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Wetland Delineation Backlog

Swamp Stomp

Volume 14, Issue 32

On July 30, 2014 roughly 350 farmers from across eastern South Dakota attended a public forum with Natural Resource Conservation Service (NRCS) officials to discuss issues related to wetland delineations. The forum was spooned by South Dakota Farm Bureau, South Dakota Soybean Association (SDSA), South Dakota Corn Growers, and the South Dakota Farmers Union. As of July 1, 2014 the NRCS has reported that there are over 5,130 wetland determination requests in the Prairie Pothole region of the US waiting to be reviewed. South Dakota leads the backlog with over 2,993 requests.

NRCS estimates that it takes one to two years to process a wetland determination request given this backlog. It is the hope of both NRCS and the farmers to find a way to bring this time frame down to one year or less. Once a farmer does receive the wetland delineation, he or she has only 30 days to take action if an appeal is desired. This was a point of concern given that 30 days is a relatively short length of time. This is especially a problem if the appeal occurs during a farmer’s peak planting or harvest season.

“The number of people attending this forum speaks to the importance of finding a solution to the backlog and confusion over how wetland delineations are handled,” said Wayne Smith, Executive Director of the South Dakota Farm Bureau, which represents 14,000 farm, ranch, and rural families across the state. “These farmers are sincere in their desire to work with the NRCS, but they also want to be able to get information in a timely way and to know that that information is consistent and science-based.”

Much of the backlog is related to the current NRCS policy that all wetland delineations submitted by a consultant on the farmer’s behalf must be field inspected by NRCS. Even if this is a spot check the time to travel to the site and spend just a few minutes on-site really adds up when you look at the number so these inspections that must be done. If you allotted just 4 hours per site, which would include travel to and from the farm it would take over 6 years for one inspector to clear the current t backlog in South Dakota alone. There are three individuals listed as NRCS wetland specialists in South Dakota. So, if these three folks eat and sleep in the wetlands and only do inspections, they could easily knock this out in 2 years. They cannot go back to the office and must visit at least two sites per day.

I have run into some pretty intense work schedules in my nearly 30 years in the wetland delineation business. However this beats all. I do not see how anyone could ever keep up this regime without burning out.

These wetland delineations are being done for compliance with a variety of USDA agricultural programs. The USDA program is not a regulatory compliance program. The wetland delineations are done to help NRCS evaluate eligibility for a number of USDA subsidy programs. It is the current policy of the USDA to avoid wetland impacts to the maximum extent possible. A farmer who impacts a wetland runs the risk of losing farm subsidies and depending upon the date of impact could be forced to return prior subsidy monies.

If a farmer has impacted a wetland there is also the possibility of Clean Water Act (CWA) violations being discovered by the Corps and EPA. This too has severe labor concerns as there are far fewer regulators able to look at potential violation sites.

There have been a couple of suggestions to solve the review problem. One suggestion is to employ remote sensing technologies to confirm the presence of wetlands. Currently NRCS does do this to a limited extent. At issue is that many farmers have reported that when NRCS uses offsite methods more areas are determined to be wetlands then the on-site methods would reveal. The main issue is the presence or abscess of hydric soils. Many of the prairie potholes lack any hydric soil indicators and consequently are not wetlands.

In many cases even if the prairie pothole is a wetland it may be deemed isolated and not subject to wetland regulation under the Clean Water Act. However, USDA policy usually precludes impacts to wetlands whether or not they are waters of the US. Under current CWA rules isolated wetlands are not waters of the US. Under the proposed new CWA rules they would be jurisdictional. The new rules make it quite clear that all prairie potholes are waters of the US regardless of the presence of hydric soils.

The solution to the backlog seems to be found in the new CWA rules. If there is no dispute that prairie potholes are waters of the US, then there should be no reason for a backlog. Categorically these areas would be waters of the US and there would be no need for a wetland delineation. It would be fairly easy to identify the prairie potholes remotely as they do tend to stand out on an air photo. There would be no need for a soils investigation so there is no real reason to ever leave the office.

Perhaps this is a solution. Prairie potholes are a unique landform and offer a variety of ecological benefits. However, there is a significant economic impact to the farmers in this region if they have to develop a total avoidance practice. It may not even be possible for this to be achieved. Unfortunately, the new CWA rules do not address these economic impacts at all. The Whitehouse Office of Management and Budget (OMB) report on these new rules is focused entirely on the cost to manage compliance and never addresses the cost to the public. In my humble opinion there needs to be a balance between environmental stewardship and the economic impacts of that stewardship. In this case perhaps the non-wetland prairie potholes should be exempt from the CWA rules. However, this will bring the backlog back on line.

What do you think?

Lean Wetland Delineations

Swamp Stomp

Volume 14, Issue 31

Last week we discussed the Theory of Constraints (TOC) as a business improvement method. The idea is based upon how we make your wetland business more profitable using key bottlenecks in the process. Get more done in the same time using the same or less resources.

This week we will look at a key concept that at times seems to conflict with the Theory of Constraints. However, if managed properly these two concepts can complement each other. This concept is known as “lean.” The lean model is often credited to Toyota in its “just in time” manufacturing process. However the lean process is much older. Once of the earliest publications that focused on lean concepts was written by Benjamin Franklin in 1758. His “Way to Wealth” is collection of adages and advice presented in Poor Richard’s Almanac during its first 25 years of publication, organized into a speech given by “Father Abraham” to a group of people. Many of the phrases Father Abraham quotes continue to be familiar today. The essay’s advice is based on the themes of work ethic and frugality. Remember what Poor Richard says, “Buy what thou hast no need of, and ere long thou shalt sell thy necessaries.”

Henry Ford built on this concept and in his book My Life and my Work, (1922) wrote a single paragraph that describes the entire concept of waste:

“I believe that the average farmer puts to a really useful purpose only about 5% of the energy he expends…. Not only is everything done by hand, but seldom is a thought given to a logical arrangement. A farmer doing his chores will walk up and down a rickety ladder a dozen times. He will carry water for years instead of putting in a few lengths of pipe. His whole idea, when there is extra work to do, is to hire extra men. He thinks of putting money into improvements as an expense…. It is waste motion— waste effort— that makes farm prices high and profits low.”

So how do we apply lean to wetland delineation? First you need to think of wetlands delineation as a process. There is even a manual. Actually there are 11 manuals plus few dozen reference documents. This is where lean comes in. We have to look at the overall process and identify where we have waste and bottlenecks. Lean tells us that waste is bad. The Theory of Constraints tells us that some of the bottlenecks could be exploited to improve the efficiently of the whole system.

Lean however is a micro-management style. Micro-management always seems to get a bad reputation and too often we discard it as some sort of totalitarian management system. However, it is a key concept for identifying waste. I will mention that not all waste is really waste. First we need to identify it. Then though a process we decide if it is adding value or not. Real waste is bad, but some inefficiencies may add overall value.

An example of this was featured a few years ago on the NBC TV series “Chuck.” In the series the CIA had been using a “Buy More” store as a secret base. It was a real Buy More store with real, snarky inefficient Buy More employees (remember Jeffster?). At the end of season 3 the store was blown up. In season 4 the CIA completely takes over the running of the store as a secret base. The store is clean and efficient. It is staffed by courteous and not creepy CIA and NSA agents. It looks totally fake and the operation is in jeopardy. The solution. Hire back the inefficient, creepy and rude old employees. This makes the Buy More feel like a real Buy More. By adding inefficiency to the store the overall improvement is that the store looks like a real Buy More, not a CIA base. That is the real objective. This is the Theory of Constraints in action.

However, the lean analysis by the CIA and NSA yielded a completely efficient Buy More. In fact it even won a corporate award which garnered it more attention. This was the last thing the CIA wanted.

So how can we use lean in wetlands delineation? We need to examine every process that we undertake when doing a delineation. Let us take a look at hanging wetland flags.

When we make the decision where the wetland boundary is there are a myriad of options as to how to demark it. First we need to decide what we should use. The convention is to use surveyor’s ribbon. However, there are also pin flags, wooden stakes, re-bar, and a host of other options. Each has its advantages and disadvantages. For example, pin flags provide the highest degree of accuracy. However, they are easily lost in the grass and tend to get pulled up. Re-bar is the most permanent but is also the most difficult to install due to its weight.

Tying surveyor ribbon to a nearby tree or shrub is the lightest option. However the degree of accuracy is somewhat diminished. At issue is the fact that the tree or shrub you tie the ribbon too may not be precisely on the wetland boundary. So we increase speed by introducing some inaccuracy. We need to determine what level of inaccuracy is acceptable and balance that with the overall objective of getting the job done in a timely fashion. Using the Theory of Constraints we can make this assessment.

So where is the waste? Waste can be found in the type of ribbon you use. Color for example is a major issue. If you use a green ribbon in the fall it stands out clearly. However, in the spring and summer when the surveyors go to survey it is invisible due to the green foliage. The waste shows up in the time searching for ribbons.

Another example of waste is the need to double flag the wetland line with two colors of ribbon. There is a concern that the surveyors will be confused if you use the same pink or orange that they use for other features. So you tie a pink and blue ribbon to wetland boundary point. This effectively doubles the time to mark each point, doubles the cost and requires that you carry double the amount of flagging that you need. This is an incredible expansion of time and materials for a job.

What is the real concern? The surveyors will be confused by the wetland flagging. Is there a lean way to fix this? Yes and it is really simple. Communicate with the surveyors directly and tell them what you did. You are taking field notes and sketches of your work. Share this with the surveyors. This may add a few minutes to your work estimate, but it is not double the time to hang flags.

Over the coming months we will be adding more Lean, Six Sigma and TOC ideas to our newsletters. We hope that they are helpful to you and would love it if you could comment on any LSS or TOC methods your have found and would like to share.

Have a great week!

– Marc

EPA drops wage garnishment rule

Swamp Stomp

Volume 14, Issue 29

The people have spoken!

This is from the July 17, 2014 Federal Register.

Action

Withdrawal of direct final rule.

Summary

Due to the receipt of adverse comments, EPA is withdrawing the direct final rule for Administrative Wage Garnishment published in the Federal Register on July 2, 2014.

Dates

The direct final rule published at 79 FR 37644 on July 2, 2014 is withdrawn effective July 17, 2014.

For Further Information Contact

FPPS c/o Anita Jones, OCFO/OFM/FPPS, Mailcode 2733R, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-4969; fax number: (202) 565-2585; email address: jones.anita@epa.gov.

Supplementary Information

Due to the receipt of adverse comments, EPA is withdrawing the direct final rule amending EPA’s claims collection standards to include Administrative Wage Garnishment, which published in the Federal Register on July 2, 2014 (79 FR 37644). In the direct final rule, EPA stated that if adverse comments were received by August 1, 2014, the direct final rule would be withdrawn and not take effect. EPA received adverse comments on that direct final rule. EPA will address those comments in any subsequent final action, based upon the proposed rule making action, which was published in the Federal Register on July 2, 2014 (79 FR 37704).

To date there were a total of 574 comments.  Some of them are quite direct.  It is nice to know that we still have a hand in our own government.  Thank to all of you who provided comments.  It did make a difference!

Theory of Constraints

Swamp Stomp

Volume 14, Issue 30

This week I thought I would take a bit of a break from all of the new EPA rules, regulations and fines that are floating out there.  I have spent a fair amount of time pondering new and better ways to speed up the wetland delineation process. The new Army Corps of Engineers Regional Supplements have expanded the amount of data we collect in the field. This significantly adds to the time it takes to complete a data form. On average it can take 45 minutes to an hour and a half to completely fill out just one form.

To be frank, I love the new data forms. It forces delineators to really focus on the data. Overall, while it is more work, the regional approach is a vast improvement on the quality of a wetland assessment. Unfortunately, more data means more hours and therefore more cost.

Looking at some of the newer operations procedures such as lean and six sigma there are ways to reduce time and cost without sacrificing quality. One of the management concepts that business use is something called the theory of constraints (TOC).

The theory of constraints works from the proposition that a chain is no stronger than its weakest link. People, processes, organizations, procedures, etc. are vulnerable because the weakest person or part can always damage or break them or at least adversely affect the outcome. Therefore the entire system is regulated by one or more system constraints. In our wetland example what makes wetland delineations so expensive?

To answer this question we must first identify three measures: throughput, operational expense, and inventory. Throughput is the rate at which the system generates money through sales. In our case these are billable hours. Inventory is all the money that the system has invested in purchasing things which it intends to sell. This is your paycheck. You are the inventory. Remember you are selling your time. Operational expense is all the money the system spends in order to turn inventory (you) into throughput (billable hours). These are your direct expenses including travel, training and supplies as well as marketing, accounting and other office indirect expenses.

To quantify this we need three numbers. First is your compensation package. This includes everything the company pays you including all benefits. This is the inventory expense. The next expense is all of the office directs and indirect expenses. This includes the rent, non-billable staff salaries, office and field supplies, taxes, and anything else you can think of. Try not to use the overhead multiplier that some companies have to use for government contracts. Too often this underestimates the real office overhead because there are some expanses that are disallowed. In reality we still have to pay for these.

Once we know what it costs to put you in the field we need to know how much we can get for your time. This is the throughput. However throughput also considers the rate at which you convert expenses into sales. This in a sense is the velocity of your billable time. Because in our example we are only going to bill 8 hours a day the speed remains the same, but the amount of revenue generated is based upon how many hours in a day you can bill and what your billable rate is in dollars per hour.

It is at this point that we encounter our first big challenge. I want to make more money for my company but I bill at say $60 per hour, so that in any given day the most I can make my company is $480. If I look at all the expenses you might be surprised to learn that at most your company is only clearing an 8-9% profit. If you look deeper that number may be even smaller.

Here is the problem. You need to make more money, but there are only 8 hours in any day. The question is really what is your goal?

If your goal is to bill 8 hours then congratulations you are done. However, there is no acceleration possible because the velocity is set at 8 hours per day. Sort of like cruise control. No increase in speed means no more growth. You could add staff and increase revenue, but the profit will remain the same because more staff translates into more expenses. In some cases you may even see profit drop because the increase in staff may require a significant increase in overhead. More office space for example.

At issue is really focusing on the important goals. The theory of constraints is based on the notion that the rate of goal achievement (velocity) by a goal-oriented system (throughput) is limited by at least one constraint. What is slowing you down?

Cox and Goldratt explain in their book, The Goal, five ways to measure the velocity of goal achievement.

  1. Identify the system’s constraint(s) (what is preventing you from reaching your goals)
  2. Exploit the system’s constraint(s) (get the most out of the constraint, e.g. avoid unnecessary idle time, farm out work to other resources where possible)
  3. Subordinate all other resources to the constraint (align the whole system or organization to support the constraint’s operation, e.g. prioritize repair and maintenance, change process batch size on non-constraints)
  4. Elevate the system’s constraint(s) (make other major changes needed to increase the constraint’s capacity, e.g. perhaps a new senior hire)
  5. If in the previous steps a constraint has been broken, go back to step 1, but do not allow inertia to cause a system’s constraint. This means that the backlog of work should not be the constraint.

If we look back to our wetland example perhaps we should not be focused on billable hours. Rather, we should focus on the number of data points acutely completed in a day. There is really no limit to the number that you could do. You can only experience 8 hours in a given work day. So why limit yourself?

How many can you do now? What could you do to speed this up? Identify the constraints. For example you are spending way too much time on plant identification. This is the major bottleneck or what is sometimes called the “drum.” Fix the problem by attending several of the Swamp School’s awesome plant classes and reduce this time. I had to get a plug in here somewhere. Now you can do 3 times as many data points in a given day.

This fixes one end of the throughput. At the other end you need to consider a new way of billing your clients and getting paid. As it stands now you really have no incentive to work any faster if you are being paid by the hour. However, if you are being paid by the data point, I bet you would be able to find a way to get more data points done in a day. If your client pays by the data point rather than by the hour, in the long run they will save money because you are motivated to finish their job quickly so that you can move onto the next client.

If you want proof that this system works take a look at you next car repair bill. There is usually a quote based upon an average amount of time it takes to get a job done plus parts. Your quote is guaranteed so you know exactly what it is going to cost you to get your car fixed. However, in almost all cases the mechanic gets the job done in less time than was estimated. You still pay the quoted amount happy that the job was done a little sooner so you can get your car back. The mechanic moves onto the next car getting more done in a given day. Everybody’s happy.

I am not sure when wetland delineators thought it was a good idea to bill like lawyers do. If you think about it does anyone like paying for legal advice billed at a 0.1 hour rate. Really who can do anything meaningful in 0.1 hours? I really hate time-sheets. They are the bane of our business.

If you want to make more money you need to identify and exploit the constraint. Doing so converts more activities into revenue. Your throughput increases. Your clients are happy and you have a reputation of getting a job done quickly, efficiently and in the long run at a lower cost to the client. You just became more competitive in the market!

Have a great and profitable week!

– Marc

EPA Wage Garnishment

Swamp Stomp

Volume 14, Issue 28

On Wednesday, July 2, 2014 the Environmental Protection Agency published a final rule regarding the government’s ability to seize your wages. The following is directly from the Federal Register.

“Summary: The Environmental Protection Agency (EPA) is taking direct final action to amend EPA’s claims collection standards to implement the administrative wage garnishment provisions of the Debt Collection Improvement Act of 1982, as amended by the Debt Collection Improvement Act of 1996 (DCIA). The direct final rule will allow the EPA to garnish non-Federal wages to collect delinquent non-tax debts owed the United States without first obtaining a court order.”

“Dates: This direct final rule is effective September 2, 2014 without further notice unless EPA receives adverse comments by August 1, 2014. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.”

“Background: This direct final rule implements the administrative wage garnishment provisions in section 31001(o) of the Debt Collection Improvement Act of the 1996 (DCIA), Public Law 104-134, 110 Stat. 1321-358, codified as 31 U.S.C. 3720D. Under the administrative wage garnishment provisions of the DCIA, Federal agencies may garnish administratively up to 15 percent of the disposable pay of a debtor to satisfy a delinquent non-tax debt owed to the United States. Prior to the enactment of the DCIA, Federal agencies were required to obtain a court judgment before garnishing non-Federal wages. Section 31001(o) of the DCIA preempts State laws that prohibit wage garnishment or otherwise govern wage garnishment procedures.”

“As authorized by the DCIA, a Federal agency collecting a delinquent non-tax debt may garnish a delinquent debtor’s wages in accordance with regulations promulgated by the Secretary of the Treasury. The Bureau of Fiscal Services, a bureau of the Department of the Treasury (Treasury), is responsible for promulgating the regulations implementing this and other debt collection tools established by the DCIA. The Bureau of Fiscal Services published its final rule at 63 FR 25136, May 6 1998, (Treasury Final Rule) and published technical amendments at 64 FR 22906, 22908, April 28, 1999 and 66 FR 51867, 51868, October 11, 2001. The Treasury Final Rule, as amended, is published in 31 CFR 285.11. Pursuant to 31 CFR 285.11(f), Federal agencies must either prescribe their own conforming regulations for the conduct of AWG hearings consistent with the substantive and procedural requirements set forth in the Treasury Final Rule or adopt Treasury’s AWG regulation, 31 CFR 285.11, without change by reference.”

This rule has been published in final form. It is EPA’s belief that the public has no interest in this and therefore has put this rule on a very fast track. It will be implemented on September 2, 2014 unless EPA receives adverse comments by the close of business on August 1, 2014.

Under the Fourth Amendment of the US Constitution, government law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating illegal activity. This new rule by-passes the courts, tries you in absentia without any ability to offer a defense, convicts you and immediately seizes your property.

The EPA can fine you up to $75,000 per day for many of the regulations it enforces. A small fine can prove runniness for most Americans. Even if you are innocent of the environmental crime that you are accused of, the lack of due process would destroy your livelihood. It is unimaginable that a nation that is founded on individual rights and freedoms would ever contemplate such a rule. There is absolutely no due process of law.

This rule affects you the American citizen immediately. Oh, by the way if you are a federal employee you are exempt from this law. Please provide your comments to EPA by the following means:

1. Email: jones.anita@epa.gov.

2. Fax: (202) 565-2585.

3. Mail: OCFO-2014-0001; FRL-9910-14-OCFO FPPS c/o Anita Jones, OCFO/OFM/FPPS, Mailcode 2733R, Environmental Protection Agency, 1300 Pennsylvania Ave. NW., Washington, DC 20460.

Be sure to reference the following ID number: EPA-HQ-OA-2014-0012-0002 [
Administrative Wage Garnishment; Proposed Rule]

You can also comment online and review the comments that have been published by going to: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OA-2014-0012-0002.

Please let the EPA know how you feel about this new rule. Please pass this email onto your friends, co-workers, clients or anyone else that you know. We are all affected by this rule (except the federal and EPA employees).

In honor of our Nation’s independence I will leave you with a few thoughts expressed by Thomas Jefferson on July 4, 1776.

“.. Governments are instituted among Men, deriving their just powers from the consent of the governed”

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

“For imposing Taxes on us without our Consent”

“For depriving us in many cases, of the benefit of Trial by Jury”

Please comment on these rules.  Our system of government is representative.  It is your duty to let your representatives and government agencies know how you feel.

May God continue to bless America.

– Marc

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

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