Swamp Stomp

Volume 14, Issue 15

Changes to the National Wetland Plant List

I have been checking twice a day on the federal regulations.gov site to see if the new EPA waters of the US rules have been posted.  As of April 14, 2014 they have not.  I sat in on a webinar with EPA last week and they had said that they would be in the federal register by the end of last week (4/11/14).  As soon as they are posted I will send out a quick note to all of our newsletter subscribers.

There has been some grumbling in Congress about these new rules.  However nothing has moved forward or backward.  It is Congress after all.  They are now in recess.  Perhaps now would be a good time to publish the new rules while they are on break.  We will keep an eye on it.

There has been one more important wetland update that happened this month.  On April 3, 2014 the new 2014 National Wetland Plant list was published.  This new list has some significant changes in it and it to be used on all active wetland delineations.  There is some “grandfathering” for projects currently under review however; it is the intention of the Corps to require this list to be in full use by May 1, 2014.

The following is a summary of the rating changes from 2013 to 2014.

These species were reevaluated using challenge study protocols. An asterisk indicates that a species was formally challenged with a written challenge proposal. The remaining species were informally challenged via email inquiries.

There are also three new important documents about plants and wetland delineations posted on the National Wetland Plant List site.  The first one has a direct relationship to the “page 29” wetland delineations discussed in the new EPA rules.   The document is entitled “Use of LiDAR to Assist in Delineating Waters of the United States, Including Wetlands,” March 2014.  The intention of this program is to reduce the amount of field work necessary to do wetland delineations.  I am OK with using LiDAR to “assist”, but don’t take away my soil auger!

The second document is entitled,” Field Testing New Plot Designs and Methods for Determining Hydrophytic Vegetation during Wetland Delineations in the United States,” March 2014.  This one is focused on a new way to calculate the presence of wetland plants by using a new model called Hydrophytic Cover Index (HCI).

The third plant document of the month is entitled, “Examining Discrepancies Among Three Methods Used to Make Hydrophytic Vegetation Determinations for Wetland Delineation Purposes,” March 2014.  This document compares what we do now using the dominance test and prevalence index with the new HCI test in the aforementioned document.

We will be reviewing each of these in our upcoming newsletters.

Have a great week and Happy Easter!

Best,

Marc

Swamp Stomp

Volume 14, Issue 13

What happened to the Commerce Clause?

I know in last week’s newsletter I promised to go over how to use a level for wetland and stream work. However last Tuesday the EPA and the Corps released a prepublication of the new Waters of the US rules. This past Friday the Corps circulated an internal memo to the field offices about what was going on. So, I thought we might deviate from our level work and jump into these new rules for a bit. Never fear, the official Swamp School Guide to Using a Laser Level for Wetland and Steam Work will be published in next week’s newsletter.

At 370 pages long the new rules weigh in at 2.4 pounds and just shy of an inch thick if you print them double sided. It cost me about $25 just to print them. I did get a little fancy and had them bound, so add another 3 dollars for that.

The stated intention of the new rules is to clearly define what exactly is a waters of the United States. This seems simple enough. Not really. This has been that focus of a number of Supreme Court cases over the last couple of decades. The most infamous is the Rapanos and Carabell case of 2006. This brought us new concepts like significant nexus and traditional navigable waterways. Everyone has been confused ever since. So it is not necessary a bad thing to try to clear this up.

However, there is the issue of what makes the federal government think it has the right to tell someone what they can or cannot do on their land. If that land is a waters of the US pay attention to the “of the US” part. That means it is within the federal governments purview or shall we say jurisdiction to tell you what you can or cannot do on your land.

How did that happen you ask? It is a little thing called the Commerce Clause found in Article 1, Section 8, Clause 3 of the Constitution of the United States. This clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: The Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.

The significance of the Commerce Clause is described in the Supreme Court’s opinion in Gonzales v. Raich, 545 U.S. 1 (2005):

“The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

The interpretation of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American citizens.

The Commerce Clause has been used to identify what waters are subject to regulation by the federal government. In the United States v. Rands, 389 U.S. 121 (1967), the 1967 Rands decision states:

“This power to regulate navigation confers upon the United States a dominant servitude, FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.”

In 1948 the federal Water Pollution Control Acts was enacted to exercise some federal oversight of state and location actions regarding waters. However, it lacked any authority enforce or permit these activities. It became more of an encouragement rather than an enforcement program. This is why we now have a Clean Water Act.

The existing definition of waters of the US is limited to waters that directly or in some case indirectly affects interstate or foreign commerce. This “commerce connection” is required because the Clean Water Act is limited to those types of waters. Specifically, it is limited to traditionally navigable waters as discussed in the Rapanos case.

However, in looking at some of these older laws it would appear that there may be authority to expand beyond those waters thought to be traditionally navigable. At least the EPA and the Corps think so. Perhaps that is why the legal authority is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq. It is generally accepted that the Clean Water Act is a body of amendments to the 1948 law. However, one interpretation of the 1948 law gives the federal government the authority to encourage clean water programs. However, what remains unclear is if this encouragement was codified in the passage of the 1972 amendments known as the Clean Water Act. If this was the case, they why did the Supreme Court limit EPA and the Corps to waters subject to interstate or foreign commerce. I can’t image that they missed this.

The Swamp Stomp

Volume 14, Issue 11

We have another wetland violation case to talk about.  This story broke last week and is about a small landowner, Mr. Allan Johnson who had built a stock pond on his property.  The case has not gone to court, but in an unusual turn of events three US Senators offered to help Mr. Johnson by sending a strongly worded letter to EPA.

So here is what happened.  Mr. Johnson owns a small 8-acre farm in Wyoming.  He wanted to construct a stock pond on his property and went to the state for the required permits.  No you may ask, why did he not go to the Corps or EPA?  The answer is that under Section 404 (f) (1) (c) stock ponds are exempt.  The reason they are exempt relates to water quality impairment.  If it is determined that there is no degradation to water quality then they fall under the farm exemption.  This determination is made by the state.  He did go to them.

This is the current Clean Water Act rule on this point.

Clean Water Act Section 404 (f)(1)(c)

(f) (1) Except as provided in paragraph (2) of this subsection, the discharge of dredge or fill material –

(C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;

(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.

Back before the new EPA rules started floating around the state made the water quality calls.  This was something called a section 401 water quality certification.  I used the term “was” because under the new rules it does not seem that the state needs to get involved anymore.  EPA has it covered.  Separation of powers is so inconvenient and inefficient.  Sorry,  I digress.

In 1987 the Corps had issued a now expired regulatory guidance letter (RGL) that detailed the terms and conditions in which a stock pond would be exempt.  Its focus was on the physical extent of the pond and how it was to be used.  The Corps was concerned about the construction of the stock pond for other uses such as residential amenities.   There is a quote that is worth mentioning.

“For Section 404(f)(2) to apply, the construction or maintenance activity must bring a water into a use to which it was not previously subject and impair the flow or circulation or reduce the reach of such waters. Both of these determinations are judgment calls which must be made in a reasonable fashion. It could be argued that one shovel-full of material placed in waters of the U.S. would reduce the reach. Such an argument is not reasonable and would defeat the purpose of the exemption. “

However, the RGL is no longer in use.  The impacts to the streams became the new focus of the Corps, but the exemption till remains today.

So how are the waters deemed impaired?  That is up to the state.  Section 401 of the Clean Water Act is all about the states roles in deciding water quality impact.  Sections 404 only deals with discharge of dredge and fill material.  This has just become a state’s rights issue.  By the way, Mr. Johnson received all of the required state permits.

So what is a stock pond?

A stock pond is nothing more the blocking up of a small stream to create a pond.  These are often referred to as farm ponds.  There is usually some excavation to deepen the pond.  In order to fall under the exemption, the pond must serve an agricultural purpose.  Activities such as irrigation, live stock watering, and minor flood controls are all examples of stock ponds.  They can also serve some passive recreational uses such as a fishing hole or swimming pond, but that cannot be their main purpose.

So what went wrong?

On January 30, 2014 the US EPA issued a compliance order stating that Mr. Johnson placed fill material into a waters of the US.  On October 11, 2012 the US Army Corps of Engineers conducted a site inspection of Mr. Johnson’s pond.  They found that approximately 12 cu yards of material was placed below the ordinary high water mark of Six Mile Creek.  The Corps further estimated that 40 feet of stream was filled and an additional 745 feet of stream was inundated by the new pond.  On October 26, 2013 the Corps notified Mr. Johnson that a standard Clean Water Act permit would be required.  Can we assume that means a nationwide permit?

It does not appear the Mr. Johnson responded to the Corps.  However, in numerous news articles about this case he has stated that he contacted the state engineer and received the necessary state permits.  As a result on February 7, 2013 the Corps turned this case over to EPA for enforcement.  In case you were wondering how the Corps enforces wetlands cases now you know.  They do not.  The EPA does.

On May 20, 2013 the USEPA conducted a site inspection of the pond and found that the 40 foot stream reach was impacted by the pond dam and that 785 feet of stream (40 feet more) had been impacted by the pond.  Maybe it rained.

Now there are several troubling points about this case.  First was the Corps or EPA invited onto Mr. Johnson’s property?  If not, did they have a warrant, signed by a judge?  Neither the EPA nor the Corps can enter onto a property unless they have probable cause and this may still require a written warrant.

The second point is related to the Sackett case two years ago.  The EPA is demanding in its compliance order that certain remedies must be implemented or Mr. Johnson faces a $75,000 per day fine.  It is important to note that the Supreme Court unanimously found in the Sackett case that the EPA must follow the Administrative Procedures Act rules with regards to 404 violation cases.  The compliance order does mention this as the very last item.  The good news is that he can bring this case to a judge ahead of an enforcement action.

The EPA did state in its compliance order that Mr. Johnson should retain the services of a consultant to determine if the waters in question are waters of the US.  Unlike the Sacketts, I do not think this is in dispute.  Rather, the issue is the type of device that he constructed.

This brings me to my final point.  The entire issue is related to whether Mr. Johnson built a stock pond or a dam.  I do not know how you build a stock pond without a dam so I can easily see his point.  However, what concerns me is the fact that there was some sort of state approval of the structure. Presumably, the state felt it was a stock pond.  Under the rules for stock ponds a state permit is required.  By all accounts, Mr. Johnson followed those rules.  Is the State of Wyoming’s determination that this is a stock pond in question?  If so, should the violation be directed at the state?  Can EPA override the state’s determination right now?

Coming Soon to a Farm Near You

Don’t worry, once the new waters of the US rules go into effect this issue will be crystal clear.  The state will have no say in the matter and Mr. Johnson is looking at some major fines.

Keep an eye our for the new rules.  This is an example of what is coming.

Swamp Stomp

Volume 14, Issue 9

One of the biggest challenges to new delineators and even some experienced wetland delineators is getting the plant community mapping done right.  This is a very important task as it serves as the basis for where and why the wetland sampling points are located where they are.  As you may recall the US Army Corps of Engineers Wetland Manuals require that each plant community should be represented by a sampling point.

The new Regional Supplements are really not much help on this.  They do describe in very generic terms what some of the common plant communities in the region and even sub-region are.  For example this is from the Eastern Mountains and Piedmont Regional Supplement.

Northern Mountains and Piedmont (MLRAs 147 and 148 of LRR S)

This subregion includes the northern Appalachian ridges and valleys (MLRA 147) and the northern Piedmont (MLRA 148). The ridge-and-valley portion is underlain by Paleozoic sandstones, conglomerates, limestones, and shales, whereas the Piedmont portion is underlain by generally older metamorphic and igneous rocks. The central portion of the Piedmont also contains sandstones, conglomerates, and shales that were laid down in the ancestral Atlantic Ocean during the Triassic period. Average annual rainfall over most of the subregion ranges from 31 to 52 in. (785 to 1,320 mm), and average annual temperature ranges from 44 to 57 °F (7 to 14 °C) (USDA Natural Resources Conservation Service 2006).

 

Only about 55 percent of the ridge-and-valley portion of the subregion and 25 percent of the Piedmont portion are forested today. Agricultural and urban development makes up the remainder of the subregion. Common tree species in forested areas include white oak, black oak, northern red oak, bear oak (Q. ilicifolia), chestnut oak, American elm, hickories, tuliptree, Virginia pine, pitch pine (P. rigida), eastern redcedar, and other species (Society of American Foresters 1980; USDA Natural Resources Conservation Service 2006).

As you can see there is a general description of the trees found in the region.  However, there is not much else.  In this example understory species are not mentioned and there is no discussion of the other plant communities in this area.  The Corps goes on to later extol the need to identify the plant communities.

“The manual uses a plant-community approach to evaluate vegetation. Hydrophytic vegetation decisions are based on the assemblage of plant species growing on a site, rather than the presence or absence of particular indicator species. Hydrophytic vegetation is present when the plant community is dominated by species that require or can tolerate prolonged inundation or soil saturation during the growing season.”

So getting this right is very important.  To help you with this I have a few tips and tricks to get you started.

First, you need to identify a plant Community text for your region.  For example in North Carolina, Classification Of The Natural Communities Of North Carolina Third Approximation, by Michael P. Schafale and Alan S. Weakley (1990) is a great reference document for understanding how these plant communities are distinguished.

This is an example of a portion of the vegetation description for a specific plant community.  There is actually quite a bit more that is present and is very useful.  Location, geology, soils and other features are described relative to this community type.

Carolina Hemlock Bluff

Vegetation: The canopy is generally well developed, though not always closed, owing to extreme rockiness and steepness. Tsuga caroliniana is the dominant trees; species such as Quercus montana (prinus), Pinus rigida, Pinus pungens, Quercus rubra, or Tsuga canadensis often occur. Undergrowth is generally a dense layer of heaths, especially Kalmia latifolia, Rhododendron catawbiense, Gaylussacia spp., and Vaccinium spp. The herb layer is very sparse below the dense shrub growth. Species may include Gaultheria procumbens, Mitchella repens, Chimaphila maculata, Galax urceolata (aphylla), Xerophyllumasphodeloides, and Trilliumundulatum. Bryophytes (Dicranumspp., Leucobryumalbidum, and L. glaucum) and lichens (Cladonia spp. and Cladina spp.) are sometimes prominent.

From this description alone you would be able to develop a plant list and assign wetland indicators.

In just about every state there exists a plant inventory and classification text.  Most of these are published by a state land grant university.  These are usually the major agricultural institutions.   However, in the North Carolina example one professor is from NC State and the other is from the University of NC.  NC State has a major agricultural program.  UNC is more of a research institution.  This collaboration has produced a terrific document and a great example of universities working together.  Just don’t bring up basketball.

I had mentioned a few newsletters ago the Swamp School is launching a new online training program called Virtual Swamp Tours.  This virtual trip to the swamp is intended to show you what these plant communities look like in person.  We hope to have the first set of tours up in a few weeks.  We are also including a sample tour in our hydrology webinar that we are offering next week.

Have a great week!

– Marc

Swamp Stomp

Volume 14, Issue 7

In the spirit of the Winter Olympics I thought I would do a little digging on wetlands in Russia.  Russia is the world’s largest county.  According to Wetlands International, the country includes very large areas of wetlands, including peatlands of various types (raised bogs, fens, and transitional mires) covering 1.8 million km2, 120,000 rivers with a total length of 2,300,000 km, 2 million lakes with a total volume of 370,000 km3, and diverse marine wetlands occurring over a 60,000-km stretch of the national coastline.

Since 1975, Russia has been one of the one of the Ramsar countries.  It has designated 35 wetland sites totaling 10.3 million hectares for the Ramsar list.  However, they have also protected areas of wetlands the go well beyond the Ramsar criteria.  Approximately, 9,000,000 ha of wetlands are protected within the strict nature reserves (zapovedniki),  5,300,000 ha, in the federal sanctuaries and wildlife refuges (zakazniki), 650,000 ha, in the national parks, and 60,000,000 ha of wetlands are protected at the local level.

Some of the more significant wetland systems include (From Wetlands International):

• The Volga Delta, the largest deltaic complex in Europe and one of the richest bird habitat in the world, covering 19,000 km2;
• Kandalaksha Bay on the eastern side of the White Sea and Lake Khanka in the Russian Far East, renowned for their importance for breeding and migrating waterbirds;
• The world’s largest peatland system of Bolshoye Vasyuganskoye covering 50,000 km2 in Western Siberia;
• Lake Baikal containing 20% of the world’s liquid fresh water with its unique fauna characterized by the highest number of endemic species of all the inland water bodies;
• Large wetland areas along the coasts of the Black Sea and Sea of Azov on the south;
• Extensive tundra wetlands underlying by permafrost on the north, and many others.

On the plains of Western Siberia, a continuous bog landscape is found, with a great number of lakes and wide river valleys. This area comprises a great ‘duck factory’, comparable with the prairie pothole country of North America.

Wetland concerns in Russia are similar to those in the United States.  Loss of wetlands due to drainage for agriculture and water supply dams have been significant.  There is no large scale assessment of Russia’s wetlands and many systems are vulnerable to development pressures.

To help Russia manage some of its environmental issues representatives from the Russian Ministry of Economic Development, Ministry of Natural Resources and Environment, Technological Platform, Russian regional administrations, and private industry met with EPA experts in Washington, DC in 2009 to discuss development of economic mechanisms in addressing legacy waste sites in the Arctic Region. The delegation also visited United States Superfund and Brownfields sites, to observe and review innovative technologies and best practices in land remediation and destruction of hazardous wastes.

While this is not directed at wetlands, it is a start. It is reminiscent of the early days of the Clean Water Act in the 1970’s.  The focus then was water contamination.  In Russia today the major concern is hazardous waste, especially in the arctic regions.

Wetlands International has drafted a national strategy for Russia.  It includes a number of key points including:

• Develop and implement a national wetland inventory program;
• Protect the most important wetlands by means of designating sites of special (international, federal and regional) importance;
• Establish a network for monitoring the status of wetlands and a system for collecting, storing and analyzing data on wetlands in the form of National Wetland Cadastre supported by relevant legislation and institutional network;
• Develop legislation that will provide for wetland wise use and conservation throughout the country;
• Raise the awareness in wetland functions and values among the general public and specific target groups;
• Promote the participation of indigenous and local communities and other stakeholders in the decision-making process concerning wetland management and conservation;
• Promote research in wetlands as a basis for management and conservation action;
• Promote international cooperation in the field of wetland conservation and sustainable use.

Wetlands International recently published a guidebook for creating concepts for visitor centers and eco-trails in wetlands.  It is targeted at a wide audience, including those that have the intention of establishing a visitor center or a wetland center, plan to renovate an old natural history museum, design a network of walking trails, a child-friendly exhibit or a play area. This publication contains the detailed description of the steps they will go through to plan the concept development process, the practical examples and tips to avoid common mistakes.  It sounds like a great publication. Unfortunately, it is only available in Russian.   You can download it here. 

das vi danya

Марк