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    Hydric Soil Indicators

    Swamp Stomp

    Volume 14, Issue 5

    The most common soil type we encounter in wetlands is the “F” group of hydric soils.  These are the loamy mineral soils.  The texture needs to be a fine sand or finer.  Usually we are looking at silts and clays.

    Of all of the indicators in the “F” group the two most common ones are the depleted matrix “F3” or the dark surface “F6.”  It is not unusual to find both of these in the same soil pit.  Both of these indicators are dependent upon soil color as their hydric condition test.

    There are many variations of color associated with the “F” indicators.  However a basic rule of thumb is that they need to have a Munsell matrix chroma of 2 or less.  There are provisions for chromas greater than 2 found in some of the other indicators.  However for the “F3” and “F6” we need to see colors that are at least as dark as a 2.

    There is still some pushback from the old time delineators on these new indicators.  For decades we used a single indicator for soil color.

    • Matrix chroma is 2 or less in mottled soils
    • Matrix chroma is 1 or less in unmottled soils

    This has to occur at a depth of 10 inches or the bottom of the “A” horizon whichever is shallower.

    This definition served us well but it is no longer in use.  However, when we look at the new “F” indicators we see that the old definition is buried in them (sorry for the pun).

    One other oldie is the concept of mottling.  This term has been replaced with the concept of redoxomorphic features.  We now refer to dark features as redox depletions and bright features as redox concentrations.  Mottling always meant a mix of soil colors.  However, it usually was expressed when the dark features were in the matrix (dominant color) and the bright features were individual masses.  The use of the redox concentrations and redox depletions is much more descriptive and a change for the better.

    Thickness of the indicator feature is also a new concept.  Many of the “F” indicators not only require a specific soil color, but also a thickness associated with it.  For example a matrix with a chroma of 2 must be at least 6 inches thick in order to count as a hydric soil feature.  To make this a bit more challenging some of these thickness requirements can be combined with other hydric soil indicators thickness   requirements to make up any missing thickness goals.  This only applies to certain indicators like the “F3” and “F6”.

    The last caveat is that some of these features must occur within certain depth limits in order to count as a hydric soil feature.   You must see the feature start at a specified depth and then extend for a certain thickness.  On aspect of the “F3” requires that a depleted matrix must start in the upper 12 inches of the soil and extend for at least 6 inches.  Thickness and depth are combined.

    The “F3” indicator is one of the most frequently found indicators.  It is referred to as a depleted matrix.   There is a tricky part to this indicator regarding the use of the US Army Corps Regional Supplements.  The definition of a depleted matrix is found in the glossary along with a nice graphic of what it means.  The problem is that the hydic soils section leads you to believe that the full description of the feature is found within they hydric soil indicator description.  It does not.  You need to check the glossary.

    The description starts with the idea that you have a depleted matrix.  You need to know what a depleted matrix is.  This involves an analysis of the soil color and percent redox features.

    A depleted matrix is:

    Depleted matrix. The volume of a soil horizon or subhorizon from which iron has been removed or transformed by processes of reduction and translocation to create colors of low chroma and high value. A, E, and calcic horizons may have low chromas and high values and may therefore be mistaken for a depleted matrix. However, they are excluded from the concept of depleted matrix unless common or many, distinct or prominent redox concentrations as soft masses or pore linings are present. In some places the depleted matrix may change color upon exposure to air (reduced matrix); this phenomenon is included in the concept of depleted matrix. The following combinations of value and chroma identify a depleted matrix:

    • Matrix value of 5 or more and chroma of 1, with or without redox con- centrations occurring assoft masses and/or pore linings, or
    • Matrix value of 6 or more and chroma of 2 or 1, with or without redox concentrations occurring as soft masses and/or pore linings, or
    • Matrix value of 4 or 5 and chroma of 2, with 2 percent or more distinct or prominent redox concentrations occurring as soft masses and/or pore linings, or
    • Matrix value of 4 and chroma of 1, with 2 percent or more distinct or prominent redox concentrations occurring as soft masses and/or pore linings (USDA Natural Resources Conservation Service 2010).

    Common (2 to less than 20 percent) to many (20 percent or more) redox concentrations (USDA Natural Resources Conservation Service 2002) are required in soils with matrix colors of 4/1, 4/2, and 5/2. Redox concentrations include iron and manganese masses and pore linings(Vepraskas 1992).

    Once you figure that out you just need to look for depth and thickness of feature.

    A layer with a depleted matrix that has 60 percent or more chroma of 2 or less and that has a minimum thickness of either:

    • 2 in. (5 cm) if the 2 in. (5 cm) is entirely within the upper 6 in. (15 cm) of the soil, or
    • 6 in. (15 cm) starting within 10 in. (25 cm) of the soil surface.

    The “F6” indicator does not require a depleted matrix.  It is described as a dark surface as follows:

    A layer that is at least 4 in. (10 cm) thick, is entirely within the upper 12 in. (30 cm) of the mineral soil, and has a:

    • Matrix value of 3 or less and chroma of 1 or less and 2 percent or more distinct or prominent redox concentrations occurring as soft masses or pore linings, or
    • Matrix value of 3 or less and chroma of 2 or less and 5 percent or more distinct or prominent redox concentrations occurring as soft masses or pore linings.

    I should add that distinct or prominent redox features are defined by the color contrast between these features.  Please check the Regional Supplement glossary for a full description.  We also printed it on our soil bandana.

    These two soil indicators can also be combined to meet the thickness requirements of either feature.  This may vary by Regional Supplement so make sure to check with the Corps for any local interpretations.

    Next week we will talk about how at least one Corps district has already started to regulate upland waters of the US as described in the proposed EPA rules.

    Have a great week!

    - Marc

    Hydric Soils Primer

    Swamp Stomp

    Volume 14, Issue 4

    I thought we would put some of the regulatory changes on hold for a few weeks and revisit some of the more fun aspects of wetland science. This week we are going to talk about soils.

    One of the most fundamental and often confusing topics around soils are those darn hydric soil indicators. There are just so many of them. Each regional supplement also has different ones and sometime there are tweaks that are region or sub region specific.

    The most basic concept surrounding the hydric soil indicators is that they only apply to hydric soils. Now this may seem a bit obvious but it is critical to the understanding how they work. Non-hydric soils do not exhibit any of the listed indicators. However, if an indicator is present it is test positive for hydric soils. Once that happens it is not usual to find multiple indicators in the same soil profile. If there are no indicators the soil is not hydric and no indicators should have been found. This becomes a bit tricky when dealing with remnant hydric soils. Shadows of indicators might be present. However, the soil is not actively hydric. The lack of hydrology indicators may help to confirm this.

    The next topic is, “what is it we are looking for?” The hydric soil indicators are based upon how three groups of elements respond to the presence of water. But it is not just the presence of water, but the anaerobic environment the water creates. These element groups are:

    • Carbon
    • Iron and Manganese
    • Sulfur

    The easiest one to spot is sulfur. The soil stinks like rotten eggs. If you have stinky soil you meet one of the hydric soil criteria. Be careful to not misdiagnose the smell. There are lots of stinky things out there. Make sure what you are smelling is hydrogen sulfide.

    Iron and manganese are also fairly easy to spot. There is a distinct color change from orange red to grey in the case of reduced iron. The anaerobic environment chemically changes the color of the soil. Manganese tends to turn black in this wet environment. However, the problem with these is that the color change back to the brighter colors in an aerobic environment may not happen quickly or at all in some cases. Consequently, you need to make sure that you have an active reducing environment by cross checking your hydrology indicators.

    Carbon is perhaps the trickiest. A simple explanation is that a significant amount of organic material (a.k.a. carbon) is present due to the lack of oxygen in the environment. The soil microbes are not able to break the organic material down because they need oxygen to do this. The more the soil is subjected to anaerobic conditions the thicker the layer of undigested carbon becomes. The more organic matter the more likely the soil is hydric. It probably stinks too.

    To help organize all of the indicators the Corps uses the USDA texture classes. Each indicators is grouped based upon its’ dominate texture. These include: sand, loam and no specific texture.
    Sand is the easiest. The texture is sandy like beach sand. All of the indicators have this in common. The funny thing about this one is that the presence of organic matter is a big part of the “S” indicators.

    Loam is denoted by the letter “F.” It stands for fine sand or finer. This includes silts and clays. Most of the indicators in the F category related to iron and manganese color changes.

    All soils are the last category and is listed as not specific to any one texture type. Many of the poorly drained organic soil types fall into this category. However stinky soil also is an “A” indicator. These are sort of “other” but with a strong emphasis on organic soils.

    One last thought on this soil overview. Thickness of feature is a new concept. Many of the indicators have thickness requirements. A given soil feature must be a specified thickness in order to count. It may also have to occur at a specified depth. Otherwise the feature does not count. Oh and by the way, you sometimes can combine features if present to meet these thickness thresholds.

    Next week we will compare a couple of indicators to demonstrate how this works.

    Have a great week!

    - Marc

    Grassroots action needed on Clean Water Act

    Grassroots action needed on Clean Water Act.

    2014 Wetland Jobs and Employment Report

    The Swamp Stomp

    Volume 14, Issue 3

    Each year we like to take a look back at the wetland jobs market with the hope to find some encouraging news. Most of our focus has been on the wetland assessment side of the business. This is always a tricky analysis as the data is usually extrapolated from various sources and the cobbled together. There is not labor class called “wetland scientist.” Although, after reading a couple of new reports, there should be. It is a growing business.

    About a week ago Forbes magazine published and article entitled, “Now THIS Is What We Call Green Jobs: The Restoration Industry ‘Restores’ the Environment and the Economy.” The focus of the article was about a new economic report published by the University of North Carolina at Chapel Hill on the topic of the ecologic restoration industry. The study was limited to the restoration side of the wetlands business and included other types of restoration. Everything from wetlands to streams to endangered species were included in the study.

    One of the biggest challenges of the study was defining what exactly is meant by restoration. This served as the first aspect of the study and helps identify industries associated with restoration. The authors did not want to include non-green types of projects affectionately known as gray projects. The challenge was not to mix hazardous waste restoration with wetland or stream restoration. Oftentimes these types of restoration are co-mingled.

    The second aspect of the study was to identify the jobs that arose from the green restoration work. Again the authors were faced with the challenge that many of the green jobs were housed within existing engineering and consulting firms. The trick was to segment out the individuals that work in the green aspects of the firms work.

    A number of highly credible economic sources were used in the development of the study. Number companies like Price Waterhouse Coopers have been tasked with developing economic analysis studies for various clients that focus on green restoration. The Nature Conservancy has undertaken a number of these studies on some of their projects that are quite informative.

    Getting back to jobs there is an economic principle called employment multiplier. Quite simply this is the number of jobs that are created for a given amount of money spent in a particular industry. This is usually expressed as a number of jobs per million dollars spent. This is part of a bigger analysis called economic multipliers. This translates to a increase based upon spending. This is also called a total demand multiplier. For example for every million spent the result is 2.5 million increase in output. Therefore, you have a total demand multiplier of 2.5.

    The report provides and analysis of variation in job impact estimates by project type and geographic scale. The news is good.  This table represents a number of case studies and the jobs associated with them.

    Type of Restoration Jobs per$1 M Invested Geographic Scale(State)
    Forest, Land and Watershed 39.7 National
    Invasive Species Removal 33.3 State
    Grassland 13 County
    Upland 15 State (OR)
    Wetland 6.8 County
    Wetland 12.9 State (MA)
    Wetland 17.6 State (OR)
    Wetland 29 State (LA)
    Tidal Marsh 7.1 County
    Fish Passage 10.4 State (MA)
    Fish Passage 15.2 State (OR)
    Fish Passage/Dam Removal 18.2 State
    Dam Removal 10.3 State (MA)
    Dam Removal 20.5 State (CA)
    River 9.7 County
    In-­‐stream 14.7 State (OR)
    In-­‐stream 31.5 State (MT)
    Hydrologic  reconnection 14.6 State
    Riparian 19 State
    Riparian 23.1 State (OR)
    Oyster Reef 16.6 State
    Oyster Reef 20.5 County

    As you can see the number of jobs associated with the restoration industry is relatively high. By comparison the oil and gas industry has an employment multiplier of 3.

    The following is the conclusion from the UNC report.

    Based on a thorough review of the literature, it is clear that the U.S. has a highly active restoration industry, contributing growth and jobs to the national economy in the short-­‐term as well as long-­‐term value and cost-­‐savings. Despite the commonly held idea that environmental regulations like the Clean Water Act and Endangered Species Act impede development, there is ample evidence that the public and private investments driven by these regulations have a stimulating effect on economic output and employment. Restoration investments appear to have particularly localized benefits, which can be attributed to the tendency for projects to employ local labor and materials (Weinerman, Buckley and Reich 2012, Davis et al. 2011, Shropshire and Wagner 2009). Though contractors and workers may experience seasonal and inter-­‐annual fluctuations in income and employment, like their counterparts in the construction industry, preliminary evidence indicates that restoration jobs are well compensated in comparison to average wages (Shropshire and Wagner 2009).

    Federal appropriations for restoration-­‐related programs can be conservatively estimated at $2.5 billion per year (see Appendix: Restoration Program Database). Public and private investments linked to compensatory mitigation total an estimated $3.8 billion per year (Environmental Law Institute 2007), and non-­‐profit investments in natural resources and wildlife preservation and protection are estimated to exceed $4.3 billion annually (Southwick Associates 2013). As demonstrated by the economic contributions literature, these large-­‐scale restoration investments stimulate output and employment in a wide range of other industries, through supplier and household spending effects. However, due to variability in multiplier effects at different geographic scales, across different geographic areas, and among different types of projects, there are real challenges to scaling up contributions estimates to the national level. Further research is needed in order to understand the total size of the Restoration Economy, and the impact that restoration investments have on the national economy.

    Between the private, public and non-profit groups a total of 8.1 billion is spent on restoration annually. That translates to 8,000 jobs. Not too shabby.

    Have a great week!

    - Marc

    How significant does a nexus have to be

    Swamp Stomp

    Volume 14, Issue 2

    How significant does a nexus have to be?

    The issue of what is and is not a significant nexus is center to the new EPA Clean Water Act (CWA) rules. In order for a wetland or other water body to be jurisdictional under the Act it must have this connection to a navigable waterway. The problem is what is a significant nexus?

    This whole issue arose as a result of the Rapanos and Carabell Supreme Court case in 2006. Justice Kennedy coined the term “Significant Nexus” in his lone opinion. It paralleled the plurality’s two-part test involving the receiving waters that have a relatively permanent flow and whether those waters have a continuous surface connection to navigable-in-fact waters. However he went a step beyond the physical connection and introduced a water quality connection.

    One other factor is that the plurality Justices did not feel that dredge or fill material normally washes downstream. Both Justice Kennedy and Justice Stevens in his dissent, made it clear that this assertion simply is untrue. Justice Kennedy stated that the discharge of dredged and fill material should be treated the same as the discharge of any other pollutant under the Clean Water Act. Justice Kennedy further stated that the intent of the CWA is to maintain wetlands that provide filtering and other attributes to benefit adjacent bodies of water.

    So the problem remains. What is a significant nexus?

    There are two types of waters we need to assess. The first one is easy. Simply ask the question, is there a physical connection to a downstream navigable waterway? If the answer is yes, it is jurisdictional.

    Now there are many ways a wetland could be connected. But for this analysis we are more or less limited to surface and shallow sub surface connections of a foot or less. This has been the general rule of thumb since about 2007.

    With the new EPA rules there is discussion on unidirectional and bidirectional flow patterns. This further demonstrates the connection to the navigable waterway. What is new is the introduction of non-wetland areas that have bi-directional water patterns and connections to downstream navigable waters. By default, these areas are connected and therefore jurisdictional. Floodplains are an example of this. By the way, this is new.

    The remaining waters are either adjacent wetlands that do not have obvious physical connections. These may also be isolated wetlands. Adjacent wetlands by rule are jurisdictional. Isolated wetlands need to have a significant nexus.

    So what is a significant nexus?

    If there is no physical connection, you are asked to assess the chemical and biological connectivity to the downstream waters. This was the subject of the recent EPA “Connectivity of Streams and Wetlands to Downstream Waters”, report that described in great detail how all waters are connected to all other waters. I believe you would have to have a project on the moon in order to not satisfy the connectivity of one water to another based upon the EPA report.

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    However, that only addresses the concept of nexus. The issue is significant. Pardon the pun.

    Really the issue is the significance of the connection. If the connection from one water body to another is altered, can you prove and quantify degradation to the water quality?

    The biggest problem that was identified with the EPA report is the lack of discernment of the significance of one connection versus another. The entire report’s premise was to reduce the number of case by case studies on projects. The idea was that the water body is connected therefore it is jurisdictional. However, Justice Kennedy used the word significant. That remains undefined. Neither the new rules nor the recent EPA report quantify what is significant.

    So what is significant?

    That is left for you to decide. Is there a significant loss of water quality that would result from your project?

    There is also the issue of whether this loss of water quality going to affect commerce? It is not just that the water quality is degraded, but rather that there is an interstate or international economic loss as a result. Without this commerce connection there can be no jurisdiction thanks to Article 1, Section 8 of the United States Constitution.

    One last thought. What if you project improves the downstream economy? Would that still be jurisdictional as Justice Kennedy’s Significant Nexus only speaks to degradation of the downstream water? Just asking.

    Significant Nexus

    Swamp Stomp

    Volume 14, Issue 1

    Happy New Year 2014

    Hello and welcome to 2014. Happy New Year!

    I thought I would start off the first Swamp Stomp of 2104 with a bang. The end of last year was just a warm up to the new plans EPA and the Corps have been cooking up for us. This year we can expect it to be implemented.

    What I am talking about?

    EPA news rules for what is a jurisdictional waters of the US.

    One of the major cornerstones of the new rules is an understanding of the concept of “significant nexus.” This concept arose from the Rapanos and Carabell case that went before the Supreme Court in 2006. In the eight or so years since that case, we have been left pondering what exactly Justice Kennedy was saying with his term significant nexus. He never really defined it.

    To better understand where this is going you have to understand that the Supreme Court did not render a majority opinion in the Rapanos case. Justice Kennedy concurred with the plurality opinion, but his opinion was his alone. He held that a wetland or non-navigable water-body falls within the Clean Water Act’s ambit if it bears a “significant nexus” to a traditional navigable waterway. Such a nexus exists where the wetland or water-body, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.

    For the past seven years The US Army Corps of Engineers (Corps) and the US Environmental Protection Agency (EPA) have been utilizing draft guidance to determine what is a jurisdictional water and what is not. This took the form of a non-binding guidance document developed by the Corps and draft regulatory guidance developed by the EPA in 2011. The later was withdrawn in October of 2013.

    So what is a significant nexus?

    The existing understanding of significant nexus includes two parts. First, there must be a connection to a downstream waters of the US. Second, the area in question must have an effect on the chemical, physical, or biological integrity of traditional navigable water.

    The problem is with the second statement. There seems to be a cause and effect relationship between the suspect water and the established downstream traditionally navigable water. The problem is how do you assess an effect of a system that has not yet been affected? Can we assume that our upstream impact will cause a downstream “significant” impact? Likewise, what if there is no planned impact to the upstream water. We just want to know if the water-body in question is jurisdictional.

    In September, 2013 the EPA prepared a report that summarized the latest published documents of the connectivity of wetland and streams to downstream waters. The short version of this report is that almost every water-body is connected to every other water-body. This is especially true when it is raining. Water seems to go everywhere! However, is it significant? The report never addresses that point!

    Significant

    According to Webster:

    Full Definition of SIGNIFICANT

    1: having meaning; especially : suggestive
    2a : having or likely to have influence or effect : important; also : of a noticeably or measurably large amount
    b : probably caused by something other than mere chance

    In the EPA guidance they suggest that significant is more than “speculative or insubstantial.”

    Based upon a review of the September 2013 EPA report it would seem that the burden of proof that a project does not have a significant impact to downstream waters remains with the applicant. One major concern with the EPA report is that it does not discern between insignificant and significant. In fact it would appear that all connections are significant.

    Nexus

    Again according to Webster:

    Full Definition of NEXUS

    1: connection, link; also : a causal link
    2: a connected group or series
    3: center, focus

    Nexus is kind of a funny term to have been used to define a jurisdictional water. It speaks directly to cause and affect relationship. The casual link is the key to understanding perhaps what Justice Kennedy meant. He could have said just “link.” But that does not adequately describe the relationship. It is not just that the two water-bodies are linked, but rather the link is the cause of a downstream affect. When you add significant to the phrase you can assume that Justice Kennedy envisioned water relationships that were insignificant as well as significant. Otherwise why not just say nexus?

    A glance into the future

    The following is from the leaked draft of the new EPA waters of the US rules. It is from page 31 of part 1.

    Significant nexus: The term significant nexus means more than speculative or insubstantial effect that a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to a water identified in paragraphs (a) (1) through (3) of this section), has on the chemical, physical or biological integrity of a water identified in paragraphs (a) (1) through (3) of this section. “Other waters,” including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or close to a water of the United States so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical or biological integrity of a water a identified in paragraphs (a) (1) through (3) of this section.

    Yes, that means non-wetlands can provide the significant nexus connection to make a landscape feature jurisdictional. These non-wetland areas may also be jurisdictional due to the nexus they provide.

    If you want to dive into this deeper, please consider joining us at one of our NEW EPA RULES classes this winter and spring.

    Have a great week!

    Marc

    New Waters of the US Definition

    Swamp Stomp

    Volume 13, Issue 52

    Happy New Year!

    A couple of weeks ago the new Clean Water Act rules were leaked by Science, Space, and Technology Committee, Chairman Lamar Smith (R-Texas).  On Thursday, November 14, 2013 the House Committee on Science, Space, and Technology held a hearing to review science and technology activities at the Environmental Protection Agency (EPA) including: agency-wide policies and practices related to the development and use of science in regulatory decisions; the role of independent scientific advisory bodies such as the EPA Science Advisory Board and the EPA Clean Air Scientific Advisory Committee; and the importance of transparency and integrity in the Agency’s science activities.

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    Chairman Smith: “The EPA, like every other governmental institution, answers to the American people. Everyone agrees that we need to protect the environment, but we should do so in a way that is open and honest. It appears the EPA bends the law and stretches the science to justify its own objectives. We need to know whether the agency is telling the truth to the American people. The EPA must either make the data public, or commit to no longer using secret science to support its regulations. I will introduce legislation in the next few weeks that will stop the EPA from basing regulations on undisclosed and unverified information.”

    On December 16-18, 2013 the EPA Science Advisory Board (SAB) met to conduct a peer review of the EPA draft report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (September, 2013 External Review Draft, EPA/600/R-11/098B).  The purpose of this document is to support the soon to be released Waters of the US definition.  All Waters of the US are subject to regulation by the EPA and the US Army Corps of Engineers.

    During the public comment phase of the SAB meeting it became clear that the board members were unaware that the new EPA rules had already been drafted and were in fact under review by the Whitehouse Office of Management and Budget (OMB).  The SAB board is chartered by the EPA, however the majority of the members are employed by Universities in the US and Canada.  Many of the SAB members expressed concern similar to Mr. Smiths’ that the rules were out in front of the science.

    The following is the new EPA draft definition of a Waters of the US.

    1.  All waters which are currently 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 tide;
    2. All interstate waters, including interstate wetlands
    3. The territorial seas
    4. All impoundments of waters otherwise defined as waters of the United States under this definition
    5. All tributaries of waters identified in paragraphs (1) through (3) of this section;
    6. All waters, including wetlands, adjacent to a water indentified in paragraphs (1) through (5) of this section; and
    7. On a case –specific basis, “other waters”, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexusto a water identified in paragraphs (1) though (3) of this section.

    During the SAB meeting the EPA representatives were quick to point out that the rules and the science were on a parallel track and that the rules would not be finalized until the SAB report was completed.  However, another report focusing on the economic impact of the new rules has also been leaked and serves as the final step before the rules are published in the Federal Register.   The existence of this report seems to make the EPA’s statement about parallel tracks a bit disingenuous.   Once the rules are published there is a public comment period of between 30-90- days.  However under certain circumstances it could be shorter.  It is anticipated that the final rule with the comments will be published sometime this spring.

    These draft rules and the SAB report are the focus of our one-day workshops offered this winter.  Please check our calendar for new dates and locations.  We will also be briefly discussing these rules in our January 9, 2014 Wetlands Update webinar.

    I wish you much success for the New Year!

    Best,

    Marc

    EPA hits gas driller with historic civil penalty for filling W.Va. wetlands

    EPA hits gas driller with historic civil penalty for filling W.Va. wetlands

    Jeremy P. Jacobs, E&E reporter

    A subsidiary of Chesapeake Energy will pay a $3.2 million penalty and spend $6.5 million to restore 27 West Virginia sites where it allegedly discharged fill material into streams and wetlands as part of its natural gas drilling operations, U.S. EPA said today.

    The civil penalty is one of the largest ever levied by EPA for filling wetlands, rivers or streams without a Clean Water Act permit.

    The agreement requires Chesapeake, the country’s second-largest natural gas producer, to implement a plan to ensure compliance with federal and state water laws at its natural gas drilling sites in West Virginia — including many that involve hydraulic fracturing.

    “With this agreement, Chesapeake is taking important steps to comply with state and federal laws that are essential to protecting the integrity of the nation’s waters, wetlands and streams,” said Robert Dreher, acting assistant attorney general of the Justice Department’s Environment and Natural Resources Division.

    EPA and West Virginia alleged that Chesapeake Appalachia LLC funneled discharged sand, dirt, rocks and other fill material into streams and wetlands to construct well pads and other platforms for natural gas operations.

    The agency said the 27 sites affected 2.2 miles of streams and more than 3 acres of wetlands. Sixteen of the sites involved the controversial practice of hydraulic fracturing, or fracking.

    Chesapeake will be required to fully restore the wetlands and streams where feasible under the settlement. It will also undertake other mitigation projects for areas that cannot be restored.

    Gordon Pennoyer, a spokesman for Chesapeake, called the settlement a “key milestone” in resolving claims relating to surface construction that occurred before November 2010.

    “The company is fully committed to regulatory compliance and is working with the Environmental Protection Agency, Army Corps of Engineers and West Virginia Department of Environmental Protection to restore the impacted sites,” Pennoyer said.

    EPA discovered the discharges through public tips as well as routine inspections. Chesapeake also disclosed 19 potential violations after an internal audit. EPA issued compliance orders for violations at 11 of the sites in 2010 and 2011, and since then Chesapeake has taken steps to restore those areas.

    EPA’s settlement comes a year after Chesapeake also pleaded guilty to three Clean Water Act violations at a natural gas site in Wetzel County that is also at issue in today’s action. Last year, Chesapeake was sentenced to pay a $600,000 penalty to the government for allegedly discharging crushed stone into a local stream.

    Industry-backed review blasts economic analysis for CWA rule

    Industry-backed review blasts economic analysis for CWA rule

    Annie Snider, E&E reporter

    An economic analysis supporting a major pending Clean Water Act regulation is fundamentally flawed, according to an industry-backed study of the document that the coalition intends to present to the White House on Monday.

    The analysis significantly underestimates the number of additional waters and wetlands that would receive Clean Water Act protections under the draft regulation, a consultant for the industry group Waters Advocacy Coalition told reporters today. It also underestimates the costs that would be associated with permitting these additional waters, and it relies on “simplistic assumptions” about the benefits of protecting the waters, he said.

    “No matter which side of this debate you fall on, this is not an analysis that comes close to doing justice to the problem,” said David Sunding, an economics professor in the College of Natural Resources at the University of California, Berkeley, who served as an economist for the Council of Economic Advisers during the Clinton administration.

    Sunding’s study is based on a leaked economic analysis of a draft proposed Clean Water Act regulation. U.S. EPA has not publicly confirmed that the leaked analysis is the document that was sent to the White House Office of Management and Budget with the draft proposed rule, but stakeholders have been treating it as such and say agency staff have privately confirmed its veracity (E&ENews PM, Dec. 6).

    The Waters Advocacy Coalition, the industry group that commissioned Sunding’s study of the economic analysis, represents agricultural, real estate development, mining, and oil and gas interests. Representatives of the coalition intend to lay out Sunding’s analysis during a meeting with members of the administration at OMB on Monday, they said.

    “They just want the hammer and, unfortunately, this type of regulation plays into their strong suit, which is, ‘we want to regulate,’” said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, who hosted today’s call with Sunding.

    Sunding said the fundamental problem with the economic analysis is that it is premised on an “implausibly low” number of waters that are not regulated today but would be under the new regulation.

    By examining information in an Army Corps of Engineers database about waters that were previously ruled nonjurisdictional, the analysis authors estimate that all streams and wetlands near a major water would be ruled jurisdictional under the draft regulation, as well as an additional 2.7 percent of other waters such as isolated wetlands.

    But Sunding said that 2.7 percent estimate is “farfetched in the extreme.”

    The problem, he said, is methodological. Not all developers go to the corps for a jurisdictional determination if the waters on their site clearly wouldn’t fall under today’s regulations.

    “If you think about the universe of all projects — all development projects — not all of them submit information to the corps for a jurisdictional determination,” he said. “If you think about the impacts of a rule like this, its intent is to bring more projects into the regulatory apparatus, but the way the EPA did the analysis, they completely ignore impacts on any project that wouldn’t have submitted information for a jurisdictional determination.”

    Moreover, the period of time from which the authors drew their sample — 2009 to 2010 — was one of the slowest periods of development since World War II, Sunding said, further biasing the estimate.

    The authors, however, defended their use of the database in the analysis document. While it is true that not all waters are captured in the corps’ database, they write, the waters that developers did not seek a jurisdictional determination for are “also likely to be the most isolated and the least connected to other waters and therefore the least likely to have their status changed under this proposed rule.”

    Study also finds fault with cost estimates

    In addition to underestimating the total scope of the rule, Sunding argues, the analysis also lowballs the costs associated with this broader jurisdiction.

    While the economic analysis counts costs associated with permitting activities and mitigating impacts to waters, it ignores the cost of delays brought about by this process and the costs that will come as industry scales down activities to avoid affecting waters, he said.

    “The result of ignoring … a couple of categories of cost is that the cost per permit or cost per acre assumptions that they’re making are way too low,” he said.

    While businesses may adapt to longer permitting time frames, some additional costs will be unavoidable, Sunding said, for instance, if a real estate developer pays an annual option on a piece of land.

    But Jon Devine, senior attorney at the Natural Resources Defense Council who has also recently met with administration officials about the rule, said businesses operated just fine when the federal government claimed broad jurisdiction over waters before a Supreme Court decision in 2001 blew a hole in their legal theory justifying authority over isolated waters.

    “Prior to 2001, these operations certainly knew that they needed permits to discharge into wetlands and small streams,” said Devine, who has been pressing the White House to propose a rule that automatically brings more geographically isolated wetlands under federal jurisdiction without individual analyses. “Between 2001 and now, they still probably should have suspected that they did. … It should not be a revelation to any industry that they might need to comply with the Clean Water Act if they’re polluting or destroying certain kinds of water bodies.”

    Finally, Sunding argues that the economic analysis of benefits that would come from protecting additional waters rests on “simplistic assumptions” that “fall short of what would be best practice.”

    The studies that the analysis draws on are dated and not always transferrable to the issue at hand, he said.

    “A wetland’s not a wetland’s not a wetland, and I think they should have done a better job of differentiating between types,” Sunding says. This “is a very significant regulation, and when you get up into that range [of costs], I think it deserves a more rigorous economic analysis than this has gotten.”

    89 House Dems urge swift issuance of proposed rule clarifying scope of CWA

    89 House Dems urge swift issuance of proposed rule clarifying scope of CWA

    By:  Annie Snider, E&E reporter

    Published: Tuesday, December 17, 2013

    House Democrats yesterday swung back at GOP calls to slow down the process on a new Clean Water Act regulation, with 89 members urging U.S. EPA to swiftly propose the rule to clarify which streams, creeks, bogs and marshes fall under the protection of the federal law.

    “For the sake of our communities and the prospects of having waterways clean enough to swim in, fish from, and drink from, we must have a rule that protects all waters of the United States under the Clean Water Act, and we need your leadership to make that vision a reality,” the lawmakers wrote EPA Administrator Gina McCarthy in a letter organized by Reps. John Dingell of Michigan, Louise Slaughter of New York and Jim Moran of Virginia.

    Regulators and industry have been stuck in a legal quagmire in recent years following two muddled Supreme Court decisions in 2001 and 2006 that left gaping uncertainties around which waters and wetlands fall under the jurisdiction of the Clean Water Act. EPA sent a draft proposed rule to clarify the law’s scope to the White House for interagency review in September.

    House Republicans, however, have taken issue with the fact that the agency submitted the rule to the White House before an outside panel completed its review of a scientific study that EPA has said will form the basis of the final rule.

    House Science, Space and Technology Chairman Lamar Smith (R-Texas) has called on the White House Office of Management and Budget to return the draft rule to EPA until the scientific study is finalized. He has also requested that the review panel consider additional questions about the study (E&ENews PM, Nov. 15).

    “Putting the regulatory cart before the scientific horse is a direct violation of the EPA’s pledge to make ‘sound science and public participation the backbone of our rulemaking efforts,’” he and Rep. Chris Stewart (R-Utah) wrote last month.

    Yesterday, EPA Associate Administrator for Congressional and Intergovernmental Relations Laura Vaught replied to Smith’s letters to the agency and the review panel, saying that some of his suggested questions fall outside of the panel’s scope and that others would fit within the review questions laid out by the agency.

    The scientific review panel kicked off its only public meeting yesterday in a Washington, D.C., conference room. The panel chairwoman reminded reviewers from the outset that their scope was science, not policy, but the discussion frequently stumbled upon the challenges of disentangling the two.

    Notably, some panel members raised questions about the details of the regulatory context of their work and appeared unaware that a version of the draft regulation had been publicly leaked (Greenwire, Nov. 13). Smith and industry representatives have pressed for the panel to be given a copy of the draft regulation.

    Christopher Zarba, acting director for EPA’s Science Advisory Board Staff Office, responded to the issue yesterday, saying the committee will be given a copy of the regulation when it is formally proposed and that it would be “inappropriate” for the committee to be reviewing and commenting on the regulation before it is publicly available.

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