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Summer Storms

The Swamp Stomp

Volume 15, Issue 35

The new Waters of the US (WOTUS) rules went into effect last week. Well they sort of did. On August 27, 2015, one day before the rules were set to take effect, two WOTUS rules federal court cases where decided. One supported the rules and one did not.

United States District Courts in Georgia and West Virginia agreed with the Agencies that legal challenges to the Rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction. Therefore the rule stands and can move ahead on August 28, 2015.

The District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule. Under the order issued by the Court, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation. In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following 13 States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

The decision of the District Court was that the WOTUS rule is a risk to state sovereignty because it asserts federal jurisdiction over wetlands and waters that would normally be subject to state government regulation. In this case, the District Court determined that the states were likely to succeed on the merits as the EPA had adopted an “exceptionally expansive” view of its own jurisdiction under the Clean Water Act. According to the court, the WOTUS rule “allows EPA regulation of waters that do not bear any effect on the ‘chemical physical, and biological integrity’ of any navigable-in-fact water,” and therefore exceeds the limits on federal regulatory authority identified by the Supreme Court in Rapanos.

There was and perhaps still is a lot of confusion about whether the remaining 37 states are still required to abide by the new WOTUS rule. EPA has been leading the charge on the rule and thus far provided no written guidance as a result of the Court’s ruling. However, a number of media sources including the NY Times, The Wall Street Journal, The Washington Post, The Hill, AP, and Reuters cite an EPA representative as a source. Some name the EPA spokesperson, some do not. So far there has been nothing formally published in the form of an official new release from EPA. The following is from the Wall Street Journal as quoted in The Hill.

“The Clean Water Rule is fundamental to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy,” EPA spokeswoman Melissa Harrison said. “EPA and the Department of the Army have been preparing to implement the rule on the effective date of August 28.”

The preliminary injunction, Harrison said, applies only in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“In all other respects, the rule is effective on August 28,” she said. “The agencies are evaluating these orders and considering next steps in the litigation.”

The Army Corps of Engineers posted an announcement on the headquarters website the following guidance.

“In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.”

“In all other States, the new Clean Water Rule is effective on August 28.”

I am not sure if a web post counts as guidance, but it is all we have to work with. The last published Corps Regulatory Guidance Letter (RGL) was in 2008. Now would be a good time to issue a new one. Permit decisions need to be made. I am not sure a web post under “latest news” meets the legal requirements of an interpretation of law.

Keep an eye on the EPA news release site as well as the Corps regulatory pages. It is safe to assume that the new rules will be enforced outside of the 13 dissenting colonies. Sorry I meant states. Does anyone else see the irony here?

EPA Responsible for Toxic Colorado Mine Spill

The Swamp Stomp

Volume 15, Issue 34

Normally a hotspot for river rafting and other outdoor activities, the Animas River has been closed since the beginning of August due to a toxic mine spill that transformed the river into a saffron colored concoction of poisonous metals. The Environmental Protection Agency (EPA) has since been attempting to contain the spill, as well as begin the cleanup process.

On Monday August 10th, Governor John Hickenlooper belatedly declared that Colorado is in a state of emergency. Doing so enabled him to allocate $500,000 from the state’s disaster fund to assist in response efforts. Some of that money, however, will be used to help towns and businesses effected by the spill.

Hickenlooper said, “We will work closely with the EPA to continue to measure water quality as it returns to normal, but also work together to assess other mines throughout the state to make sure this doesn’t happen again.”

While the EPA has released little information regarding the cause of the spill and refused to provide additional comment, officials have admitted that the spill was a result an EPA-supervised crew working near Silverton, Colorado.

The tragic event has come as a bitter pill to swallow for the EPA, which is normally tasked with cleaning up other organizations’ messes. David Ostrander, the EPA’s regional director of emergency preparedness, asserted, “It’s hard being on the other side of this. We typically respond to emergencies. We don’t cause them.”

Shaun McGrath, the EPA administrator in charge of the region, claimed, “We’ve launched an independent investigation to see what happened, and we’ll be taking steps to ensure that something like this doesn’t happen again.”

The spill will prove both expensive and poorly timed for the EPA. Under federal law, the EPA is responsible for reimbursing all people who suffered personal injury or property damage as a result. That amount is expected to be quite a large number as more than 3 million gallons of errant goo flooded out of a dormant gold mine and into the Animas River—over three times as much as indicated by original estimates.

However, more damaging than the impending financial payout is the repercussions the spill will have on the EPA’s public image. The EPA is already under attack and is in questionable public opinion after both seeming to singlehandedly drive the Obama administration’s ‘Waters of the U.S.’ rule as well as support the broader plan proposed to fight global warming.  The incompetency required for the EPA to cause the very thing it was tasked to prevent has not gone unnoticed, and will do little to help their current image problems.

Furthermore, the long term effects of the spill remain unknown. While it is unclear how the levels of poisonous metals in the water will affect the fish and other animals that rely on the river for sustenance, I am sure it will not be in a positive way. It may also prove a long time after reopening that people are able to enjoy the Animas River in the same way. It may be a long time before family trips and rafting adventures once again become the norm on the Animas.

Corps Asked to Confirm Its Limited Role in Clean Water Rule

The Swamp Stomp

Volume 15, Issue 33

Earlier this year, the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) released the Clean Water Rule. The rule was fashioned to aid the Clean Water Act (CWA) by clarifying which bodies of water deserved protection and are suspect to federal regulation. However, the exact role that USACE had in the final rule is now being questioned.

The rule has been met with much opposition from Republicans who hold the rule to be federal overreach. The oil and gas industry also oppose the rule as they think it will suppress development.

On July 27, 2015, U.S. Senator for Oklahoma James Inhofe, chairman of the Senate Environmental and Public Works Committee, released a letter to Jo-Ellen Darcy, assistant secretary for the USACE’s Civil Works program, requesting documents relating to the Waters of the U.S. (WOTUS) rule.

In the letter, Inhofe said, “While intersperse with staff recommendations and legal conclusions that I understand you wish to keep confidential…the facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final WOTUS rule, that the rule is lacking factual, technical and legal support.”

“I also was surprised to learn that, even though the rule was purportedly a joint effort of EPA and the Corps, it appears that the Corps did not receive the draft final rule until EPA submitted it to interagency review on April 3, 2015.”

Since releasing the letter, Inhofe claimed that a bill, the S 1140, has become the “the main vehicle in response to the WOTUS rule.” It calls for both the EPA and USACE to promulgate a revised WOTUS rule that would limit the amount of federal oversight. The bill has already been passed by Inhofe’s committee on July 16, and is now headed to the full Senate for approval.

The S 1140 bill will still include traditional navigable waters, interstate waters, and certain streams and wetlands, but it would exclude groundwater, isolated ponds, and other smaller bodies of water.

Inhofe claimed that based on a number of recently obtained documents—specifically, memos between Darcy and Major General John Peabody dated April 24th, April 27th, and May 15th—as well as a testimony given by Darcy on February 4th, “many of the determinations that purport to support expanded jurisdictions in the final WOTUS rule were not based on the experience and expertise of the Corps.”

In the memo from April 24, Darcy asserted that the final draft rule asserts jurisdiction under the Clean Water Act “over every ‘stream’ in the United States, so long as that stream has an identifiable bed, bank, and ordinary high water mark.  That assertion of jurisdiction over every stream bed has the effect of asserting CWA jurisdiction over many thousands of miles of dry marshes and arroyos in the desert southwest, even those ephemeral dry wastes, arroyos, etc. carry water infrequently and sometimes in small quantities if those features meet the definition of tributary.

In the same memo, Darcy also said that it “may be a challenge to identify a ditch that is a relocated tributary or excavated tributary,” and that “the draft final rule…characterizes literally millions of acres of truly ‘isolated’ waters (i.e. wetlands that have no shallow subsurface or confined surface connection with the tributary systems of the navigable waters or interstate waters) as ‘similarly situated.’”

On April 27, Darcy claimed that “the process followed to develop [the draft final rule] greatly limited Corps input,” before then stating in the May 15 memo that USACE “was not part of any type of analysis to reach the conclusions described; therefore it is inaccurate to reflect the ‘the agencies’ did this work or that is reflective of Corps experience or expertise,” and that USACE “also had no role in performing the analysis or drafting the technical support document.”

Furthermore, in Darcy’s testimony in front of Inhofe’s committee, she said that USACE “has never interpreted groundwater to be jurisdictional water or [that there is] a hydrologic connection because the CWA does not provide such authority.”

Therefore, Inhofe asserted, “Given [those] statements, please confirm that the Army does not have a record of field observations supporting the assertion of federal jurisdiction over ephemeral streams that do not have a surface connection to navigable water or over other geographically isolated bodies of water, by alleging a connection through a groundwater aquifer.”

Below-average ‘Dead Zone’ Anticipated for Chesapeake Bay in 2015

The Swamp Stomp

Volume 15, Issue 32

A research team from the University of Michigan forecasted a marginally below–average “dead zone” for this summer in the Chesapeake Bay.  While the results were only slightly lower than normal, it is still a significant finding for the nation’s largest estuary.

Released on June 23, 2015, by the National Oceanic and Atmospheric Administration, the 2015 Chesapeake Bay forecast indicates an oxygen-depleted, or hypoxic, region of 1.37 cubic miles–roughly 10 percent less than the long-term average.

The annual hypoxic region, or “dead zone,” in the Chesapeake Bay normally results due to farmland runoff containing nitrogen and phosphorus from fertilizers and livestock waste. Once areas become contaminated, fish and shellfish either leave the oxygen-depleted waters or die. Subsequently, “dead zones” threaten the bay’s production of crabs, oysters, and other important fisheries.

“These annual forecasts help to remind federal and state policymakers and the public that insufficient progress is being made to reduce the size of these low-oxygen regions,” said aquatic ecologist Don Scavia, director of the University of Michigan’s Graham Sustainability Institute. “The size of annual Chesapeake Bay dead zone has changed little over the past decade, which underscores the need for persistent management action to reduce the amount of nutrients flowing into the bay. The Environmental Protection Agency must keep states’ feet to the fire.”

Based on models developed by NOAA-sponsored researchers at the University of Michigan and the University of Maryland’s Center for Environmental Science, the hypoxia forecast works both with the nutrient-level estimates and stream flow data provided by U.S. Geological Survey (USGS). The USGS estimates indicate that only 58 million pounds of nitrogen were transported to the Chesapeake Bay between January and May 2015—29 percent below average amounts.

The predicted size of the “dead zone” is a result of the low river flow and below-normal nutrient loading from the Susquehanna River.

USGS associate director for water, William Werkheiser said, “Tracking how nutrient levels are changing in streams, rivers and groundwater, and how the estuary is responding to these changes is critical information for evaluating overall progress in improving the health of the bay. Local, state, and regional partners rely on this tracking data to inform their adaptive management strategies in bay watersheds.”

Besides nutrient-rich waters flowing into the bay, wind speed and direction, precipitation amounts, and temperature also affect the size of “dead zones.” In 2014, the sustained winds from Hurricane Arthur mixed the hypoxic zone water with the water, and oxygen, in the rest of the bay and dramatically reduced the “dead zone” to 0.58 cubic miles.

Donald Boesch, president of the University of Maryland Center for Environmental Science, claimed, “Forecasting how a major coastal ecosystem, the Chesapeake Bay, responds to decreasing nutrient pollution is a challenge due to year-to-year variations and natural lags. But we are heading in the right direction.”

Kathryn Sullivan, undersecretary of commerce for ocean and atmosphere and NOAA administrator, added, “These ecological forecasts are good examples of critical environmental intelligence products and tools that NOAA is providing to stakeholders and interagency management bodies such as the Chesapeake Bay Program. With this information, we can work collectively on ways to reduce pollution and protect our marine environments for future generations.”

If accurate, these predictions indicate that attempts to create healthier, less polluted waterways may be starting to pay off.

States Sue Obama Administration over Water Rule

The Swamp Stomp

Volume 15, Issue 31

Eighteen states sued the Obama administration on Monday June 29th in order to prevent a new regulation establishing federal authority over minor waterways, such as streams and wetlands.

The rule, a product of the Environmental Protection Agency (EPA), has proven to be one of the most controversial regulations passed by the Obama Administration. It redefines how the EPA enforces and regulates the water pollution protections delineated by the Clean Water Act.

The states leading the charge against the new regulation formed three separate groups to file lawsuits in different federal courts, based in Bismarck, North Dakota.; Columbus, Ohio; and Houston, Texas. The states argue that this regulation allows the EPA to overreach its jurisdiction, and violates the clear language used in the Clean Water Act that separated federal authority from that of states or private landowners over waterways.

The attorneys general for the states of Texas, Mississippi, and Louisiana asserted in their lawsuit that “the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”

Nebraska Attorney General Doug Peterson said in a statement about the lawsuit he filed with leaders in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming that “the EPA has redefined ‘waters of the U.S.’ in order to gain greater authority and power over private land.”

Ohio Attorney General Mike DeWine also mirrored this idea when commenting on his lawsuit with Michigan. He said, “This rule clearly violates both the language and the spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources. This is yet another example of the Obama administration overreaching its authority and unilaterally attempting to concentrate power in the hands of federal bureaucrats.”

These may be the first court challenges against the rule, but they will surely not be the last as farmers, developers, business groups, and many others also oppose the rule, which they claim gives the EPA power over almost any piece of land.

Obama’s administration finalized the rule last month in an attempt to regain jurisdiction after two different Supreme Court cases restricted federal regulations. While this rule increases the area covered by the Clean Water Act by about 3 percent, the area remains much smaller than during President Bill Clinton’s administration.

If a waterway is suspect to federal jurisdiction under this new rule, then landowners may need permits for anything that harms or pollutes it.

Gina McCarthy, EPA Administrator, claimed, “We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water. And we’re doing that without creating any new permitting requirements and maintain all exemptions and exclusions.”

Brian Deese, a top advisor to President Obama, said when describing those in opposition to the rule that “the only people with reason to oppose the rule are polluters who want to threaten our clean water.”

The House has voted to overturn the rule, and the Senate Environment and Public Works Committee has passed a bill to overturn it while also giving the EPA specific instructions to re-write the rule.

Even now that the rule has been finalized by the Obama administration, the end to the battle over the EPA’s rule and the Clean Water Act seems far from close.

Groundwater Aquifers Reach Critical Levels

The Swamp Stomp

Volume 15, Issue 30

The top three stressed groundwater basins in the world are located in the Middle East, the region between India and Pakistan, and the Murzuk-Djado Basin in northern Africa respectively. Due to continued political unrest and several other human caused obstructions in these areas, a third of the world’s largest groundwater aquifers are depleting rapidly.

A pair of new studies conducted by the University of California at Irvine state that not only are water levels diminishing, but there is no way of knowing how much water actually remains in these mammoth aquifers. The studies on these aquifers—often referred to by water resources scientists as ‘Earth’s water savings accounts’—began due to California’s worst drought on record, whereby farmers in California’s Central Valley have consumed so much ground water that the state has actually sunk by a foot in some places.

The studies are the first to employ data obtained from NASA’s two Gravity Recovery and Climate Experiment satellites, otherwise known as GRACE. GRACE enables James Famiglietti, an author of both studies, to claim that men are using water that the Earth has stored for hundreds, if not thousands, of years, and not replenishing it fast enough.

Famiglietti, professor of Earth system science at the University of California, Irvine and senior water scientist at NASA’s Jet Propulsion Laboratory, asserts that the majority of the world’s groundwater accounts “are past sustainability tipping points.”

Both studies, published in the journal Water Resources Research, report on the necessity of discovering how much water is actually left in the world’s most valuable aquifers.

“The message we want to get out there is this is really unacceptable. We really better get on some kind of major exploration program,” Famiglietti said.  He also spoke of his fear over how people may react to the uncertainty of his findings. He said, “What I am afraid of is people will say, ‘oh, we don’t know how much water there is, and maybe we have a ton—but maybe we don’t. The signs of stress are all there.”

It is expected that both climate change and population growth will exacerbate the problem of groundwater depletion. National security experts have repeatedly warned that global warming may act as a threat multiplier and worsen any existing tensions.

Alexandra Richey, a graduate student at UC-Irvine who worked with Famiglietti on the studies, asked, “What happens when a highly stressed aquifer is located in a region with socioeconomic or political tensions that cant supplement declining water fast enough? We’re trying to raise red flags now to pinpoint where active management today could protect future lives and livelihoods.”

Richey then reiterated Famiglietti’s desire to discover exactly how much water remains in the worl’s largest groundwater aquifers. She said, “We don’t actually know how much is stored in each of these aquifers. Estimates of remaining storage might vary from decades to millennia. In a water-scarce society, we can no longer tolerate this level of uncertainty, especially since groundwater is disappearing so rapidly.”

Famiglietti, Richey, and the rest of their team are campaigning for a global expedition to directly measure the amount of water stored in the world’s groundwater aquifers, which would require drilling to reach bedrock in many cases.

“I believe we need to explore the world’s aquifers as if they had the same value as oil reserves,” Famiglietti said.

UW Researcher Discovers Groundwater Modeling Breakthrough

The Swamp Stomp

Volume 15, Issue 29

In 1931, Lorenzo Richards created an extremely complex equation to calculate how much water is absorbed into soil over time as rainfall hits the ground surface and filters down toward the water table. Until now, the Richards equation (RE), has been the only rigorous way to calculate the movement of water in the vadose zone, the unsaturated soil between the water table and the ground surface where most plant roots grow. Now, however, Fred Ogden, a University of Wyoming professor (UW), has developed a new equation to replace the unreliable RE.

After spending decades devoted to the task, Ogden, UW’s Cline Chair of Engineering, Environment, and Natural Resources in the Department of Civil and Architectural Engineering and Haub School of Environment and Natural Resources, and his team of collaborators published their paper, titled “A new general 1-D vadose zone flow solution method,” and introduced the world to his new equation.

Ogden and his team anticipate that their findings will greatly improve both the reliability and functionality of hundreds of important water models used by everyone from irrigators and city planners to climate scientists and botanists, as well as trigger a new flood in data collection.

“I honestly never thought I would be involved in a discovery in my field,” Ogden claimed.

RE has been so important over the last 64 years because calculating the movement of water in the vadose zone is critical for estimating return flows, aquifer recharge, managing irrigation, and predicting floods. The problem with RE, though, is that it is so complex that it is extremely difficult to solve, and in some cases even unsolvable. Therefore, while some high-powered computer models can handle the equation over small areas, simpler models or those covering much larger areas can only use approximations.

It is clear then why alternative methods have been pursued. It wasn’t until late last fall, however, that a new solution was found. Ogden then tested his solution with precipitation data from his field site in Panama.

Ogden said, “We ran eight months of Panama data with 263 centimeters of rain through our equation and Hydrus.” Hydrus is an existing supercomputer model that uses RE. The results of Ogden’s model only generated a 7 millimeter, or two tenths of 1 percent, difference from the Hydrus model.

“They were almost identical. That’s when I knew. I felt like the guy who discovered the gold nugget in the American River in California,” Ogden continued.

The equation is now the centerpiece for Ogden’s ADHydro model, a massive supercomputer model that’s first simulating the water supply effects of different climate and management scenarios throughout the entire upper Colorado River Basin. After that simulation is complete, Ogden hopes that other models will adopt his equation as well.

He claimed, “I think, for rigorous models, it’s going to become the standard. With help from mathematics and computer scientists, it will just get faster and better.”

The equation could prove even more important as technological advances call for new data collections. Ogden hopes that his discovery will bring soil science back into relevance for water managers and ultimately lead to new soil data collection.

Ogden asserted, “We now have a reliable way to couple groundwater to surface through the soil that people have been looking for since 1931.”

18 WOTUS State Lawsuits and Counting

The Swamp Stomp

Volume 15, Issue 28

Attorneys general from thirteen states filed a lawsuit on June 29, 2015 in response to EPA’s new rule defining the waters of the U.S. (WOTUS).  These include:  Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.  There suit asserts that the rule expands the scope of clean water regulations to lands that are dry much of the year and increases the federal government’s authority over land use.

The case was filed in the U.S. District Court for the District of North Dakota. South Dakota Attorney General Marty Jackley, who is joined in the lawsuit, observed that 35 states have filed comments in opposing the rule and several other attorneys general are considering filing challenges.

In separate filings Texas, Mississippi and Louisiana asked a federal court in Houston to declare unconstitutional the Clean Water Act rule expanding the definition of “waters of the United States,” calling it an “impermissible expansion of federal power over the states.”

In their complaint, the states contend the new definition of WOTUS violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.

The states assert that the EPA’s rule inappropriately expands federal authority by placing a majority of water and land resources management in the hands of the federal government. “Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management,” Jackley said in his release.

The states argue that the burdens created by the new EPA requirements on waters and lands are harmful to the states and will negatively affect agriculture economic development.

The lawsuit seeks an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect within 60 days.

Ohio Attorney General Mike DeWine is also suing the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on the behalf of Ohio and Michigan.  He is also focusing on the issue of the states right to regulate interstate commerce waters.

Mr. DeWine stated, “This rule clearly violates both the language and spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources.”

In their complaint, the states contend the new definition of WOTUS violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.

The states assert that the EPA’s rule inappropriately broadens federal authority by placing a majority of water and land resources management in the hands of the federal government. “Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management,” Jackley said in his release. These states argue that the new requirements created by the new EPA on waters and lands are harmful to the states and will negatively affect agriculture economic development.

These lawsuits seek an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect on August 28, 2015.

In response to these suits, EPA issued the following statement:

“While we can’t comment on the lawsuit, it’s important to remember that EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule because protection for many of the nation’s streams and wetlands had been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. In order to clearly protect the streams and wetlands that form the foundation of the nation’s water resources, the agencies developed a rule that ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.

“One in three people get drinking water from streams that lacked clear protection before the Clean Water Rule. America’s cherished way of life depends on clean water, as healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim. Clean and reliable water is an economic driver, including for manufacturing, farming, tourism, recreation, and energy production. The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin.

“In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over 1 million public comments, and listened carefully to perspectives from all sides. EPA and the Army also 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 the health of larger downstream water bodies.”

Hundreds of Turtle Deaths Blamed on Water Toxins

The Swamp Stomp

Volume 15, Issue 27

In the last month, hundreds of small turtles have washed up dead along the eastern shore of Long Island. Scientists have begun to blame these deaths on waterborne toxins that have achieved unprecedented levels.

Thanks to necropsies performed on over 200 diamondback terrapins found dead on the island’s North Fork Point, scientists think saxitoxin, a biotoxin produced in algae blooms, is to blame. The levels of saxitoxin found in the water was over ten times normal amounts. The turtles absorb the poison by eating the shellfish that have collected the toxin. Paralysis and death occurs soon after.

Karen Testa, executive director of Turtle Rescue of the Hamptons, claimed, “We’re seeing bodies washing up in perfect condition. This has never happened before. It’s an alarming thing.”

She continued by claiming that all indicators point to saxitoxin. “There’s no other explanation for what’s causing the die-off of these poor animals.”

Christopher Gobler, a professor at Stony Brook University’s School of Marine and Atmospheric Science, has been studying the algae blooms that occur off of Long Island for over 20 years. While saxitoxin is normally detected in the region’s waters, he claims that levels have never been this high, and have never caused such a wildlife die-off.

State officials have labeled saxitoxin a “dangerous neurotoxin” that may damage or impair nerve tissue. Shellfish act as natural filters and absorb the toxins from the water. Other animals then experience paralysis when they feed on the shellfish.

These effects are not limited to sea animals. When humans ingest infected shellfish, they typically experience numbness and tightness in their faces, as well as a loss of coordination. Most humans recover in a matter of days, but in some rare cases, the poisoning has resulted in death.

Both county and state officials have advised people not to consume shellfish from the area, and have also advised against swimming in discolored water.

Adrienne Esposito, executive director of Citizen’s Campaign for the Environment, said, “This is a serious threat to public health. When you have a saxitoxin that can kill humans, you need to address the cause.”

While the exact cause to the high levels of saxitoxin currently present in Long Island waterways remains unknown, Gobler and Esposito both think that nitrogen in the water may be to blame. Leaking septic tanks and sewage can make its way into bays and increase nitrogen levels in the water. However, there is no indication of why levels of septic sewage entering bays should be any higher than normal.

Just Meyers, Suffolk County Assistant Deputy County Executive, claimed that the county has devised a plan to reduce nitrogen pollution. He hopes to acquire $400 million in state and federal grants to improve water infrastructure, as well as converting 360,000 homes from cesspools to municipal sewers.

The first step the making the waters safe for food sources for small turtles and humans is to discover why amounts of saxitoxin reached such high levels this year. If the cause remains uncertain, then other bodies of water become in danger of suffering from a similar fate.

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.


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

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