Turbulent Waters: Court Ruling Challenges White House Power Over Water Protections

How a Recent Court Ruling Could Complicate Waters of the United States (WOTUS) Rulemaking

A recent court decision in Marin Audubon Society v. FAA (No. 23-1067) may have significant implications for how the White House and federal agencies issue environmental regulations, particularly those related to the Clean Water Act’s (CWA) definition of “Waters of the United States” (WOTUS). The decision, issued by the United States Court of Appeals for the District of Columbia Circuit on November 12, 2024, has sparked questions around the authority of the Council on Environmental Quality (CEQ) to set binding environmental rules under the National Environmental Policy Act (NEPA). As WOTUS regulations continue to be a critical component of federal water protection, this ruling could add complexity to the rulemaking process, opening the door to new challenges and delays.

Understanding the CEQ’s Role in Environmental Regulation

The CEQ, part of the Executive Office of the President, was created to coordinate federal environmental efforts and ensure that agencies adhere to NEPA. Traditionally, CEQ issues guidelines that all federal agencies follow to conduct NEPA environmental assessments, which include evaluating the impacts of major actions on the environment. This standardization helps create a consistent framework across agencies for environmental protection.

In Marin Audubon Society v. FAA, however, the court raised doubts about CEQ’s ability to enforce binding regulations across federal agencies, arguing that its authority is primarily derived from executive orders rather than direct Congressional approval. Judge Randolph’s opinion suggested that CEQ’s rulemaking power might not hold up in court, challenging the notion that agencies are bound to follow CEQ’s NEPA guidelines. For WOTUS rulemaking, this raises substantial questions about how federal agencies like the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) will conduct their environmental reviews and establish regulatory consistency.

Key Ways This Ruling Could Affect WOTUS Rulemaking

Here’s how the court’s decision could potentially complicate future WOTUS regulations:

1. Limiting CEQ’s Influence Over Federal Environmental Reviews

The CEQ has long set the NEPA guidelines for federal agencies to ensure consistency in environmental impact assessments. By questioning whether CEQ has the authority to issue binding NEPA rules, the court has created uncertainty about the future of this standardized approach. Without a binding CEQ framework, agencies might no longer be required to use a single approach to assess the environmental impacts of WOTUS rules, making it more challenging to create uniform protections for waters and wetlands across the nation.

Potential Impact: The EPA and USACE could face challenges in setting a consistent environmental baseline when drafting WOTUS rules. This could create inconsistencies across administrations, especially if each agency must interpret NEPA standards independently. With a fragmented regulatory approach, the White House might struggle to align WOTUS rulemaking with broader environmental objectives, such as national water quality and biodiversity goals.

2. Increased Legal Challenges to WOTUS Rules

The court’s ruling introduces a heightened level of scrutiny on executive authority. Since WOTUS rules often rely on extensive environmental assessments, a lack of clear CEQ authority could make these assessments vulnerable to legal challenges. Opponents of WOTUS rules could argue that without CEQ’s centralized authority, the environmental analyses conducted by agencies lack sufficient legal backing, increasing the likelihood of lawsuits that could block or delay WOTUS rule implementations.

Potential Impact: Legal battles have already been a major obstacle for WOTUS rules. If challengers focus on procedural aspects related to NEPA compliance, the rulemaking process could face further delays. Such challenges could undermine agencies’ ability to protect critical waters and wetlands, forcing EPA and USACE to revisit or revise their environmental analyses.

3. Shift Toward Agency-Specific NEPA Guidelines

If CEQ’s authority is ultimately limited, federal agencies may need to establish or strengthen their own NEPA compliance processes rather than relying on CEQ guidelines. This could lead to inconsistencies in how agencies interpret and apply NEPA standards, as each agency might develop unique procedures for assessing environmental impacts.

Potential Impact: WOTUS regulations could face delays as agencies work to create or adjust their own NEPA guidelines. This would not only slow the process of protecting water resources but also introduce complexity as each agency may weigh environmental impacts differently. Developing these agency-specific rules could lengthen the timelines for WOTUS rulemaking and might complicate enforcement if there are varying interpretations of environmental impacts across agencies.

4. Potential Constraints on the White House’s Climate and Water Protection Goals

The White House often relies on consistent, CEQ-led NEPA standards to ensure cohesive action across federal agencies, especially for ambitious goals such as those related to water conservation and climate change. With limitations on CEQ’s binding authority, it may become harder for the White House to drive a uniform environmental agenda and ensure that federal actions collectively work towards shared conservation objectives.

Potential Impact: WOTUS rules are essential for regulating water quality and protecting wetlands, which in turn play a crucial role in carbon sequestration, flood control, and habitat preservation. Without a consistent NEPA framework, the White House might find it challenging to align WOTUS rulemaking with broader environmental policies, potentially hampering efforts to meet water quality and climate goals. Additionally, a decentralized approach could lead to variability in enforcement, as agencies might follow different standards based on their unique NEPA guidelines.

5. Potential Rethink of Environmental Regulatory Strategy

The ruling could prompt the White House to explore alternative approaches to achieve its environmental objectives, especially if CEQ’s centralized authority remains in question. This might include working more closely with Congress to gain legislative backing for WOTUS or encouraging states to take a more active role in water protection.

Potential Impact: One option could be to shift more responsibility for water protection to the states, reducing federal reliance on WOTUS rules. Alternatively, the White House might pursue more public-private partnerships to address water conservation through collaborative projects rather than regulation alone. Such approaches could help the White House advance its goals despite the procedural challenges posed by the court’s decision, though they may be less effective than a cohesive federal approach.

Conclusion

The court’s ruling in Marin Audubon Society v. FAA (No. 23-1067) has introduced new complexities into the regulatory landscape for federal water protections like WOTUS. By calling into question the CEQ’s authority to issue binding environmental rules under NEPA, the court’s decision could slow down the WOTUS rulemaking process, open the door to more legal challenges, and limit the White House’s ability to enforce consistent environmental protections across agencies.

For those invested in the protection of U.S. water resources, this ruling highlights the importance of clear, well-supported regulatory authority. The White House may need to adapt by seeking legislative support for CEQ’s role or by exploring alternative regulatory strategies to continue advancing WOTUS protections. As federal agencies navigate these changes, the fate of critical waters and wetlands will remain a closely watched issue, with implications for conservation, climate resilience, and clean water access nationwide.

Bridging the Gap in Wetland Delineation: Introducing a New Manual by Marc Seelinger, SPWS

Wetlands are among the most vital ecosystems on our planet, acting as natural water filters, flood protectors, and habitats for a diverse array of wildlife. For environmental professionals, accurately delineating these areas is crucial for conservation efforts, regulatory compliance, and sustainable development. However, wetland delineation is a complex process that often poses significant challenges, especially for new hires in engineering and environmental companies.

Recognizing this gap, Marc Seelinger, SPWS, the founder of The Swamp School, has embarked on a mission to simplify wetland delineation. Drawing from over 20 years of experience in wetland science, Marc is creating an accessible and practical manual designed to make wetland delineation more approachable for professionals at all levels. To bring this invaluable resource to life, a Kickstarter campaign has been launched, and your support can make a significant difference.

The Challenge in Wetland Delineation

For many new professionals entering the field, existing resources on wetland delineation are either overly technical or lack practical guidance. The primary references, such as the U.S. Army Corps of Engineers’ “Wetland Delineation Manual (1987)” and the various “Regional Supplements,” are comprehensive but can be overwhelming for those without extensive experience. Additionally, the 2024 “Field Indicators of Hydric Soils” published by the USDA introduces new complexities that require careful interpretation.

This steep learning curve can lead to:

  • Confusion and Frustration: Difficulty in understanding complex methodologies and terminologies.
  • Field Errors: Mistakes in delineation can result in non-compliance with regulations, leading to legal and financial repercussions.
  • Project Delays: Misinterpretations and errors can cause setbacks, increasing costs and affecting project timelines.

Marc Seelinger’s Solution

Marc’s new manual aims to bridge the gap between complex regulatory documents and practical, real-world application. Here’s how:

  • Simplified Content: The manual breaks down intricate concepts into clear, easy-to-understand language without sacrificing essential details.
  • Authoritative Foundations: It is grounded in the U.S. Army Corps of Engineers’ “Wetland Delineation Manual (1987),” incorporates the latest “Regional Supplements,” and includes the 2024 “Field Indicators of Hydric Soils” published by the USDA.
  • Practical Organization: Designed for immediate application, the manual is organized so that users can quickly find the information they need and apply it in the field.
  • Expert Insights: Marc enriches the manual with real-world examples, tips, and best practices drawn from his extensive experience.
  • Engaging Visuals: The inclusion of diagrams, photographs, and checklists enhances comprehension and aids in retention.

Why This Manual Matters

The creation of this manual is more than just a publishing project; it’s a commitment to the future of environmental stewardship. By making wetland delineation more accessible:

  • Empowering New Professionals: The manual serves as a valuable training resource, helping new hires become proficient more quickly.
  • Enhancing Industry Standards: Clear and accurate delineations lead to better compliance and higher-quality environmental assessments.
  • Protecting Our Environment: Accurate delineation is essential for the preservation and management of wetlands, which play a critical role in our ecosystem.

The Kickstarter Campaign

To realize this vision, a Kickstarter campaign has been launched. The goal is to raise funds to cover writing, design, production, and distribution costs, ensuring that the manual is of the highest quality and widely accessible.

Exclusive rewards are available for backers:

  • $25 Pledge: Receive a digital copy of the manual before the official release.
  • $50 Pledge: Get a printed copy delivered to your doorstep.
  • $100 Pledge: Receive a printed copy plus your name acknowledged in the manual.
  • $250 Pledge: All of the above plus access to an exclusive online workshop hosted by Marc.
  • $500 Pledge: Everything above plus a personalized consultation session with Marc to address your specific needs.

By supporting the campaign, you’re not only securing a valuable resource for yourself but also contributing to the professional growth of the entire environmental community.

About Marc Seelinger and The Swamp School

Marc Seelinger, SPWS, is a respected wetland scientist with over two decades of experience in the field. As the founder of The Swamp School, he has dedicated his career to environmental education, helping professionals understand and navigate the complexities of wetland science.

The Swamp School is known for its commitment to empowering environmental professionals through practical training and resources. This new manual is a continuation of that mission, aiming to make a significant impact on how wetland delineation is taught and practiced.

How You Can Help

Your involvement is crucial to the success of this project. Here’s how you can support:

  1. Visit the Kickstarter Campaign: Support the Wetland Delineation Manual Project
  2. Choose a Reward Tier: Select a pledge level that suits you and take advantage of the exclusive rewards.
  3. Spread the Word: Share the campaign with colleagues, friends, and anyone who might benefit from this manual.
  4. Engage on Social Media:

The Impact of Your Support

By backing this project, you’re contributing to:

  • Improved Training Resources: Providing new professionals with the tools they need to excel.
  • Enhanced Environmental Compliance: Promoting accurate and efficient wetland delineations.
  • Elevated Industry Standards: Supporting a resource that raises the bar for environmental practices.

A Personal Message from Marc

“Creating this manual has been a passion project for me. I’ve witnessed the challenges that new professionals face, and I genuinely believe this resource will make a significant difference. Your support means the world to me, and together, we can make a lasting impact on our field.”
— Marc Seelinger, SPWS

Conclusion

Wetlands are invaluable to our environment, and the professionals tasked with their delineation play a critical role in their preservation. This new manual by Marc Seelinger is poised to become an essential tool in the environmental professional’s toolkit, simplifying complex concepts and promoting best practices.

By supporting the Kickstarter campaign, you’re not just purchasing a manual; you’re investing in the future of environmental stewardship. Join us in making wetland delineation accessible and effective for all.

Support the Kickstarter Campaign Today: Click Here to Pledge

Let’s work together to protect our wetlands and empower the next generation of environmental professionals.

The Swamp School WOTUS Rule

Personal Statement: Why We Need the Swamp School WOTUS Rule

As a professional who has dedicated over 40 years to working with wetlands, I have had a front-row seat to the evolution—and at times, the decay—of the WOTUS program. I’ve watched policies shift from stringent federal control to more localized approaches, and I’ve seen the impacts these changes have had on our wetlands and waterways, our communities, and our economy. I’ve worked with landowners who are uncertain about their responsibilities, developers who are frustrated by regulatory delays, and conservationists who are determined to protect our water resources amidst shifting policies. This journey has reinforced my conviction that it is time for us to take matters into our own hands and build a WOTUS framework that is fair, responsible, and sustainable.

Throughout my career, I have witnessed both the strengths and weaknesses of federal oversight. There is no doubt that the Clean Water Act has played a vital role in protecting critical water resources and improving water quality across the country. However, as the regulatory landscape has changed, so too have the complexities and challenges of defining and enforcing WOTUS. Too often, jurisdictional determinations have become bottlenecks, with regulatory uncertainty leading to delays, increased costs, and growing frustration for everyone involved. The current system, while well-intentioned, has become a maze that is difficult to navigate, often leaving landowners, businesses, and environmental professionals at odds over water resources that are vital to all of us.

The Swamp School WOTUS Rule represents a new way forward, one that is rooted in my decades of experience and in the lessons I have learned from working directly with the land and water. This rule acknowledges the critical role of federal protections for key water resources, but it also respects the sovereignty and expertise of states to manage waters that fall outside federal jurisdiction. By reserving isolated, ephemeral, and other local waters for state management, we create a framework that empowers states to act in ways that make sense for their own unique landscapes, communities, and economies.

One of the most critical aspects of the Swamp School WOTUS Rule is the privatized jurisdictional determination process. Over the years, I have come to believe that water resources are best understood by those who have specialized training and on-the-ground experience. That’s why this rule calls for Certified WOTUS Determination Professionals (CWDPs) to lead the jurisdictional determination process. These trained professionals will make responsible, accurate, and timely determinations based on consistent criteria, backed by both federal and state oversight. By empowering certified professionals to assess jurisdiction, we streamline the process, reduce delays, and ensure that decisions are informed by real-world expertise.

I am also a firm believer in the principles of cooperative federalism, which have been woven into the very fabric of the Clean Water Act since its inception. The Swamp School WOTUS Rule builds on these principles by creating a partnership between federal agencies and the states, and between certified professionals and government regulators. This collaborative approach will give rise to a more efficient, accountable, and responsive WOTUS program that serves the needs of all Americans.

For me, the Swamp School WOTUS Rule is not just another regulation; it is a culmination of my life’s work and a commitment to the sustainable stewardship of our water resources. It’s a blueprint for a balanced approach that protects our most critical waters, respects the rights of states, and empowers trained professionals to do what they do best. This rule reflects decades of knowledge, and it embodies a vision for the future that is fair, sustainable, and grounded in the belief that effective water management must be practical, science-based, and adaptable to our changing world.

Of course, as much as I’d like to think we could officially call it the Swamp School WOTUS Rule, I’m pretty sure the powers-that-be will come up with something a little less colorful! I can almost hear it now: “The Clean Waters Collaborative Determination Act” or maybe “The Federated Waters Determination Framework.” But whatever name they choose, the heart of the rule will remain the same—protecting our water resources in a way that’s both responsible and sustainable. And hey, as long as they remember where it came from, they can call it whatever they like!

In closing, my hope is that the Swamp School WOTUS Rule will help foster a new era of water management—one that can evolve with the times while remaining steadfast in its commitment to responsible stewardship. This is more than a policy; it’s a promise to future generations that we are committed to protecting our waters with integrity, respect, and a deep understanding of their vital role in our lives. – Marc Seelinger, SPWS

The Swamp School WOTUS Rule

Purpose: The Swamp School WOTUS Rule offers a comprehensive and efficient approach to defining Waters of the United States (WOTUS), balancing federal oversight with enhanced state autonomy. It privatizes the jurisdictional determination process through a certification program for professionals authorized to assess water bodies as either federally or state-regulated. This rule focuses federal jurisdiction on waters essential to interstate commerce and environmental health, while empowering states to manage other water resources through state-specific programs.

Key Provisions of the Swamp School WOTUS Rule

1. Jurisdictional Waters Under Federal Authority

The rule focuses federal jurisdiction on water bodies with continuous, significant connections to traditional navigable waters (TNWs). These core water resources are critical for interstate commerce and ecological connectivity, making them subject to federal oversight under the Clean Water Act.

  • Traditional Navigable Waters (TNWs): Large rivers, lakes, bays, and tidal waters that are currently or historically used in interstate or foreign commerce.
  • Interstate Waters: Waters crossing or forming state boundaries with continuous surface connections to TNWs.
  • Relatively Permanent Tributaries: Perennial or intermittent streams, rivers, and other natural channels that flow into TNWs or interstate waters.
  • Adjacent Wetlands with Continuous Surface Connections: Wetlands directly abutting TNWs or relatively permanent tributaries, without natural or artificial barriers.
  • Impoundments of Jurisdictional Waters: Dams, reservoirs, or other impoundments that maintain a direct hydrological connection to a jurisdictional water.

2. Non-Jurisdictional Waters Reserved for State Management

Certain waters that do not meet federal criteria fall under state jurisdiction. States are empowered to manage these waters according to local priorities, creating unique regulations and programs tailored to specific environmental and economic needs. State jurisdiction covers:

  • Ephemeral Streams and Temporary Channels: Features that flow only after rainfall and lack continuous flow to TNWs.
  • Isolated Wetlands and Non-Continuous Interstate Waters: Wetlands without direct surface connections to TNWs or other jurisdictional waters.
  • Ditches and Man-Made Water Features Not Functioning as WOTUS: Non-navigable ditches, canals, and artificial features disconnected from WOTUS.
  • Groundwater: All groundwater remains outside the scope of federal jurisdiction.
  • Prior Converted Cropland and Certain Artificial Water Bodies: Agricultural lands and water bodies, such as irrigation ponds, disconnected from jurisdictional waters.

3. Certified WOTUS Determination Professionals (CWDPs) for Federal Determinations

The Swamp School WOTUS Rule establishes a privatized jurisdictional determination process through a network of Certified WOTUS Determination Professionals (CWDPs). CWDPs are authorized to conduct official WOTUS determinations and to classify water features as either federally regulated or state-regulated, based on the Swamp School WOTUS Rule.

  • Certification Process:
    • CWDPs complete rigorous training in federal WOTUS standards, hydrology, wetland science, and water law.
    • Certification requires passing a written exam and completing a field practicum demonstrating real-world skills in assessing water features.
    • Certified professionals must maintain credentials through continuing education to stay current with updates in regulation and environmental science.
  • Authority and Oversight:
    • CWDPs’ determinations are binding and subject to periodic review by the EPA and the U.S. Army Corps of Engineers for quality assurance.
    • Determinations are documented in reports that include data, maps, and justification, ensuring transparency and consistency.
  • Transparency and Documentation: CWDPs submit detailed determination reports accessible to federal and state agencies, providing accountability and clarity for stakeholders.

4. State Jurisdictional Determination Program

In addition to the federal determination program, the Swamp School WOTUS Rule establishes a State Jurisdictional Determination Program. Under this system, each state has its own certification and licensing requirements for professionals conducting state-level jurisdictional determinations, similar to professional licensing in fields like law or medicine. This program ensures that individuals working in a particular state are qualified to make jurisdictional determinations in alignment with state-specific water management standards.

  • State-Specific Certification:
    • Each state will develop its own certification program for jurisdictional determinations, with specific training and licensure requirements tailored to regional priorities.
    • State-certified professionals must meet standards similar to CWDPs, with state-administered exams and field practicums relevant to local hydrology and environmental considerations.
    • Continuing education will be required to maintain state certification, ensuring that professionals remain knowledgeable about both state and federal changes.
  • Distinct Licensing Requirements: State-certified professionals will be licensed in their respective states, much like attorneys, to ensure they have in-depth knowledge of regional water management standards, ecosystems, and regulatory frameworks.
  • Collaborative Standards and Support: Federal agencies will provide resources and technical support to help states establish and maintain rigorous certification programs, promoting consistency and high standards nationwide.

5. Federal Oversight and Cooperative Federalism

The Swamp School WOTUS Rule emphasizes cooperative federalism, recognizing that water management is best achieved through collaboration between federal, state, and private sectors. Federal agencies support the certified professional network and work alongside states to maintain consistent, high standards in water resource management.

  • Federal Guidance and Resources: The EPA and Army Corps of Engineers will provide training materials, tools, and technical resources to support CWDPs and state certification programs.
  • Grant Programs for State Initiatives: States can apply for federal grants to support water management projects, including conservation, restoration, and water quality initiatives.
  • Interstate Collaboration: For shared water resources, federal agencies will facilitate cooperation between states, helping to harmonize water quality standards and regulatory approaches.

Benefits of The Swamp School WOTUS Rule

  1. Enhanced Efficiency and Consistency: By delegating jurisdictional determinations to certified professionals, the rule accelerates decision-making and reduces regulatory bottlenecks, benefiting landowners, developers, and conservationists.
  2. Increased Professional Accountability: Certified WOTUS Determination Professionals (CWDPs) and state-certified professionals bring high levels of expertise and accountability, ensuring reliable and accurate water assessments nationwide.
  3. Empowered State Management and Local Control: States gain primary responsibility over non-jurisdictional waters, allowing them to regulate based on regional needs and priorities, fostering innovation in water management.
  4. Transparent and Predictable Process: The rule creates a clear, predictable process for determining jurisdiction, with transparent documentation and accessible reports, which benefit all stakeholders by reducing uncertainty.
  5. Balanced Federal Protection for Key Waters: Federal jurisdiction is focused on core water resources that impact interstate commerce, downstream health, and ecological stability, while states retain autonomy over isolated and ephemeral waters.

Conclusion: A Balanced and Modern Approach to Water Management

The Swamp School WOTUS Rule represents a forward-thinking solution to defining Waters of the United States, blending federal protections with state rights and privatizing the jurisdictional determination process to increase efficiency and accuracy. By empowering a network of certified professionals and recognizing state-specific licensing, this rule fosters a cooperative approach that respects both national interests and local autonomy. It is a sustainable, balanced framework designed to ensure the protection and responsible management of America’s water resources, addressing the needs of today while paving the way for future generations.

Balancing Clean Energy with Environmental Protections: EPA Reaches a Settlement with Hell’s Kitchen Geothermal, LLC

The following blog post is a summary of the article “EPA settles case with Hell’s Kitchen Geothermal over wetlands discharge impacting on Salton Sea” by Arturo Bojorquez, published in the Imperial Valley Press on October 19, 2024. To read the full article, click here.

The U.S. Environmental Protection Agency (EPA) has reached a settlement with Hell’s Kitchen Geothermal, LLC (HKG) due to their work on leased Imperial Irrigation District (IID) land that disrupted wetland areas connected to California’s Salton Sea. HKG’s dredging and ditching operations, as part of a lithium extraction and geothermal energy project, resulted in the discharge of materials into adjacent wetlands. This redirected their hydrology, resulting water flowing out of the wetlands and into the Salton Sea. Consequently, this has led to around 1,200 acres of wetlands losing their capacity to maintain ecological functions. Under the settlement, HKG is required to restore these affected wetlands to their original state.

The Salton Sea project, which encompasses geothermal energy production and lithium extraction, is part of a broader initiative aimed at supporting clean energy development. This project seeks to provide 49.9 MW of geothermal energy and produce 20,000 tons of lithium, essential for electric vehicle batteries. However, the project has faced environmental opposition, with groups like Comite Civico del Valle (CCV) arguing that the project’s Environmental Impact Report (EIR) is inadequate, failing to address issues like air quality, hazardous waste, and water supply impacts. HKG’s operations on approximately 2,000 acres of IID-owned land began in 2021, including the extension of drainage channels closer to the sea, resulting in material discharging into around 27 acres of wetlands. Further environmental concerns were raised when it became apparent that the wetland’s ability to hold water had been negatively impacted, as water flowed out of 1,200 acres of wetland and entered the Salton Sea.

CCV and Earthworks contend that Imperial County’s approval overlooked a deeply flawed environmental impact report that failed to analyze the impacts the proposed project would have on the air quality and water quality of the region. In addition, a detailed plan on what to do with the hazardous waste products created as a result of the lithium mining and geothermal energy harvesting was never discussed. Environmental groups argue that the project should not get a free pass simply because it is “green” in nature. This case has highlighted broader calls for effective oversight of clean energy projects. Experts emphasize that projects must balance renewable energy goals with stringent environmental protections to ensure the responsible management of resources like wetlands. Going forward, projects such as this one, even though the end goal would be to mitigate climate change, should operate with “adequate oversight and transparent monitoring” to avoid damaging important public natural resources.

North Carolina’s Weird and Wonderful: Two-Toed Amphiuma

Photograph of Amphiuma means, the two-toed amphiuma, courtesy of Kevin Stohlgren and Amphibians and Reptiles of North Carolina

Well, Halloween is finally upon us. A holiday favorite of mine, tis the season for pumpkin carving, for plastic skeletons arranged in tableaus, and for viewing classic seasonal films. One such film that I enjoy all year round is from 1954, The Creature from the Black Lagoon. One of the original “monster movies” from the midcentury, the story focuses on a group of scientists on an expedition to capture and study a strange creature living in an Amazonian lagoon. What could possibly go wrong? In that spirit, this month’s weird and wonderful focus is on one of North Carolina’s own mysterious, aquatic creatures: the two-toed amphiuma. 

Chances are good that you have never heard of this animal, let alone seen it. It is highly elusive, being primarily nocturnal in nature and occupying shallow ponds, ditches, and abandoned rice fields in the Coastal Plain and adjacent Piedmont regions of the Carolinas. As for what it actually is, well, that is where the weirdness begins. It is an eel-like salamander that has the honor of being North America’s longest amphibian, ranging in size between 18 inches to almost 4 feet in length. This species gets its name from the fact that it has two tiny pairs of legs, each with two tiny toes. Its underside is typically a light gray color, with the top portion being a uniform black, dark gray, or dark brown. 

Photograph of Amphiuma means, the two-toed amphiuma, courtesy of Kevin Stohlgren and Amphibians and Reptiles of North Carolina

Primarily aquatic, it is hypothesized that two-toed amphiumas may travel between wetlands during heavy rains, crossing over land to get from place to place. Seeing a darkly colored, slimy, eel-like creature emerge from a swamp at night in the rain is probably a scary sight, if you don’t know that what you are watching is just your friendly neighborhood amphibian roaming about the landscape. Well, friendly is probably not an apt description; amphiumas are carnivorous and have the sharp teeth necessary for that dietary lifestyle. They may bite defensively if they feel threatened, and the chompers on large adults can cause some serious wounds. So, if you are fortunate enough to see one of these weird and wonderful animals in the wild, it is best to enjoy the view, but do not touch the amphiuma. 

Photograph of Amphiuma means, the two-toed amphiuma, courtesy of Todd Pierson and Amphibians and Reptiles of North Carolina

Herpetologists (scientists who study reptiles and amphibians) do not know a whole lot about two-toed amphiumas. What is known is that females deposit long strings of eggs, ranging anywhere from 10 eggs to over 300, underneath logs, boards, and other objects in moist or wet areas during the winter months. These strings have been described as “rosary-like” and have been found in some unusual places, including alligator nests. Once a female has laid her eggs, she remains with them until they hatch into aquatic larvae around five months later. These tiny larvae are, on average, around 2.2 inches long, and once they transform into the adult stage, they are around 2.75 inches long. The next time you take a stroll through the hardwood forests and pine savannas of North Carolina’s coastal plains, pay attention to any wetlands you see. They just might house our state’s very own creature from the black lagoon. 

Announcing the Latest Edition of Field Indicators of Hydric Soils in the United States: A Guide for Identifying and Delineating Hydric Soils – Version 9.0

book cover

The Field Indicators of Hydric Soils in the United States guide has been an essential resource for scientists, environmental consultants, and land managers who work to identify and preserve wetlands. Now, with the release of Version 9.0, the USDA’s Natural Resources Conservation Service (NRCS) and the National Technical Committee for Hydric Soils (NTCHS) have expanded and refined this resource, updating essential definitions, indicators, and methodologies. This new edition builds on Version 8.2, introducing new region-specific indicators, refined guidelines for identifying hydric soil features, and some adjustments to the thickness requirements for certain indicators, making it a comprehensive tool for accurate hydric soil identification across the U.S.

Key Enhancements in Version 9.0

Hydric soils play a critical role in wetland ecosystems, serving as indicators of saturated conditions essential for wetland health and biodiversity. The new Version 9.0 introduces essential updates that will improve the accuracy of hydric soil identification, from defining region-specific indicators to refining measurement requirements for certain soil features.

1. Introduction of New Field Indicators for Diverse Regions

The guide has introduced new hydric soil indicators tailored to specific ecological regions, enhancing accuracy in previously challenging areas. For instance, the Alaska Gleyed Pores indicator helps address the unique characteristics of cold-region soils, where gleyed matrix colors occur prominently along root channels and pore linings, essential for identifying anaerobic conditions in these climates. With similar additions for areas with sandy, loamy, and clayey soils, the guide allows scientists to make more reliable hydric soil classifications nationwide.

2. Changes to Feature Thickness Requirements

Version 9.0 includes important updates to the minimum thickness requirements for certain hydric soil indicators. These adjustments aim to better align field practice with evolving soil science research, allowing for more nuanced identification of wetland boundaries. For example, indicators like the Depleted Matrix now include modified minimum thicknesses based on specific depth criteria, improving accuracy for areas with marginal wetland conditions. Such changes enable more precise documentation of soil properties and ensure that professionals can account for subtle variations in hydric soil features across different soil types and landscapes.

3. Expanded Guidelines for Recognizing Redoximorphic Features

Redoximorphic features—characteristics indicating soil areas with fluctuating aerobic and anaerobic states—are essential in defining hydric soils. In this latest edition, redoximorphic guidance is enhanced, particularly for sandy and loamy soils. The new definitions cover specific traits of redox concentrations and depletions, such as iron-manganese masses and gleyed matrices, offering field professionals an improved framework for distinguishing between true hydric soil features and naturally occurring soil variations in complex landscapes.

4. Elimination of Outdated Test Indicators

A major update n Version 9.0 is the elimination of outdated test indicators. Previously, some indicators were included on a trial basis to assess their effectiveness in field identification. These test indicators have now been removed, streamlining the guide and allowing users to focus on scientifically validated indicators that provide reliable results. Concepts from retired indicators, such as Vernal Pools, have been integrated into existing indicators like the Depleted Matrix, enhancing these primary indicators without redundant or untested methods. This change ensures that each indicator in the guide meets rigorous standards, improving overall reliability and usability.

5. Integrated Indicators for Simplicity and Efficiency

Several indicators have been retired in this edition, but their key concepts have been consolidated into other indicators to reduce redundancy. For instance, the concepts previously captured in the Vernal Pools indicator now enhance the Depleted Matrix indicator, making it a more versatile tool for wetland delineation. Similarly, other retired indicators have been merged, keeping the guide efficient and accessible while still scientifically rigorous.

6. Revised Appendices and Glossary for Greater Accessibility

Version 9.0 includes a thoroughly updated glossary and appendices that make it easier for users to apply the guide in specific regions. Expanded definitions cover terms like “gleyed matrix,” “anaerobic conditions,” and “organic bodies,” making the guide more accessible to those new to soil science and field identification. In addition, the appendices now provide a consolidated list of approved indicators organized by Land Resource Regions (LRRs) and Major Land Resource Areas (MLRAs), supporting rapid reference for professionals working in various geographic areas.

Why These Updates Matter for Wetland Management

Identifying hydric soils accurately is essential for maintaining and protecting wetland ecosystems, which serve critical functions in water purification, flood control, and biodiversity preservation. The enhancements in Version 9.0, from modified thickness requirements to expanded redoximorphic feature descriptions, provide environmental consultants, regulators, and wetland scientists with the precision needed to navigate these complex landscapes accurately. Improved indicators for specific regions, like coastal, floodplain, and cold environments, make it easier to manage wetlands under diverse climate and soil conditions.

Practical Applications for Field Professionals

With its focus on detail and accuracy, Version 9.0 offers practical benefits for those conducting soil identification and wetland delineation:

  • Land Development Compliance: Accurate soil classification helps ensure that projects comply with the Clean Water Act (CWA) and other regulations, reducing the risk of costly misclassifications.
  • Restoration and Conservation Efforts: Wetland scientists can apply region-specific indicators and adjusted thickness requirements to design effective conservation and restoration projects, especially in fragile ecosystems like floodplains and coastal areas.
  • Agricultural Land Use: Farmers and agricultural consultants can leverage this updated resource to make informed decisions about hydric soil management, supporting sustainable practices that protect adjacent wetland areas.

Accessing and Using Version 9.0

The Field Indicators of Hydric Soils Version 9.0 is available through the NRCS Distribution Center and on the NRCS website. With this latest edition, professionals have access to cutting-edge tools that support not only accurate soil identification but also sustainable environmental management practices. By integrating the advancements in Version 9.0, field practitioners can confidently approach the intricacies of hydric soil identification, contributing to the protection and sustainability of wetland ecosystems across the United States.

This update ensures that wetland delineation remains a robust science, meeting the challenges posed by changing climates and evolving ecosystems. With Version 9.0 in hand, environmental professionals are now better equipped than ever to work at the forefront of soil science and wetland conservation.

Understanding the Proposed Clean Water Act of 2023: A New Era in Water Protection?

The Clean Water Act (CWA) has long been the cornerstone of water protection in the United States, but the environmental landscape has shifted, prompting lawmakers to propose updates to address modern challenges. In October 2023, a group of House Democrats introduced the Clean Water Act of 2023 (H.R. 5983), which aims to restore protections to U.S. waters following the Supreme Court’s Sackett v. EPA decision earlier in the year. The proposed changes could have significant implications for water management, environmental protection, and business regulation across the country.

Why a New Clean Water Act?

The primary motivation behind this update is the Supreme Court’s May 2023 ruling in Sackett v. EPA, which narrowed the definition of waters protected under the original Clean Water Act. This decision stripped federal protection from a significant portion of the nation’s wetlands and streams, reducing their regulation. The Clean Water Act of 2023 seeks to restore these protections by expanding the definition of Waters of the United States (WOTUS) and reinstating federal oversight over critical waterways.

Key Provisions of the 2023 Act

  1. Expanded Definitions of Protected Waters
    The Act aims to broaden the scope of protected waters, ensuring that small streams, wetlands, and other water bodies that lost federal protection after the Sackett ruling are once again regulated under federal law. This would close loopholes that have allowed pollution and degradation of these critical water sources.
  2. Stricter Permitting Processes
    The proposed law introduces tougher requirements for obtaining permits to discharge pollutants into protected waters. This is expected to have major implications for industries like construction and agriculture, which frequently interact with water bodies that may now fall under federal jurisdiction again.
  3. Focus on Wetland Conservation
    Recognizing the role wetlands play in flood control, water purification, and habitat provision, the new Act promotes stronger protections and increased restoration efforts for these ecosystems. Wetland mitigation banking is also supported, allowing developers more flexibility while still maintaining conservation goals.
  4. Climate Resilience
    The Act incorporates climate resilience into water management strategies. By funding green infrastructure projects and improving natural flood defenses like wetlands, the legislation seeks to mitigate the effects of climate change on U.S. water systems.

Important Dates and Legislative Progress

The Clean Water Act of 2023 was introduced in the House on October 18, 2023, by Rep. Rick Larsen (D-WA), alongside co-sponsors Rep. Grace Napolitano (D-CA), Rep. Don Beyer (D-VA), and Rep. Melanie Stansbury (D-NM). It was referred to the House Committee on Transportation and Infrastructure on October 25, 2023, and then to the Subcommittee on Water Resources and Environment on October 27, 2023.

On September 11, 2024 a hearing of the subcommittee on Water Resources and Environment was held. The hearing featured testimonies from various stakeholders, including representatives from:

  • Ms. Emma Pokon, Commissioner, Alaska Department of Environmental Conservation
  • Ms. Nicole Rowan, Director, Water Quality Control Division, Colorado Department of Public Health and Environment
  • Ms. Courtney Briggs, Chairman, Waters Advocacy Coalition, on behalf of the American Farm Bureau Federation
  • Mr. Vincent E. Messerly, P.E., President, Stream and Wetlands Foundation, on behalf of the National Association of Home Builders

They discussed the impacts of the Sackett decision on environmental protection, economic development, and the balance between federal and state regulatory roles.

Looking Ahead: What’s Next?

As the Clean Water Act of 2023 moves through the legislative process, it faces both support and opposition. Advocates for the bill emphasize its importance for restoring critical protections and promoting environmental health, while opponents argue that the expansion of federal water regulation could hamper economic development.

With the increasing challenges posed by climate change and population growth, the Clean Water Act of 2023 could play a pivotal role in shaping U.S. water policy for years to come. Keep an eye on this bill as it progresses through Congress, as its final form could have far-reaching impacts on water protection and management.

USACE APT Tool Temporarily Down: Hurricane Helene Shuts Down the National Centers for Environmental Information Headquarters in Asheville, NC

The recent devastation in Western North Carolina, wrought by Hurricane Helene last month, has had far-reaching consequences. NOAA’s National Centers for Environmental Information (NCEI) headquarters in Asheville have been affected, and as a result of the damage, the data center is shut down. Since the network service provider for the NCEI headquarters is also not functioning, the USACE Antecedent Precipitation Tool (APT) is offline. As a result, wetland delineators and other environmental professionals across the country are unable to access the decades-worth of NOAA data stored on those servers. The U.S. Army Corps of Engineers, in their press release, advises that practitioners “may use the manual procedures described in Chapter 5 of the Regional Supplements to the Corps of Engineers Wetland Delineation Manual and Chapter 19 of NRCS’ Engineering Field Handbook.”

Chapter 5 of the Regional Supplements addresses the challenges of identifying wetlands in difficult situations. Some wetlands lack typical indicators like hydrophytic vegetation, hydric soils, or wetland hydrology due to natural processes or disturbances. This chapter outlines approaches for making wetland determinations in problematic areas and atypical situations, such as those affected by human activities or natural events. It includes guidelines for agricultural and silvicultural lands, problematic vegetation and soils, wetlands that lack hydrology indicators, and wetland/non-wetland mosaics. The procedures emphasize the importance of professional judgment and the use of available data sources to make informed determinations. Field inspectors are encouraged to investigate indicators like volunteer vegetation, undisturbed reference sites, and historical data to determine if wetland conditions exist.

The NRCS Engineering Field Handbook Chapter 19 provides detailed guidance on using hydrology tools for wetland identification and analysis in the Prairie Pothole Region (PPR) states, which include Iowa, Minnesota, North Dakota, and South Dakota. It outlines the procedures to determine lateral effect distances for wetland drainage systems, utilizing data from the National Soil Information System (NASIS). A key component of the chapter is the hydrogeomorphic (HGM) classification system, which categorizes wetlands based on landscape position, water source, and water movement. The handbook emphasizes the importance of accurately assessing these soil types when calculating lateral effect distances, which is critical for proper drainage system planning. Both of these chapters, while providing great supplemental information, are unable to provide historic data on par with that of the APT tool.

We have learned a lot as a result of Hurricane Helene, not the least of which is that climate disasters can happen anywhere, anytime. Bodies of water, even at high elevations, can overflow and devastate local communities, with the added risk of landslides, due to the steep slopes. What we have also learned is that the APT tool, which is used by thousands of environmental professionals, research scientists, and hydrologic engineers across the country, only works when the NCEI servers in Asheville are functioning. Why should people care and pay attention about this, especially when they are struggling to recover and rebuild? Well, the APT tool is crucial for assessing flood risk by considering the amount of precipitation that has fallen over a specific period before a significant weather event. It helps engineers and planners understand the soil’s saturation level, which influences how much additional rain could lead to flooding. By evaluating this antecedent moisture condition, the APT provides better predictive capabilities for water management decisions. This tool is especially important for managing reservoirs, flood control systems, and other water infrastructure. Ultimately, the APT aids in preventing damage from extreme weather events by improving the accuracy of flood forecasting.

Hopefully the above helps people understand why the APT tool is so important. What Hurricane Helene has highlighted is the issue that the APT code is written in such a way that it is hard linked to the NCEI servers: it cannot get NOAA’s data from anywhere else. So this begs the question, is all of that data housed only in Asheville, NC? If so, are there any back-ups, and could the APT tool code be re-written to allow for it to access that back-up data? It seems to me that the APT tool is going to be critical in the coming months and years when it comes to not only redesigning the basic infrastructure, but also to redesigning and rebuilding entire neighborhoods to be more resilient to flood events. It would behoove us all to have the USACE Antecedent Precipitation Tool built back more resilient as well.

Navigating the Aftermath: What Happens When a Major Storm Destroys a Permitted Stream Mitigation Site

In the wake of a major storm, the challenges faced by wetland and stream mitigation companies can be overwhelming. When these natural events cause significant damage to a permitted mitigation site, the ramifications go beyond just the physical destruction. Companies must navigate complex regulatory obligations under the U.S. Army Corps of Engineers (USACE) compensatory mitigation regulations, which remain in effect despite the unpredictable forces of nature. This blog post explores the key considerations and responsibilities for mitigation companies in the aftermath of such an event and outlines the steps required to stay compliant and protect both environmental and financial interests.

Continued Responsibility for Mitigation Success

One of the most critical aspects of the 2008 Compensatory Mitigation Rule is that it holds the permittee responsible for ensuring the long-term success of the compensatory mitigation project, regardless of external factors such as natural disasters. This means that even after a major storm destroys a mitigation site, the company must ensure that the site still meets the intended ecological functions and complies with performance standards over the specified monitoring period. In practice, this means that simply blaming the storm for the destruction is not enough. The mitigation company must still ensure that the site recovers or that alternative actions are taken to restore its ecological value. This responsibility includes making sure that the site provides the necessary environmental services, such as water quality improvement, habitat provision, and flood control, as outlined in the original permit. Failure to meet these performance standards, even due to natural causes, can result in serious consequences, including legal and financial penalties. For this reason, companies must be prepared to respond quickly and effectively when a storm strikes.

Implementation of Remedial Actions

When a storm destroys a mitigation site, companies must act swiftly to implement remedial actions. The USACE expects permittees to address any deficiencies and restore the site to meet the original objectives outlined in the mitigation plan. There are several potential avenues for remediation, depending on the extent of the damage.

Site Reconstruction

The first and most obvious step is to rebuild or restore the damaged areas of the mitigation site. This may involve re-grading stream banks, replanting vegetation, or reconstructing wetlands to ensure they meet the ecological standards originally required. In many cases, physical restoration is the most direct way to return the site to its intended function. However, site reconstruction is not always straightforward. It can be time-consuming and costly, particularly if the damage is extensive. Companies must also be mindful of how rebuilding efforts align with the original mitigation goals, ensuring that the restored site provides the same ecological benefits as before.

Additional Mitigation

If it is not feasible to fully restore the original site, the company may need to provide supplementary mitigation at an alternative location. This is often referred to as “off-site mitigation.” While it can be a valuable way to meet regulatory requirements when on-site remediation isn’t possible, it presents its own challenges. Additional mitigation must still meet the same rigorous standards of performance and provide comparable ecological benefits to the original project.

Adaptive Management

Another option is adaptive management, which allows for modifications to the mitigation plan in response to changing conditions. After a storm, the ecological landscape may shift, making it difficult to implement the original plan. In such cases, the USACE allows permittees to adjust their strategies while still working towards the overall ecological goals of the project. For example, if erosion caused by a storm has significantly altered a stream channel, the mitigation plan may be adapted to stabilize the new channel rather than attempt to restore it to its pre-storm condition. Adaptive management offers flexibility, but it still requires careful planning and regulatory approval to ensure compliance.

Force Majeure Considerations

While natural disasters like storms are often considered “acts of God,” the USACE does not automatically exempt permittees from their obligations due to such events. Instead, the USACE expects companies to demonstrate due diligence in their mitigation efforts and work closely with regulatory agencies to develop a remediation plan.

Demonstrating Due Diligence

In the context of a storm-damaged mitigation site, due diligence means showing that the company took reasonable steps both before and after the storm to prevent or mitigate damage. For example, was the site designed with resilience to extreme weather events in mind? Did the company act quickly after the storm to assess the damage and begin remediation efforts? By demonstrating that they took proactive measures, companies can improve their standing with regulatory agencies and potentially reduce the risk of penalties.

Engaging with Regulatory Agencies

Open communication with the USACE is essential. Companies must promptly notify the agency of any damage to the mitigation site and work collaboratively to develop an acceptable plan for remediation. This may include updating the mitigation plan to reflect post-storm conditions or requesting modifications to the permit.

Monitoring and Reporting Requirements

Even after a disaster, mitigation companies are still required to meet all monitoring and reporting requirements. In the aftermath of a storm, monitoring should focus on documenting the impact of the storm on the mitigation site and evaluating the effectiveness of any remedial actions. This data will be crucial in demonstrating compliance and showing that the company is actively working to restore the site. Regular updates to the USACE, including detailed reports on the status of the site and any remediation efforts, are vital for maintaining compliance and avoiding enforcement actions.

Financial Assurances

Many mitigation projects require financial assurances, such as performance bonds or escrow accounts, to ensure that there are funds available for restoration in the event of unforeseen issues, including natural disasters. If a storm destroys a site, these financial assurances can be used to fund the necessary remediation efforts. However, failure to adequately restore the site can result in the forfeiture of these assurances, leaving the company financially responsible for completing the restoration without the benefit of the secured funds.

Potential Permit Modifications

In some cases, the USACE may allow for modifications to the permit in response to the storm. This can include extending deadlines to give the company more time to achieve performance standards or adjusting the success criteria to reflect new site conditions. If on-site restoration is no longer feasible, the agency may also approve alternative mitigation options. However, permit modifications are not guaranteed and will require strong justification from the company.

Liability and Enforcement Actions

Failure to adequately address the destruction of a mitigation site can lead to significant legal and financial consequences. The USACE may determine that the company is in violation of its permit conditions, resulting in administrative penalties, fines, or even the suspension or revocation of the permit. This can have long-term impacts on the company’s ability to secure future permits.

Stakeholder Communication

Finally, maintaining open communication with stakeholders, including regulatory agencies, local communities, and clients, is crucial for managing the company’s reputation. Proactive communication can help build trust and foster collaboration, making it easier to navigate the regulatory landscape in the wake of a disaster.

Conclusion

When a major storm destroys a permitted stream mitigation site, the responsibilities of wetland and stream mitigation companies are far from over. The USACE’s compensatory mitigation regulations ensure that companies remain accountable for restoring the site or finding alternative mitigation solutions. By taking proactive steps, demonstrating due diligence, and maintaining open communication with regulatory agencies, companies can successfully navigate these challenges while fulfilling their environmental obligations.

Urgent Call for Chainsaws and Supplies: Help Us Clear the Way in Western NC

I just returned from western NC and need to share an urgent update. While essential supplies like food, water, and fuel are arriving thanks to church groups and other organizations, the real challenge is distributing them. Downed trees are blocking roads and access points, making it extremely difficult to deliver these resources where they are most needed.

I spent several days cutting trees, many of which were massive oaks, over 30 inches in diameter. In the process, I burned through 4 bars and 5 chains. The trees are old and tough, and after sharpening a chain five times, both the chain and bar are done. We urgently need more chainsaws, but even more critically, we need chains and bars.

The Swamp School is launching a chainsaw collection, and we need your help. While monetary donations are appreciated, the real need is for physical chainsaws, chains, and bars, which are in short supply. We’re looking for popular brands like Stihl, Husqvarna, and Poulan Pro, with 16” and 18” chains being the most useful. Please send matched chains and bars if possible.

Donations can be sent to the Swamp School office (address below), and we will personally deliver them to western NC once we have a substantial collection.

Your immediate help can make a real difference.

Thank you!

Marc Seelinger
marc@swampschool.org
(877) 479-2673 – Work
swampschool.org
Please ship your donations to:

The Swamp School
315 S. Salem St., Suite 310
Apex, NC 27502