keep pace with the changing terrain.

“Waters of the U.S.” Public Hearing Held

Swamp Stomp

Volume 15, Issue 13

On March 17, 2015, Republican Glen Thompson, Chairman of the House Agriculture Committee’s Conservation and Forestry Subcommittee, held a public hearing in order to examine the definition of the proposed “Waters of the United States” rule and its impact on rural America.

Legislated in 1972, the Clean Water Act (CWA) initiated a federal-state government partnership that was intended to more appropriately regulate and manage the nation’s water by means of various pollution and control programs. The CWA asserts that it is the “policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of State to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [EPA] Administrator in the exercise of his authority under this Act.”

During the hearing, several members of the House Committee on Agriculture claimed that by proposing the “Waters of the U.S.” rule, the Administration has acted on its own, without any input from either states or stakeholders, in order to widen the federal jurisdiction granted under the CWA, which, subsequently, threatens the livelihood of farmers, ranchers, and rural America.

Chairman Thompson said, “Despite strong bipartisan opposition from Congress and the public, the Obama Administration has acted to expand its federal authority. The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties. Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure.”

Thompson continued, “Rather than strengthening the law, this rule creates more confusion. These actions highlight a disturbing pattern of an Administration that is out of touch with farmers, ranchers, and rural land owners. The testimony received today further outlines the need for the EPA to either pull the rule and move for further consultation with states, countries, and stakeholders, or re-purpose the rule and allow a new round of public comment. There is too much on the line to continue down the current path.”

Republican Kenneth Michael Conway, Chairman of the House Agriculture Committee, also spoke at the hearing. He asserted, “I strongly support legislation to block the “Waters of the United States” rule and hope we can put legislation to this effect on the president’s desk, whether as a stand-alone bill, as part of a larger measure, or both. The better route, of course is for EPA and the Corps to pull this regulation, work with state and local stakeholders to develop new and proper set of recommendations, and submit these recommendations to Congress for consideration and approval.”

The witness list at the hearing was comprised of two panels. The first panel included the Honorable Jeff M. Witte, the Honorable Robert ‘Pete’ Smeltz, Mr. Joseph S. Fox, and the Honorable Martha Clark Mettler. The second panel consisted of Ms. Ellen Steen, Mr. Jonathan Gledhill, Mr. Russ Biggica, Mr. Sledge Taylor, and Mr. Steve Foglesong.

The Administration will issue a final regulation this spring without any additional time for public review and comment, despite receiving over one million comments prior to the public comment deadline last autumn. EPA officials claim that changes will be made to the regulation to reflect comments, but without granting themselves and additional time to review the proposal before it would go into effect, there is increasing concern over what actions EPA may take.

Design Student Creates Modular Structure to Assist Artificial Reef Development

Swamp Stomp

Volume 15, Issue 12

Alex Goad, an industrial design student at Monash University in Melbourne, Australia, developed a Modular Artificial Reef Structure (MARS). Influenced by Lego, each branched module is constructed from concrete and then coated with a textured ceramic that creates the optimal surface for marine life to thrive. Each module then clamps together, similarly to Legos, to form endlessly customizable artificial reef habitats.

Typical coral reefs are structured on calcium rich coral skeletons. This means that it can take centuries for coral ‘rubble’ to accumulate and form the ideal habitat for a flourishing reef. Furthermore, the calcium based skeleton is constantly threatened by growing climate change, pollution, and unsustainable fishing practices.

Both large storms and damaging fishing methods, such as dynamite fishing, are capable of destroying reefs within seconds, wiping out their inhabitants and calcium foundation in the process. This results in reef-building animals, such as corals and sponges, having no place to rebuild.

Photo Source:  ReefDesignLab.org

Photo Source: ReefDesignLab.org

This new MARS system, however, can greatly reduce the time necessary to restore ravaged foundations. Goad claimed, “Reefs do naturally repair themselves, but this can take decades. Just like how we re-plant trees, we must start re-planting reef environments.”

Goad’s modular design provides a way for artificial reefs to be built cheaply and easily on site. By using small boats and one’s own hands, the process is completed within a matter of days.

“The idea is that once the MARS arms are transported to the development area…the hollow ceramic form is filled with marine concrete and composite rebar, utilizing local labor and concrete manufacturers,” Goad said.

Goad began working on his MARS idea after witnessing firsthand the shortcomings of current reef restoration processes. He said, “I’ve always been obsessed with SCUBA diving and snorkeling. I noticed a lot of the product-based artificial reefs seems incredibly outdated and did not provide adequate protection for all creatures that would use it.”

Once MARS modules are joined together, they interrupt water flow, trap food particles, and, subsequently, create refuges for small animals. Smaller independent trials have been conducted in Port Melbourne, Cairns, and several aquariums, but Goad is now searching for development opportunities to build these reefs on a larger scale.

Goad has started to work with David Lennon, a marine scientist and developer from Sustainable Oceans International who has worked extensively on artificial reefs. Goad’s focus on design paired with Lennon’s practical experience with artificial reefs allows the two to lift the MARS project to the next level.

Lennon said, “Alex approached me when he was working on his final year project at university. I could immediately see the merit behind the concept. Alex brought the essential element of design, which was something that I was lacking so far.”

Goad and Lennon have started Reef Design Lab, a not-for-profit company that implements designer reefs for habitat conservation.

The innovative MARS system has been recognized by the design industry, and Goad recently won the Hills Young Australian Design Sustainability Award, the James Dyson Foundation Design Award, and the graduate prize for Best Product Design from Monash University.


Open Public Comment Period for Agricultural Conservation Easement Program Interim Final Rule Now Open

The Swamp Stomp

Volume 15, Issue 11

On February 26, 2015, Agriculture Secretary Tom Vilsack announced that the U.S. Department of Agriculture (USDA) is accepting public comments on its interim final rule for the new Agricultural Conservation Easement program (ACEP). The program intends to assist producers protect working agricultural lands and wetlands. ACEP is a result of the 2014 Farm Bill that consolidated three previous conservation easement programs in order to make it easier for diverse agricultural landowners to fully benefit from conservation initiatives.

Vilsack said, “Since 2009, USDA has worked with producers and private landowners to enroll a record number of acres in conservation programs. This interim final rule takes into account recommendations from agricultural landowners and conservation stakeholders about how to better streamline and enhance conservation easement processes.”

Administered by the USDA’s Natural Resource Conservation Service (NRCS), ACEP is a voluntary program created to protect and restore critical wetlands on both private and tribal lands through the wetland reserve easement component, as well as conserving grasslands, including rangeland, pastureland, and shrubland. Farmers, ranchers, and non-industrial private forest landowners are also encouraged to maintain their private and tribal land in a state of agricultural use through the agricultural land easement component.

State, local, and non-governmental organizations that implement farmland or grassland protection programs are eligible under ACEP’s agricultural land component to partner with USDA in order to purchase conservation easements. In recent years, NRCS’ easement programs have been an essential aid to the advancement of landscape-scale private lands conservation.

During the 2014 fiscal year, NRCS used $328 million in ACEP funding to admit an estimated 143,833 acres of farmland, grassland, and wetlands through 485 new easements. In Florida alone, ACEP funds purchased 6,700 acres in the Northern Everglades Watershed that support the restoration and protection for the habitats of a variety of listed species, such as the Wood Stork, Crested caracara, and the Eastern Indigo Snake. Further funds were used in Georgia to complete the Roundabout Swamp project by employing 270 acres of the Carolina Bay to assist the restoration and protection of the entire bay ecosystem to historic hydrology and vegetation.

ACEP’s agricultural land easement also provides numerous benefits to landowners and citizens. The easements assure the long-term sustainability of the nation’s food supply by preventing productive working lands being converted into land used for non-agricultural purposes. Other benefits pertain to environmental quality, historic preservation, wildlife habitat, and protection of open spaces.

Furthermore, under the ACEP’s wetland component, NRCS provides both technical and financial aid to private and tribal landowners in order to assist restoration, protection, and enhancement of wetlands. This funding provides habitats for fish and wildlife, including endangered and threatened species, improves water quality by filtering out sediments and chemicals, reduces damage from flooding, recharges groundwater, protects biological diversity, and provides opportunities for educational, scientific, and some recreational activities.

The official notice of the proposed ACEP interim rule can be found at https://www.federalregister.gov/articles/2015/02/27/2015-03781/agricultural-conservation-easement-program. Public comment remains open for 60 days. Any electronic comments can be submitted at http://www.regulations.gov/#!home. Comments can also be mailed to Public Comments Processing, Attn: Docket No. NRCS-2014-0011, Regulatory and Agency Policy Team, Strategic Planning and Accountability, U.S. Department of Agriculture, Natural Resources Conservation Service, 5601 Sunnyside Avenue, Building 1-1112D, Beltsville, MD 20705. For more information, please refer to the ACEO page at http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/easements/acep/ or the Farm Bill Program Rules at http://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/programs/farmbill/?cid=stelprdb1263599.



Idea to Reduce Evaporation Proposed

Swamp Stomp

Volume 15, Issue 10

The droughts that have plagued the southwestern United States have led entrepreneurs to suggest reviving a water-saving technique that was last attempted half a century ago—reducing the amount of evaporation from reservoirs. If successful, a surface barrier comprised of cheap, non-toxic, and biodegradable chemicals that measure at two-millionths of a millimeter will be infused with water supplies in order to slow down the evaporation process. The necessary technology is yet to be proven, but demonstrated promising results during field tests in Texas last year.

More water evaporates from reservoirs each year than is consumed. This depletion of water levels due to evaporation is especially severe in arid regions. Subsequently, many researchers in the United States and Australia have looked into the possibility of reducing the amount of water lost during the evaporation process for years. Such enquires have resulted in chemicals derived from coconut or palm oil being successfully used on small bodies of water such as golf-course ponds and swimming pools. However, according to Moshe Alamaro, an engineer at the Massachusetts Institute of Technology in Cambridge, the same procedure cannot be practically applied to larger bodies of water, because the larger surface area would make the protective barrier susceptible to wind damage.

A field test was held last summer in Texas to attempt to overcome that difficulty, however. The test cost $325,000 and lasted from July to October. Flexible Solutions International, a company in Victoria, Canada that specializes in evaporation-reducing coatings for small bodies of water programed a boat to distribute the protective coating in a grid pattern across Lake Arrowhead, a 21-square-kilometer reservoir that provides water to Wichita Falls.

The Texas Water Development Board published the analysis of the test in January, and claimed that while the results were promising, they were far from conclusive. The report suggests that Lake Arrowhead lost an estimated 15% less water due to evaporation than a nearby reservoir of similar size and shape that was not treated. How much of an effect the coating had on this difference is unclear, however, as several variables such as stream inflows and seepage outflows were not taken into account during the analysis. Mark Wentzel, a hydrologist for the Texas Water Development Board and co-author of the report, claimed that the coating probably helped reduce evaporation, but “I wouldn’t stake my life on it.”

Alamaro claimed that if such a technique is to work on large bodies of water, then a much more aggressive technological approach is necessary. Advancements in radar and drone technology could be used reveal where the coating has been broken by sensing the way it dampens ripples on the water. Additional coating could then be applied to the vulnerable areas. This, he estimates, could potentially cut evaporation by 70%.

More Aqua, Alamaro’s company in Cambridge, Massachusetts, is currently working on developing a system that would use both diffusers and skimmers to maintain the coating on large bodies of water. More Aqua plan its own pilot test this summer near Palo Alto, California.

Water consultant William Mullican of Lubbock, Texas, a retired member of the Texas water board, claimed that although the Lake Arrowhead results were unclear, the results are no more ambiguous than the field tests of other water-sparing techniques such as cloud seeding and cutting down brush to prevent the moisture being sucked out of the soil.

He continued to say that there is every reason to attempt the technique again, “unless it starts raining.”

EPA Sets Aside $1 million for Wetland Restoration and Protection

Swamp Stomp

Volume 15, Issue 9

In order to strengthen the ability of both states and tribes to better protect and restore wetlands, the U.S. Environmental Protection Agency will distribute $1 million in grants. The National Wetland Program Development Grants aim to provide interstate agencies, intertribal consortia, and non-profit organizations with funding so that they may both cultivate and refine already existing state, tribal, and local wetland programs.

Ken Kopocis, the Deputy Assistant Administrator for Water at EPA, stated, “Wetlands are part of the foundation of our nation’s water resources and are vital to the health of waterways and communities that are downstream. Wetlands feed downstream waters, trap floodwaters, recharge groundwater supplies, remove pollution, and provide fish and wildlife habitats. Wetlands are also economic drivers because of their key role in fishing, hunting, agriculture, and recreation.”

The EPA announced six proposals that are being awarded. All of the proposed projects must demonstrate how they will promote healthy communities and ecosystems, and must be linked to environmental results. The selected proposals are as follows:

  • Leveraging Hazard Mitigation Buyouts (acquisition of flood prone areas) to Protect and Restore Wetlands and Improve Watershed Health – This project will see the Environmental Law Institute and the University of North Carolina investigate and map hazard mitigation buyouts in three states in order to analyze any possible wetland habitat and flood mitigation benefits of acquired properties. The two institutions will then make recommendations that they think will assist wetland programs across the country enhance collaboration with hazard mitigation planners and emergency managers. They will also leverage hazard mitigation buyouts in order to restore, maintain, and connect acquired properties so that wetland and wildlife habitats are provided, and community resilience is improved.


  • Improving InLieu Fee Mitigation Practice Through Training – For this program, the Environmental Law Institute will design and host a conference and a series of webinars committed to focusing on the needs of state, tribal, and local governments that are seeking approval for, administering, or overseeing In-Lieu Fee compensatory wetland mitigation programs.


  • Creation of an Online Academy to Advance the Use of Living Shorelines – Restore America’s Estuaries and its partners will construct and operate a “Living Shoreline Academy” devoted to promoting the use of natural protection methods so that the degradation of fringing shorelines and fish habitats that surround our nation’s estuaries may be reduced.


  • Development of a Stewardship Calculator for Wetland Mitigation Banking – The Nature Conservancy and its partners will assemble a small group of national experts in order to establish a Wetland Stewardship Calculator, accompanying handbook, and web-based application. Such resources can be used by states, tribes, local governments, and land trusts to successfully enable long-term stewardship of wetland protection sites.


  • Creating New Access to High Quality Wetland Training for State and Tribal Wetland Program Field Professionals – The Association of State Wetland Managers and its partners will apply themselves to presenting state, tribal, and wetland professionals with training opportunities and resources. Doing such will increase the ability of these professionals to implement wetland programs. ASWM will gather a Working Group to identify both national and regional wetland training needs, as well as assisting in the development of the other products of this project.


  • Raising the Bar on Wetland Restoration Success Nationwide – This program will see the Association of State Wetlands Managers work on several interrelated projects. These projects include developing a national strategy for improving wetland restoration success, pursing strategies to improve permit applications, and a review of voluntary restoration projects. ASWM will also attempt to create a series of written and web-based resources on the best management approaches for wetland restoration.


For more information on the grants or these projects, please visit: http://water.epa.gov/type/wetlands/initiative_index.cfm

GOP Lawmakers Encourage EPA to Rethink Clean Water Rule

Swamp Stomp

Volume 15, Issue 8

The Republican controlled Congress is expected to place a significant dent in President Barack Obama’s environmental agenda this year, and plans to begin with the “Waters of the U.S.” rule proposed by the Environmental Protection Agency and the Army Corps of Engineers. On February 4, 2015, GOP lawmakers advised top environmental officials that they ought to abandon their proposal to define what is and is not considered a body of water by federal law.

The Republican majority that now controls both the House of Representatives and the Senate demonstrated its intent to derail the project in an unusual joint hearing between the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.

During the hearing, Republicans expressed indignation at what they referred to as a “power grab,” while Democrats retorted with claims that opposition to the rule is based upon a tower of misconceptions.

Democratic Senator Barbara Boxer of California asserted, “I’m confused because I think people are arguing against some mythical rule.” Then later when responding to the claim that the government was seeking to regulate tiny and inconsequential bodies of water, she claimed, “We don’t want to regulate a puddle. That’s ridiculous.”

The EPA and the Army Corps of Engineers first proposed the rule in order to simplify and clarify the meaning of the 1972 Clean Water Act. The Act covers rivers, lakes, and year-round wetlands, but there has been longstanding confusion over whether waterways such as streams that dry up for part of the year and wetlands that are only wet during springtime are included.

The rule is of the greatest importance to farmers, developers, and other landowners, because the Clean Water Act requires the use of permits for developing or discharging into waters included under the Act. As a result, farmers and officials in many states have vigorously opposed the rule ever since it was announced in 2014.

The EPA and the Army Corps of Engineers received over 1 million comments from the public about the proposal. This number reflects how widespread the issue has become, as well as the growing interest in the highly technical federal proposal.

Despite the opposition, both the EPA and the Army Corps of Engineers hope to finalize the rule this spring.

Congressional Republicans, however, plan to resist the establishment of such a rule. They have asserted that they will introduce new legislation to prevent the administration from finalizing the rule. If such legislation is passed, then a potential veto showdown with the president may materialize.

The Republican Representative Bill Shuster of Pennsylvania claimed, “If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects—and in some cases regulate land-use activities.” The rule, he said, would be an “end run around Congress—another example of overreach by this administration.”

EPA Administrator Gina McCarthy has been extremely vocal in defending the rule, and was called upon during the hearing to do so again. She said, “The proposal was not an attempt to expand the federal government’s jurisdiction, but instead to merely clarify it. And the proposal is just that—a proposal; federal officials are reviewing all those comments that have come in and will respond to the widespread concerns that have been expressed.”

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