Study Shows Flood Risk Underestimated in Midwest by up to Five Feet

The Swamp Stomp

Volume 15, Issue 37

Washington University in St. Louis recently released a study that suggests federal agencies consistently underestimate historic 100-year flood levels on rivers by up to five feet in some areas. Such miscalculations have severe ramifications for future flood risks, flood insurance, and business development in an expanding floodplain.

PhD Robert Criss, a professor of geology in the Department of Earth and Planetary Sciences in Arts & Sciences and the author of the study, claimed, “This analysis shows that average high-water marks on these river systems are rising about an inch per year—that’s a rate then times greater than the annual rise in sea levels now occurring due to climate change.”

Criss continued to explain that his findings are important because many of the nation’s flood-control river levee systems are not designed to withstand flood levels that rise higher than the projected 100-year flood level, a key national index of potential flood severity. He warned that floods that exceed even a few inches over 100-year levee may potentially lead to cataclysmic events.

The Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) establish official 100-year flood levels by computing a series of complicated equations. Any levees that are constructed to withstand “100-year” levels and “100-year” flood zones are then delineated as such on FEMA’s detailed flood insurance maps.

Criss, however, has researched water flows on major rivers for decades now, and has long argued that any man-made river control systems, such as levees, locks, dams, and navigation-enhancing dikes have steadily elevated the risk of devastating flooding by constricting river channels and preventing floodwaters from flowing naturally into surrounding wetlands and floodplains.

In a 2008 study, Criss demonstrated that flood patterns along the Mississippi River near Hannibal, Missouri, already exceeded drastically the official federal flood risk calculations. Since that study was published, Hannibal has seen floods exceeding the “10-year” flood levels in 2009, 2010, and 2011; as well as experiencing stages officially designated as “50-year” floods in 2013 and 2014.

“Such outcomes are far too unlikely to be attributed to a nearly continuous succession of statistical flukes, and instead must be attributed to faulty calculation of flood risks. Many factors such as climate change and in-channel structures are causing flood levels to rise, so realistic estimation of future flood levels must take these changes into account,” Criss said.

Possibly the most significant part of Criss’ new study is the proposed new statistical equation for the analysis of environmental variables that are changing over time. He claimed, “Official calculations emphasize discharges (flows) in flood risk analysis, yet many compelling reasons show that water levels (stages) should be used instead. Stages are easily understood and are, in fact, the most relevant quantity. If floodwaters are encroaching a home, the owner is concerned about the water level, not about the discharge of the river.”

According to Criss’ equation, which gives more consideration to modern river conditions, the projected high water mark for a 100-year flood event on the St. Louis riverfront would be 51.5 feet—that is over 21 feet above the current flood stage.

Criss said, “The official calculations for the ‘100-year’ flood level at St. Louis are about 5.5 feet too low, primarily because they neglect both the tendency for the flood levels to increase over time and the increased volatility we’re seeing with extreme weather swings.”

Such a difference seriously calls into question the reliability of existing flood control systems. The current system in St. Louis was built to a height of 52 feet, and in 1993 flood levels were only two-and-a-half feet from overflowing the city’s flood wall system.

“In other words, if we experience another flood on the Mississippi of the proportions seen in 1993, it’s hard to say whether the floodwalls protecting St. Louis would be high enough to prevent extensive flooding in the downtown area,” asserted Criss.

Criss’ equation demonstrated similar miscalculations in a number of other Midwestern cities and towns along the Mississippi, Missouri, Ohio, and Illinois rivers. It may be time for these communities to reassess their flood protection systems in order to protect against higher flood crests.

Corps Asked to Confirm Its Limited Role in Clean Water Rule

The Swamp Stomp

Volume 15, Issue 33

Earlier this year, the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) released the Clean Water Rule. The rule was fashioned to aid the Clean Water Act (CWA) by clarifying which bodies of water deserved protection and are suspect to federal regulation. However, the exact role that USACE had in the final rule is now being questioned.

The rule has been met with much opposition from Republicans who hold the rule to be federal overreach. The oil and gas industry also oppose the rule as they think it will suppress development.

On July 27, 2015, U.S. Senator for Oklahoma James Inhofe, chairman of the Senate Environmental and Public Works Committee, released a letter to Jo-Ellen Darcy, assistant secretary for the USACE’s Civil Works program, requesting documents relating to the Waters of the U.S. (WOTUS) rule.

In the letter, Inhofe said, “While intersperse with staff recommendations and legal conclusions that I understand you wish to keep confidential…the facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final WOTUS rule, that the rule is lacking factual, technical and legal support.”

“I also was surprised to learn that, even though the rule was purportedly a joint effort of EPA and the Corps, it appears that the Corps did not receive the draft final rule until EPA submitted it to interagency review on April 3, 2015.”

Since releasing the letter, Inhofe claimed that a bill, the S 1140, has become the “the main vehicle in response to the WOTUS rule.” It calls for both the EPA and USACE to promulgate a revised WOTUS rule that would limit the amount of federal oversight. The bill has already been passed by Inhofe’s committee on July 16, and is now headed to the full Senate for approval.

The S 1140 bill will still include traditional navigable waters, interstate waters, and certain streams and wetlands, but it would exclude groundwater, isolated ponds, and other smaller bodies of water.

Inhofe claimed that based on a number of recently obtained documents—specifically, memos between Darcy and Major General John Peabody dated April 24th, April 27th, and May 15th—as well as a testimony given by Darcy on February 4th, “many of the determinations that purport to support expanded jurisdictions in the final WOTUS rule were not based on the experience and expertise of the Corps.”

In the memo from April 24, Darcy asserted that the final draft rule asserts jurisdiction under the Clean Water Act “over every ‘stream’ in the United States, so long as that stream has an identifiable bed, bank, and ordinary high water mark.  That assertion of jurisdiction over every stream bed has the effect of asserting CWA jurisdiction over many thousands of miles of dry marshes and arroyos in the desert southwest, even those ephemeral dry wastes, arroyos, etc. carry water infrequently and sometimes in small quantities if those features meet the definition of tributary.

In the same memo, Darcy also said that it “may be a challenge to identify a ditch that is a relocated tributary or excavated tributary,” and that “the draft final rule…characterizes literally millions of acres of truly ‘isolated’ waters (i.e. wetlands that have no shallow subsurface or confined surface connection with the tributary systems of the navigable waters or interstate waters) as ‘similarly situated.’”

On April 27, Darcy claimed that “the process followed to develop [the draft final rule] greatly limited Corps input,” before then stating in the May 15 memo that USACE “was not part of any type of analysis to reach the conclusions described; therefore it is inaccurate to reflect the ‘the agencies’ did this work or that is reflective of Corps experience or expertise,” and that USACE “also had no role in performing the analysis or drafting the technical support document.”

Furthermore, in Darcy’s testimony in front of Inhofe’s committee, she said that USACE “has never interpreted groundwater to be jurisdictional water or [that there is] a hydrologic connection because the CWA does not provide such authority.”

Therefore, Inhofe asserted, “Given [those] statements, please confirm that the Army does not have a record of field observations supporting the assertion of federal jurisdiction over ephemeral streams that do not have a surface connection to navigable water or over other geographically isolated bodies of water, by alleging a connection through a groundwater aquifer.”

Below-average ‘Dead Zone’ Anticipated for Chesapeake Bay in 2015

The Swamp Stomp

Volume 15, Issue 32

A research team from the University of Michigan forecasted a marginally below–average “dead zone” for this summer in the Chesapeake Bay.  While the results were only slightly lower than normal, it is still a significant finding for the nation’s largest estuary.

Released on June 23, 2015, by the National Oceanic and Atmospheric Administration, the 2015 Chesapeake Bay forecast indicates an oxygen-depleted, or hypoxic, region of 1.37 cubic miles–roughly 10 percent less than the long-term average.

The annual hypoxic region, or “dead zone,” in the Chesapeake Bay normally results due to farmland runoff containing nitrogen and phosphorus from fertilizers and livestock waste. Once areas become contaminated, fish and shellfish either leave the oxygen-depleted waters or die. Subsequently, “dead zones” threaten the bay’s production of crabs, oysters, and other important fisheries.

“These annual forecasts help to remind federal and state policymakers and the public that insufficient progress is being made to reduce the size of these low-oxygen regions,” said aquatic ecologist Don Scavia, director of the University of Michigan’s Graham Sustainability Institute. “The size of annual Chesapeake Bay dead zone has changed little over the past decade, which underscores the need for persistent management action to reduce the amount of nutrients flowing into the bay. The Environmental Protection Agency must keep states’ feet to the fire.”

Based on models developed by NOAA-sponsored researchers at the University of Michigan and the University of Maryland’s Center for Environmental Science, the hypoxia forecast works both with the nutrient-level estimates and stream flow data provided by U.S. Geological Survey (USGS). The USGS estimates indicate that only 58 million pounds of nitrogen were transported to the Chesapeake Bay between January and May 2015—29 percent below average amounts.

The predicted size of the “dead zone” is a result of the low river flow and below-normal nutrient loading from the Susquehanna River.

USGS associate director for water, William Werkheiser said, “Tracking how nutrient levels are changing in streams, rivers and groundwater, and how the estuary is responding to these changes is critical information for evaluating overall progress in improving the health of the bay. Local, state, and regional partners rely on this tracking data to inform their adaptive management strategies in bay watersheds.”

Besides nutrient-rich waters flowing into the bay, wind speed and direction, precipitation amounts, and temperature also affect the size of “dead zones.” In 2014, the sustained winds from Hurricane Arthur mixed the hypoxic zone water with the water, and oxygen, in the rest of the bay and dramatically reduced the “dead zone” to 0.58 cubic miles.

Donald Boesch, president of the University of Maryland Center for Environmental Science, claimed, “Forecasting how a major coastal ecosystem, the Chesapeake Bay, responds to decreasing nutrient pollution is a challenge due to year-to-year variations and natural lags. But we are heading in the right direction.”

Kathryn Sullivan, undersecretary of commerce for ocean and atmosphere and NOAA administrator, added, “These ecological forecasts are good examples of critical environmental intelligence products and tools that NOAA is providing to stakeholders and interagency management bodies such as the Chesapeake Bay Program. With this information, we can work collectively on ways to reduce pollution and protect our marine environments for future generations.”

If accurate, these predictions indicate that attempts to create healthier, less polluted waterways may be starting to pay off.

States Sue Obama Administration over Water Rule

The Swamp Stomp

Volume 15, Issue 31

Eighteen states sued the Obama administration on Monday June 29th in order to prevent a new regulation establishing federal authority over minor waterways, such as streams and wetlands.

The rule, a product of the Environmental Protection Agency (EPA), has proven to be one of the most controversial regulations passed by the Obama Administration. It redefines how the EPA enforces and regulates the water pollution protections delineated by the Clean Water Act.

The states leading the charge against the new regulation formed three separate groups to file lawsuits in different federal courts, based in Bismarck, North Dakota.; Columbus, Ohio; and Houston, Texas. The states argue that this regulation allows the EPA to overreach its jurisdiction, and violates the clear language used in the Clean Water Act that separated federal authority from that of states or private landowners over waterways.

The attorneys general for the states of Texas, Mississippi, and Louisiana asserted in their lawsuit that “the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”

Nebraska Attorney General Doug Peterson said in a statement about the lawsuit he filed with leaders in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming that “the EPA has redefined ‘waters of the U.S.’ in order to gain greater authority and power over private land.”

Ohio Attorney General Mike DeWine also mirrored this idea when commenting on his lawsuit with Michigan. He said, “This rule clearly violates both the language and the spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources. This is yet another example of the Obama administration overreaching its authority and unilaterally attempting to concentrate power in the hands of federal bureaucrats.”

These may be the first court challenges against the rule, but they will surely not be the last as farmers, developers, business groups, and many others also oppose the rule, which they claim gives the EPA power over almost any piece of land.

Obama’s administration finalized the rule last month in an attempt to regain jurisdiction after two different Supreme Court cases restricted federal regulations. While this rule increases the area covered by the Clean Water Act by about 3 percent, the area remains much smaller than during President Bill Clinton’s administration.

If a waterway is suspect to federal jurisdiction under this new rule, then landowners may need permits for anything that harms or pollutes it.

Gina McCarthy, EPA Administrator, claimed, “We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water. And we’re doing that without creating any new permitting requirements and maintain all exemptions and exclusions.”

Brian Deese, a top advisor to President Obama, said when describing those in opposition to the rule that “the only people with reason to oppose the rule are polluters who want to threaten our clean water.”

The House has voted to overturn the rule, and the Senate Environment and Public Works Committee has passed a bill to overturn it while also giving the EPA specific instructions to re-write the rule.

Even now that the rule has been finalized by the Obama administration, the end to the battle over the EPA’s rule and the Clean Water Act seems far from close.

Groundwater Aquifers Reach Critical Levels

The Swamp Stomp

Volume 15, Issue 30

The top three stressed groundwater basins in the world are located in the Middle East, the region between India and Pakistan, and the Murzuk-Djado Basin in northern Africa respectively. Due to continued political unrest and several other human caused obstructions in these areas, a third of the world’s largest groundwater aquifers are depleting rapidly.

A pair of new studies conducted by the University of California at Irvine state that not only are water levels diminishing, but there is no way of knowing how much water actually remains in these mammoth aquifers. The studies on these aquifers—often referred to by water resources scientists as ‘Earth’s water savings accounts’—began due to California’s worst drought on record, whereby farmers in California’s Central Valley have consumed so much ground water that the state has actually sunk by a foot in some places.

The studies are the first to employ data obtained from NASA’s two Gravity Recovery and Climate Experiment satellites, otherwise known as GRACE. GRACE enables James Famiglietti, an author of both studies, to claim that men are using water that the Earth has stored for hundreds, if not thousands, of years, and not replenishing it fast enough.

Famiglietti, professor of Earth system science at the University of California, Irvine and senior water scientist at NASA’s Jet Propulsion Laboratory, asserts that the majority of the world’s groundwater accounts “are past sustainability tipping points.”

Both studies, published in the journal Water Resources Research, report on the necessity of discovering how much water is actually left in the world’s most valuable aquifers.

“The message we want to get out there is this is really unacceptable. We really better get on some kind of major exploration program,” Famiglietti said.  He also spoke of his fear over how people may react to the uncertainty of his findings. He said, “What I am afraid of is people will say, ‘oh, we don’t know how much water there is, and maybe we have a ton—but maybe we don’t. The signs of stress are all there.”

It is expected that both climate change and population growth will exacerbate the problem of groundwater depletion. National security experts have repeatedly warned that global warming may act as a threat multiplier and worsen any existing tensions.

Alexandra Richey, a graduate student at UC-Irvine who worked with Famiglietti on the studies, asked, “What happens when a highly stressed aquifer is located in a region with socioeconomic or political tensions that cant supplement declining water fast enough? We’re trying to raise red flags now to pinpoint where active management today could protect future lives and livelihoods.”

Richey then reiterated Famiglietti’s desire to discover exactly how much water remains in the worl’s largest groundwater aquifers. She said, “We don’t actually know how much is stored in each of these aquifers. Estimates of remaining storage might vary from decades to millennia. In a water-scarce society, we can no longer tolerate this level of uncertainty, especially since groundwater is disappearing so rapidly.”

Famiglietti, Richey, and the rest of their team are campaigning for a global expedition to directly measure the amount of water stored in the world’s groundwater aquifers, which would require drilling to reach bedrock in many cases.

“I believe we need to explore the world’s aquifers as if they had the same value as oil reserves,” Famiglietti said.

UW Researcher Discovers Groundwater Modeling Breakthrough

The Swamp Stomp

Volume 15, Issue 29

In 1931, Lorenzo Richards created an extremely complex equation to calculate how much water is absorbed into soil over time as rainfall hits the ground surface and filters down toward the water table. Until now, the Richards equation (RE), has been the only rigorous way to calculate the movement of water in the vadose zone, the unsaturated soil between the water table and the ground surface where most plant roots grow. Now, however, Fred Ogden, a University of Wyoming professor (UW), has developed a new equation to replace the unreliable RE.

After spending decades devoted to the task, Ogden, UW’s Cline Chair of Engineering, Environment, and Natural Resources in the Department of Civil and Architectural Engineering and Haub School of Environment and Natural Resources, and his team of collaborators published their paper, titled “A new general 1-D vadose zone flow solution method,” and introduced the world to his new equation.

Ogden and his team anticipate that their findings will greatly improve both the reliability and functionality of hundreds of important water models used by everyone from irrigators and city planners to climate scientists and botanists, as well as trigger a new flood in data collection.

“I honestly never thought I would be involved in a discovery in my field,” Ogden claimed.

RE has been so important over the last 64 years because calculating the movement of water in the vadose zone is critical for estimating return flows, aquifer recharge, managing irrigation, and predicting floods. The problem with RE, though, is that it is so complex that it is extremely difficult to solve, and in some cases even unsolvable. Therefore, while some high-powered computer models can handle the equation over small areas, simpler models or those covering much larger areas can only use approximations.

It is clear then why alternative methods have been pursued. It wasn’t until late last fall, however, that a new solution was found. Ogden then tested his solution with precipitation data from his field site in Panama.

Ogden said, “We ran eight months of Panama data with 263 centimeters of rain through our equation and Hydrus.” Hydrus is an existing supercomputer model that uses RE. The results of Ogden’s model only generated a 7 millimeter, or two tenths of 1 percent, difference from the Hydrus model.

“They were almost identical. That’s when I knew. I felt like the guy who discovered the gold nugget in the American River in California,” Ogden continued.

The equation is now the centerpiece for Ogden’s ADHydro model, a massive supercomputer model that’s first simulating the water supply effects of different climate and management scenarios throughout the entire upper Colorado River Basin. After that simulation is complete, Ogden hopes that other models will adopt his equation as well.

He claimed, “I think, for rigorous models, it’s going to become the standard. With help from mathematics and computer scientists, it will just get faster and better.”

The equation could prove even more important as technological advances call for new data collections. Ogden hopes that his discovery will bring soil science back into relevance for water managers and ultimately lead to new soil data collection.

Ogden asserted, “We now have a reliable way to couple groundwater to surface through the soil that people have been looking for since 1931.”

Hundreds of Turtle Deaths Blamed on Water Toxins

The Swamp Stomp

Volume 15, Issue 27

In the last month, hundreds of small turtles have washed up dead along the eastern shore of Long Island. Scientists have begun to blame these deaths on waterborne toxins that have achieved unprecedented levels.

Thanks to necropsies performed on over 200 diamondback terrapins found dead on the island’s North Fork Point, scientists think saxitoxin, a biotoxin produced in algae blooms, is to blame. The levels of saxitoxin found in the water was over ten times normal amounts. The turtles absorb the poison by eating the shellfish that have collected the toxin. Paralysis and death occurs soon after.

Karen Testa, executive director of Turtle Rescue of the Hamptons, claimed, “We’re seeing bodies washing up in perfect condition. This has never happened before. It’s an alarming thing.”

She continued by claiming that all indicators point to saxitoxin. “There’s no other explanation for what’s causing the die-off of these poor animals.”

Christopher Gobler, a professor at Stony Brook University’s School of Marine and Atmospheric Science, has been studying the algae blooms that occur off of Long Island for over 20 years. While saxitoxin is normally detected in the region’s waters, he claims that levels have never been this high, and have never caused such a wildlife die-off.

State officials have labeled saxitoxin a “dangerous neurotoxin” that may damage or impair nerve tissue. Shellfish act as natural filters and absorb the toxins from the water. Other animals then experience paralysis when they feed on the shellfish.

These effects are not limited to sea animals. When humans ingest infected shellfish, they typically experience numbness and tightness in their faces, as well as a loss of coordination. Most humans recover in a matter of days, but in some rare cases, the poisoning has resulted in death.

Both county and state officials have advised people not to consume shellfish from the area, and have also advised against swimming in discolored water.

Adrienne Esposito, executive director of Citizen’s Campaign for the Environment, said, “This is a serious threat to public health. When you have a saxitoxin that can kill humans, you need to address the cause.”

While the exact cause to the high levels of saxitoxin currently present in Long Island waterways remains unknown, Gobler and Esposito both think that nitrogen in the water may be to blame. Leaking septic tanks and sewage can make its way into bays and increase nitrogen levels in the water. However, there is no indication of why levels of septic sewage entering bays should be any higher than normal.

Just Meyers, Suffolk County Assistant Deputy County Executive, claimed that the county has devised a plan to reduce nitrogen pollution. He hopes to acquire $400 million in state and federal grants to improve water infrastructure, as well as converting 360,000 homes from cesspools to municipal sewers.

The first step the making the waters safe for food sources for small turtles and humans is to discover why amounts of saxitoxin reached such high levels this year. If the cause remains uncertain, then other bodies of water become in danger of suffering from a similar fate.

Mississippi and Atchafalaya Rivers Dump Sediment into Louisiana Wetlands, Lakes, and Gulf

The Swamp Stomp

Volume 15, Issue 24

Images taken from NASA’s MODIS satellite clearly show that the rising Mississippi and Atchafalaya rivers are pouring an abundance of sediment into coastal wetlands, Lake Pontchartrain and other coastal lakes, and the Gulf of Mexico.

Having been washed into the Mississippi River by a combination of rainfall and melting snow at farmlands across the Midwest and Ohio Valley, sediment is gushing into southern Louisiana. Officials hope to construct a series of diversions along the Mississippi River in the coming years to collect the increased amount of sediment that is expected to continue its journey south in future spring floods. The sediment would then be used to create new wetlands in order to nourish the existing wetlands.

30 percent of the Mississippi River’s water is diverted into the Atchafalaya River at the Old River Control Structure above Baton Rouge. Satellite imagery displays that the sediment is entering the Gulf of Mexico, which is where the majority of sediment is lost, through the Atchafalaya River’s mouth below Morgan City and through the Wax Lake Outlet to the west. The wetlands off of Wax Lake have been expanding south for over 40 years due to similar springtime flooding.

sedimentmap

While water levels remain below the official 17-foot flood stage for the city, the water levels have been high enough to pour a constant stream on sediment-laden water into the Bonnet Carre Spillway in St. Charles Parish. From there the sediment is carried into Lake Pontchartrain where it mainly settles on the lake’s southern shore. Increased sediment is also noticeably visible in Lake Maurepas.

When the river grew to 12.5 feet in New Orleans, water began to escape through the long wooden slats in concrete bays in the spillway structure. As a result, sediment from the spillway became visible in Lake Borgne, the Mississippi Sound, and along the Chandeleur Islands after it traveled through the Rigolets and Chef Menteur passes at the eastern end of the lake.

The West Bank also acts as a deposit zone for some sediment flowing through the Davis Pond freshwater diversion into Lake Cataouatche before entering Lake Salvador and Barataria Bay. The most visible amount of sediment, however, are along the east and west sides of the southern end of the river in Plaquemines Parish, with a broad stream flowing towards the Gulf of Mexico.

Despite this immense increase in sediment, criticism from oyster growers and commercial fishers remain against the plans to build the necessary diversions.

In response to such criticisms, Garret Graves, chairman of Louisiana’s Coastal Master Plan, claimed, “People are out there making allegations that are not supported. . . We’re moving forward with the master plan. We’re moving forward with designing four of the largest diversions. And we’re building them.”

These diversions are expected to produce 300 square miles of new land by 2060, while other projects also in the master plan would create marshland using sediment collected from the Mississippi River. The master plan is still determining the best places to build projects that will allow the state to withstand water level heights in the coming century, but it seems apparent that these diversions are necessary to cope with the increased flooding expected in the coming years.

GOP Supports Obama’s Changes to Endangered Species Act

Swamp Stomp

Volume 15, Issue 23

President Obama has received rare support from Republicans, industry groups, and states for his changes to the Endangered Species Act. The joint rulemaking by the Fish and Wildlife Service (FWS) and National Marine Fisheries Service would make decisions regarding the Act more efficient, collaborative, and transparent to the public. Democrats also hope that the changes will help mitigate conservatives in Congress who have vowed to overhaul the ESA.

Despite the law preventing over 99 percent of listed species from going extinct over the last four decades, those who criticize the law in Congress claim that it has failed to recover all but roughly two percent of endangered species.

The new rule proposed on May 19, 2015, creates a higher standard for petitions filed under the law to list new species as threatened or endangered, to change the species’ status, to delist species, or to change the boundaries of critical habitat. This will allow the agencies to focus more attention on species that truly warrant action.

Previously, either agency had 90 days to decide whether any of the petitions received contained sufficient information to indicate that action—either listing or delisting—was necessary. If a decision was made in the affirmative, then an additional twelve months was allocated to decide whether or not to propose a listing rule.

However, the sheer volume of petitions submitted by environmental groups in recent years has exceeded FWS’s capacity to respond to them, and has often landed in the agency in court. In the four years before signing a sweeping legal agreement with two separate green groups in 2011, the agency received petitions for over 1,230 species—a number that is just shy of the total amount received in the last thirty years.

In attempts to do away with “mega-petitions,” such as the one submitted by the Center for Biological Diversity and other environmental groups in April 2010 that listed 404 species, this new rule limits petitions to just one species at a time. “Mega-petitions” were often vaguely written and difficult to follow. This new rule requires that all petitions be organized on a species-by-species basis, so that each species can be given the attention it deserves.

Furthermore, petitions must now contain clear documentation of the threats to wildlife. Relevant information includes the following:

  • Literature citations that are specific enough for the agencies to find the information, including by page and chapter.
  • Electronic or hard copies of any supporting materials such as publications, maps, reports and letters cited in the petition, or valid links to public websites where the information can be found.
  • Information demonstrating that the petitioned wildlife meets ESA’s definition of a “species.”
  • Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available.

 

If a petition is missing any of this information, then FWS will be able to return the petition.

The new rule defines “substantial scientific or commercial information” as information that “a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.”

“For example, a petition that states only that a species is rare and thus should be listed, without other credible information regarding its status, does not provide substantial information,” it says.

The rule also states that for a failed petition to be resubmitted, it must contain new information in support of its claim. It says, “These changes would improve the quality of petitions through expanded content requirements and guidelines; and in doing so; better focus the Services’ energies on petitions that merit further analysis.”

Speaking about the rule, Ryan Yates, Chairman of the National Endangered Species Act Reform Coalition and Director of Congressional Relations at the American Farm Bureau, claimed, “While we are still reviewing the substance of the proposed rule, NESARC is pleased to see the Services recognize and take action to deter abusive petitioning practices. Requiring more detailed information as part of the submission of petitions and consultation with states will ensure that a more robust record is placed before the services.”

However, Rob Bishop, the House Natural Resources Committee Chairman, was more suspicious of the rule. He said, “The Obama administration admitted today that the process by which Endangered Species Act listing determinations are made is insufficient, and then asked the American people to trust them to fix the problem. I don’t buy it.”

Bishop’s concern was mirrored by Brian Seasholes, who directs the endangered species project at the libertarian Reason Foundation in Los Angeles. He said that the rule was “an extremely marginal step in the right direction. But the larger problem still remains that the Endangered Species Act harms conservation through its punitive approach.” He is concerned that the rule leaves federal wildlife managers with too much discretion, and fails to address the hundreds of species for which FWS is already issuing listing determinations.

While the step may not be all that is needed, it is an important step that all involved parties are happy to see be taken.

Compromise over Construction by Rhode Island Wetlands Reached

The Swamp Stomp

Volume 15, Issue 19

Rhode Island has received support from both the construction industry and environmentalists over a new statewide regulation that would change the required distance for construction near wetlands. If approved, this new standard would permit construction much closer to wetlands in six Rhode Island communities, and gift the state rule over deciding on zoning exemptions.

Currently, a 50-foot no-build zone acts as the default benchmark for the state, but 24 communities use different buffer standards. Areas in Barrington, Burrillville, Charlestown, Middletown, North Smithfield, and Tiverton all have setbacks, the required distance between construction and wetlands, of up to 200 feet. This new proposed standard, however, would change the state setback to 100 feet from lakes and ponds, and 200 feet from rivers, streams, and reservoirs.

All coastal wetland permits would still be managed by the Coastal Resources Management Council (CRMC), which already requires a 200-foot setback, but all other wetland permits would fall under state jurisdiction.

Both the construction industry and environmentalists agree that the proposed tradeoffs are worth the end result. The construction industry looks forward to having universal setbacks across the state, as well as having a single location, the Department of Environmental Management (DEM), to file permit paperwork and seek exemptions. Environmentalists, on the other hand, like that new water sources, such as streams, vernal pools, and areas near floodplains, would be designated as wetlands.

On March 25, 2015, during a Senate Committee on the Environmental and Agriculture hearing, Janet Coit, DEM director, claimed, “It increases protection and eliminates a municipal level of permitting process.”

The proposal is a result of five years of failed attempts by the Rhode Island Builders Association (RIBA) to establish universal setback standards and speed up the permitting process. Concerned about losing open space, diminishing water quality, and damaging vital ecosystems, environmentalists have opposed changes proposed in the past.

Despite this opposition, the “dry-lands bill” was passed in 2013 that created a study commission to develop changes to the standard. Negotiations between the construction industry, biologists, civil engineers, and state environmental agencies and municipalities then occurred for over a year. These efforts resulted in the new proposal that is agreed upon by all effect parties.

Tom Kutcher of Save the Bay served as one of the scientists on the task force. While he claims that the gold standard for wetlands buffers is about 500 feet, he acknowledges that the proposed legislation improves protection over the status quo.

“What’s in the bill falls short of full wetlands protection. It falls short of what the science says what should protect wetlands,” Kutcher said. “But we recognize that there is a compromise between entire wetlands protection and having something we could come to a consensus on.”

During the recent Senate meeting, construction advocates praised the new proposal as it will prevent what they perceived to be arbitrary rules and a general resistance to development that prevented permits from being attained.

Timothy Stasiunas of RIBA claimed, “This type of scenario has contributed to the lost decade . . . that has plagued our economy for years, if not decades.” He continued to claim that the new standards will lead the state out of recession.

The proposed legislation does not fully protect wetlands, but it is a compromise that will provide better protection than is currently being administered.