USACOE Changes National Wetland Plant List (again)

Swamp Stomp

Vol 13, Number 40

Sometime between July 17 and July 22, 2013 the US Army Corps of Engineers published the 2013 National Wetland Plant List (NWPL) update. If you did not hear about this you are not alone. For the record the 2013 list was not published in the Federal Register. The previous list was published in the Federal Register for the 2012 NWPL. I only found 2013 list by pursing the NWPL website and saw a new link for the 2013 list.

This is a significant change especially in light of this “fact sheet” dated July 22, 2013.  The last statement is significant.

“Implementation: The Federal agencies will use the 2013 NWPL on all new Jurisdictional Determinations after September 1, 2013. Any delineations underway using the current list will be accepted, please just reference which list was used in your documentation.”

So what has changed?

2013NWPL

In short these are the numbers. The new list contains 7937 plant species, which is a reduction of 263 from the 2012 list. The majority of deletions were the removal of some upland species, taxonomic splits, merged species, and three errors. There were 12 requests for re-evaluation of indicator statuses and in seven of those species, the indicator status changed. All of these modifications accounted for 327 indicator status changes.

Now this may not sound like a big deal however the use of the list is a concern. The implementation statement above could be construed as a “rule.” I assume it is as your delineation will not be accepted if you do not use the new list.

Webster defines a rule as:

  1. a prescribed guide for conduct or action
  2. the laws or regulations prescribed by the founder of a religious order for observance by its members
  3. an accepted procedure, custom, or habit
    1. a usually written order or direction made by a court regulating court practice or the action of parties
    2. a legal precept or doctrine
  4. a regulation or bylaw governing procedure or controlling conduct

So can we assume if we are directed to use the new list that would constitute a rule? The veiled threat that the Corps will not review your delineation seems to constitute a reprimand if you do not follow the rule.

According to the “A Guide to the Rulemaking Process”, prepared by the Office of the Federal Register in 2011, a rule is:

“The proposed 
rule, or Notice of Proposed
 Rule Making
 (PRM), is the official
 document that announces and explains the agency’s plan to address a problem or accomplish a goal. All proposed rules must be published in the Federal Register to notify the public and to give them an opportunity to submit comments. The proposed rule and the public comments received on it form the basis of the final rule.”

Following the announcement that a new rule is proposed the public is the afforded the opportunity to comment on the rule. This can vary from 30-60 days.

The 2012 list went through the entire rulemaking process. The public comments were published and the draft list was finalized and published in the Federal Register as a final rule on May 9, 2012 (Federal Register / Vol. 77, No. 90).

The 2012 Federal Register notice does address the issue of updates to the 2012 list.

“The updating and maintenance of the NWPL will continue annually. Updates will include changes in nomenclature and taxonomy obtained from Biota of North America (BONAP), newly proposed species, changes as needed based on the results from challenges made to species wetland ratings, dataset analyses for regional and national-scale evaluations of wetland ratings, reevaluations of wetland ratings based on GIS and floristic provinces analyses, considerations of any new subregions, and several continuous quality control steps. These types of updates and maintenance steps will follow the same protocols used in the development of the 2012 NWPL update. Coordination will occur between the national and regional panels, the public and others, and the National Technical Committee for Wetland Vegetation as needed.”

At issue is the “using the same protocols…” and “Coordination will occur between …the pubic…”

What was put forth in July was a mandate not coordination. Who is the National Technical Committee for Wetland Vegetation and why do they get independent control over this list? I do not believe the intent of the 2012 publication was to give the Corps perpetual and unilateral control over what is and what is not a wetland plant species without any public involvement.

Perhaps you are wondering why I am getting so mad about this list. The issue is that vegetation identification is the most difficult of wetland assessment skills to master. The annual need to keep changing the names and indicators of the plants without any public input adds to the confusion of wetland plant identification. This translates into bad delineations. Virtually none of the commercially published and university published field guides contain the same names of many of the species listed in the 2013 list. Want proof? Look up poison ivy.

For your convenience we have posted all of the Wetland Plant Lists for each Regional Supplement on our Facebook Page. If you would like to download any of these just “like us”, fill out the form and download away. These documents are stored on the Swamp School servers so government shutdown or not you can always get them. Plus, they are FREE!  Well they are not really free.  You paid for them with your tax dollars, but I am not going to charge you for them.  😉

facebook-like

Connectivity of Streams and Wetlands to Downstream Waters

Swamp Stomp

Vol. 13, Issue 39

About a week ago one of the most significant technical reports on wetland jurisdiction since the 1987 Wetlands Delineation Manual was issued for public comment by the EPA. It is entitled, “Connectivity of Streams and Wetlands to Downstream Waters” and written by the independent EPA Scientific Advisory Board (SAB). The purpose of the report is to help inform EPA and the U.S. Army Corps of Engineers in their continuing policy work and efforts to clarify what waters are covered by the Clean Water Act.

“This draft science report presents a review and synthesis of relevant peer reviewed scientific literature that will inform an upcoming joint USEPA/ Army Corps of Engineers rule making to enhance protection of the chemical, physical, and biological integrity of our nation’s waters by clarifying Clean Water Act (CWA) jurisdiction. Recent decisions of the Supreme Court have underscored the need for EPA and the public to better understand the connectivity or isolation of streams and wetlands relative to larger water bodies such as rivers, lakes, estuaries, and oceans, and to use that understanding to underpin regulatory actions and increase certainty among various CWA stakeholders. This report, when finalized, will provide the scientific basis needed to clarify CWA jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.”

This is also mentioned in EPA’s blog, “EPA Connect” found here.

“In addition to the release of this report, EPA, with the Army Corps of Engineers, has sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for inter-agency review. This draft rule takes into consideration the current state-of-the-art peer reviewed science reflected in the draft science report. Any final regulatory action related to the jurisdiction of the Clean Water Act in a rule making will be based on the final version of this scientific assessment, which will reflect EPA’s consideration of all comments received from the public and the independent peer review.”

WOUS_ERD2_SEP2013

The bulk of the report (and it is bulky at 331 pages) focuses on the issue of what to do about so called “isolated” wetlands. The issue is related to the point of law the Supreme Court has wrestled with over that last decade or so. Is a wetland jurisdictional if it lacks a significant nexus to a traditionally navigable water (TNW)? The published Corps guidance would suggest no. This new report takes on the challenge of what exactly is a significant nexus.

We are now looking at a few new terms and/or concepts. First is the issue of what is an isolated wetland? The report describes two types of wetlands as a function of the directionally of flows into our out of the system and streams. According to the report, streams by their very nature, will eventually connect to a TNW so they are all jurisdictional. This includes all perennial, intermittent and ephemeral streams. The transport of materials downstream seems to be the focus of the connections.

We now have to new classifications of wetland landscapes. These are bidirectional and unidirectional wetlands. Bidirectional wetlands have a two way hydrologic exchange. These seem to always be jurisdictional. Unidirectional wetlands discharge into the surrounding landscape but lack a two way exchange. These also are usually jurisdictional.

The next issue is what to do with wetlands that lack a bidirectional exchange? Wetlands like prairie potholes, vernal pools and playa lakes come to mind. These systems, while not directly connected to the TNW, can provide numerous functions that can enhance downstream water quality. If the wetlands are geographically isolated there is a question as to whether or not they are jurisdictional. However, these wetlands occur on a gradient of connectivity, and it is difficult to generalize about their effects on downstream waters from the currently available literature. Therefore these wetlands will need to be assessed on a case-by-case basis. It took 331 pages to come up with this!

These are the takeaways for this report

1. All streams are jurisdictional
2. All bidirectional and unidirectional wetlands are jurisdictional
3. Wetlands that are geographically isolated and lack a bidirectional exchange might still be jurisdictional

To be frank I do not see how this changes or clarifies anything. There does seem to be a major focus on material transport out of a wetland system as a connectivity feature. Perhaps this is some help. If anything it may bring some of the isolated wetlands back into a jurisdictional setting. But at the end of the day these would still be evaluated on a case-by-case basis which is what we do now.

You do have a chance to comment on this tome. Comments for the SAB review panel’s consideration may be submitted and reviewed using the Regulations.gov website. From the site, select “Environmental Protection Agency” and the keyword “EPA-HQ-OA-2013-0582” (for the docket ID) to submit comments. The comments are due by November 6, 2013.

Please comment.  This is very important!

NAMEPA

I have one last observation. Did anyone notice, “EPA, with the Army Corps of Engineers, has sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for inter-agency review”? Apparently this is an internal review and we the public are not privy to it. Anyone out there what to try to take this on as a Freedom of Information Act (FOIA) challenge? The new draft report is used to support the technical aspects of the new CWA rule. I would love to know what this new rule is. I suspect many of you would as well.

One more item.  The Science Advisory Board (not to be confused with Ayn Rand’s State Science Institute) is holding a meeting on December 16, 2013 in Washington, D.C. at the Washington Plaza Hotel to discuss this report.  You are all invited.  You can download more information about this event ==> HERE.

Have a great week!

– Marc

Wetlands could be key in revitalizing acid streams

Swamp Stomp

Volume 13, Issue 38

Wetlands could be key in revitalizing acid streams, UT Arlington researchers say
Media Contact: Traci Peterson, Office:817-272-9208, Cell:817-521-5494, tpeterso@uta.edu

A team of University of Texas at Arlington biologists working with the U.S. Geological Survey has found that watershed wetlands can serve as a natural source for the improvement of streams polluted by acid rain.

A stream in the Adirondacks
A team of UTA biologists analyzed water samples in the Adirondack Forest Preserve.

The group, led by associate professor of biology Sophia Passy, also contends that recent increases in the level of organic matter in surface waters in regions of North America and Europe – also known as “brownification” – holds benefits for aquatic ecosystems.

The research team’s work appeared in the September issue of the journal Global Change Biology.

The team analyzed water samples collected in the Adirondack Forest Preserve, a six million acre region in northeastern New York. The Adirondacks have been adversely affected by atmospheric acid deposition with subsequent acidification of streams, lakes and soils. Acidification occurs when environments become contaminated with inorganic acids, such as sulfuric and nitric acid, from industrial pollution of the atmosphere.

Inorganic acids from the rain filter through poorly buffered watersheds, releasing toxic aluminum from the soil into the waterways. The overall result is loss of biological diversity, including algae, invertebrates, fish, and amphibians.

“Ecologists and government officials have been looking for ways to reduce acidification and aluminum contamination of surface waters for 40 years. While Clean Air Act regulations have fueled progress, the problem is still not solved,” Passy said. “We hope that future restoration efforts in acid streams will consider the use of wetlands as a natural source of stream health improvement.”

Working during key times of the year for acid deposition, the team collected 637 samples from 192 streams from the Black and Oswegatchie River basins in the Adirondacks. Their results compared biodiversity of diatoms, or algae, with levels of organic and inorganic acids. They found that streams connected to wetlands had higher organic content, which led to lower levels of toxic inorganic aluminum and decreased presence of harmful inorganic acids.

Passy joined the UT Arlington College of Science in 2001. Katrina L. Pound, a doctoral student working in the Passy lab, is the lead author on the study. The other co-author is Gregory B. Lawrence, of the USGS’s New York Water Science Center.

The study authors believe that as streams acidified by acidic deposition pass through wetlands, they become enriched with organic matter, which binds harmful aluminum and limits its negative effects on stream producers. Organic matter also stimulates microbes that process sulfate and nitrate and thus decreases the inorganic acid content.

These helpful organic materials are also present in brownification – a process that some believe is tied to climate change. The newly published paper said that this process might help the recovery of biological communities from industrial acidification.

Many have viewed brownification as a negative environmental development because it is perceived as decreasing water quality for human consumption.

“What we’re saying is that it’s not entirely a bad thing from the perspective of ecosystem health,” Pound said.

The UTA team behind the paper hopes that watershed development, including wetland construction or stream re-channeling to existing wetlands, may become a viable alternative to liming. Liming is now widely used to reduce acidity in streams affected by acid rain but many scientists question its long-term effectiveness.

The new paper is available online at http://onlinelibrary.wiley.com/doi/10.1111/gcb.12265/abstract.

Funding for Passy’s work was provided in part by the New York State Energy Research and Development Authority. The Norman Hackerman Advanced Research Program, a project of the Texas Higher Education Coordinating Board, as well as the US Geological Survey, the Adirondack Lakes Survey Corporation and the New York State Department of Environmental Conservation also provided support.

The University of Texas at Arlington is a comprehensive research institution of more than 33,000 students and more than 2,200 faculty members in the heart of North Texas. Visit www.uta.edu to learn more.

Grinders, Minders and Finders

Swamp Stomp

Volume 13, Issue 37

Last week we spoke about the idea of doing your best as a means to succeed in life and business. It is a solid concept and not a new one. However, implementation of it can be a bit challenging. The problem arises when we start asking what we are good at. We need to start at “good” before we can get to “best.” If you boil this down a bit further we need to ask ourselves, “what are we doing in the first place and where do we fit in?”

There is an old business concept that helps us focus on where we are in an organization and how to move up the company ladder. It is quite popular in the legal profession and sometimes finds its way into engineering companies. I was first introduced to the idea when I was working for a fairly large engineering company. It was part of a new employee training program. The partners would meet with the new recruits for some business counseling. At the time I did not appreciate the wisdom of what they managers were trying to do. But in retrospect, it was a brilliant plan as it fostered an entrepreneurial spark and at its core encouraged me to do my best.

Each of us in our daily work has some aspect of being a grinder, a minder or a finder. The trick is to know which of these you favor and which of these you desire. There is no better or worse with each of these. Each one carries its own benefits and liabilities. The secret is finding the balance that makes you happy and in turn will be reflective of your best work.

To start, we will discuss what a grinder is. A grinder is the worker bee. They are the folks that actually make or do the things the company produces. Without the grinder there would be no goods or services. A grinder in their pure form shows up for work each day and is told what they will grind out each day. There is no expectation of them other than to produce the goods or services.

Typical examples of a grinder are the folks that put light bulbs in those paper sleeves or who puts the plastic tips on the ends of shoe laces. In the wetlands consulting business a grinder would most likely be the wetland delineation investigator. In short, the grinder is the one who does the work.

The major benefit to being a grinder is that you do not have to look for something to do every day. You go to your manager and they give you a task to do or send you home. Either way, there is no expectation that you will find work or get others to work with you. This is perhaps the lowest stress level of the three.

Of course there is a major downside to being a grinder. It pays the least. Stress and pay level seem to be inexorably linked. The more stress, the more pay.

There is also another major downside to being a grinder. You are always facing the possibility of being replaced by either a better grinder or by automation. I am pretty sure that there is a machine that puts the plastic caps on shoe laces now. The issue of older expensive grinders being replaced by younger cheaper grinders is also a very real phenomena.

Minders keep track of the grinders. These are the managers. They usually have a working knowledge of what the grinders do and organize them to be more efficient. Minders are concerned about production statistics. How many shoelaces did we make today?
The minders are the middle managers. They keep track of timesheets, billable hours, vacation days and production results. In the wetlands business these people are often referred to as project managers. They will do some grinding, but their main job is to make sure that the work is getting done. They may even have some client contact. They will submit progress reports with each invoice and crack the whip if work is not up to par.

The major benefit for a minder is that they make more money than a grinder and probably do not physically work as hard. Their days are mostly spent behind a desk answering client questions, filing reports and managing the grinders. These are the people the grinders go to with their problems.

With all risk there is reward. As a minder, you are acutely aware of how risky you job is. Consequently, the pay is a little better.

The major downside to being a pure minder is that you are in the middle. Guess who gets cut when the company slows down. You need the grinders to get the work done. Perhaps they can manage themselves? Every ten years or so, we go through a company re-engineering, empowering the employees to manage themselves. Sometimes it is called a paradigm shift or thinking outside the box. Aggggh! This is code for the company’s sales are down and they cannot afford the middle managers.

The apex of the company food chain are the finders. These are the rainmakers. These people find the clients that the company works for. These may be the partners, associates or the CEO of the company. They have the least amount of knowledge of how a grinder does their job, but they know people who will give the company money for the work the grinders do.

The major upside to a finder is that they make the most money. I have known some sales people who made substantially more than the company CEO. I worked with one salesperson that was making over $100K per month. He had no idea how the product was made, but he knew how to sell it.

There is a huge downside to being a pure finder. If you do not sell, you do not eat. Most finders work either on a commission basis or if they are a partner in the company, their compensation is some percentage of profit. Lots of risk, but a there is big return if successful.

The secret to your business success is to identify what role you have in the company and then chart a path for where you want to go. There is not right or wrong with your decision. There are many fine grinders out there that are perfectly happy with their lot in life. They may desire more pay, but they sooner eat glass than pick up the phone to make a sales call. That is OK, so long as they recognize that it is their decision to be a pure grinder.

Each of us has a little, grinder, minder and finder in us. Find the ratio that works for you and go for it. The real secret is to make the decision and then act. That is doing your best!

The Economics of Exiguity

Swamp Stomp #149

A sign of the times
A sign of the times

This week I wanted to do a little diversion from the courts and discuss a phenomenon I have seen in my travels. In an odd sort of way, this speaks a bit about Labor Day.

To begin, I suppose it is only fair to define exiguity. It is one of those SAT words that we seldom see. This is from our friends at the World English Dictionary:

Exiguous — adjective
scanty or slender; meagre: an exiguous income

[from Latin exiguus, from exigere to weigh out; see exigent ]

Exiguity — noun, ex’iguousness— noun, ex’iguously— adverb

What I am talking about is the economics of scarcity, lack, poverty, etc. Scarcity is probably the best match to the concept. However, exiguity has such a nice alliterative match to economics and really does describe the situation.

This summer I have had the chance to do a substantial amount of work related travel. It is one of the benefits and costs of the training business. I am not complaining and am very grateful for the work, but travel does take its toll. As a trained ecologist, I cannot help observing the human interactions in much the same way as I observe some of the wildlife I work with.

I have been in regions of affluence and wealth and I have been in parts of the country hard hit by the economy. I have observed two very different responses to the local conditions and the interactions are quite surprising. So much so that one might conclude that the response is the cause of the condition.

In areas of wealth, there is a local prosperity. Most of this is being driven by the natural gas business. These regions are booming! Sorry, maybe not the best image for natural gas. But you get the point. The local businesses are busy. Lots of new and interesting eateries are open and doing great. Hospitality and retail are very solid. The upshot is that in these regions you have lots of choices, customer service is a priority, and people seem generally happy.

By contrast the regions that are lacking a strong economy are quite the opposite. There are no choices, the food is lousy and don’t even ask about customer service.

For example, I went to a brand new late 1990’s shopping mall. Except for a bank it was completely vacant. Everything was gone. Someone in the world thought it was a good idea to build this mall. It probably cost millions and there it sits empty.

I am sure you have seen this and it is very sad. However, I came across a new type of exiguity that I was not expecting. It came in the form of a haircut. This is how I ended up at the mall.

It is summer and I really needed a haircut. I had an evening with nothing to do, so I ventured out to the nearest chain hair salon. It was around 4 PM when I walked into the store. There was a customer with a stylist and another stylist reading a magazine. I was told to have a seat and after a few minutes informed that the reader was on break and that I could come back at 5:30 PM. No one else was in the place. Not wanting to sit around for an hour and a half, I thought I would go to the mall. Remember the vacant mall? No hair salons or anything else for that matter! So back to the hair salon I went. At 6 PM I as finally seated and she did do an OK job. She complained about how much she was working to her co-worker the whole time. She worked a whole week without a day off. While I was waiting a woman came in to ask if she could bring her kids for a haircut. There was no one but me and the two stylists there. The mom was told to come back at 8:30.

The question I have is the bad attitude and scarcity of the hair salon workers the result of the local economy? Or rather, is it the local economy the result of the bad attitude and exiguity of the worker?

It would seem to me that if you were the only hair salon in town, business would be booming. Are we not taught that capitalism at its apex is the elimination of competition to the point of creating a monopoly. Therefore the hair salon should be at its peak performance. However, from my view of paying two stylists to do one hair cut every 2 hours seems to be a bit below optimal. I am not sure how they even cover the rent at that rate. Perhaps this is not capitalism?

My concern is that in the new economy, we have come to accept poor service, limited choices and bad haircuts. Is this acceptance perpetuating the bad economy? Expecting only the best from ourselves and each other is a fundamental concept we try to teach our kids. The biggest problem with doing our best is that best is never achieved. There is always room for improvement. However, in so trying we better ourselves and our community. Perhaps if we all took on the mantle of doing our best we would be able to elevate out of this economy and finally get a good haircut!

Happy Labor Week and do your best!

– Marc

USACOE suspending the existing general permits

Swamp Stomp

Volume 13, Issue 35

I bet that got your attention. I guess I should note that this is limited to the New England district. That is still a pretty big area and a very large population affected.

The following is a press release from the Corps. The important date is this Wednesday, as in tomorrow. Comments are due then.

Nationwide B

CONCORD, Mass. – The U.S. Army Corps of Engineers, New England District has proposed suspending the existing general permits in each of the six New England states and issuing the New England General Permit (NE GP) to authorize certain activities that require Department of Army permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act of 1899, and Section 103 of the Marine Protection, Research and Sanctuaries Act.

The Corps has extended the public comment period to Aug. 28, 2013. Here is a link to the proposal: http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/NEGP-PN.pdf. The original notice was issued on June 13, 2013 with a 45-day comment period. The comment extension is to allow inviduals and groups more time to submit their comments.

The NE GP would authorize activities in waters of the U.S. within the boundaries of and/or off the coasts of the six New England states (Massachusetts, Rhode Island, Connecticut, New Hampshire, Vermont and Maine), including activities occurring within the boundaries of Indian tribal lands that have no more than minimal adverse effects on the aquatic environment.

When GPs were first used in New England in the 1990s, they provided the Corps with significant efficiency, allowing a more streamlined review of minor projects under Section 10 and Section 404. At that time, it made sense to have a separate GP in each state as there were vast differences in state programs and priorities. Over time, however, both the Corps Regulatory program and state wetland programs have evolved. It now makes sense to develop a regional general permit that will continue to maintain a high level of environmental protection while allowing the Corps to streamline processes in New England, reduce regulatory redundancy, ensure consistent compliance with national policy, and alleviate a significant administrative burden for its staff, which currently must reissue each of the six state GPs every five years.

This also would facilitate permit review by partner tribal nations and agencies, be more user-friendly for the regulated public, especially those working in multiple states, and encourage consistency in wetlands and waterway regulation in New England while allowing for flexibility in establishing special conditions, thresholds, and processes that are important to individual states.

The proposed NE GP will not result in significant substantive changes to how activities in waters of the U.S. are regulated in the New England states. The NE GP organizes eligible work into activity-specific categories. This is intended to satisfy the requirements of Section 404(e) of the Clean Water Act, which allows the Corps to issue general permits for activities that are similar in nature and will cause only minimal individual and cumulative adverse environmental effects. Identifying specific activities will allow the Corps to adequately assess cumulative impacts of permitted activities, as well as fully assess impacts on threatened and endangered species.

General Permits are encouraged under the Clean Water Act as a way to streamline state and Federal regulatory programs. The District has had success with streamlining these programs with the use of GPs in New England (in Connecticut since 1990, in Maine since 1983, in Massachusetts since 1993, in New Hampshire since 1992, in Rhode Island since 1997, and in Vermont since 1997).

The public notice with the proposed New England General Permit (NAE 2013-00714) can be reviewed at

http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/NEGP-PN.pdf.

Public comments on this proposal should be submitted in writing by Aug. 28, 2013 to the U.S. Army Corps of Engineers, New England District, Regulatory Division (ATTN: Greg Penta), 696 Virginia Road, Concord, MA 01742-2751. Additional information is available from Greg Penta at 978-318-8862 or toll free 800-343-4789 or 800-362-4367 (if calling in Massachusetts) or by email to gregory.r.penta@usace.army.mil. Those who are interested in attending a question and answer session on this topic should contact Greg Penta.

Securing a Jurisdictional Determination

 

A Jurisdictional Determination also known as a “JD” represents that US Army Corp of Engineers (Corps) determination of the presence and/or extent of “waters of the US” on a property. However, there are two types of JD’s. One represents the official findings of the Corps and the other is more or less an estimate. Both JD’s have their purposes. It is important to recognize the difference between the two types because one could get you into a lot of trouble.

Approved JD’s

An approved JD is an official Corps determination that jurisdictional “waters of the United States,” or “navigable waters of the United States,” or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters on the project site determined to be jurisdictional under the Clean Water Act and/or the Rivers and Harbors Act.

An approved JD:

  1. Constitutes the Corps’ official , written representation that the JD’s findings are correct;
  2. Can be relied upon by a landowner, permit applicant, or other “affected party” (as defined at 33 C.F.R. 331.2) who receives an approved JD for five years (subject to certain limited exceptions explained in RGL 05-02);
  3. Can be used and relied on by the recipient of the approved JD (absent extraordinary circumstances, such as an approved JD based on incorrect data provided by a landowner or consultant) if a CWA citizen’s lawsuit is brought in the Federal Courts against the landowner or other “affected party,” challenging the legitimacy of that JD or its determinations; and
  4. Can be immediately appealed through the Corps’ administrative appeal process set out at 33 CFR Part 33

If wetlands or other water bodies are present on a site, an approved JD for that site will identify and delineate those water bodies and wetlands that are subject to Clean Water Act jurisdiction, and serve as an initial step in the permitting process.

Preliminary JD’s

Preliminary JDs are non-binding, “… written indications that there may be waters of the United States, including wetlands, on a parcel or indications of the approximate location(s) of waters of the United States or wetlands on a parcel. Preliminary JDs are advisory in nature and may not be appealed.”

The main purpose of a Preliminary JD is speed a project along. There are several scenarios where this type of JD would accomplish this.

  1. An applicant, or other “affected party” may elect to use a preliminary JD to voluntarily waive or set aside questions regarding CWA jurisdiction over a particular site, usually in the interest of allowing the landowner or other “affected party” to move ahead expeditiously to obtain a Corps permit authorization where the party determines that is in his or her best interest to do so.
  2. For purposes of computation of impacts, compensatory mitigation requirements, and other resource protection measures, a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S.
  3. Preliminary JDs are also commonly used in enforcement situations because access to a site may be impracticable or unauthorized, or for other reasons an approved JD cannot be completed in a timely manner. In such circumstances, a preliminary JD may serve as the basis for Corps compliance orders (e.g., cease and desist letters, initial corrective measures). The Corps should support an enforcement action with an approved JD unless it is impracticable to do so under the circumstances, such as where access to the site is prohibited.

It is the Corps’ goal to process both preliminary JDs and approved JDs within 60 days as detailed in paragraph 5 below, so the applicant or other affected party’s choice of whether to use a preliminary JD or approved JD should not affect this goal.

In 2008 the Corps published a Regulatory Guidance Letter (RGL) No.08-02 dated 26 June 2008. This RGL should be consulted prior to applying for either type of JD. It is also important to note that it is also required that a JD form be completed and submitted with the JD application. This form sets forth the data required to make the JD determination. Most Corps districts have guidance on how to fill out the form and “short cuts” that are district specific. The above RGL and attached JD form sometimes referred to as the “Rapanos Form” can be found here ==> RGL 08-02.

Wetland Soil Auger Buyers Guide

The Swamp Stomp

Weekly Wetland News

August 13, 2013

Wetland Soil Augers

augers

One of the most frequently asked questions by our wetland delineation students is, “what type of soil auger should I buy?”

A quick browse though any of the forestry supply companies catalogs and you are quickly overwhelmed. Who would have thought that there we so many different types of soil augers. Some of them are quite expensive. Many are modular and you end up buying part of an auger and have to order more parts. You do not want to drop a grand on an auger only to find out it is not what you needed or expected.

To help you get a handle on this I have put together a brief pros and cons of the most common soil augers used for wetland delineation. This list is based upon my personal field experience with these augers. Each has its place so be prepared to buy a few. I do have a favorite all around auger which I will also cover, but I own a bunch.

Tube Sampler

tubesampler

This is a favorite for the beginning wetland delineator. One of its biggest assets is it is the cheapest. However it has limitations. The basic construction is a simple tube that is cut open at the bottom. There is usually about a 16 inch half pipe slice that is used to examine the soil profile in-situ. The very end is a ring that everyone gets their fingers stuck in. A good one is about 24 inches in length with an opening extending about 16-18 inches. There is a short t-handle on the top. Sometimes this is detachable with a screw fitting. Others have the handle welded on. The former is a bit more expensive.

One of the biggest advantages to this type of auger is the small footprint it makes. In glacial regions it is sometimes the only auger that can get in between the rocks. It is also very handy for quick assessments.

The biggest disadvantage is the relatively small amount of soil sample this auger extracts. Oftentimes, it just is not enough sample to make a wetland determination. Small rocks are also a problem as they will plug up the tube end. The issue of cleaning it the sampler end out is also a challenge. Don’t stick your finger in the end. It is sharp and just the right size to get your finger stuck. Use a stick to clean it out.

Screw Sampler

oakfield

This auger looks like a giant cork screw. The screw is about a foot long and is about 2-3 feet in total length. The screw is usually attached by extension bars that can be added to achieve a comfortable length. It has a slightly larger footprint than the tube sampler and is similarly useful in glaciated regions.

The biggest challenge with using this auger is the ability to measure the thickness of a hydric soil feature. The screw blades are about .5 inches thick. This results in a stretching of the soil sample. It is hard to estimate how thick a feature may be using this auger. It also provides a very small about of soil sample.

Bucket Auger

bucketauger

This is probably the most common type of auger used by soil scientists. Not necessary wetland delineators however. The basic design looks like a coffee can with one end open and the other end has two blades welded onto it. An extension bar connects in between the bucket and a t-handle on the top. All of these items can be customized to fit the user’s needs.

If you are just starting out delineating, you will probably be handed one of these bucket augers. There always seems to be one hiding in a closet in the office. Someone bought it, used it once and there it sits.

I do not have a lot of pros to offer with this type of auger. The biggest problem is that it grinds up the soil profile making it very hard to distinguish the hydric features if the soil. It also requires that once you auger down and grab a sample you then have to tip the bucket upside down and bang out the sample. This also obscures the features.

Soil scientists like these augers because they are trying to obtain a discrete sample at a specific depth. This is usually why the extension bars are so long. I have seen some augers used in the field that were over 6 feet long. This is very hard to use if you are 5’6” tall.

Dutch Auger (My Favorite)

comboauger

This auger was made for wetland delineations. It is a double blade at the end of an extension bar and t-handle. It cuts a very nice sample without disturbing the profile integrity. You can usually auger down several feet fairly easily and lay out the samples in more or less the same way they would be found in the pit. You also get a decent amount of sample to play with.

There are a number of brands and styles of this type of auger. The biggest difference between the individual styles is a represented by the size and pitch of the blades. The original use of the Dutch auger was for muddy soils. However, there have been many modifications to the design and there is such a thing as a combination auger that works well in loamy soils as well as mud.

Sharp-Shooter

shovel

 

This is also known as a tree planting spade. It is simple a shovel that is 4 inches wide and 16 inches long. It digs a small hole and cuts a nice sample. In a pinch this shovel will work in almost any circumstance.

The biggest advantage to this sampler is the cost. You can pick one if these up in your local home improvement center for about $25. Most of the other augers mentioned are well north of $200.

The biggest down side to this device is the work associated with it. Digging a hole is a lot of work. You get a nice amount of sample and you can even cut a nice sidewall to see the profile. However, this took a lot of work.

Quick Connect or Not

quick-connect-connection-1

 

One last note on the issue of quick connects. To be frank, I have yet to see one of these work once they were put into field use. The fittings get gummed up with dirt and the quick connects jamb. I would suggest going with an all welded design. You are not going to take these apart anyway so why spend the extra money. If you need to travel by airplane, TSA is not going to let you carry these on so there is no need to break them down. Just check them or better yet, buy a shovel for $25 when you get to the job site.