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2015 Waters of the US Final Rules

The Swamp Stomp

Volume 15, Issue 26

On Monday June 29, 2015 the final Waters of the US Rules were published in the Federal Register.  They become effective on August 28, 2015.  At that point they are the law of the land.

There has been much discussion about these new rules, their legitimacy and the need for them.  The major proponents argue that clean water is at risk without these rules.  The opponents argue that this rule is nothing more than a federal land grab.

The President through his agencies has argued that these rules are needed to clear up any confusion of what the federal government should and should not regulate.  The assumption is that an unregulated water is a dirty water.  Chief among the confused is the Supreme Court.   One of the major goals of this rule is to correct the SWANCC decision that limited federal jurisdiction over isolated waters.  However, with thousands of pages of documents used to develop this rule I doubt that this goal has been achieved.

fedRegWotUS

Are these rules good or bad?  At this point that is a matter for the courts to decide.  There are some highly political bills being floated around Congress.  However, they lack the support need to overturn the rules.  The main issue is that they would face a likely Presidential veto should they pass both chambers.

One of the more amusing aspects of the opposition is to threaten to take away funding for the implementation of the rule.  At issue is how does one fund a definition?  The rule is now published so there is no longer any issue of disseminating the information.  Perhaps the Agencies are not allowed to talk about 80 FR 37053 – 37127.  Can they still mention waters of the United States?  If so, which definition?  If they use the old one, are they breaking their own rule?  If so, can a third party bring suit against the Agencies for not following a published rule?  Are we the regulated, still bound by the new published rule even if the Agencies can’t implement it?

Politics aside, (good luck with that) these rules are real and there are some very significant changes.  What is unfortunate is that the Agency personnel will most likely be denied any training on these new rules.  That is something Congress can withhold.  This could prove problematic when it comes time to argue for or against jurisdiction of a water.  Lack of training often results in poor decisions.

There is also one other date in the rule that is significant.  The date for Judicial Review is July 1, 2015.  I believe that corresponds with the date the Supreme Court goes into recess.  If you will recall as established by Marbury v. Madison (1803) the Supreme Court has the responsibility to decide if any law rule or regulation is constitutional.  July 1, 2015 is the date that that review would begin.  Is it a coincidence that this rule came out during the Court’s summer recess?  The Supremes will not be back until October.

We have posted a full version of the new rules on our website.  You can see them here or download the full document here.

Have a great week!

–    Marc

Artificial Sweeteners Pollute Waterways

The Swamp Stomp

Volume 15, Issue 25

People expect to find artificial sweeteners in their diet sodas, chewing gums, and even their favorite yogurt, but not in their water. However, recent research indicates that such sweeteners are present in the water in your facets.

These Sugar substitutes—such as Splenda and Sweet’N Low—are chemically designed to be ingested without being absorbed. The human body is incapable of breaking such compounds down, so the sweeteners go straight through the body. One is able to receive the taste of sugar without risking the weight gain that results from absorbing sugar.

Wastewater treatment plants, however, face the same problem that the human body does once the sweeteners have passed through. Since the plants are unable to break down the complex chemicals, most sweeteners flow directly into oceans, lakes, and rivers in practically the same condition they entered the human body.

sweetner2600

Researches from the University of Waterloo and Environmental Canada discovered large amounts of sugar substitute in Ontario’s Grand River, which empties directly into Lake Erie. By testing for sucralose, cyclamate, saccharin, and acesulfame, scientists determined that the level of sweetener induced pollution is equivalent to between 81,000 to 190,000 cans of artificially sweetened soda streaming through the 300-kilometer river each day. Three types of sweetener were also discovered coming out of faucets in Brantford.

Amy Parente, an assistant professor of biochemistry at Mercyhurst University in Erie, Penn., claims that while the effects of the sweetener are unknown, scientists need to monitor the situation closely. In 2012, she performed a study of the water found at the beaches of Lake Erie so that the water tested had a chance to dilute and, therefore, have a smaller chance of being contaminated by sweetener. Parente and her team discovered 0.15 micrograms of sugar substitute for every liter of water, meaning that there was upward of 72 metric tons of sweetener floating around Lake Erie.

Since her study, Parente and her team of students have studied the effects the sweetener has had on snails foraging for food in the lake. One student discovered an increased presence of snails and other small animals, which suggests the sweetener caused the animals to think there was nutrition in the water. As a result the animals were left with less nutrition to be foraged.

After claiming, “When people think about small animals and small organisms, they tend not to be concerned,” Parente asserted that the impact may have a domino effect to the already delicate balance within ecosystems. She added, “I feel that out of these small organisms are early warnings. We need to heed these warnings.”

Not everyone is as concerned as Parente, however. John Spoelstra, one of the scientists who tested the Grand River, thinks that more research is necessary before anyone jumps to conclusions regarding the effect that artificial sweeteners have on aquatic life. Less than a decade has been spent studying the effects on aquatic life, because it has only been a few years since the presence of the sugar substitute was discovered.

As for the amount of sweetener in drinking water, Spoelstra claims that people will not notice a difference. He said, “Concentrations in the river are very small. They’re in the tens to hundreds of thousands of times lower than the concentration that would be in a can of soda.”

Mississippi and Atchafalaya Rivers Dump Sediment into Louisiana Wetlands, Lakes, and Gulf

The Swamp Stomp

Volume 15, Issue 24

Images taken from NASA’s MODIS satellite clearly show that the rising Mississippi and Atchafalaya rivers are pouring an abundance of sediment into coastal wetlands, Lake Pontchartrain and other coastal lakes, and the Gulf of Mexico.

Having been washed into the Mississippi River by a combination of rainfall and melting snow at farmlands across the Midwest and Ohio Valley, sediment is gushing into southern Louisiana. Officials hope to construct a series of diversions along the Mississippi River in the coming years to collect the increased amount of sediment that is expected to continue its journey south in future spring floods. The sediment would then be used to create new wetlands in order to nourish the existing wetlands.

30 percent of the Mississippi River’s water is diverted into the Atchafalaya River at the Old River Control Structure above Baton Rouge. Satellite imagery displays that the sediment is entering the Gulf of Mexico, which is where the majority of sediment is lost, through the Atchafalaya River’s mouth below Morgan City and through the Wax Lake Outlet to the west. The wetlands off of Wax Lake have been expanding south for over 40 years due to similar springtime flooding.

sedimentmap

While water levels remain below the official 17-foot flood stage for the city, the water levels have been high enough to pour a constant stream on sediment-laden water into the Bonnet Carre Spillway in St. Charles Parish. From there the sediment is carried into Lake Pontchartrain where it mainly settles on the lake’s southern shore. Increased sediment is also noticeably visible in Lake Maurepas.

When the river grew to 12.5 feet in New Orleans, water began to escape through the long wooden slats in concrete bays in the spillway structure. As a result, sediment from the spillway became visible in Lake Borgne, the Mississippi Sound, and along the Chandeleur Islands after it traveled through the Rigolets and Chef Menteur passes at the eastern end of the lake.

The West Bank also acts as a deposit zone for some sediment flowing through the Davis Pond freshwater diversion into Lake Cataouatche before entering Lake Salvador and Barataria Bay. The most visible amount of sediment, however, are along the east and west sides of the southern end of the river in Plaquemines Parish, with a broad stream flowing towards the Gulf of Mexico.

Despite this immense increase in sediment, criticism from oyster growers and commercial fishers remain against the plans to build the necessary diversions.

In response to such criticisms, Garret Graves, chairman of Louisiana’s Coastal Master Plan, claimed, “People are out there making allegations that are not supported. . . We’re moving forward with the master plan. We’re moving forward with designing four of the largest diversions. And we’re building them.”

These diversions are expected to produce 300 square miles of new land by 2060, while other projects also in the master plan would create marshland using sediment collected from the Mississippi River. The master plan is still determining the best places to build projects that will allow the state to withstand water level heights in the coming century, but it seems apparent that these diversions are necessary to cope with the increased flooding expected in the coming years.

GOP Supports Obama’s Changes to Endangered Species Act

Swamp Stomp

Volume 15, Issue 23

President Obama has received rare support from Republicans, industry groups, and states for his changes to the Endangered Species Act. The joint rulemaking by the Fish and Wildlife Service (FWS) and National Marine Fisheries Service would make decisions regarding the Act more efficient, collaborative, and transparent to the public. Democrats also hope that the changes will help mitigate conservatives in Congress who have vowed to overhaul the ESA.

Despite the law preventing over 99 percent of listed species from going extinct over the last four decades, those who criticize the law in Congress claim that it has failed to recover all but roughly two percent of endangered species.

The new rule proposed on May 19, 2015, creates a higher standard for petitions filed under the law to list new species as threatened or endangered, to change the species’ status, to delist species, or to change the boundaries of critical habitat. This will allow the agencies to focus more attention on species that truly warrant action.

Previously, either agency had 90 days to decide whether any of the petitions received contained sufficient information to indicate that action—either listing or delisting—was necessary. If a decision was made in the affirmative, then an additional twelve months was allocated to decide whether or not to propose a listing rule.

However, the sheer volume of petitions submitted by environmental groups in recent years has exceeded FWS’s capacity to respond to them, and has often landed in the agency in court. In the four years before signing a sweeping legal agreement with two separate green groups in 2011, the agency received petitions for over 1,230 species—a number that is just shy of the total amount received in the last thirty years.

In attempts to do away with “mega-petitions,” such as the one submitted by the Center for Biological Diversity and other environmental groups in April 2010 that listed 404 species, this new rule limits petitions to just one species at a time. “Mega-petitions” were often vaguely written and difficult to follow. This new rule requires that all petitions be organized on a species-by-species basis, so that each species can be given the attention it deserves.

Furthermore, petitions must now contain clear documentation of the threats to wildlife. Relevant information includes the following:

  • Literature citations that are specific enough for the agencies to find the information, including by page and chapter.
  • Electronic or hard copies of any supporting materials such as publications, maps, reports and letters cited in the petition, or valid links to public websites where the information can be found.
  • Information demonstrating that the petitioned wildlife meets ESA’s definition of a “species.”
  • Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available.

 

If a petition is missing any of this information, then FWS will be able to return the petition.

The new rule defines “substantial scientific or commercial information” as information that “a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.”

“For example, a petition that states only that a species is rare and thus should be listed, without other credible information regarding its status, does not provide substantial information,” it says.

The rule also states that for a failed petition to be resubmitted, it must contain new information in support of its claim. It says, “These changes would improve the quality of petitions through expanded content requirements and guidelines; and in doing so; better focus the Services’ energies on petitions that merit further analysis.”

Speaking about the rule, Ryan Yates, Chairman of the National Endangered Species Act Reform Coalition and Director of Congressional Relations at the American Farm Bureau, claimed, “While we are still reviewing the substance of the proposed rule, NESARC is pleased to see the Services recognize and take action to deter abusive petitioning practices. Requiring more detailed information as part of the submission of petitions and consultation with states will ensure that a more robust record is placed before the services.”

However, Rob Bishop, the House Natural Resources Committee Chairman, was more suspicious of the rule. He said, “The Obama administration admitted today that the process by which Endangered Species Act listing determinations are made is insufficient, and then asked the American people to trust them to fix the problem. I don’t buy it.”

Bishop’s concern was mirrored by Brian Seasholes, who directs the endangered species project at the libertarian Reason Foundation in Los Angeles. He said that the rule was “an extremely marginal step in the right direction. But the larger problem still remains that the Endangered Species Act harms conservation through its punitive approach.” He is concerned that the rule leaves federal wildlife managers with too much discretion, and fails to address the hundreds of species for which FWS is already issuing listing determinations.

While the step may not be all that is needed, it is an important step that all involved parties are happy to see be taken.

2015 Waters of the US Rule

The Swamp Stomp

Volume 15, Issue 22

On May 27, 2015 the US Environmental Protection Agency and the US Army Corps of Engineers (COE) released the official pre-publication of the new “waters of the US” rule. This rule will become effective 60 days from its publication in the Federal Register which is anticipated within a few days.

The new “waters” definition is a mere 9 pages long. The preamble and other related materials to be publish hover around 300 pages. The preamble provides further explanation of the rule in more technical detail.

In addition to the rule EPA and the COE have also published:

You have quite a bit of reading to do with well over 1,000 pages of reading material. To help you get started we have provided you with the basic “waters of the US” definition below. Over the next few weeks we will be diving into this and highlighting any salient points we think might help you get your head around this. We will also be offering a brand new webinar on July 9, 2015 on these new regulations.

To be clear, these regulations will become effective regardless of Congressional actions. The House Bill that passed and Senate Bill that’s still being kicked around would require the President’s approval to pass as an Act. He has clearly stated that he would veto any such legislation that would cross his desk. Consequently, there is nothing stopping this new regulation from being implemented in the next 60 days.

The new definition is as follows:

The term waters of the United States means:

(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means:
(i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;

(iii) The territorial seas;

(iv) All impoundments of waters otherwise identified as waters of the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section;

(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. The waters identified in each of paragraphs
(A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
(viii) All waters located within the 100-year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in (1)(i) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section.
(i) Waste treatment systems, including treatment ponds or lagoons designed to meet the
requirements of the Clean Water Act.
(ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(iii) The following ditches:

(A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1)(i) through (iii) of this section.
(iv) The following features:

(A) Artificially irrigated areas that would revert to dry land should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry land;

(D) ) Small ornamental waters created in dry land;

(E) ) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;

(F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
(G) ) Puddles.

(v) Groundwater, including groundwater drained through subsurface drainage systems.

(vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

Final Clean Water Rule Published

28 May 2015

Wednesday, May 27th 2015, saw the Environmental Protection Agency (EPA) release the final Clean Water Rule to “clearly protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources” by clarifying federal jurisdiction. The rule will be in effect 60 days after the publishing date.

Since being first passed in in 1972, the Clean Water Act (CWA) has been weakened by US Supreme Court decisions in 2001 and 2006. These decisions protected landowner’s rights, and limited the federal government’s jurisdiction. The federal government has been left with much less control then they would like, and intend to reclaim authority over water resources that they currently have no control with the implementation of this new rule.

The official press release by the EPA designates this final version of the rule “a historic step for the protection of clean water.” It aims to define more precisely what bodies of water are protected under CWA, as well as making permitting less expensive, easier to acquire, and faster for business and industry.

Gina McCarthy, EPA Administrator, asserted, “For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too. Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures—which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our community and provide certainty to American businesses.”

Jo-Ellen Darcy, Assistant Secretary for the Army (Civil Works), added, “Today’s rule marks the beginning of a new era in the history of the Clean Water Act. This is a generational rule and completes another chapter in history of the Clean Water Act. This rule responds to the public’s demand for greater clarity, consistency, and predictability when making jurisdictional determinations. The result will be better public service nationwide.”

The EPA claim that due to the aforementioned US Supreme Court rulings, “protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming.” Therefore, the EPA and Army Corps of Engineers have taken it upon themselves to “clarify” exactly which bodies of water are suspect to federal regulation under the CWA.

The EPA did not consult with any other institutions before drafting the original version of this rule. Then, after an overwhelmingly negative response in the public forum, a new version was drafted. This version, however, was not released until now, and therefore was not subject to public comment.

While the EPA claims that “in developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides . . . utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in health of larger downstream water bodies,” they did not address the major concerns voiced by the opposition—namely, that this new rule is a federal overreach that violates the rights of businesses and individuals.

In their press release, the EPA summarizes the rules major points. They claim the rule does the following:

  • Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
  • Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
  • Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
  • Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

 

It is important to note these changes the CWA as they will take effect in 60 days after publication.

BP Labors Look to Discredit Gulf Spill Study

The Swamp Stomp

Volume 15, Issue 21

Despite apologizing countless times for the 2010 Gulf of Mexico oil spill, BP has lately sounded much less remorseful.  “The Whole Story” is a web page operated by the company solely for the purpose of regularly addressing what they call “misinformation” about the legal issues surrounding the 130 million-gallon oil spill.

The website also posts on a broad range of other issues related to the spill, including, in many cases, research that BP paid for itself through initiative funds. The $500 million fund, however, is not controlled by the company, but a separate panel of academics that were appointed after a series of discussions between the White House, Gulf state governments, and BP.

Oceanographer Jeff Chanton recently released a study addressing what happened to the crude that never washed ashore. The study, which was paid for by BP’s fund, demonstrated that as much as 5 percent of the oil that gushed from the Macondo has settled on the gulf floor, where it has the potential to damage the ecosystem for years to come.

In response, BP uploaded a 525 word rebuttal to the study on “The Whole Story” that claimed Chanton relied on “questionable science” in his work. BP argued that the study was “problematic in many ways,” because Chanton failed to prove the sediment he sampled was directly linked to Macondo instead of simply being oil that naturally seeped from the sea floor.

Chanton, a professor at Florida State University in Tallahassee, stands by his study, which was published in the peer-reviewed journal Environmental Science & Technology. Surprised at BP’s response, Chanton said in an interview, “It’s fine for BP to have their say; I just don’t understand why they aren’t taking credit. They’re funding all this work. Why aren’t they proud?”

BP, however, claim that the study does not demonstrate the whole story. BP’s Geoff Morrell, senior vice president for U.S. communications and external affairs, claimed, “Misinformation persists about the recovery of the Gulf. Advocacy groups cherry-pick facts and misrepresent studies to paint an incomplete and inaccurate picture. This leads to a narrow, one-sided perspective, in which studies that demonstrate that the Gulf is recovering are often overlooked.”

BP is aggressively trying to paint the picture that the gulf has largely recovered as the five-year anniversary approaches. The days of conciliatory statements about the blowout that killed 11 men are behind us, and BP now adopts a more adversarial tone of litigation. The timing of BP’s public-relations push is somewhat confusing since a federal judge is still deciding whether to fine the company the maximum penalty of $13.7 billion under U.S. clean-water laws, a fine that BP has strongly spoken against and thinks should be much lower.

Jim McGrath, a partner in the strategic communications firm Begala McGrath, is not surprised by BP’s response. He said, “At some point, any company would say, enough is enough, and we’re fighting back, and they’ve obviously reached that point.”

BP’s approach to how they handled the whole affair seems to be financially backfiring on them. McGrath said, “Checkbook diplomacy only goes so far. At some point, you’re going to have to engage in the court of public opinion.”

As the 5 year mark approaches, BP no longer acts as the apologetic party at fault, but has drawn a metaphorical line in the sand in attempts to put the whole affair in the past.

Regulatory Integrity Protection Act of 2015

The Swamp Stomp

Volume 15, Issue 20

On April 30, 2015 the US House of Representatives voted (241-181) to pass H.R. 1732 – Regulatory Integrity Protection Act of 2015.  This bill is now scheduled to move onto the Senate for a vote.  If they have the votes in the Senate it will move onto the President who as indicated that it will be vetoed.  To be frank this bill is entirely political and largely too little too late.  However there are some key points in this Bill that are worth discussing.

At the heart of the bill is the call for the complete cessation of rulemaking with regards to the definition of “waters of the US.” The Bill is broken down into three parts and is merely 12 pages long.  This is quite a relief as the Corps and EPA page count on the new “waters of the US” rule exceeds over 1,000 pages of text amongst a number of supporting documents.

2015-05-18_15-46-39

Section 1 is the title, “Regulatory Integrity Protection Act of 2015.”  It is a bill to, “To preserve existing rights and responsibilities with respect to waters of the United States, and for other purposes.”

Section 2 calls for the withdrawal of the existing prosed rule.  “Not later than 30 days after the date of enactment of this Act, the Secretary of the Army and the Administrator of the Environmental Protection Agency shall withdraw the proposed rule described in the notice of proposed rule published in the Federal Register entitled ‘‘Definition of ‘Waters of the United States’ Under the Clean Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on such proposed rule (including RIN 2040–AF30).”

The few news agencies that have even bothered to pick up this story seem to end at this section.  You can check out the cutting edge news from places like Greenhouse Management, Springfield News Leader, Real Estate Rama, and the Daily Signal.  This does not make the front page of the NY Times by any stretch.  However, the next section in the bill is extremely interesting and a bit disturbing and largely undiscussed.

Section 3 calls for the development of a new proposed rule by the EPA and the US Army Corps of Engineers.  It specifically requires that the Agencies consider public comments, review and economic analysis of the rules and incorporate the “scientific” analysis done by the EPA “Science” Advisory Board.

I use big quotes when describing this report as scientific.  No scientific study was conducted.  The report is merely a mediocre cut and paste job of selected papers written by others.

The Bill does add two new dimensions to the process that thus far have not happened.  It designates the States and local officials as stakeholders and requires that their input be considered.  Many States already have afforded “waters of the State” protection to non-Federal jurisdictional waters.  This new provision in the Bill alleviates that awkward aspect of the Clean Water Act that provides for the State to establish jurisdiction over waters (Section 404 (g) of the CWA).  The states would relinquish their role in establishing jurisdiction to the federal government by enjoining themselves in the new process as stakeholders.  This would be as opposed to the current situation wherein they  self govern.  So much for state’s rights.

The second and most significant point in the entire Bill is that the Agencies must consider the rulings of the Supreme Court when crafting the new rules.  To be even more frank, I cannot believe that such a provision would have to be added to a Bill.  If the government adopts rules that are inconsistent with the Supreme Court’s rulings it is by definition unconstitutional.  The Supreme Court has ruled that the US government does not have universal reach in what it claims to be “waters of the US.”  The 2001 SWANCC decision is at the heart of the EPA/Corps “waters of the US” rule.

In 2001, The Supreme Court confirmed that there are some waters that are beyond the reach of federal jurisdiction.  In the preamble of the proposed EPA/Corps rule, the Agencies state that it was always the position of Congress that all wetlands are jurisdictional.  However, in 2001 the Supreme Court ruled that this is not the case.  Is it appropriate for the Agencies to speak for Congress and defy the Supreme Court?

In the 2012 Sackett case, Supreme Court Justice Alito called out Congress to show some leadership and develop a reasonably clear rule defining “waters of the US.”   This latest Bill is a far cry from that.  It basically goes back to the same two Agencies and asks them to start the entire process again using the same data set and expecting a different result.  You may recall what Albert Einstein said about the definition of insanity.

“Insanity: doing the same thing over and over again and expecting different results.”

At the heart of this entire mess is a clear lack of leadership.  Our elected representatives need to step up and stop hiding behind the Agencies to solve this problem.  It is the job on Congress to establish the limit of Federal jurisdiction and not the Agencies.  The Executive branch administers the laws as passed by the Legislative branch.  In all fairness to the Executive branch, these “waters” rules are not clear and it is understandable why they would seek clarity.  However, designating a private landowner’s property as being “of the US” is perhaps something left to the democratic process rather than mandated by a Federal Agency.

The need for clear rules about what is subject to federal jurisdiction is needed.  Our current rules are confusing and seem to keep heading to court.  However, in my humble opinion these rules should come from the consent of the governed rather than being mandated by the government for our own good.  It was just a few years ago when our government suggested that pouring oil on a wetland was a good idea for the control of mosquitoes.    See if you can find a copy of the “Winged Scourge” which was a government produced public information movie.   It was the governed that stood against this practice and had it repealed.  In the end it is the wisdom of the people rather than the whims of politics that shape our laws.  Politics is about pleasing the masses to maintain power.  Wisdom is the recognition of truth.

Have a great week!

– Marc

 

Compromise over Construction by Rhode Island Wetlands Reached

The Swamp Stomp

Volume 15, Issue 19

Rhode Island has received support from both the construction industry and environmentalists over a new statewide regulation that would change the required distance for construction near wetlands. If approved, this new standard would permit construction much closer to wetlands in six Rhode Island communities, and gift the state rule over deciding on zoning exemptions.

Currently, a 50-foot no-build zone acts as the default benchmark for the state, but 24 communities use different buffer standards. Areas in Barrington, Burrillville, Charlestown, Middletown, North Smithfield, and Tiverton all have setbacks, the required distance between construction and wetlands, of up to 200 feet. This new proposed standard, however, would change the state setback to 100 feet from lakes and ponds, and 200 feet from rivers, streams, and reservoirs.

All coastal wetland permits would still be managed by the Coastal Resources Management Council (CRMC), which already requires a 200-foot setback, but all other wetland permits would fall under state jurisdiction.

Both the construction industry and environmentalists agree that the proposed tradeoffs are worth the end result. The construction industry looks forward to having universal setbacks across the state, as well as having a single location, the Department of Environmental Management (DEM), to file permit paperwork and seek exemptions. Environmentalists, on the other hand, like that new water sources, such as streams, vernal pools, and areas near floodplains, would be designated as wetlands.

On March 25, 2015, during a Senate Committee on the Environmental and Agriculture hearing, Janet Coit, DEM director, claimed, “It increases protection and eliminates a municipal level of permitting process.”

The proposal is a result of five years of failed attempts by the Rhode Island Builders Association (RIBA) to establish universal setback standards and speed up the permitting process. Concerned about losing open space, diminishing water quality, and damaging vital ecosystems, environmentalists have opposed changes proposed in the past.

Despite this opposition, the “dry-lands bill” was passed in 2013 that created a study commission to develop changes to the standard. Negotiations between the construction industry, biologists, civil engineers, and state environmental agencies and municipalities then occurred for over a year. These efforts resulted in the new proposal that is agreed upon by all effect parties.

Tom Kutcher of Save the Bay served as one of the scientists on the task force. While he claims that the gold standard for wetlands buffers is about 500 feet, he acknowledges that the proposed legislation improves protection over the status quo.

“What’s in the bill falls short of full wetlands protection. It falls short of what the science says what should protect wetlands,” Kutcher said. “But we recognize that there is a compromise between entire wetlands protection and having something we could come to a consensus on.”

During the recent Senate meeting, construction advocates praised the new proposal as it will prevent what they perceived to be arbitrary rules and a general resistance to development that prevented permits from being attained.

Timothy Stasiunas of RIBA claimed, “This type of scenario has contributed to the lost decade . . . that has plagued our economy for years, if not decades.” He continued to claim that the new standards will lead the state out of recession.

The proposed legislation does not fully protect wetlands, but it is a compromise that will provide better protection than is currently being administered.

Small Wetlands Prove Pivotal to Greater Ecosystem Functions

The Swamp Stomp

Volume 15, Issue 18

Researchers at the University of Waterloo in Ontario recently released a study supporting the EPA’s proposed rule for protecting discontinuous wetlands. The study demonstrated that smaller marshy areas function better when acting as part of a group.

These small wetlands create interconnected pockets that together form a mosaic-esc landscape and allow for unique habitats and safe breeding grounds for species such as salamanders and migratory birds. Traditional wetlands conservation projects often overlook the significance of such functions, and focus solely on preserving total wetland area. When this happens, the larger ecosystem suffers due to the lack of consideration given to different wetland types.

Published in Ecological Applications, a peer-reviewed journal, the study shows a strong and steady decline of wetlands, with smaller detached wetlands fronting the majority of the blow. While the number of larger wetlands continue to decrease as well, the rate of smaller wetlands is much greater.

Doctoral student Kim Van Meter and Professor Nandita Basu from the Department of Earth and Environmental Sciences in the Faculty of Science argue that not only have large quantities of smaller isolated wetlands been drained, but those wetlands that have survived suffered extensive perimeter loss due to the shape of the wetland becoming much simpler.

Basu also released another paper in the journal Bioscience, that described how these small and geographically isolated wetlands act as landscape filters. Do to being located on the outer edges of ecosystems, these wetlands are able to prevent excess nutrients, sediments, and contaminants from flowing into larger waterways.

Regrettably, many restoration efforts only focus their attention on restoring wetland area without taking into consideration the type or size of the wetland being restored. While it is important to restore wetlands, it is equally important to restore the natural filtration systems that will help protect the restored wetlands.

“We didn’t expect to see such a strong, preferential loss of smaller wetlands,” claimed Basu, who is also a member of the Water Institute. “It’s not just a local phenomenon. Smaller wetlands are the least protected under most environmental regulations.”

Van Meter added, “Many people would say ‘What’s the big deal if we drain this small area’. But these smaller wetlands are integral to a larger wetland network.”

Van Meter and Basu used several high-resolution remote sensing images, elevation data, and the U.S. National Wetlands Inventory database in their paper to compare historical wetland areas with current boundaries in the Des Moines Lobe section of the Prairie Pothole Region.

Since European settlers arrived more than two centuries ago, the region has lost over 90 percent of its wetlands. Van Meter claimed that while the study pertains strictly to the prairie region, the problem extends to all regions. In Ontario, between 70 and 80 percent of wetlands have ceased to exist since the 1800’s.

Basu and Van Meter hold the belief that current restoration approaches can and must be dramatically improved. They expect to expand the framework they used in the report to southern Ontario and incorporate the results into a modeling tool in order to assist decision makers maximize restoration processes, and decide which areas ought to be preserved.

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