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Supreme Court Won’t End BP’s Liability

Swamp Stomp

Volume 14, Issue 50

On Monday December 8th 2014, BP saw their plea for government intervention in the multibillion-dollar litigation they face for the April 2010 debacle turned down. They were responsible for the millions of gallons of crude that were spilled into waters off of Louisiana, and the 11 offshore rig workers who were killed during the event. An open ended portion of BP’s liability will now cost billions of dollars more than the original $7.8 billion estimate thanks to the Supreme Court’s snub.

However, the Supreme Court’s refusal to act may have larger implications than simply raising BP’s liability fees. The oil and gas company’s appeal remarkably turned into a direct attack on Carl Barbier, the federal trial judge who oversees several aspects of the multifaceted spill litigation. Without the cloud of the Supreme Court looming over Barbier’s head, BP is expected to have to pay a heavy penalty for repeatedly challenging the integrity of the settlement process.

Stephen Herman and James Roy, the plaintiff’s attorneys, claim that the high court’s shun “should finally put to rest BP’s two-year attack on its own settlement.”

After the explosion that led to the worst offshore oil disaster in U.S. history, BP established an initial $20 billion fund to provide revenue for cleanup and damage claims, as well as attempting to negotiate settlements of various government and private suits. Since then the company has written checks in excess of $28 billion.

In order to avoid a trial on one category of potentially vast business and economic claims, BP agreed a settlement in 2012 estimated at $7.8 billion. The agreement, however, had no ceiling and the overall value was to be established by a highly flexible formula used to determine which of the alleged victims qualified for payment. This resulted in chaos as hundreds of large-dollar claims that appeared to have no apparent connection to the spill were made. Subsequently, BP accused the plaintiff’s solicitors and the settlement administrator—appointed by Barbier—of violating the agreement. Barbier, however, rejected the accusations of excessive and in some cases “fictitious” claims, and felt persecuted by the unfounded allegations that he was victimizing the oil and gas company.

It was this section of the claim that the Supreme Court refused to review. Constitutional or statutory clashes are not in question, but rather a one-time-only contract dispute that was complicated by peculiar facts. Therefore, it is not the kind of dispute the Supreme Court normally sets out to resolve.

BP’s attack on Barbier may prove to backfire in a substantial way. Having questioned Barbier’s settlement process, additional attention has been given to the loose terms of the settlement agreement. BP now estimates that the settlement will exceed $9.7 billion, however, the plaintiff’s attorneys expect a much larger number, estimating figures closer to $20 billion.

Keep in mind as well that this is only one portion of the claim against BP. The company also faces federal charges filed under the Clean Water Act. Barbier will also preside over that trial, whose the separate liability may itself reach $18 billion. The man who BP tried to railroad, then, will have it in his power to penalize the company in many facets of the suit without drawing the attention of the Supreme Court.

It is looking increasingly likely that the $43 billon pretax charge BP took to cover all of its spill liability will not sufficiently cover all of their expenses.

Algae Blooms Worsened by Invasive Species

Swamp Stomp

Volume 14, Issue 49

After an algae bloom forced the drinking water plant in Toledo, Ohio, to close in August 2014, scientists began to study several components of the Great Lakes habitats in order to further understand the causes of toxic algae. They discovered that the established causes of algae blooms—commercial farm runoff, animal manure, sewage spills, faulty septic tanks, and other sources contributing to the rising phosphorus and nitrogen levels in water—are not the only factors responsible for algal growth.

While invasive species do not provide the initial cause of toxic algae, they do encourage algal growth and worsen the effects of the toxin. The University of Michigan and the National Oceanic and Atmospheric Administration co-authored a paper in the scientific journal Water Resources Research, whereby they assert that the effect of invasive mussels contribute to the development of algae blooms after the initial phosphorus inputs.

After a 20-year absence between 1975 and 1995, toxic blooms have not only reappeared on Lake Erie, but continue to grow larger year after year. While there have been rising levels of phosphorus in the water since the return of the blooms, the lead author of the paper, Daniel Obenour, formerly of the University of Michigan Water Center, claims that other factors are decisive to the growth of toxic algae. He says, “Phosphorus loading doesn’t explain everything.”

David Culver, a retired zoologist from Ohio State University, is one of several scientists who think invasive mussels both spit out microcystis, the most dominant form of toxic algae found in Lake Erie, and excrete the majority of the phosphorus they absorb due to an inability to digest it. Invasive mussels have tiny sensors that identify when microcystis approach, allowing them to eat what they want and spit out what they don’t. Furthermore, their bodies absorb the phosphorus from the water as if they had a nutrient deficiency, however, due to the large amount of phosphorus in the water these days, most of the phosphorus ingested is merely excreted back into the water.

The initial introduction of zebra mussels into the Great Lakes in 1986 seemed to cleanse the water, however, scientists at numerous conferences since then have commented on how the quality of both the lakes aesthetics and delicate ecological balance have backslid. Furthermore, the last decade has seen a mussel abundance in the lakes as quagga mussels, the larger and more adaptable cousin of the zebra mussel, began to appear.

Don Scavia, director of the Graham Sustainability Institute, a University of Michigan aquatic ecologist, and a co-author of the aforementioned paper, claims that this increase in mussels must contribute to Lake Erie’s susceptibility to algae growth. He says, “We’re thinking it may have been the increase in mussels.”

A mussel may seem insignificant to the lake as a whole, but the amount of mussels now inhabiting the lake proves serious. Obenour asserts that these mussels “don’t remove phosphorus from the system; they just change how it is cycled through the system. Now because of changes in the lake, it requires less of a phosphorus load to initiate these blooms.”

The mussels, then, do nothing to cleanse the lake, but merely contribute to the risk of algae blooms. While initial phosphorus levels instigate toxic algae, it is the growing amount of invasive mussels in the water that cultivates the toxins and allows blooms to occur.

 

Prairie Pothole Wetlands Placed in Peril

Swamp Stomp

Volume 14, Issue 48

One of the most important wetland regions in the world hosts our nation’s capital, Washington DC. While the region homes over half of North America’s migratory waterfowl, according to the Public Employees for Environmental Responsibility (PEER)—a non-profit alliance that works with various government environment offices to responsibly manage the nation’s public resources—potholes plague the area. This is not surprising considering that nearly two-thirds of wetlands in the Prairie Pothole Region—Iowa, Minnesota, North Dakota, and South Dakota—have already been either drained or modified for agricultural use.

The National Resource Conservation Service (NRCS) of the U.S. Department of Agriculture, has been working to reverse this trend. A $35 million, four state initiative was launched, however, internal reviews suggest the program fails to make a desirable impact. One review from March 18, 2013, titled “Final Oversight and Evaluation Report: North Central Wetlands Conservation Initiative (NCWCI) — Combined Report Spring 2012,” revealed the following three shortcomings:

First, “Commonly, the reviewer did not agree with certified wetland determinations. It was apparent that quality assurance and oversight was occurring minimally (3 out of 4 states).”

Second, “The methods currently utilized for offsite determinations are inadequate.” Furthermore, “Agency experts are not consistently applying the approved protocols when conducting onsite determinations.” The processes for wetland identification, such as mapping and sampling, prove, therefore, to be deficient.

Third, “Agency experts have not consistently received adequate training as required. Inadequate training was found in 2 out of the 4 states with a combined success rate of 19.5%.”

Such reports led Jeff Ruch, PEER Executive Director, to assert, “America’s Prairie Pothole wetlands are dying the death of a thousand cuts.” The claim was delivered during comments regarding how one evaluation warns that the aforementioned conditions place “the agency at risk of loss of confidence from the wetland conservation community, the Administration, and Congress.”

Ruch also noted that “these reports also suggest that the government program charted to save the Prairie Pothole wetlands is doing the opposite.” The individual reports on each of the four prairie states from 2013 and 2014 revealed major concerns in three of the states.

In Minnesota, “The review finds that the correct wetland identification decisions (vegetation, soils, and hydrology) are not being rendered accurately and that proper wetland conservation labels are not being made according to policy. The inconsistencies fall outside of acceptable expectations.”

In South Dakota, “During the interview process it was discovered that wetland certification production goals had unrealistically been set at approximately 200 per year for wetland specialists in one area. This could result in the avoidance of adverse decisions.” Furthermore, retired NRCS employees acting as independent “consultants” to farmers have created a revolving-door problem. One person posted to the Comments section of the state report, “One employee expressed it was ‘uncomfortable’ trying to do a quality assurance because the Consultant used to be the DC [District Conservationist] in that office.”

In Iowa, “No Quality Assurance Plan was provided from either the State Office or the area offices. There is currently no policy pertaining to this issue, however it is still a ‘good idea’ to have one…”

Ruch used the Freedom of Information Act to acquire versions of the reviews that are heavily redacted to hide what the NRCS refers to as “pre-decisional” information. He claimed, “Terms like ‘absence of quality assurance’ are euphemisms for saying the resource is being sold out.”

“These redactions make it impossible to tell whether the agency is actually doing anything to fix what is broken. Typically, this much blacked out space in the official reports is a bureaucratic signal that problems persist,” Ruch continued.

The reports can be found at the following links:

Iowa, http://www.peer.org/assets/docs/ia/11_6_14_Iowa_report.pdf;

Minnesota, http://www.peer.org/assets/docs/ia/11_6_14_Minn_report.pdf;

North Dakota, http://www.peer.org/assets/docs/ia/11_6_14_North_Dakota_report.pdf;

South Dakota, http://www.peer.org/assets/docs/ia/11_6_14_South_Dakota_report.pdf.

 

Beavers Benefit Bare Banks

Swamp Stomp

Volume 14, Issue 47

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

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

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

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

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

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

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

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

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

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

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

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

NWPL Update Questionnaire

Swamp Stomp

Volume 14, Issue 46

The last extensive update of the National Wetland Plant List (NWPL) occurred in 2012. Recently the NWPL’s national panel released an online questionnaire to ensure that the list remains current. The aim of the questionnaire is to designate those plant species possessing wetland ratings that may need revision, as well as those species that need examining either for inclusion or exclusion from the list.

All four of the federal agencies who collaborate on the NWPL—the U.S. Army Corps of Engineers, The Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the Natural Resources Conservation Service—have already received the questionnaire, which is set to be announced by numerous institutions, including the Society of Wetland Scientists and the Association of State Wetland Managers.

Any agency, institution, or individual interested in submitting information regarding one or more plant species possessing a wetland rating that may be in need of further review must complete the questionnaire prior to the January 31, 2015 deadline. In order to properly complete the questionnaire, the respondent must identify the species in question, the wetland region(s) and/or sub-region(s) in which the species’ wetland rating may need review, the species’ current wetland rating, and the proposed wetland rating change. Documents providing information in support of the proposed change must also be submitted with the questionnaire. Appropriate documents that provide supporting evidence include but are not limited to literature citations, regional floras, herbaria records, and personal observations. Additionally, the respondent needs to summarize his rationale for requesting a wetland rating be changed based on the evidence he provides in the questionnaire.

Once all questionnaires have been received, a list will be created of all the wetland ratings that are deemed necessary for review, as well as those species that have been suggested either to receive a wetland rating, or to have their wetland rating removed. The NWPL panel will then evaluate those species compiled from the questionnaire based upon the submitted documentation, available literature, and the panel member’s own experience. All decisions made regarding proposed changes to wetland ratings will be left to the panel member’s discretion.

The results of the questionnaire and NWPL’s evaluations will be posted on the NWPL website, and any changes to wetland ratings will be included in the 2015 NWPL update.

The NWPL provides an example of a completed questionnaire for an individual plant species, as well as a link to the questionnaire at their website: http://wetland_plants.usace.army.mil/.

If you have any questions or concerns regarding either the questionnaire or the process for rating wetland plants, please contact Robert Lichvar of the U.S. Corps of Engineers at 603.646.4657 or email NWPL@usace.army.mil.

It is important to follow the process of updating the NWPL closely, because any changes to wetland species may affect delineations, as was demonstrated in my previous article regarding the wetland rating of the Japanese Honeysuckle.

EPA Public Comments Close on 11/14/14

Swamp Stomp

Volume 14, Issue 45

Pubic comments on the proposed “Waters of the US” regulations close on November 14, 2014.  That is if they do not extend them once again.  I very much encourage you to submit your comments before then.  Many of our readers already have done so as evidenced by the over 250,000 comments submitted to date.

You can submit your comments online by going to:  http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0001

If you do comment, I would encourage you to post your comment tracking number in the comments section of this post.  My comment comment tracking number is 1jy-8fd2-fndk.  I have posted my full comment below.

My main concern is not that the definition needs to be revamped.  Rather, it is more focused on the way it is being done.  I am very concerned that the vast majority of water resource and wetland professionals have been left out of this discussion.  The regulations have been drafted by a very select group of mostly academics including at least one foreign national from Canada.  There are virtually no professionals involved.

I do not believe that this new definition is a matter of the “right thing to do.”  It is more a matter of is it the legal thing to do.  Does the President have the right to act alone and promulgate a regulation that expands the  reach of government into private landownership?  I believe that is a matter for our representative and elected officials in Congress to take up.

What do you think?

– Marc


Environmental Protection Agency

Water Docket

Mail Code 2822T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Comments on the U.S. Environmental Protection Agency’s and U.S. Army Corps of

Engineers’ Proposed Rule to Define “Waters of the United States” Under the Clean

Water Act,

Docket ID No. EPA-HW-OW-2011-0880

To whom it may concern:

I would like to offer my comments on the proposed “Waters of the US” (2011-EPA-OW-0880) as advertised the Federal Register on April 21, 2014.

My chief comment relates to the overall stated premise of these new rules. The proposed rules are concerned with the perceived issue that the existing rules do not adequately represent the intent of Congress (ergo the people) when they passed the Clean Water Act in 1972. Currently, it is the Agencies’ stated belief that the intent of Congress was to claim jurisdictional authority over nearly every body of water in the United States including wetlands and non-wetlands.

In 2001 The Supreme Court ruled in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) that Congress did not have unlimited authority to regulate all bodies of water. This was emphasized on isolated wetlands associated with the SWANCC site. These wetland areas lacked the required commerce connection to downstream waters. The Clean Water Act is limited in jurisdiction to only those waters that have a potential to affect interstate or international commerce. Article 1, Section 8 of the US Constitution limits the role of the Federal government in this matter to only those areas that could affect commerce.

The proposed rules seem to ignore the SWANCC ruling of the Supreme Court. In fact, it is the stated intention of this rule to reverse the Courts decision.

Under the Constitution, it is the role of the executive branch to administer the laws that are passed by Congress. It is acknowledged that many aspects of the Clean Water Act are purposely left to the discretion of the executive branch to interpret these laws by promulgating regulations such as this proposed rule. However, the Executive branch does not have the authority to expand the regulations beyond what the laws allows. Similarly, it is the role of the Judicial Branch to reign in Congress and the President should they pass a law that is beyond what the Constitution allows as was done with the SWANCC case.

The White House Office of Management and Budget (OMB) report referenced in the proposed rule states that there is a minimal expansion of Federal jurisdiction over what is currently called “Waters of the US”. The report estimates that the expansion is only about 3%. While this may seem small on a relative scale it represents a land area roughly the size of the State of Arizona. This is in fact a rather large expansion of the Federal Governments reach into private land ownership. I am very concerned with the concept that the Executive Branch can expand the Federal Governments land holdings without the consent of the other two branches of government and the people.

Much of the proposed rule is based upon a misinterpretation of Supreme Court Justice Kennedy’s lone opinion in the 2006 John A. Rapanos, et ux., et al., Petitioners v. United States; June Carabell, et al., Petitioners v. United States Army Corps of Engineers, et al. case. The concept of significant nexus is central to his opinion. However the proposed rule offers no further insight into what constitutes “significant.”

The proposed rule does by way of reference to the EPA Science Advisory Board (SAB) Connectivity Report delve into the concept of “nexus.” The SAB report ostensibly argues that all bodies of water are connected to all other bodies of water. At a very fundamental level this is true. However, the SAB report does not address the concept of which of these connections or nexus are “significant” as described by Justice Kennedy. If it is assume that all waters are connected and that there is no procedure to distinguish these connections as significant, then are we to assume that all connected water bodies are considered ““Waters of the US?”

It is clear in the opinions of the Supreme Court Justices that there is a difference between jurisdictional and non-jurisdictional waters. What is not clear, and in fact these proposed regulations make it much less clear, what exactly is a ““Waters of the US.”

Furthermore, I draw your attention to the 199 additional documents posted to the Regulation.gov docket folder in the last two weeks. They in fact have not been posted and the public is greeted with this 12 page notice:

Additional Supporting Materials for Docket EPA-HQ-OW-2011-0880

EPA will be adding the following documents to the docket. Copyrighted material is publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov or in hard copy at the Water Docket, EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202–566–1744, and the telephone number for the Water Docket is 202–566–2426.

To what purpose do these documents serve? Why at this juncture are the Agencies concerned with copyright issues? It does beg the question of whether these copyright issue were addressed in the SAB report. Perhaps this should be disclosed.

How does this serve the public trust when the vast majority of these documents are only available by taking a trip to Washington, D.C. If the agencies feel that these documents are necessary to support their case for further regulations, then they should resolve the stated copyright concerns and publish them on the website in their entirety.   Otherwise these 199 documents should be removed from the docket.

I disagree that there is a regulatory need to update the definition of what is a waters of the United States. What is needed and was voiced by Justice Alito in the Sackett v. Environmental Protection Agency case is for Congress to more narrowly define what is meant by a “Waters of the US” by amending the Clean Water Act.   This would afford the public through its elected representatives in Congress to express its concerns and support for what should be regulated as a “Waters of the US” and what should not. This current proposed regulation dictates to the public what is and is not jurisdictional without the consent of the governed. With over a quarter- million public comments already submitted, it is clear that this is a matter for the people to decide, not a single branch of the government.

Thank you for your consideration.

Sincerely,

Marc Seelinger, PWS

Distinctive Croak Paves Way for Discovery of New Frog Species

Swamp Stomp

Volume 14, Issue 44

In 2009, Jeremy Feinberg, an ecologist at Rutgers University, and his team—consisting of Louisiana State University geneticist Catherine Newman, University of Alabama biologist Leslie Rissler, University of California, Los Angeles biologist Brad Shaffer, and fellow Rutgers ecologist Joanna Burger—happened upon an unusual frog call while exploring the disappearance of the southern leopard frog from the New York City area. The chuck, chuck, chuck sound emanating from a group of frogs on Staten Island differed from any known species in the area. When describing this first encounter of the frog call, Feinberg said, “Pretty much within 10 seconds of hearing the call, we said, ‘Something is really weird here.’” That chance meeting led to Feinberg and his team investigating the origins of the odd sound.

atlantic-coast-leopard-frog

Photo: Rutgers University

January 2012 saw the team publish their findings in Molecular Phylogenetics and Evolution. This initial publication, however, had an extremely narrow subject matter. It focused on the genetic uniqueness of the unknown amphibian, which until that point had been confused for a southern leopard frog.

On October 29, 2014, a further study was published in PLOS ONE, whereby the team argued that the uniqueness of the frog ought to designate a new species. The scientists then opted to name the frog after Carl Kauffeld, a herpetologist who in 1936 stipulated that New York City was home to not only the two accepted species of leopard frogs, but also a third. Rana kauffeldi, then, became the latest of the 19 species of leopard frog known worldwide.

There are two aspects of Rana kauffeldi that differentiate it from other species of leopard frogs: the croak and the spots found down the back of the legs. The croak, however, is the most revealing characteristic. The team described the croak as a “single-note unpulsed chuck,” a sound that distinctly stands apart from the region’s other leopard frog species.

It is extremely difficult to hear the unique croak of Rana kauffeldi, however. The breeding period in which these mating calls occur only last for a few weeks each year, during which most noises are drowned out by the sound of the spring peepers. Feinberg said that these factors “keep them hidden.” He added, “You have to win the jackpot to hear them.”

Rana kauffeldi predominantly dwell within open-canopied costal marshes and bottomland floodplains located within a few miles of a river mouth. Feinberg said they can be found in “places where you can almost see and smell the ocean.” These habitats, however, are disappearing as a result of ever growing development. Once able to be found throughout the New York City area, Rana kauffeldi is now limited to Staten Island area where Feinberg first discovered them.

The habitats that still host the new species, however, are isolated from one another, and do not suggest the species may last in the long term. Feinberg said, “There’s one population in Staten Island where all it would take is filling in one pond, and it would be gone.” The optimistic view, however, is that Rana kauffeldi has managed to survive up to this point despite the restrictions that face their habitats, and the chytrid fungal disease that has caused mass amphibian annihilation elsewhere. Considering these obstacles that have already been overcome, it would be foolhardy to dismiss the longevity of the species.

The Threat of Toxic Algae and Aquatic Dead Zones

The Swamp Stomp

Volume 14, Issue 43

The last few decades have seen an increase in efforts to better understand the toxic algae and oxygen-hungry aquatic dead zones that have been appearing around the world. These threats are currently two of the largest dangers facing the world’s oceans and fresh water reserves. Little benefit has emerged from increased research, however. In fact, recent evidence suggests that such algae and dead zone hotspots are growing in size, and pose greater threats to fisheries and consumable drinking water.

Studies published in Science, a respected scientific journal, suggest that both phenomena are effects of the increased amounts of fertilizer, manure, and wastewater running into lakes, rivers, and oceans. Such studies have received backing from the U.S. National Science Foundation and other similar institutions.

August 2014 saw the drinking water plant in Toledo, Ohio, one of the largest cities located on the Great Lakes, close due to a toxic bloom. This was the first time that a large American city has faced such an incident. However, since 2004 toxic algae infestations have shut down water supplies to more than 3 million people over 3 continents. Outbreaks to Australia’s Murray River, China’s Lake Taihu, and Kenya’s Lake Victoria are only a few instances of the problem escalating on a global scale.

When algae blooms die, the areas that they once consumed become dead zones. These low-oxygen areas decompose, causing the fish and other wildlife native to the habitat to either flee or die as a result of the new water conditions. Similar to toxic algae outbreaks, the amount of dead zones are increasing. A 2008 study by the Virginia Institute of Marine Science discovered over 400 dead zones that together cover 245,000 square kilometers worldwide.

If these obstacles are not addressed, then the events that occurred in 2007 to China will act as warning to what the world can expect in the future. A significant algae bloom affected Lake Taihu—a 2,250-square-kilometer lake that supplies water to over 10 million people for consumption, as well as for industrial and agricultural purposes—and left 2 million people without water. It took a month to clean the lake and restore full drinking water service. The inhabitants of the nearby city of Wuxi were forced to only drink from bottled water for the duration of the cleansing period.

Hans Paerl, a professor at the University of North Carolina-Chapel Hill who worked to curb the algae in Lake Taihu, claimed, “We are using Lake Taihu as a looking glass for how bad things could get here [in the U.S.].” He said that “back in the 90’s, the lake had gone through a state change where the blooms initially started appearing but were not too serious.” However, he continued, “Within a matter of 5 to 10 years, the lake shifted to a situation where blooms started to pop up in the spring and persist through the summer. The change is very extreme. Now, blooms start in early May and run all the way into November—more than half the year.”

Paerl concluded that in order to remedy the problem in China, the amounts of phosphorus and nitrogen running into the Lake Taihu must be reduced by 50 percent. Considering the incident at Lake Taihu is viewed as a warning of what may happen to the United States in the future, it is reasonable to expect that similar proposals may be made in the not so distant future as prevention measures.

These phenomena do more than only cause environmental trouble, however—they also prove to be large economic obstacles. The increase in toxic algae blooms and aquatic dead zones cause a loss in seafood sales, higher drinking water costs, losses to livestock, and lower tourism revenues. The National Oceanic and Atmospheric Administration estimates that the U.S. loses 82 million dollars annually due to toxic algae and dead zones on coastal waters—a much lower number than those of Australia and the European coastal countries.

The combination of environmental and economic qualities makes the handling of toxic algae and aquatic dead zones a possible major talking point in upcoming political conversations.

EPA Wants Water Professionals to Support New Wetland Rules

The Swamp Stomp

Volume 14, Issue 42

Speaking at the Water Environment Federation Technical Exhibition and Conference at the Ernest N. Morial Convention Center in New Orleans, Gina McCarthy, Environmental Protection Agency (EPA) Administrator, requested that wastewater professionals begin to back the agencies proposed Waters of the U.S. rule. The controversial rule attempts to redefine which bodies of water fall under the Clean Water Act, and, subsequently, the EPA’s jurisdiction.  If the rule is passed then wetlands, streams, and various watersheds would become subject to federal regulations.

McCarthy, however, holds the opinion that in order to maintain safe water supplies in the U.S., then new regulations of wetlands and runoff entering streams and rivers are necessary. Therefore, in an attempt to establish supporting evidence, she requested that water professionals back the rule. She said, “As water managers, as regulators, as technicians, help us explain what this rule is and isn’t.”

McCarthy then cited the August shutdown of the water supply in Toledo, Ohio, as proof for why new regulations ought to be implemented. The shutdown occurred due to a toxic algae bloom—created by added nutrients running into the city’s water supply—infecting Lake Erie. Subsequently, the water was forced to be shut down for two days.

Such an event, McCarthy said, “is what one would call a wake-up call.” She continued, “It’s 2014, folks, 2014, in the most prosperous nation on earth. Yet for two full days, thousands of families couldn’t access life’s most basic necessity.”

Furthermore, McCarthy approached the issue from an economic standpoint. Since the implementation of the Clean Water Act in 1972, the nation’s economy tripled, which, she claims, “goes to show that having environmental protection does not stifle economic growth.” Correlation, however, does not prove causation, so the implication that EPA regulations provide a positive effect of the nation’s economy remains unsubstantiated.

If the Waters of the U.S. rule is passed, then 60 percent of the nation’s streams and wetlands will be subject to the Clean Water Act. McCarthy believes that this will make it easier to maintain healthy water supplies for drinking water. She said, “These streams and wetlands filter pollution, they reduce runoff, they recharge our groundwater supplies. How critical is that in areas of continued or historic droughts?”

“And we know our iconic water bodies like Boston Harbor, like the Chesapeake Bay, like the Great Lakes as a whole, like the Mississippi, like the Missouri, they rely on clean streams and they rely on wetlands to feed into those water supplies, in order to maintain them as viable opportunities for clean drinking water,” she continued.

Climate change, according to McCarthy, also plays a significant role in water quality. She said that the warmer temperatures on Lake Erie this year—possibly resulting from global warming—exacerbated the toxic algae bloom.

Due to the sea levels possibly rising because of global warming, she said, “If we don’t act by 2050, more than $100 billion worth of coastal property could be submerged.” She continued, “But we don’t need to wait until 2050, folks, we know it’s happening today. We’ve already heard about the drought in California that’s historic, that is challenging that great state to find a way to protect their economic growth opportunities, and frankly, to find a way to continue to have their faucets continue to have clean water when they turn them on.”

As the debate over the Waters of the U.S. rule continues, the EPA is reaching for more controversial topics—such as global warming—to justify their claims, depending on economic correlation rather than economic causation to demonstrate economic benefits, and is pleading that wastewater professionals begin to back their proposal.

Japanese Honeysuckle—Effects on Wetland Delineations in AGCP and EMP Regions

The Swamp Stomp

Volume 14, Issue 41

In 1988 the U.S. Fish and Wildlife Service published the National Wetland Plant List (1988 NWPL), which not only listed all the plants common to wetlands in each region, but also classified them based on how frequently they occurred in wetlands under natural conditions. This 1988 listing classified Lonicera japonica, commonly known as the Japanese Honeysuckle, as a Facultative-minus (FAC-) species. Facultative (FAC) species generally have a similar likelihood of occurring in both wetlands and non-wetlands; the (+) and (–) modifiers indicate species that have a higher probability of occurring in one habitat over the other—the (+) modifier indicates species more likely to appear in wetlands, and the (–) modifier is given to species less likely to occur in wetlands. Therefore, the Japanese Honeysuckle was classified as a species that may appear in wetlands, but was unlikely to do so. As a result, it became extensive within the transitional zone between wetland and non-wetland habitats.

The U.S. Army Corps of Engineers (COE), however, updated the list in 2012. The 2012 NWPL changed the specification of the Japanese Honeysuckle in the Eastern Mountains and Piedmont (EMP) Region and in the Atlantic Gulf Coastal Plain (AGCP) Region from FAC- to FAC. This shift meant that the Japanese Honeysuckle was then classified as a wetland plant instead of a non-wetland plant.

Furthermore, this change in classification had the possibility of changing the delineation of wetlands in the EMP and AGCP regions. When the Japanese Honeysuckle occurred as a dominant species in a wetland area, there was a strong possibility of a positive dominance test for hydrophytic, or wetland, vegetation, which may have resulted in the expansion of the wetland’s boundaries.

The 2014 NWPL once again saw a change in the classification of the Japanese Honeysuckle. The Japanese Honeysuckle shifted from FAC to Facultative-Upland (FACU) in the AGCP Region. FACU species sometimes occur in wetlands—less frequently than FAC-, however—but generally occur in non-wetland habitats. Therefore, the Japanese Honeysuckle is no longer categorized as a wetland plant in the AGCP Region. Subsequently, this may result in the reduction of wetland boundaries in that region.

The Japanese Honeysuckle maintained its FAC classification in the EMP Region for a longer time than in the AGCP Region, however, its classification was altered earlier this year. March 31, 2014 saw the National Association of Home Builders (NAHB) submit a request that the classification of the Japanese Honeysuckle be changed from FAC to FACU in the EMP region. The COE responded on May 22 by listing the Japanese Honeysuckle on their website as FACU, effective immediately. The change in classification will be reflected on the 2015 NWPL, but the 2014 NWPL will remain unaltered. Now that the Japanese Honeysuckle is considered a non-wetland plant in the EMP Region, wetland delineations have the possibility of changing as the boundaries of wetlands may decrease.

The COE publishes changes to species classifications on their website, however, provides no formal public notification when revisions are made. Until such a process is implemented, the only way of finding out about classification changes is to periodically check the COE website.

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