Volume 15, Issue 13
On March 17, 2015, Republican Glen Thompson, Chairman of the House Agriculture Committee’s Conservation and Forestry Subcommittee, held a public hearing in order to examine the definition of the proposed “Waters of the United States” rule and its impact on rural America.
Legislated in 1972, the Clean Water Act (CWA) initiated a federal-state government partnership that was intended to more appropriately regulate and manage the nation’s water by means of various pollution and control programs. The CWA asserts that it is the “policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of State to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [EPA] Administrator in the exercise of his authority under this Act.”
During the hearing, several members of the House Committee on Agriculture claimed that by proposing the “Waters of the U.S.” rule, the Administration has acted on its own, without any input from either states or stakeholders, in order to widen the federal jurisdiction granted under the CWA, which, subsequently, threatens the livelihood of farmers, ranchers, and rural America.
Chairman Thompson said, “Despite strong bipartisan opposition from Congress and the public, the Obama Administration has acted to expand its federal authority. The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties. Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure.”
Thompson continued, “Rather than strengthening the law, this rule creates more confusion. These actions highlight a disturbing pattern of an Administration that is out of touch with farmers, ranchers, and rural land owners. The testimony received today further outlines the need for the EPA to either pull the rule and move for further consultation with states, countries, and stakeholders, or re-purpose the rule and allow a new round of public comment. There is too much on the line to continue down the current path.”
Republican Kenneth Michael Conway, Chairman of the House Agriculture Committee, also spoke at the hearing. He asserted, “I strongly support legislation to block the “Waters of the United States” rule and hope we can put legislation to this effect on the president’s desk, whether as a stand-alone bill, as part of a larger measure, or both. The better route, of course is for EPA and the Corps to pull this regulation, work with state and local stakeholders to develop new and proper set of recommendations, and submit these recommendations to Congress for consideration and approval.”
The witness list at the hearing was comprised of two panels. The first panel included the Honorable Jeff M. Witte, the Honorable Robert ‘Pete’ Smeltz, Mr. Joseph S. Fox, and the Honorable Martha Clark Mettler. The second panel consisted of Ms. Ellen Steen, Mr. Jonathan Gledhill, Mr. Russ Biggica, Mr. Sledge Taylor, and Mr. Steve Foglesong.
The Administration will issue a final regulation this spring without any additional time for public review and comment, despite receiving over one million comments prior to the public comment deadline last autumn. EPA officials claim that changes will be made to the regulation to reflect comments, but without granting themselves and additional time to review the proposal before it would go into effect, there is increasing concern over what actions EPA may take.
Volume 15, Issue 12
Alex Goad, an industrial design student at Monash University in Melbourne, Australia, developed a Modular Artificial Reef Structure (MARS). Influenced by Lego, each branched module is constructed from concrete and then coated with a textured ceramic that creates the optimal surface for marine life to thrive. Each module then clamps together, similarly to Legos, to form endlessly customizable artificial reef habitats.
Typical coral reefs are structured on calcium rich coral skeletons. This means that it can take centuries for coral ‘rubble’ to accumulate and form the ideal habitat for a flourishing reef. Furthermore, the calcium based skeleton is constantly threatened by growing climate change, pollution, and unsustainable fishing practices.
Both large storms and damaging fishing methods, such as dynamite fishing, are capable of destroying reefs within seconds, wiping out their inhabitants and calcium foundation in the process. This results in reef-building animals, such as corals and sponges, having no place to rebuild.
This new MARS system, however, can greatly reduce the time necessary to restore ravaged foundations. Goad claimed, “Reefs do naturally repair themselves, but this can take decades. Just like how we re-plant trees, we must start re-planting reef environments.”
Goad’s modular design provides a way for artificial reefs to be built cheaply and easily on site. By using small boats and one’s own hands, the process is completed within a matter of days.
“The idea is that once the MARS arms are transported to the development area…the hollow ceramic form is filled with marine concrete and composite rebar, utilizing local labor and concrete manufacturers,” Goad said.
Goad began working on his MARS idea after witnessing firsthand the shortcomings of current reef restoration processes. He said, “I’ve always been obsessed with SCUBA diving and snorkeling. I noticed a lot of the product-based artificial reefs seems incredibly outdated and did not provide adequate protection for all creatures that would use it.”
Once MARS modules are joined together, they interrupt water flow, trap food particles, and, subsequently, create refuges for small animals. Smaller independent trials have been conducted in Port Melbourne, Cairns, and several aquariums, but Goad is now searching for development opportunities to build these reefs on a larger scale.
Goad has started to work with David Lennon, a marine scientist and developer from Sustainable Oceans International who has worked extensively on artificial reefs. Goad’s focus on design paired with Lennon’s practical experience with artificial reefs allows the two to lift the MARS project to the next level.
Lennon said, “Alex approached me when he was working on his final year project at university. I could immediately see the merit behind the concept. Alex brought the essential element of design, which was something that I was lacking so far.”
Goad and Lennon have started Reef Design Lab, a not-for-profit company that implements designer reefs for habitat conservation.
The innovative MARS system has been recognized by the design industry, and Goad recently won the Hills Young Australian Design Sustainability Award, the James Dyson Foundation Design Award, and the graduate prize for Best Product Design from Monash University.
Open Public Comment Period for Agricultural Conservation Easement Program Interim Final Rule Now Open
The Swamp Stomp
Volume 15, Issue 11
On February 26, 2015, Agriculture Secretary Tom Vilsack announced that the U.S. Department of Agriculture (USDA) is accepting public comments on its interim final rule for the new Agricultural Conservation Easement program (ACEP). The program intends to assist producers protect working agricultural lands and wetlands. ACEP is a result of the 2014 Farm Bill that consolidated three previous conservation easement programs in order to make it easier for diverse agricultural landowners to fully benefit from conservation initiatives.
Vilsack said, “Since 2009, USDA has worked with producers and private landowners to enroll a record number of acres in conservation programs. This interim final rule takes into account recommendations from agricultural landowners and conservation stakeholders about how to better streamline and enhance conservation easement processes.”
Administered by the USDA’s Natural Resource Conservation Service (NRCS), ACEP is a voluntary program created to protect and restore critical wetlands on both private and tribal lands through the wetland reserve easement component, as well as conserving grasslands, including rangeland, pastureland, and shrubland. Farmers, ranchers, and non-industrial private forest landowners are also encouraged to maintain their private and tribal land in a state of agricultural use through the agricultural land easement component.
State, local, and non-governmental organizations that implement farmland or grassland protection programs are eligible under ACEP’s agricultural land component to partner with USDA in order to purchase conservation easements. In recent years, NRCS’ easement programs have been an essential aid to the advancement of landscape-scale private lands conservation.
During the 2014 fiscal year, NRCS used $328 million in ACEP funding to admit an estimated 143,833 acres of farmland, grassland, and wetlands through 485 new easements. In Florida alone, ACEP funds purchased 6,700 acres in the Northern Everglades Watershed that support the restoration and protection for the habitats of a variety of listed species, such as the Wood Stork, Crested caracara, and the Eastern Indigo Snake. Further funds were used in Georgia to complete the Roundabout Swamp project by employing 270 acres of the Carolina Bay to assist the restoration and protection of the entire bay ecosystem to historic hydrology and vegetation.
ACEP’s agricultural land easement also provides numerous benefits to landowners and citizens. The easements assure the long-term sustainability of the nation’s food supply by preventing productive working lands being converted into land used for non-agricultural purposes. Other benefits pertain to environmental quality, historic preservation, wildlife habitat, and protection of open spaces.
Furthermore, under the ACEP’s wetland component, NRCS provides both technical and financial aid to private and tribal landowners in order to assist restoration, protection, and enhancement of wetlands. This funding provides habitats for fish and wildlife, including endangered and threatened species, improves water quality by filtering out sediments and chemicals, reduces damage from flooding, recharges groundwater, protects biological diversity, and provides opportunities for educational, scientific, and some recreational activities.
The official notice of the proposed ACEP interim rule can be found at https://www.federalregister.gov/articles/2015/02/27/2015-03781/agricultural-conservation-easement-program. Public comment remains open for 60 days. Any electronic comments can be submitted at http://www.regulations.gov/#!home. Comments can also be mailed to Public Comments Processing, Attn: Docket No. NRCS-2014-0011, Regulatory and Agency Policy Team, Strategic Planning and Accountability, U.S. Department of Agriculture, Natural Resources Conservation Service, 5601 Sunnyside Avenue, Building 1-1112D, Beltsville, MD 20705. For more information, please refer to the ACEO page at http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/easements/acep/ or the Farm Bill Program Rules at http://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/programs/farmbill/?cid=stelprdb1263599.
Volume 15, Issue 10
The droughts that have plagued the southwestern United States have led entrepreneurs to suggest reviving a water-saving technique that was last attempted half a century ago—reducing the amount of evaporation from reservoirs. If successful, a surface barrier comprised of cheap, non-toxic, and biodegradable chemicals that measure at two-millionths of a millimeter will be infused with water supplies in order to slow down the evaporation process. The necessary technology is yet to be proven, but demonstrated promising results during field tests in Texas last year.
More water evaporates from reservoirs each year than is consumed. This depletion of water levels due to evaporation is especially severe in arid regions. Subsequently, many researchers in the United States and Australia have looked into the possibility of reducing the amount of water lost during the evaporation process for years. Such enquires have resulted in chemicals derived from coconut or palm oil being successfully used on small bodies of water such as golf-course ponds and swimming pools. However, according to Moshe Alamaro, an engineer at the Massachusetts Institute of Technology in Cambridge, the same procedure cannot be practically applied to larger bodies of water, because the larger surface area would make the protective barrier susceptible to wind damage.
A field test was held last summer in Texas to attempt to overcome that difficulty, however. The test cost $325,000 and lasted from July to October. Flexible Solutions International, a company in Victoria, Canada that specializes in evaporation-reducing coatings for small bodies of water programed a boat to distribute the protective coating in a grid pattern across Lake Arrowhead, a 21-square-kilometer reservoir that provides water to Wichita Falls.
The Texas Water Development Board published the analysis of the test in January, and claimed that while the results were promising, they were far from conclusive. The report suggests that Lake Arrowhead lost an estimated 15% less water due to evaporation than a nearby reservoir of similar size and shape that was not treated. How much of an effect the coating had on this difference is unclear, however, as several variables such as stream inflows and seepage outflows were not taken into account during the analysis. Mark Wentzel, a hydrologist for the Texas Water Development Board and co-author of the report, claimed that the coating probably helped reduce evaporation, but “I wouldn’t stake my life on it.”
Alamaro claimed that if such a technique is to work on large bodies of water, then a much more aggressive technological approach is necessary. Advancements in radar and drone technology could be used reveal where the coating has been broken by sensing the way it dampens ripples on the water. Additional coating could then be applied to the vulnerable areas. This, he estimates, could potentially cut evaporation by 70%.
More Aqua, Alamaro’s company in Cambridge, Massachusetts, is currently working on developing a system that would use both diffusers and skimmers to maintain the coating on large bodies of water. More Aqua plan its own pilot test this summer near Palo Alto, California.
Water consultant William Mullican of Lubbock, Texas, a retired member of the Texas water board, claimed that although the Lake Arrowhead results were unclear, the results are no more ambiguous than the field tests of other water-sparing techniques such as cloud seeding and cutting down brush to prevent the moisture being sucked out of the soil.
He continued to say that there is every reason to attempt the technique again, “unless it starts raining.”
Volume 15, Issue 9
In order to strengthen the ability of both states and tribes to better protect and restore wetlands, the U.S. Environmental Protection Agency will distribute $1 million in grants. The National Wetland Program Development Grants aim to provide interstate agencies, intertribal consortia, and non-profit organizations with funding so that they may both cultivate and refine already existing state, tribal, and local wetland programs.
Ken Kopocis, the Deputy Assistant Administrator for Water at EPA, stated, “Wetlands are part of the foundation of our nation’s water resources and are vital to the health of waterways and communities that are downstream. Wetlands feed downstream waters, trap floodwaters, recharge groundwater supplies, remove pollution, and provide fish and wildlife habitats. Wetlands are also economic drivers because of their key role in fishing, hunting, agriculture, and recreation.”
The EPA announced six proposals that are being awarded. All of the proposed projects must demonstrate how they will promote healthy communities and ecosystems, and must be linked to environmental results. The selected proposals are as follows:
- Leveraging Hazard Mitigation Buyouts (acquisition of flood prone areas) to Protect and Restore Wetlands and Improve Watershed Health – This project will see the Environmental Law Institute and the University of North Carolina investigate and map hazard mitigation buyouts in three states in order to analyze any possible wetland habitat and flood mitigation benefits of acquired properties. The two institutions will then make recommendations that they think will assist wetland programs across the country enhance collaboration with hazard mitigation planners and emergency managers. They will also leverage hazard mitigation buyouts in order to restore, maintain, and connect acquired properties so that wetland and wildlife habitats are provided, and community resilience is improved.
- Improving In–Lieu Fee Mitigation Practice Through Training – For this program, the Environmental Law Institute will design and host a conference and a series of webinars committed to focusing on the needs of state, tribal, and local governments that are seeking approval for, administering, or overseeing In-Lieu Fee compensatory wetland mitigation programs.
- Creation of an Online Academy to Advance the Use of Living Shorelines – Restore America’s Estuaries and its partners will construct and operate a “Living Shoreline Academy” devoted to promoting the use of natural protection methods so that the degradation of fringing shorelines and fish habitats that surround our nation’s estuaries may be reduced.
- Development of a Stewardship Calculator for Wetland Mitigation Banking – The Nature Conservancy and its partners will assemble a small group of national experts in order to establish a Wetland Stewardship Calculator, accompanying handbook, and web-based application. Such resources can be used by states, tribes, local governments, and land trusts to successfully enable long-term stewardship of wetland protection sites.
- Creating New Access to High Quality Wetland Training for State and Tribal Wetland Program Field Professionals – The Association of State Wetland Managers and its partners will apply themselves to presenting state, tribal, and wetland professionals with training opportunities and resources. Doing such will increase the ability of these professionals to implement wetland programs. ASWM will gather a Working Group to identify both national and regional wetland training needs, as well as assisting in the development of the other products of this project.
- Raising the Bar on Wetland Restoration Success Nationwide – This program will see the Association of State Wetlands Managers work on several interrelated projects. These projects include developing a national strategy for improving wetland restoration success, pursing strategies to improve permit applications, and a review of voluntary restoration projects. ASWM will also attempt to create a series of written and web-based resources on the best management approaches for wetland restoration.
For more information on the grants or these projects, please visit: http://water.epa.gov/type/wetlands/initiative_index.cfm
Volume 15, Issue 8
The Republican controlled Congress is expected to place a significant dent in President Barack Obama’s environmental agenda this year, and plans to begin with the “Waters of the U.S.” rule proposed by the Environmental Protection Agency and the Army Corps of Engineers. On February 4, 2015, GOP lawmakers advised top environmental officials that they ought to abandon their proposal to define what is and is not considered a body of water by federal law.
The Republican majority that now controls both the House of Representatives and the Senate demonstrated its intent to derail the project in an unusual joint hearing between the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.
During the hearing, Republicans expressed indignation at what they referred to as a “power grab,” while Democrats retorted with claims that opposition to the rule is based upon a tower of misconceptions.
Democratic Senator Barbara Boxer of California asserted, “I’m confused because I think people are arguing against some mythical rule.” Then later when responding to the claim that the government was seeking to regulate tiny and inconsequential bodies of water, she claimed, “We don’t want to regulate a puddle. That’s ridiculous.”
The EPA and the Army Corps of Engineers first proposed the rule in order to simplify and clarify the meaning of the 1972 Clean Water Act. The Act covers rivers, lakes, and year-round wetlands, but there has been longstanding confusion over whether waterways such as streams that dry up for part of the year and wetlands that are only wet during springtime are included.
The rule is of the greatest importance to farmers, developers, and other landowners, because the Clean Water Act requires the use of permits for developing or discharging into waters included under the Act. As a result, farmers and officials in many states have vigorously opposed the rule ever since it was announced in 2014.
The EPA and the Army Corps of Engineers received over 1 million comments from the public about the proposal. This number reflects how widespread the issue has become, as well as the growing interest in the highly technical federal proposal.
Despite the opposition, both the EPA and the Army Corps of Engineers hope to finalize the rule this spring.
Congressional Republicans, however, plan to resist the establishment of such a rule. They have asserted that they will introduce new legislation to prevent the administration from finalizing the rule. If such legislation is passed, then a potential veto showdown with the president may materialize.
The Republican Representative Bill Shuster of Pennsylvania claimed, “If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects—and in some cases regulate land-use activities.” The rule, he said, would be an “end run around Congress—another example of overreach by this administration.”
EPA Administrator Gina McCarthy has been extremely vocal in defending the rule, and was called upon during the hearing to do so again. She said, “The proposal was not an attempt to expand the federal government’s jurisdiction, but instead to merely clarify it. And the proposal is just that—a proposal; federal officials are reviewing all those comments that have come in and will respond to the widespread concerns that have been expressed.”
Volume 15, Issue 7
On January 29th, 2015, the EPA and Army Corps of Engineers announced a memorandum of understanding to withdraw the Interpretive Waters of the U.S. Rule. The “U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A)” originally outlined which conservation activities provide farmers an exemption from Clean Water Act permitting.
In the “Cromnibus” funding legislation that was passed in December 2014, Congress requested that the EPA and Army Corps of Engineers officially withdraw the IR due to “over burdensome” regulations on farming and ranching. Congress concluded that the rule not only created uncertainty instead of clarity, but also threatened fines of up to $37,500 per day.
Some members of Congress spoke in opposition to the rule before the legislation was passed requesting that the rule be withdrawn. Last October, Republican members of the Senate Ag Committee advised that the IR would move the NRCS into an enforcement role instead of creating a trusted source for conservation assistance.
The senators claimed, “This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community.”
The rule offered 56 “normal farming and ranching” exemptions under Natural Resources Conservation Service regulations. However, most farm groups opposed the rule. The opponents to the rule argued that using these practices as CWA exemptions would alter farmer-NRCS interaction and dispirit environment best practices.
Robert Bonnie, the Under Secretary for the Natural Resources and Environment at the USDA, however, claimed that any practices implemented by the rule would be voluntary, and are designed to assist farmers avoid the time and cost of permitting.
Bonnie’s claim was refuted by the Senior Director of Regulatory Relations at the American Farm Bureau Federation, Don Parrish. He said, “I heard Mr. Bonnie say that the only way to be in compliance with the Clean Water Act is if you do these 56 practices the way NRCS standards say you have to do them—and they are very prescriptive, they use a lot of ‘shalls’—if a farmer builds a fence that does not comply with NRCS’ standards, the cloud then is that he’s violated the Clean Water Act.”
On February 2, 2015, Jamie Jonker, vice president for sustainability and scientific affairs for the National Milk Producers Federation, stated, “Our concern with the initial proposal from last year is that it could have altered the longstanding and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures.”
The official IR withdrawal notice was put into effect on January 29, 2015. The Waters of the U.S. proposal, however, remains in consideration by the EPA and the Army Corps of Engineers. The final comment period on the full “Waters of the U.S.” proposal closed November 14, 2014.
The memorandum withdrawing the Interpretive Rule can be found here: http://www2.epa.gov/uswaters/memorandum-withdrawing-interpretive-rule
Volume 15, Issue 6
The number of Americans living in flood-prone areas increases each year due to continuing urban expansion. Subsequently, the cost of direct flood damage also continues to grow. In 2012, this number reached almost half a billion dollars. The contributing factors of flood risk, however, remain largely un-understood, and as a result, river basin management and flood insurance premiums may often be erroneous.
Michael Singer, an associate researcher at the Earth Research Institute at the University of California Santa Barbara, and his colleagues released a new study in Geophysical Research Letters that presents a paradigm shift in flood hazard analysis. This shift may allow for more accurate flood predictions, and change the way that risk is assessed.
Current analysis procedures associate flood hazard with how often high water flows occur. They don’t yet take into consideration the ability of river channels to facilitate them. Singer’s method, however, presents an innovative technique that compares the effects of channel capacity and stream flow on flood hazard frequency, as well as documenting how flood hazard has changed over time in over 400 streams across the U.S.
“Our results demonstrate that changes in river channel boundaries directly impact flood hazard trends across the U.S.,” Singer claimed. “We show that in order to accurately calculate flood hazard and insurance premiums for river basins, channel capacity needs to be considered jointly with stream flow.”
Lead author of the report, Louise Slater, a lecturer at Queen Mary University of London, collected U.S. Geological Survey data that was recently digitized, and reduced the original dataset of 11,000 stations to 401 that were well distributed across the country. She then developed a procedure for separating the effects of hydrology and geomorphology on flood hazard. The study data averaged between 40 and 60 years for each location.
In order for the new method to work, the researchers needed to find the relative magnitude of two separate data components, and then see how they may interact with each other. The first component, water quantity, is also known as the flow frequency effect. The second component is channel size and conditions, or morphology, otherwise referred to as the channel capacity.
Singer said, “If there’s more water coming from the watershed but the channel gets enlarged somehow, that would offset the increased water flow. These two factors potentially interacting could have no change or they could increase the amount of change in one direction or another.”
The study found that important trends in channel morphology through time were three times more common than those related to water quantity. This demonstrates that the geometry of the channel tends to offset increases in water flow. Singer claimed, “That raised alarm bells. It suggests that a lot of areas that we might not have considered to have trends in flood risk actually do.”
The Pacific Northwest is an example. The increase in flood hazard there is identified with the channel capacity effect because the channels are filling with sediment or vegetation that impedes the water flow. “The channel morphology has a big impact on flood hazard,” Singer said, “making this an area where flood hazard has been underestimated.”
He continued, “The opposite is happening in the Mississippi River Valley. This is an area where people might overestimate the impact of increased stream flow because the channels are adjusting to accommodate an accelerated hydrologic cycle.”
According to the findings, 10-year trends in channel capacity considerably impact long-term flooding frequency, and flood hazard is changing extensively at the majority of the sites studied. Singer concluded, “Based on our analysis, we argue that in order to develop appropriate management strategies or to set flood insurance premiums for any location, you need to consider the flow frequency and channel capacity effects of flood hazard.”
Volume 15, Issue 5
On December 3rd, 2014, 19th Judicial District Court Judge Janice Clark declared that a law passed in 2014 to block the east bank levee authority’s wetlands damages lawsuit against more than 80 oil, gas, and pipeline companies is unconstitutional. Jimmy Faircloth, however, the attorney who lobbied the 2014 Legislature on behalf of Act 544 for the governor’s office, filled paperwork with the Louisiana Supreme Court to uphold the constitutionality of the law.
The law was initially passed in response to a suit that the levee authority filed in 2013 that would force energy companies either to repair wetland damage or to pay for restoration projects or additional storm surge protection. Since it was first filed in 2013, several companies have been removed from the suit, but 86 corporate defendants remain.
Mike Reed, Jindal’s communications director, commented, “We are pleased that the ruling has been appealed and that the constitutionality of the statute is being defended.”
Not everyone is as confident as Reed that the law will ruled as constitutional, however. Gladstone Jones, the Southeast Louisiana Flood Protection Authority-East, said that he is certain that the Supreme Court will agree the law is unconstitutional.
Before adding that he is “confident” that the law “will continue to be found to be inapplicable and an unconstitutional overreach,” Jones said, “This entire effort to derail this lawsuit and making oil companies fix what they broke is driven by the governor’s frivolous presidential aspirations to please his potential donors—the oil industry.”
Clark declared that the law did not apply to the levee authority, because it “is an independent political subdivision and not a state agency.” Her decision was made based on the language used in the document; as written, the language in the law means that the law does not apply to independent subdivisions such as the levee authority.
Furthermore, Clark ruled that the law violates the Louisiana Constitution’s “public trust doctrine” contained in Article 9, Section 1, since the law attempts to block the levee authority’s ability to “redress issues with coastal restoration particularly insofar as those are related to hurricane protections.”
Article 9, Section 1 of the Louisiana Constitution states: “The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.”
According to Clark, such a law also violates the Constitution’s restrictions on the Legislature’s handling of “special laws” that deal with local issues, because the language used was not appropriately advertised prior to the legislative session.
Currently, the suit is being fought in federal court in New Orleans, after the companies in question successfully argued that the addressed issues are federal in nature. A ruling is yet to be made, but U.S. District Judge Nanette Jolivette Brown has heard arguments from both sides regarding whether or not to dismiss the suit.
Attorneys representing the levee authority have notified Brown both of the governor’s office’s appeal to the state Supreme Court, and state Attorney General Buddy Caldwell’s own questions regarding the constitutionality of the law.
Caldwell’s concerns are extremely similar to those raised by Clark. In a memorandum he filed with Clark, Caldwell said that “the retroactive application of Act 544, at a minimum, raises problematic constitutional separation of power issues and even clearer constitutional issues” under its public trust doctrine provisions.
A verdict is expected soon, and the outcome may prove significant both to Jindal’s future and that of the Louisiana wetlands.
The Finalized Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Report Released
Volume 15, Issue 4
The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence report serves as the scientific basis for the new Waters of the U.S. rules. Now final, the 408 page scientific report can be used to inform future policy and regulatory decisions, including the proposed Clean Water Rule being developed by EPA’s Office of Water and the U.S. Army Corps of Engineers. The significance of this release is that this report was the final item that needed to be in place before the proposed Waters of the US rules (WoUS) could be implemented. What remains is the final publication of the WoUS rules in the Federal Register. This is expected soon. Once that happens the new WoUS rules will be the “law of the land.”
According the EPA, the report summarizes “the current scientific understanding about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters.” More specifically, however, the report focuses on “shallow subsurface connections by which small or temporary streams, nontidal wetlands, and open waters affect larger waters such as rivers, lakes, reservoirs, and estuaries.” It is able to do so by addressing the following three questions pertaining to connectivity:
- What are the physical, chemical, and biological connections to, and effects of, ephemeral, intermittent, and perennial stream on downstream waters?
- What are the physical, chemical, and biological connections to, and effects of, riparian or floodplain wetlands and open waters on downstream waters?
- What are the physical, chemical, and biological connections to, and the effects of, wetlands and open waters in non-floodplain settings on downstream waters?
In order to answer these questions, the EPA reviewed over 1,200 peer-reviewed publications in scientific literature. Subsequently, the final report lists the following five major conclusions:
- The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
- The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
- There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity.
- Variations in the degree of connectivity are determined by the physical, chemical, and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
- The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.
A major sticking point regarding the definition of wetlands was brought up in the public comments to this report. Namely, the use of the 1979, US Fish and Wildlife’s one parameter approach to identifying wetlands. There were many who questioned the wisdom for using this method as opposed to the US Army Corps Federal 3 parameter definition. The EPA has decided to stick with the 1979 definition and only requires the presence of soil, vegetation OR hydrology to define a wetland for the purposes of its study. This report is enjoined in the proposed WoUS rules by reference and as such its recommendations carry forward into the new rules. Consequently, one could extrapolate that a wetland need only meet one criteria to be deemed jurisdictional. It remains to be seen if this will carry forward into the new rules.
This report is one of the last steps before the EPA and U.S. Army Corps of Engineers will implement new rules for the “waters of the U.S.” under the Clean Water Act. Now that the report has been finalized, we can expect to see the new rules published in their final form very soon.
The full report can be found on EPA’s website at: http://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=521415