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Setting the Record Straight on Waters of the US

Swamp Stomp

Volume 14, Issue 27

The following is a republication of a blog post by Nancy Stoner, EPA Acting Assistant Administrator for Water.  It was published on EPA’s Official Blog on June 30, 2014 in response to the many concerns voiced by the farming community.  Of particular interest is the discussion of how ditches are to be handled.  In additional there is a discussion of how wet areas on farm fields may not be waters of the US.  There seems to be some conflicting information especially in light of the EPA Science Advisory Report.  However in the interest of fairness, the EPA’s position is published in its entirety.  There is a link to the EPA post and comments at the end of this post.

Setting the Record Straight on Waters of the US
by Nancy Stoner, EPA Acting Assistant Administrator for Water
June 30, 2014

There’s been some confusion about EPA’s proposed “Waters of the U.S.” rule under the Clean Water Act, especially in the agriculture community, and we want to make sure you know the facts.

We know that we haven’t had the best relationship with the agriculture industry in the past, but that doesn’t mean we aren’t and we can’t do better. We are committed to listening to farmers and ranchers and in fact, our proposed rule takes their feedback into account.

The rule keeps intact all Clean Water Act exemptions and exclusions for agriculture that farmers count on. But it does more for farmers by actually expanding those exemptions. We worked with USDA’s Natural Resource Conservation Service and the Army Corps of Engineers to exempt 56 additional conservation practices. These practices are familiar to many farmers, who know their benefits to business, the land, and water resources.

Farmers and ranchers are on the land every day, and they are our nation’s original conservationists. The American agriculture economy is the envy of the world, and today’s farmers and ranchers are global business professionals—relying on up-to-the minute science to make decisions about when to plant, fertilize, and irrigate crops.

Both EPA and farmers make decisions based on facts—so here are the facts about EPA’s proposal.

When Congress passed the Clean Water Act in 1972, it didn’t just defend the mighty Mississippi or our Great Lakes; it also protected the smaller streams and wetlands that weave together a vast, interconnected system. It recognized that healthy families and farms downstream depend on healthy headwaters upstream. But two Supreme Court cases over the last 15 years confused things, making it unclear which waters are “in,” and which are “out.”

That confusion added red tape, time, and expense to the permitting process under the Clean Water Act. The Army Corps of Engineers had to make case-by-case decisions about which waters were protected, and decisions in different parts of the country became inconsistent.

EPA’s proposal will bring clarity and consistency to the process, cutting red tape and saving money. The proposed Waters of the U.S. rule does not regulate new types of ditches, does not regulate activities on land, and does not apply to groundwater. The proposal does not change the permitting exemption for stock ponds, does not require permits for normal farming activities like moving cattle, and does not regulate puddles.

EPA’s goals align with those of farmers: clean water fuels agriculture—and we all depend on the food, fuel, and fiber that our farmers produce. We at EPA welcome input on the proposed rule to make sure we get it right.

Here are clarifications on a few points of confusion about the proposed rule. For further information, check out: http://www2.epa.gov/newsroom/questions-and-answers-about-waters-us

The EPA and the Army Corps are NOT going to have greater power over water on farms and ranches.

  • The Clean Water Act and its regulations have multiple exclusions and exemptions from jurisdiction and permit requirements. The proposed rule does not change or limit any of them.
  • The agencies also worked with USDA to develop and publish through an interpretive rule, a list of NRCS agricultural conservation practices that will not be subject to CWA permitting requirements. These practices encourage conservation while protecting and improving water quality.

The proposed rule will NOT bring all ditches on farms under federal jurisdiction.

  • Some ditches have been regulated under the Clean Water Act since the 1970s.
  • The proposed rule does not expand jurisdiction over ditches.
  • For the first time, the agencies are clarifying that all ditches that are constructed in dry lands, and drain only dry lands, are not “waters of the U.S.” This includes roadside ditches, and ditches collecting runoff or drainage from crop fields.
  • Ditches that are IN are generally those that are essentially human-altered streams, which feed the health      and quality of larger downstream waters. The agencies have always regulated these types of ditches.
  • Ditches that are OUT are those that are dug in dry lands and don’t flow all the time, or don’t flow into a jurisdictional water.
  • Farmers, ranchers and foresters are exempt from Clean Water Act Section 404 permitting requirements when they construct and maintain those ditches, even if ditches are jurisdictional.

The proposed rule does NOT mean permits are needed for walking cows across a wet field or stream.

  •   Normal farming and ranching activities are not regulated under the Clean Water Act.

The proposed rule will NOT apply to wet areas on fields or erosional features on fields.

  • Water-filled areas on crop fields are not jurisdictional.
  • The proposal specifically excludes erosional features from being “waters of the U.S.”

EPA is NOT taking control of ponds in the middle of the farm.

  • The proposed rule does not change jurisdiction over farm ponds.
  • The rule does not affect the existing exemption Congress created for construction and maintenance of farm or stock ponds.
  • The proposed rule would for the first time specifically exclude stock watering ponds from jurisdiction.

The EPA blog and comments can be found HERE

A Question of Congress

Swamp Stomp

Volume 14, Issue 26

4th of July

Happy Independence Day!

The proposed Clean Water Act rules are out for public comment and have been extend to October 20, 2014. They were originally due on July 21, 2014. The reason for the extension was largely due to calls from Congress to extend the review time.

On June 10, 2014 the Library of Congress’s Congressional Research Service (CRS) published a summary document of the new rules. The original 4 page waters of the US rules with the 300 + page preamble and the 371 page EPA Science Advisory Board report are summed up very nicely in a mere 23 page report.

The CRS report is prepared to help members of Congress digest the significant volumes of paper associated with the new rules. It is significant as it is probably the only thing the members of Congress (most likely their staff) will read on this matter. The report identifies two significant items.

The first question that is address is whether the new rules expand the geographic jurisdiction of the federal government. The agencies have contended that these new rules do not. However, the CRS reports that there would be a 3% expansion of areas that are not currently jurisdictional and under the new rules would be jurisdictional. In addition there is a new expansion of about 17% “other waters” that under the 2003/2008 guidance were not jurisdictional and now would be so.

The second point is about money. At the agency level there would be an increase cost to regulate that is estimated in the range of $162 million to $279 million per year. However, they are also quick to point out that there will be a net benefit of $318 million to $514 million per year due to reduced enforcement costs. At no point is the economic impact to the public discussed.

The conclusion of this CRS report is that despite the agencies claims that there is no expansion of government jurisdiction, it appears that there is in fact an expansion. The agencies argue that the 3% new area was regulated historically and these rules are just going back to the good o’ days when these areas were regulated.

Perhaps you are wondering why these areas are no longer regulated. The Supreme Court ruled in a number of cases that areas that lacked a commerce connection were not subject to the Clean Water Act. The bulk of these new waters of the US rules are based largely on Justice Kennedy’s definition of significant nexus. However it appears that the new rules may have overlooked an important aspect of what a significant nexus really means.

In his lone Rapanos opinion, Justice Kennedy suggested that areas that have a significant nexus to a traditional navigable waterway are subject to the Clean Water Act. This nexus could take on the form of an environmental impact to downstream water quality. However, under the Commerce Clause this impact only establishes jurisdiction if the agencies can prove that the impact effects interstate or foreign commerce. Unfortunately, this commerce connection concept has been lost in all of the recent rhetoric.

There is one other very significant point under the Commerce Clause. Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.” This power is limited to Congress. The current expansion of waters of the US has been proposed by the Executive Branch, not Congress. Rules and regulations are the purview of the Executive branch. However, the Executive Branch is not empowered to expand into areas and regions not authorized by Congress. To underscore this point, Supreme Court Justice Alito in the Sackett case called upon Congress, not the President to establish a clear rule defining waters of the US.

One might argue that any expansion of waters of the US without the expressed consent of Congress is inconsistent with Article 1, Section 8, Clause 3, of the Constitution of the United States.

Perhaps this might be worth mentioning in your comments that are due on October 20, 2014.  It might also be a good idea to write  to your federal representatives and let them know how you feel about these rules.  There is a bill floating around the House looking to de-fund the rule making effort of EPA and the Corps on this matter.  No matter your position on these rules, Congress needs to hear from you.

Interpretive Rule Deadline Extended

Swamp Stomp

Volume 14, Issue 25

This is not the easiest stuff to track. It appears that the public comment period has been extended for the agricultural exemptions. However, if I did my math correctly the public comment period expired on June 5, 2014. That is 45 days from the original April 21, 2014 announcement.

On June 10 there was an announcement that the public comment period had been extend to July 7, 2014. The announcement was 5 days after the comment period closed. Not that I am trying to rush this, but it is a bit of a moving target. Just add to the fun, the rule took effect on April 3, 2014 so I do not know what the point of an extension is anyway.

The public is welcome to comment on the accompanying interpretive rule, which took effect immediately. The interpretive rule codified 56 agricultural practices that will be exempt from obtaining Section 404 dredge and fill permits if the activities occur in waters covered by the Clean Water Act.

The farmers are not real happy about this aspect of the new Clean Water Act rules. In a statement, Bob Stallman, president of the American Farm Bureau, called the proposal “a highly burdensome rule” and said, “Rest assured we will use that time to its best advantage. We will ditch this rule.”

I think the pun was intended. Most ditches would be regulated.

The agencies extended the comment period a day before the House Transportation and Infrastructure Subcommittee on Water Resources and Environment is scheduled to hold a public hearing to examine the potential impacts of the joint rulemaking.

In a draft fiscal year 2015 spending bill for energy and water programs, House appropriators included language to bar the Corps from writing, promulgating and enforcing the proposed rule. That ought to speed up the Corps review process. Does EPA fall under this? I am not sure.

Rep. Sam Graves (R-Mo.), chairman of the House Small Business Committee, praised the agencies for extending the comment period, saying in a statement June 10, “We told the agencies that they need to listen to America’s small businesses, farmers and ranchers about the costly impact of this rule. The decision to give more time for input, as we suggested, is a step in the right direction.”

However the interpretive rule took effect immediately after it was issued. So it is a bit like talking to the “hand.”

In other news, the new Clean Water Act rules remain open for discussion until October 20, 2014. So far there are about 192,000 comments. Some of them are heartbreaking, funny, angry and some are a bit scary. We should also see a finalization of the “scientific” report that serves to document the science that supports these rules. EPA had committed to finalizing the Connectivity Report before the new rules are finalized sometime in 2015.

Waters of the US Comments Extended

Swamp Stomp

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?

US EPA Interpretive Rule Now Closed

Swamp Stomp

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!
Best,
Marc

New Florida Hydric Soil Indicator

Swamp Stomp

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:

Replace:

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.

With:

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!

Marc

A Farmer Speaks Out

Swamp Stomp

Volume 14, Issue 21

Swamp School Updates

Happy day after Memorial Day!  I hope that you had an enjoyable weekend.

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.
This is the first in the series of a new certified wetland delineator program the Swamp School will be offering in the very near future.  As you might guess, we will be offering a certified wetland hydrologist and certified wetland soil scientist as future programs.  The three certifications along with a wetland delineation techniques certification will culminate in the certified wetland delineator designation.  Oh, did I mention, this is all online!  There will be a field test that you will need to attend for the delineator program, but the rest is online.

Thanks and have a great week!

Marc

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.

KXNet.com – Bismarck/Minot/Williston/Dickinson-KXNEWS,ND

 

Spanish Wetlands

Swamp Stomp

Volume 14, Issue 20

Wetlands 2014

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!

Marc

Redefining No Net Loss

Swamp Stomp

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!

Marc

Congress Pushes Back on New EPA WoUS Rules

Swamp Stomp

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.

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