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Volume 14, Issue 24
On June 10, 2014 the US Army Corps of Engineers issued a press release announcing that the public comment period for the new Waters of the US rules has been extended. The original published due date for comments was July 21, 2014. It has been revised to October 20, 2014.
In case you were wondering what this was all about, on April 21, 2014, the USEPA and the Corps of Engineers (Corps) published for public comment a proposed rule defining the scope of waters protected
under the Clean Water Act (CWA). This was issued in response to the U.S. Supreme Court cases in
U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos). Each of these cases resulted in a further limitation of what was defined as a Waters of the US.
Each time a case was brought before the Supreme Court further limitations of what defines a waters of the US were established. For example in the SWANCC case the Supreme Court established that isolated wetlands were not waters of the US. All of these interpretations have been made on the basis of a limited form of federal jurisdiction. This is based upon the water body in question ability to effect interstate and foreign commence. Article 1, Section 8 of the US Constitution is the basis for this federal oversight.
In the Rapanos case, Justice Kennedy issued a lone opinion that created the need for the establishment of a significant nexus to a water that has a commerce connection. It is important to note that in this case there was no majority opinion and that the case was remanded to the lower court. However, the concept of the significant nexus stuck and we have been using it ever since.
In a more recent decision Justice Scalia called on Congress in the Sackett case to establish a clear definition of a waters of the US. The new proposed rules are not issued by Congress. They are in fact issued by executive power from the President. Both the EPA and the Corps have published these new rules under the direction of the President. This is his privilege.
There seems to be two areas of contention with these new rules. First, the need to establish a significant commerce nexus has been diminished. It has been replaced with the assumption that all water quality degradation results in a negative impact to interstate and foreign commerce. Consequently, with rare exception all bodies of water and similarly situated areas that may affect water quality are subject to regulation under the Clean Water Act. The need to be a wetland or even an actual water body is not necessary required to be subject to these new rules. This assumption is exemplified in the new concept of categorical jurisdiction based upon ecosystem type. There is no need for the documentation o f a significant nexus if the site is meets one of the categorical definitions. Prairie potholes hare a prime example of this.
The second area of concern relates to the states rights as defined in the Clean Water Act. The new rules seem to blur the line between section 404 federal jurisdiction and section 401 state water quality review. Simply put, there is a system of checks and balances in place between the federal government and the states. Section 404 relates to placement of fill material into a waters of the US. This is solely (except NJ and MI) a federal review and permit. Section 401 is where the state gets to weigh in on whether the placement of material will adversely impact the waters of the state. It is a water quality determination. However, under these new rules this state role is more or less irrelevant as there are new federal rules that in many cases go well beyond what a given state has established under section 401.
I will offer on last observation. The Supreme Court had consistently ruled that the Clean Water Act is limited to only those waters that have the potential to affect interstate or foreign commerce. The premise for the new rules is to roll back to the original unlimited federal jurisdiction that was thought to exist prior to those inconvenient Supreme Court decisions. It would seem that the Corps, the EPA and the President feel that the Supreme Court was wrong in its opinions. What happens when a federal agency openly and directly defies the Supreme Court? I really do not know. What do you think?
Volume 14, Issue 23
On April 21, 2014 the US EPA announced in the Federal Register two new rules that pertain to the definition and exemptions of areas known as Waters of the US (WoUS). On Friday, June 5, 2014 the agricultural exemptions interpretive rule comments has closed. The Federal Register notice specifically asked the public to comment on:
“how they (the Corps and EPA) might most effectively and efficiently conduct the proposed periodic review of exempt practices and how best to revise the list of exempt NRCS practice standards. The agencies also request comment on how they can best work together and with NRCS to provide clarity to the regulated community and the public on the exemption.”
There are 56 listed activities that are exempt from Clean Water Act Section 404 permitting. However there are other aspects of the act that do not exempt farming operations from permitting. For example, under Section 402 NPDES point source discharge is a regulated activity by EPA. An NPDES permit sets specific discharge limits for point sources discharging pollutants into waters of the United States and establishes monitoring and reporting requirements, as well as special conditions. A number of farming activities would require this permit regardless of the WoUS exemptions.
The following is from the Federal Register:
Section 404(f)(1)(A) of the CWA exempts from section 404 permit requirements certain discharges associated with normal farming, silviculture, and ranching activities in “waters of the United States,” including wetlands. To provide additional clarity to farmers and to promote practices under the Agriculture Act of 2014 designed to improve water quality, the EPA and the Corps have signed an interpretive rule, “Interpretive Rule Regarding Applicability of the Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices.” The interpretive rule was developed in coordination with the U.S. Department of Agriculture.
The agencies believe working together to improve the consistency and integration of these programs is fully consistent with the law, promotes the mutual objectives of our regulations and statutes, and increases clarity and predictability for the agriculture community. The result is good for the nation’s waters and for farmers and foresters who want to protect the resources on their lands.
The agencies have identified specific NRCS agricultural conservation practices that are appropriately considered “normal farming” activities and exempt from permitting under section 404(f)(1)(A). The agencies and NRCS have also entered into a Memorandum of Understanding to guide their future coordination on the exemption. The list of practices, the Memorandum of Understanding, and the interpretive rule are available on the EPA Web site at http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm and in the docket for this notice. The agencies seek comment on these documents within the next 45 days. The agencies and NRCS intend to periodically revisit and revise, if necessary, the list of exempt NRCS conservation practice standards. The agencies are particularly interested in receiving comments on how they might most effectively and efficiently conduct this periodic review and how best to revise the list of exempt NRCS practice standards. The agencies also request comment on how they can best work together and with NRCS to provide clarity to the regulated community and the public on the exemption.
The Interpretive rule is in effect and the comments are now closed. The proposed WoUS comments close on July 21, 2014. The effective date of the Final WoUS rule is not known. However, it is reasonable to expect it to be in final form either later on this summer or early fall.
Have a great week!
Volume 14, Issue 22
The National Technical Committee for Hydric Soils (NTCHS) meets annual to discuss changes to its understanding of hydric soils and their indicators. This committee is a mix of Corps, NRCS, BLM, EPA, FWS and an number of University representatives. During their last meeting in Alabama there was a motion to replace one of the hydric soil indicators with a new one.
Before we go into this it is important to note that the NTCHS does not speak for the US Army Corps of Engineers and the regional supplements. As many of you know much of the new Corps hydic soil indicators are taken from the NTCHS Field Indicators Manual. However, any change the NTCHS makes only applies to the NTCHS manual and not the Corps’ regional supplements. However, there is a provision with each regional supplement to suggest that the NTCHS manual can be used in certain circumstances in addition to the regional interpretations. So it is important to keep up with these changes.
TF12. Very Shallow Dark Surface. For testing in all LRRs. In depressions and other concave landforms.
This indicator has come under scrutiny in the marl regions of Florida. The NTCHS has replaced it with a new F22-Very Shallow Dark Surface Indicator.
It is described as follows:
TF12. Very Shallow Dark Surface. For testing in all LRRs. In depressions and other concave landforms, one of the following:
if bedrock occurs between 15 cm (6 inches) and 25 cm (10 inches), a layer at least 15 cm (6 inches) thick starting within 10 cm (4 inches) of the soil surface with value 3 or less and chroma 1 or less, and the remaining soil to bedrock must have the same colors as above or any other color that has a chroma 2 or less.
if bedrock occurs within 15 cm (6 inches), more than half of the soil thickness must value 3 or less and chroma 1 or less, and the remaining soil to bedrock must have the same colors as above or any other color that has a chroma 2 or less.
F22. Very Shallow Dark Surface. For use in MLRA 138 of LRR P, MLRA 154 of LRR U, and West Florida portion of MLRA 152A, LRR P. For testing in all other MLRAs and LRRs. In depressions and flood plains subject to frequent ponding and/or flooding, one of the following:
if bedrock occurs between 15 cm (6 inches) and 25 cm (10 inches), a layer at least 15 cm (6 inches) thick starting within 10 cm (4 inches) of the soil surface with value 2.5 or less and chroma 1 or less, and the remaining soil to bedrock must have the same colors as above or any other color that has a chroma 2 or less.
if bedrock occurs within 15 cm (6 inches), more than half of the soil thickness must have value 2.5 or less and chroma 1 or less, and the remaining soil to bedrock must have the same colors as above or any other color that has a chroma 2 or less.
The short version of this is that it is indicator F6 adapted to very shallow soils over bedrock.
If you are working in Florida this is a new soil tool for your toolbox.
Have a great week!
Volume 14, Issue 21
Swamp School Updates
I wanted to let you know about a few changes to the Swamp School. We are in the process of a website makeover and it is pretty cool! We just launched our new webstore (SwampMart.com). It is a major improvement to our old one. Some of the features include the ability to log in and create an account. From there you can retrieve invoices, place orders, update contact info, etc.
We have also expanded the class and product descriptions. For example, our 100+ wetland plants book now has sample pages that you can view online. To make registering for classes easier, we have embedded the student registration information into the class purchase. It is truly a one stop shopping experience.
There are also a couple of other pretty cool features that we could use you help with. We now have a customer comments section for each class. If you have participated in one of our previous classes, we would greatly appreciate it if you could provide a few comments on it for future students. Just create an account and click the class location you attended. There is a link on each class for comments.
As a special thank you for creating an account with our new store, we will send you a free hydric soil field guide. Just sign in at SwampMart.com and we will send you the guide. No strings or obligations.
We also have launched a major upgrade to our online virtual training classes. The new URL is wet-land.net. If you are already enrolled in our old one, don’t worry that will stay up for as long as we need to keep you enrolled.
We have one more shameless promotion we need to let you know about. In addition to our full summer schedule, we are launching a new certificate series for wetland scientists. The first class we are offering is our Certified Wetland Botanist program. This is a 12-week program that will teach you the common wetland plants you need to know for delineations, challenge you with the preparation of a virtual herbarium, and test your knowledge on plant identification. Upon successful conclusion of the program you will be a certified wetland botanist.
Thanks and have a great week!
A Farmer Speaks Out
The farm community has been one of the more vocal opponents to the new EPA Waters of the US rules. A North Dakota farmer was recently interviewed and pretty much sums up their concerns.
Volume 14, Issue 20
Wetlands programs and jobs are not limited to the United States. This year an important conference on wetlands is being held in Spain. It is entitled Wetlands 2014: Wetlands Biodiversity and Services: Tools for Socio-Ecological Development.
The Conference will take place at the Huesca Congress Palace (Palacio de Congresos de Huesca) in the city of Huesca, Huesca Province, one of the three provinces of the Aragón Autonomous Community, in Spain (in northeast Spain). The Conference Venue is close to a number of hotels. A short walk of 10-15 minutes is required for reaching the Conference Venue from any hotel in Huesca and a walk of 20-25 minutes from the most distant places of Huesca.
Wetlands 2014 will be a forum for meeting farmers, managers, decision makers, GOs and NGOs, scientists, professionals, etc., to present experiences, prospects, and expectations on the integration of land, water, biodiversity and other resources for contributing to a wise socio-ecological development.
The agenda includes speakers from all around the world and some pretty amazing field trips. Particular emphasis will be given to topics dealing with wetlands restoration and creation and the integration of wetlands with socio-ecological issues: the contribution of wetlands as part of the landscape in order to use the benefits and services provided by wetlands; restoring and creating wetlands as key points for ecotourism and development of rural areas; use and valuation of wetlands for providing natural resources and alleviating poverty, strategies and practical solutions for environmental conflicts related to wetlands, the contribution of wetlands to mitigate global change.
The conference committee has issued a first call for papers and they are also looking for sponsors.
More information about this conference can be found on their website: http://www.wetlands2014.eu/
I now many of you will be constrained by budgets and travel restrictions. However, this conference is worth keeping an eye on. Even if you can only access it by way of the website there are a couple of important economic issues that serve as a focus.
Wetlands have become a major boom and bust to many economies. A recent Forbes Magazine article entitled, “How Private Capital is Restoring US Wetlands” focused its attention of the economic benefits of wetlands. Not to mention the numbers of jobs associated with this industry. Wetlands have become a major jobs and environmental recovery point of interest. This is both in the US and internationally.
So if you can find some to time to hop over the pond to Spain in September it may be worth your time.
Have a great week!
Volume 14, Issue 19
The EPA’s Office of Inspector General has released a report detailing the success or lack thereof of wetland mitigation programs around the country. The central concern is whether or not “no net loss” is being achieved. The report is entitled, “EPA Needs to Clarify Its Claim of ‘No Net Loss ‘of Wetlands.” As the title might suggest it does not appear that this goal is being realized.
The following is from the report.
“The EPA attempts to verify that the application of the wetlands protection and restoration guidelines furthers the goal of “no net loss” by comparing the total acres of wetland impacts to the total acres planned for mitigation in the USACE’s Section 404 permits. However, this comparison is based on the EPA’s assumption that all wetlands mitigation projects will meet performance standards. Not all mitigation projects meet these standards. For example, in a 2011 report about North Carolina wetlands mitigation projects, it was reported that “… no single mitigation provider, mitigation type or geographic region achieved complete success according to the standards approved in mitigation plans.” Specifically, the report noted that 74 percent of the mitigation projects attained the mitigation goals established in the Section 404 permits. Because the EPA’s performance reporting does not inform readers of this assumption, the Office of Inspector General concluded that the EPA’s reporting of “no net loss” of wetlands hampers the public’s understanding of the EPA’s actual performance in protecting wetlands. The EPA should indicate in its wetlands measure definitions webpage and in future annual plan performance reporting that achieving “no net loss” is based upon an assumption that wetlands mitigation projects meet performance standards.”
So what is the recommendation? It is simply to lower the bar. This is the EPA Inspector General’s recommendation.
“Clarify on the wetlands measure definitions webpage and in future annual plan performance reporting that “no net loss” of wetlands is based upon an assumption that mitigation projects contained in CWA Section 404 permits will meet performance standards.”
This seems reasonable however, the agency response to this recommendation is a bit bizarre.
“In partnership with the U.S. Army Corps of Engineers, states and tribes achieve ‘no net loss’ of wetlands each year under the Clean Water Act Section 404 regulatory program. (‘No net loss’ of wetlands is based on requirements for mitigation in CWA 404 permits and not the actual mitigation attained.).”
So no net loss is based upon the requirement of wetland mitigation. The fact that the mitigation put into the ground that does not work does not seem to matter. Oh well. We tried.
Perhaps I am reading this wrong. I invite our readers to look at this document and provide any insight they can. This seems to me to be a major step backward in ensuring wetlands that are impacted are put back.
Have a great week!
Volume 14, Issue 18
On May 1, 2014, 231 lawmakers led by U.S. Representatives Chris Collins (R-NY) and Kurt Schrader (D-Ore.), in the U.S. House of Representatives sent a letter to the EPA and U.S. Army Corp of Engineers to retract its proposed rule to expand federal control under the Clean Water Act. They have citied technical, legal and economic concerns regarding the new rules that have been published in the Federal Register.
Congress is most concerned with the legal position that the EPA and the Corps have taken by more or less basing the entire rule revision on Justice Kennedy’s lone opinion in the Rapanos case. The letter states, “Contrary to your agencies’ claims, this would directly contract prior U.S. Supreme Court decisions, which imposed limits on the extent of federal CWA authority,” the lawmakers stated in the letter. It went on to say that “Based on a legally and scientifically unsound view of the “significant nexus” concept espoused by Justice Kennedy, the rule would places features such as ditches, ephemeral drainages, ponds (natural or manmade), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control.”
The letter also raised concerns with the economic analysis on which the proposed rule is based. In the agency’s analysis, it was determined that the proposed rule would result in a 2.7 percent increase in jurisdictional determinations and would impact an additional 1,332 acres nationwide under Section 404. They applied that 2.7 percent increase across other EPA permitting programs. The agencies determined that the draft proposed rule would result in costs between $133 million and $231 million annually. Based on this, the agencies have said the rule would not have a significant economic impact. The lawmakers disagree, saying errors in the analysis “call into question the veracity of any of the conclusions in the economic analysis.”
House Natural Resources Chairman Doc Hastings (R-Wash.) says the proposal is a massive power grab that must be stopped. “Under this plan, there’d be no body of water in America – including mud puddles and canals – that wouldn’t be at risk from job-destroying federal regulation,” he says.”
Read the full letter here.
To date the EPA has received more than 61,000 comments on the new rules. Your comments and suggestions are needed. So far a total of 789 comments have been published. Many support the new rules and a few do not. If you have any opinion on these new rules, please provide you comments by going to regulations.gov and searching for EPA-HQ-OW-2011-0880. From there you can see the entire docket and submit your comments.
Comments are due by July 21, 2014. If EPA and the Corps finalize these rules it is expected that they will be in force by the fall of this year.
Volume 14, Issue 17
One of the major tenets of the new EPA waters of the US regulations is the concept of Bright Line Rules. Bright Line Rules are a clearly defined rule or standard, generally used in law, composed of objective factors which leave little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application.
Some legal scholars, such as Supreme Court Justice Antonin Scalia, have expressed a strong preference for bright-line rules, critics often argue that bright-line rules are overly-simplistic and can lead to harsh and unjust results. Supreme Court Justice Stephen Breyer noted that there are circumstances in which the application of bright-line rules would be inappropriate, stating that “no single set of legal rules can ever capture the ever changing complexity of human life.” Over the course of the last three decades, many bright-line rules previously established in U.S. jurisprudence have been replaced with balancing tests.
The concept of similarly situated waters is a bright line rule. The EPA is attempting to designate these waters based upon their occurrence in a specific ecoregion. There are two documents you need to look at to understand this idea. The first one is found on page 29 of the newly published proposed rules (EPA-HQ-OW-2011-0880) and Map A also published (EPA-HQ-OW-2011-0880-0002) and included in the Federal Register docket.
This is from the rules:
The agencies would consider the ‘‘other waters’’ in a single point of entry watershed in these identified ecoregions as similarly situated for purposes of aggregation for a significant nexus analysis. The agencies expect that this approach would lead to all similarly situated other waters within single point of entry watersheds within an ecoregion being found jurisdictional through case specific analysis of significant nexus. Alternately, the agencies could determine that the similarly situated waters within each ecoregion have a significant nexus and are jurisdictional by rule and therefore do not require a case-specific significant nexus analysis.
These ecoregions are defined as, “an ecoregion is an area within the United States that includes generally similar ecosystems and that has similar types, qualities, and quantities of environmental resources. (J.M. Omernik, ‘‘Perspectives on the Nature and Definition of Ecological Regions,’’ Environmental Management 34(Supplement 1):S27–S38 (2004)). Ecoregions cover relatively large areas of land or water, and contain characteristic, geographically distinct assemblages of natural communities and species. The biodiversity of flora, fauna and ecosystems that characterize an ecoregion tends to be distinct from that of other ecoregions.”
The EPA has identified vast areas of the US as similarly situated and has depicted them on the map below.
The significance of this mapping is that any wetland or water found within these ecoregions would be considered similarly situated and therefore jurisdictional by default. There would be no need for a significant nexus determination.
I think it is kind of funny that the Keystone XL pipeline R-O-W more or less corresponds to one of these Bright Line Rule areas. Coincidence?
Have a great week!
Docket ID: EPA-HQ-OW-2013-0820
Agency: Environmental Protection Agency (EPA)
Comments Due: June 5, 2014
Docket ID: EPA-HQ-OW-2011-0880
Agency: Environmental Protection Agency (EPA)
Comments Due: 7/21/14
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