Understanding Jurisdictional Determinations: Pipes and Swales as Continuous Surface Connections

Background

The U.S. Environmental Protection Agency (EPA) and the Office of the Assistant Secretary of the Army for Civil Works (OASACW) recently issued a joint memorandum addressing the jurisdictional determination (JD) for NAP-2023-01223. This memorandum clarifies the criteria for wetlands to be considered “waters of the United States” (WOTUS) under the Clean Water Act (CWA), following the Supreme Court decision in Sackett v. EPA. This decision is pivotal in determining when wetlands are jurisdictional, requiring a continuous surface connection to navigable waters or other recognized WOTUS.

Summary

The joint memorandum returned the draft approved JD to the Philadelphia District for revisions, ensuring alignment with the Supreme Court’s Sackett decision. The Sackett ruling specifies that wetlands must have a continuous surface connection to waters recognized as WOTUS to fall under CWA protection. This blog post will delve into the critical role of pipes and swales in maintaining this continuous surface connection, thus impacting the jurisdictional status of wetlands.

Assessment of Adjacent Wetlands Consistent with Sackett

The Sackett decision mandates that adjacent wetlands must have a continuous surface connection with traditionally navigable waters or other WOTUS. This standard, first established in the Rapanos plurality opinion, does not require the wetlands and waters to be visually indistinguishable but emphasizes a clear, physical connection. It is important to note that the term “indistinguishable” in this context does not imply a visual similarity; instead, it refers to the physical and hydrologic connection that allows the wetland to function as part of the broader aquatic ecosystem.

Pipes as Continuous Surface Connections

Context and Application

Infrastructure Role: Pipes and culverts are essential for maintaining hydrologic connectivity across roadways, preventing flooding and erosion. They ensure a continuous flow of water between aquatic resources on either side of the road.

Jurisdictional Determination: During storm events and high water flow periods, these pipes help maintain a physical connection between wetlands and relatively permanent waters, supporting their jurisdictional status under the CWA.

Case Example: Wetlands Area #6

Location: Camden Wyoming, Delaware.
Connection: Wetlands Area #6 connects to Red House Branch via a 70-foot pipe under Willow Grove Road.
Hydrologic Role: This pipe ensures continuous surface water flow from Wetlands Area #6 to Red House Branch, meeting the criteria for an adjacent wetland.

Swales as Continuous Surface Connections

Context and Application

Natural and Constructed Features: Swales, which can be natural or constructed, convey water from surrounding uplands and wetlands. They often carry low-frequency and low-volume flows, which can be crucial for maintaining jurisdictional connectivity.

Evidence of Flow: Observations of water flow in swales, especially following precipitation events, provide critical evidence of a continuous surface connection between wetlands and relatively permanent waters.

Case Example: Wetlands Area #8

Location: Camden Wyoming, Delaware.
Connection: Wetlands Area #8 connects to Waters Area #2, a relatively permanent impoundment, via a 350-foot swale.
Hydrologic Role: Observations of water flow in the swale after rain events demonstrate the physical connection necessary for jurisdictional status.

Legal and Regulatory Framework

Clean Water Act (CWA) Provisions: Regulations at 33 CFR 328.3(a)(4) and 40 CFR 120.2(a)(4) outline the conditions under which wetlands are considered adjacent and thus jurisdictional.

Supreme Court Decisions: The Sackett and Rapanos rulings provide the judicial framework for the continuous surface connection requirement, emphasizing the importance of physical and hydrologic connectivity.

Factors Considered in Assessments:

  • Physical Indicators of Flow: Evidence such as surface water flow during storm events and physical connections like pipes and swales.
  • Length and Nature of Connection: The physical characteristics of the connection, such as length and whether it is manmade or natural.

Practical Implications

Recognizing pipes and swales as continuous surface connections has several practical implications:

  • Infrastructure Design: Encourages designs that maintain hydrologic connectivity, supporting wetland preservation.
  • Regulatory Compliance: Assists regulatory bodies and stakeholders in making informed jurisdictional determinations consistent with the CWA and Supreme Court rulings.
  • Environmental Protection: Ensures that connected wetlands receive appropriate regulatory protections, contributing to broader water quality and ecosystem health goals.

Conclusion

The joint memorandum provides detailed guidance on when pipes and swales can meet the continuous surface connection requirement for wetlands, emphasizing context-specific assessments. By examining physical connections and hydrologic evidence, regulatory agencies can make informed determinations that align with the legal standards established in Sackett and Rapanos. This approach ensures that wetlands that truly function as part of the broader aquatic ecosystem are appropriately regulated and protected under the CWA.

Keywords: jurisdictional determination, Clean Water Act, wetlands, continuous surface connection, Sackett v. EPA, Rapanos, pipes, swales, hydrologic connectivity, WOTUS, environmental protection, EPA.

The Chevron Overturn: A New Era for Environmental Law and Consulting

Chevron Blog

The recent decision by the U.S. Supreme Court to overturn the Chevron doctrine marks a significant shift in administrative law, with profound implications for environmental regulation. This landmark ruling will notably impact the workload of environmental consultants, who will find themselves at the forefront of navigating the new legal landscape.

Background on the Chevron Doctrine

The Chevron doctrine, established in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., has been a foundational principle in administrative law. It mandated that courts defer to federal agencies’ interpretations of ambiguous statutes within their regulatory domain, provided those interpretations were reasonable. This deference allowed agencies like the Environmental Protection Agency (EPA) considerable leeway in enforcing complex regulations such as those under the Clean Water Act, including the contentious Waters of the United States (WOTUS) rule​ (Home | Holland & Knight)​​ (Politico)​.

Increased Litigation and Regulatory Challenges

With the Chevron doctrine overturned, courts will no longer defer to agency interpretations of ambiguous statutes. Instead, they will exercise independent judgment. This shift is expected to trigger a wave of legal challenges against existing and new environmental regulations. Environmental consultants will play a crucial role in these legal battles, providing expert testimony, preparing detailed environmental impact assessments, and supporting legal teams in understanding and contesting regulatory interpretations​ (SCOTUSblog)​​ (Politico)​.

The legal uncertainty following the end of Chevron deference means that many regulations previously upheld under this doctrine are now open to re-evaluation. This scenario will likely lead to an increased demand for consultants to help navigate the evolving legal landscape and ensure compliance with regulatory requirements.

Need for Detailed Compliance Analysis

Without Chevron deference, the clarity on what constitutes compliance with environmental statutes will diminish. Companies and developers will require more comprehensive and rigorous analyses to ensure they meet the new standards set by independent judicial interpretations. Environmental consultants will need to conduct detailed investigations and provide robust documentation to demonstrate compliance with environmental laws, particularly those related to water quality and land use​ (Politico)​.

For instance, WOTUS regulations, which define the scope of waters protected under the Clean Water Act, could see significant reinterpretations. Environmental consultants will need to stay abreast of these changes and provide accurate assessments to help clients navigate compliance issues.

Policy Interpretation and Guidance

Environmental consultants will be essential in interpreting new court rulings and understanding their implications for existing regulations. The overturning of Chevron deference means that regulatory guidance from agencies may no longer carry the same weight, placing greater responsibility on consultants to interpret legal requirements and advise clients accordingly​ (SCOTUSblog)​.

This role will involve staying updated on the latest legal developments and providing clients with clear, actionable insights on how changes in the law affect their operations. Consultants will need to be adept at translating complex legal decisions into practical compliance strategies for their clients.

Updating Environmental Management Practices

Organizations will need to update their environmental management practices to align with the new legal landscape. This process involves revising standard operating procedures, training staff on new compliance requirements, and ensuring all practices meet the latest interpretations of environmental laws. Environmental consultants will be instrumental in guiding organizations through these updates, ensuring that all aspects of their operations are compliant with the new regulatory environment​ (Home | Holland & Knight)​​ (Politico)​.

The Supreme Court’s decision may lead to more stringent judicial scrutiny of agency regulations, requiring consultants to provide more detailed and scientifically robust analyses to support compliance efforts. This increased scrutiny will necessitate higher standards of environmental documentation and reporting.

Permitting and Project Delays

The process for obtaining environmental permits is likely to become more complex and time-consuming. Without the deference previously afforded under Chevron, agencies may face more challenges in implementing and defending their regulatory decisions. This complexity will extend to the permitting process, where more rigorous and detailed applications will be required. Environmental consultants will be essential in navigating these processes, ensuring that all necessary documentation and environmental impact analyses are thorough and meet the new legal standards​ (Home | Holland & Knight)​​ (Politico)​.

In summary, the Supreme Court’s decision to overturn the Chevron doctrine represents a significant shift in administrative law that will substantially increase the workload for environmental consultants. They will be required to provide more detailed compliance analysis, interpret new legal standards, update environmental management practices, and navigate a more complex permitting process. As the legal landscape evolves, the expertise and guidance of environmental consultants will be more critical than ever in ensuring that organizations remain compliant with environmental regulations.

The Climate Power of Soil

by Tom Clynes, Environmental Defense Fund

The following blog post is an article written for the Environmental Defense Fund by Tom Clynes that was published on May 31, 2024. To read the original publication, click here.

The ground under our feet holds more carbon than the Earth’s atmosphere and all its plants combined. And since almost half the world’s habitable land is devoted to agriculture, efforts to encourage farmers to trap and hold carbon in their soil are picking up speed. More and more farmers today are adopting techniques such as reduced tilling and cover cropping to improve the health of their soils. In addition to reducing fossil fuel and water use, these soil management techniques also hold promise for storing carbon. But soil has many secrets that scientists are just beginning to unravel. “We have to approach this with humility, because there’s a lot we don’t know,” says Jocelyn Lavallee, a soil carbon expert at Environmental Defense Fund. As interest and investment in carbon soil management grows, Lavallee and a team of EDF scientists are digging into the mysteries of dirt.

High-stakes science

Nearly all scientists agree that under certain conditions, soils can capture carbon dioxide from the air and keep it locked way. But less is known about the intricate biogeochemical processes that acquire carbon or release it when disturbances, such as plowing, break up the soil’s structure. Lavallee decided to pursue a graduate degree in soil research because of its implications for the climate. “Soil is a massive store of carbon, and it could go one way or the other,” she says. “It could be a huge source, or it could be a huge sink. It affects so much of the Earth’s future.

On U.S. farms, soil management techniques like cover cropping (planting crops that cover and enrich the soil) and reduced tilling (leaving the soil as undisturbed as possible) are on the rise. About 11% of farms plant cover crops and about 40% use minimal or no tilling, according to a recent USDA survey. By improving soil health, these techniques help farmers build resilience to extreme weather, such as intense droughts and flooding. They can also reduce soil erosion and nutrient loss and increase biodiversity. “These benefits will become more and more important to help farmers cope with the effects of a changing climate,” says Emily Oldfield, an agricultural soil carbon scientist at EDF.

Hands in the dirt

Oldfield worked on a small vegetable farm after college. “The farmer told me, ‘Sure, I grow vegetables. But I’m really a soil farmer, because it’s all about the soil.’ I pursued a PhD to understand more about this,” she says. “Soil represents this nexus between the physical, chemical, and biological – the many complex interactions that combine to support food production.” Oldfield and Lavallee are re-examining the models that carbon credits and other incentives rely on to estimate how much carbon is entering and staying in the soil. “We don’t really know if they represent what’s actually happening to carbon in the ground when farmers adopt certain practices,” says Oldfield. The reliance on models stems from an assumption: Because soil carbon content can vary vastly over a single field, it wouldn’t be economically or logistically feasible to collect and analyze enough samples to directly measure how farmer’s efforts to improve soil health affect carbon storage across large tracts of farmland. “We think that you can and should measure the impact of those practices,” says Oldfield.

EDF teamed up with researchers from Yale University, General Mills and Ecosystem Services Market Consortium to run a test. Using a set of soil carbon samples collected by General Mills on 45 farm fields is Kansas, they found that it was feasible to gauge carbon buildup over a large area by taking samples from a smaller subset of fields. “The study suggests that we can use direct measurements to establish reliable estimates of soil carbon,” says Oldfield. “Having these estimates will instill confidence in the climate impacts of these practices.” In some case, models might still be useful; EDF is leading work to understand where and how they can best fit in. The researchers hope their work can help inform the federally funded Soil Carbon Monitoring Network, a national effort to sample, measure, and monitor the impacts of conservation practices on soil carbon. It can also guide investments by companies trying to understand the climate benefits of various agricultural techniques. “It’s exciting to think that we have the chance to understand these very complex processes within the soil,” says Lavallee, “and the ways that we can use them to carry out climate strategies that work.”

North Carolina’s Weird and Wonderful: Eastern Screech Owl

Illustration of an eastern screech owl sitting on a fallen log in a forest.

North Carolina is fortunate to have several owl species. Today, we will be discussing the Eastern Screech Owl, Megascops asio. Historically this species has been called many names, among them the Ghost Owl, the Squinch Owl, and Le Petit-Duc De L’est, or the Little Duke of the East, as reported in the beautifully illustrated volume The Owls of North America by Allan W. Eckert and Karl E. Karalus. Whatever you call it, this small, feathered predator weighs, on average, a mere 7.1 ounces and can come in red and gray varieties. Strictly nocturnal, their coloring provides excellent camouflage, making them difficult to spot in the wild, but if you are fortunate enough to catch a glimpse, you might have noticed their distinctive ear tufts. Many people, though, experience these birds’ calls without ever laying eyes on the birds themselves. While Eastern Screech Owls can produce some hair-raising screeches, their common calls are an even-pitched trill, or tremolo, and a shrill, descending whinny. Favoring open forest habitat, these small owls can be just as common in suburban areas as they are in the woods, taking shelter in tree hollows, building cavities, and constructed screech owl boxes.

Illustration of an eastern screech owl sitting in a tree hollow in a forest.

Come February, male owls will court the females with their calls while bobbing and swiveling their head at the same time. A tree hollow is found as the nest site, and the pair will not make any improvements to its condition, adding only the eggs they lay, the remains of food, regurgitated pellets, and droppings. While nests containing a whopping eight eggs have been reported, a female Eastern Screech Owl typically lays a clutch of five over a period of several days in March. Her mate will incubate the eggs while she leaves to drink water; if she is killed and never returns, the male will continue incubating the clutch and raise the baby owls until they are able to fend for themselves. Usually, though, the female does the majority of the incubating, with her mate bringing her food. The chicks, once they hatch, are covered in very fine, snowy white down; by the end of their second day out of the egg, they will begin to shiver uncontrollably, contributing to another moniker for this species, the Shivering Owl. It has been hypothesized that the young birds shiver because their downy fluff is not enough to keep the chill of the outside air out. The shivering lessens and eventually ceases by the end of their second week of life, by which time they are covered in thicker downy plumage that is either red or gray, signaling what color phase the young owls will be. At around four to five weeks old, the young owls begin to leave the nest, hanging out on close by branches and practicing their hunting techniques. By the end of August, the young strike out on their own, establishing their own territories a distance away.

Illustration of three fluffy, baby eastern screech owls in a tree hollow in a forest.

Due to their size, Eastern Screech Owls often fall prey to larger owls, including the Great Horned Owl (aka the Le Grand-Duc de L’est, or the Grand Duke of the East) and the Northern Barred Owl. Occasionally a screech owl may choose a snake for food that is too large, and in the ensuing conflict, the predator may end up becoming the prey. These weird and wonderful owls feast on small rodents, amphibians, and insects, with an occasional fish or aforementioned reptile rounding out their diet. These owls have been seen swooping in to catch moths drawn to streetlights; sadly, many are hit by cars as they dive in front of vehicles to catch prey. Humans are the main threat to Eastern Screech Owls, whether it be through vehicular collisions or through the destruction of habitats. This species of owl does use nesting boxes, so their numbers can be improved through the installation and maintenance of boxes. So, purchase one, or build your own, and set it up in your backyard. You might be fortunate enough to have a family of Eastern Screech Owls move in, serenading you with their tremolos, whinnies, and occasional screeches.

Illustration of a screech owl swooping in on a mouse in the foreground.

Unveiling WOTUS: How NOHWM and SDAM Define Our Nation’s Waterways

Stream Site

Establishing Jurisdictional Waters of the United States (WOTUS) Using the US Army Corps of Engineers National Ordinary High Water Mark Manual (NOHWM) and Stream Duration Assessment Method (SDAM)

For environmental scientists, the determination of whether a wetland or waterway qualifies as a jurisdictional Water of the United States (WOTUS) is not just a regulatory necessity but a vital step in preserving our nation’s aquatic ecosystems. At the heart of this process are two pivotal tools provided by the US Army Corps of Engineers (USACE): the National Ordinary High Water Mark (NOHWM) Manual and the Stream Duration Assessment Method (SDAM). Together, these methodologies offer a comprehensive, scientific approach to delineating WOTUS, ensuring that critical water resources are effectively protected.

An image of the cover of the National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams.

Diving into the National Ordinary High Water Mark (NOHWM) Manual

The National Ordinary High Water Mark (NOHWM) Manual serves as a detailed guide for environmental professionals to accurately identify the Ordinary High Water Mark (OHWM) in various landscapes. The OHWM represents the boundary between jurisdictional waters and upland areas, making it a crucial concept for environmental assessments.

Key Components of NOHWM:

  1. Physical Characteristics: The manual outlines physical indicators that signify the presence of an OHWM. These include:
  • Clear Natural Line: Look for a visible line on the bank formed by the regular presence of water.
  • Soil Changes: Notice differences in soil color, texture, or composition that indicate historical water presence.
  • Vegetation Patterns: Identify areas where terrestrial vegetation is absent or altered due to frequent inundation.
  • Litter and Debris: Examine the accumulation of organic and inorganic materials deposited by water flow.
  1. Regional Adaptations: The NOHWM Manual acknowledges the diversity of the US landscape, providing region-specific guidelines to account for varying hydrological and geomorphological conditions.
  2. Field Procedures: The manual details systematic field procedures, ensuring consistency and accuracy across assessments. This includes standardized data collection techniques, field forms, and documentation practices.

The Weight of Evidence Approach in NOHWM

A critical concept in the NOHWM approach is the “weight of evidence” (WOE) methodology. This approach ensures that multiple lines of evidence are considered when determining the OHWM, providing a more robust and defensible delineation.

Weight of Evidence Approach:

  1. Multiple Indicators: Instead of relying on a single indicator, the WOE approach integrates various physical, hydrological, and biological indicators. This multi-faceted analysis helps in cross-verifying the presence and extent of OHWM.
  2. Corroborative Evidence: Indicators such as changes in soil, vegetation patterns, and physical markings on the bank are examined together. Consistency among these indicators strengthens the determination of OHWM.
  3. Contextual Analysis: The WOE approach considers the broader landscape and hydrological context, including historical data and regional characteristics, ensuring that the delineation is not only accurate but also contextually relevant.
  4. Documentation and Transparency: Detailed documentation of all evidence and indicators used in the assessment is crucial. This transparency enhances the defensibility of the OHWM determination.
An image of the cover of the User Manual for Beta Streamflow Duration Assessment Methods for the Northeast and Southeast of the United States

Stream Duration Assessment Method (SDAM): A Closer Look

For scientists engaged in stream assessments, the Stream Duration Assessment Method (SDAM) is a game-changer. It allows for precise classification of streams based on their flow duration, which is essential for determining their jurisdictional status.

Stream Classifications:

  1. Ephemeral Streams: These streams flow only during and immediately after precipitation events. As a scientist, identifying ephemeral streams involves recognizing temporary water flow patterns and minimal biological activity.
  2. Intermittent Streams: These streams flow during certain times of the year, such as the wet season, but not continuously. Intermittent streams show clear signs of seasonal aquatic life and sediment patterns.
  3. Perennial Streams: Perennial streams flow year-round and are typically considered jurisdictional. These streams support continuous aquatic habitats and show persistent hydrological and biological indicators.

SDAM Assessment Process:

  1. Field Observations: Conduct site visits to observe physical characteristics like bed and bank features, sediment deposits, and biological indicators such as the presence of aquatic organisms and specific plant species.
  2. Hydrological Data Review: Examine historical flow records, precipitation data, and stream gauge information to understand the stream’s flow regime over time.
  3. Biological Indicators: Identify the presence of certain aquatic organisms and plant species that thrive in continuous or seasonal water flow, offering insights into the stream’s duration and consistency.

Integrating NOHWM and SDAM for WOTUS Determinations

The integration of the NOHWM and SDAM methodologies provides a robust framework for determining whether a water body qualifies as WOTUS. For environmental scientists, this integration involves a meticulous blend of physical, hydrological, and biological assessments.

Determination Process:

  1. Preliminary Assessment: Begin with a thorough desktop review, using maps, aerial photos, and existing hydrological data to identify potential jurisdictional waters.
  2. Field Verification: Conduct on-site inspections to validate preliminary findings. Observe physical indicators of OHWM and perform SDAM assessments to classify stream types accurately.
  3. Data Integration: Combine field observations with historical and current hydrological data. This comprehensive dataset aids in making well-informed determinations of a water body’s jurisdictional status.
  4. Documentation and Reporting: Prepare detailed reports that document findings, methodologies, and justifications for the jurisdictional status. These reports provide transparency and serve as a basis for regulatory decisions.

The Environmental Significance of NOHWM and SDAM

For environmental scientists, the accurate identification of jurisdictional waters is paramount. Here’s why:

  1. Protecting Ecosystems: Correctly delineating WOTUS ensures the preservation of vital aquatic ecosystems, protecting them from pollution and degradation.
  2. Ensuring Compliance: Clear identification helps landowners, developers, and other stakeholders understand their obligations under the Clean Water Act, preventing unauthorized activities that could harm protected waters.
  3. Resource Management: Informed decision-making for water resource management, conservation planning, and habitat restoration efforts becomes possible, benefiting both the environment and the communities that rely on these resources.

Conclusion

The National Ordinary High Water Mark Manual (NOHWM) and the Stream Duration Assessment Method (SDAM) are indispensable tools for environmental scientists working to delineate jurisdictional Waters of the United States (WOTUS). By applying these methodologies, the US Army Corps of Engineers ensures that water bodies deserving of protection under the Clean Water Act are accurately identified and managed. For environmental professionals, mastering these methods is not just about regulatory compliance—it’s about playing a critical role in safeguarding the health and integrity of our nation’s precious water resources. Through diligent application of NOHWM and SDAM, we can continue to protect and sustain our aquatic ecosystems for future generations.

Unlocking Wetland Potential: Your Guide to USDA’s Wetland Mitigation Banking Program

farm near wetland

Introduction to the USDA Wetland Mitigation Banking Program (WMBP)

Illustration of a farm adjacent to a wetland.

The U.S. Department of Agriculture (USDA) has allocated nearly $5 million in grants to support the Wetland Mitigation Banking Program (WMBP). This funding enhances the restoration, creation, or enhancement of wetlands to offset impacts from other locations. Since 2016, over $12.4 million has been awarded to partners in 11 states, leading to the establishment of 21 wetland bank sites.

The USDA recently presented a webinar focused on the Wetland Mitigation Banking Program (WMBP), which supports the development of mitigation banks to restore, create, or enhance wetlands. The webinar provided detailed insights into the process and requirements for establishing a wetland mitigation bank, covering topics such as program overview, application process, site selection, interagency review, Mitigation Banking Instrument (MBI), monitoring and management, credit release and sales, and case studies.

Webinar Summary

The WMBP Applicant Webinar provides detailed insights into the process and requirements for establishing a wetland mitigation bank. The following key topics are covered:

1. Program Overview

Wetland mitigation banking is a market-based approach that involves restoring, creating, enhancing, or preserving wetlands to compensate for unavoidable impacts on wetlands elsewhere. The program aims to ensure no net loss of wetland functions and values. Mitigation banks offer credits to developers and other entities needing to offset their environmental impacts.

2. Application Process

The application process involves several critical steps:

  • Project Proposal: Outline the purpose, need, and benefits of the proposed mitigation bank.
  • Site Plan: Provide detailed plans including maps, design specifications, and ecological goals.
  • Financial Assurances: Demonstrate financial capability to complete the project and manage the site long-term.

3. Site Selection and Design

Selecting an appropriate site is crucial. Key criteria include:

  • Ecological Viability: The site should support the target wetland type and functions.
  • Hydrology and Soils: The site must have suitable hydrological and soil conditions.
  • Connectivity: Proximity to other wetlands or protected areas can enhance ecological benefits.

Design considerations involve creating a site plan that outlines:

  • Grading and Hydrologic Modifications: Ensure proper water flow and retention.
  • Vegetation Plans: Use native species to establish a resilient wetland ecosystem.

4. Interagency Review

The Interagency Review Team (IRT) plays a pivotal role in evaluating and approving mitigation bank proposals. The IRT typically includes representatives from:

  • USDA: Provides guidance on agricultural and conservation practices.
  • USACE: Oversees compliance with the Clean Water Act.
  • EPA: Ensures environmental protection standards are met.
  • State and Local Agencies: Address regional environmental concerns and regulations.

5. Mitigation Banking Instrument (MBI)

The MBI is a detailed agreement that outlines the terms and conditions of the mitigation bank, including:

  • Objectives: Clear goals for wetland restoration or creation.
  • Site Plans: Detailed maps and design specifications.
  • Credit Release Schedule: Timeline for when credits become available based on performance milestones.
  • Long-Term Management: Plans for ongoing maintenance and monitoring to ensure sustainability.

Public notice and comment are integral to the MBI approval process, allowing stakeholders to review and provide feedback.

6. Monitoring and Management

Continuous monitoring is essential to track the bank’s progress and ensure it meets ecological performance standards. Key aspects include:

  • Monitoring Plan: Outlines methods for assessing vegetation, hydrology, and wildlife.
  • Adaptive Management: Strategies to address unforeseen issues and make necessary adjustments to management practices.

7. Credit Release and Sales

Credits represent the restored or enhanced wetland functions and are released in phases as performance milestones are met. The process involves:

  • Performance Milestones: Specific ecological benchmarks that must be achieved.
  • Credit Sales: Developers and other entities purchase credits to offset their environmental impacts, providing financial support for the bank.

8. Case Studies

The webinar highlights several successful wetland mitigation banks to illustrate best practices and lessons learned. These examples showcase innovative approaches to site selection, design, and management that have led to successful restoration and long-term sustainability.

Conclusion

Setting up a wetland mitigation bank with the USDA involves detailed planning, interagency coordination, and commitment to long-term ecological monitoring and management. Adhering to these steps ensures the success and sustainability of wetland mitigation banks. For more information, watch the full webinar here.

Precision in Environmental Restoration: Mastering Survey Techniques with Advanced Laser Levels

In environmental restoration projects such as stream, coastal, and wetland restoration, precise surveying is fundamental. Accurate mapping of biological features and benchmarks is crucial, and selecting the right surveying tools can greatly influence the project’s success.

An illustration of two men using a laser level for a restoration project.

Essential Surveying Tools

1. Dumpy Level

Traditional yet precise, the Dumpy level is excellent for small, detailed survey areas, measuring distances up to about 30 feet but requiring manual operation by two people.

2. Laser Levels

Modern laser levels, such as the Leica Rugby or Spectra Precision series, enhance measurement processes significantly. These devices extend measurement capabilities to the limits of visible distance and usually require just one operator, thereby increasing efficiency and reducing labor.

3. Surveyor’s Total Station

For highly detailed projects, the Trimble S Series Total Station combines electronic distance measurement with precise angular measurements, though it may provide more detail than necessary for basic biological assessments.

4. GPS Systems

While excellent for horizontal coordinates (x and y), GPS systems often fall short in accurately measuring elevation (z), with potential errors of several meters.

Detailed Procedure for Using Laser Levels

Setup and Calibration

  1. Choosing the Right Equipment: Invest in a high-quality laser level and a robust carrying case to protect the device in the field. Set up the level on a survey-grade tripod, which is typically sturdier and equipped with features like adjustable legs and steel spikes for stability.
  2. Finding the Optimal Location: Walk the site to select the best location for setting up the laser level. This spot should offer a clear line of sight to all points of interest and be positioned such that it minimizes the need to move the equipment frequently.

Example of Using a Laser Level in a Wetland Restoration Project

  1. Initial Setup: Place the laser level on the tripod ensuring it is well above the highest ground point to be surveyed. Attach the laser receiver to a survey rod, securing it at a height where it will detect the laser from the level.
  2. Leveling the Instrument: Use the built-in bubble level on the laser level to adjust the tripod legs until the mounting plate is level. Once the device is mounted, fine-tune its position using the leveling screws until the level is perfectly horizontal in all directions.
  3. Taking Measurements:
    • Begin by setting a local benchmark with a known or assumed elevation, for instance, 100 feet.
    • Position the rod at this benchmark and activate the laser level. Adjust the rod height until the laser receiver indicates a perfect alignment with the laser beam.
    • Record the rod reading; let’s say it reads 4.50 feet. This means the height of instrument (HI) is 104.50 feet.
    • Move to the next point of interest, place the rod directly on the ground, and adjust its height until you hear the steady tone of the laser receiver again. Assume this reading is 3.70 feet.
    • Calculate the elevation of this new point by subtracting the rod reading from the HI: 104.50 – 3.70 = 100.80 feet.
  4. Continuing the Survey: Repeat the measurement process for each point in the survey area. Always ensure the rod is perfectly vertical and the numbers are read correctly to avoid errors.

Recording and Analyzing Data

  1. Documenting Measurements: Use a survey notebook to record all measurements systematically. Note each feature’s location, the rod reading, and the calculated elevation.

Example Survey Notes Table

Point IDLocationRod Reading (feet)Height of Instrument (HI)Calculated Elevation (feet)Additional Notes
1Benchmark (BM)4.50104.50100.00Initial benchmark for the site
2Northern Wetland3.70104.50100.80Wetland edge
3Stream Entry2.85104.50101.65Entry point of stream
4Southern Ridge5.10104.5099.40Highest elevation point
5Central Meadow4.00104.50100.50Low-lying grassy area
  1. Analysis and Reporting: Once all data are collected, analyze the measurements to assess the topography and prepare detailed reports or maps as needed. These documents will support decision-making for the restoration project’s design and implementation phases.

Legal and Compliance Considerations

For projects that require certified accuracy, such as legal boundary determinations or floodplain mappings, collaboration with a licensed land surveyor or professional engineer may be necessary to ensure compliance with regulations.

By understanding and applying these detailed surveying procedures using advanced laser levels, environmental restoration professionals can significantly enhance the accuracy and efficiency of their projects, ensuring successful outcomes.

North Carolina’s Weird and Wonderful: Eastern Narrow-mouthed Toad

Illustration of several toad species resting on a log by a temporary wetland in a lush forest.

North Carolina is home to many amphibians, but unfortunately for all you Order Caudata fans out there, this article will not be about a salamander (our state is home to over 60 species, making it the place for salamander diversity in the world). No, today we are going to focus on the Eastern Narrow-mouthed toad. This small, somewhat tear-dropped shaped creature more closely resembles a frog: they have smooth, moist skin and lack warts. Their name comes from the tiny, inconspicuous mouth that they have on their small, pointy heads. Narrow-mouthed toads come in a variety of colors, ranging from gray to brown and reddish brown, but all tend to have a lighter-colored band along each side of their body. A fold of skin stretches across the back of their head, putting the finishing touch on these weird little toads.

Close-up photograph of a darker-colored Eastern Narrow-mouthed Toad.

Close-up photo of Gastrophryne carolinensis, Eastern Narrow-mouthed Toad, by Todd Pierson. Courtesy of Herps of NC

Small, plump, and nocturnal, these toads are often hard to spot in the wild, though their call, a nasally, lamb-like bleat, is distinctive. If you are in the Mountain or upper Piedmont regions of the Carolinas and Virginia, you probably will not hear them; but if you travel to the lower Piedmont and the Coastal Plain areas, there is a good chance you will start to hear their call beginning in April and continuing all the way into October. Narrow-mouthed toads (due to their, well, narrow mouths) cannot eat very large prey items. They can, and do, spend their nights feasting on small ants and termites, often being spotted near anthills, if they are spotted at all. Their skin secretions protect them from the ants and, as an added bonus, are also irritating to the eyes and mucous membranes of humans. During the day, these weird and wonderful animals stay put, hiding in moist areas under logs, leaf litter, and rocks.

Close-up photograph of a lighter-colored Eastern Narrow-mouthed Toad.

Close-up photo by Kevin Stohlgren. Courtesy of Herps of NC.

Breeding for this species occurs from April through the fall on warm nights, usually during or after heavy rains. Narrow-mouthed toads tend to gather around temporary wetlands, such as ditches, puddles, and flooded fields. Black-and-white eggs are laid in packets on the water’s surface, with each packet containing around 850 eggs. Once they hatch, the tadpoles will metamorphose into tiny toads in anywhere from three to ten weeks. Narrow-mouthed toads are not an endangered or threatened species in North Carolina; however, they are vulnerable to the same pressures facing other amphibian species in the state. Protecting natural spaces where temporary pools of water can form will aid many amphibians. In order to ensure that the narrow-mouthed toad remains in existence for many years to come, we need to exercise good stewardship of the numerous wetland ecosystems found within our wonderfully species-diverse, amphibian-rich state.

Understanding the 2023 Revised WOTUS Rule: Aligning Federal Water Regulations with Supreme Court Guidance

A beautifully illustrated waterway

The revised rule defining “Waters of the United States” (WOTUS) under the Clean Water Act was significantly influenced by the Supreme Court’s decision in the case of Sackett v. EPA. This 2023 amendment refines the scope of waters that are federally regulated, emphasizing the necessity for them to have more permanent, physical connections to traditional navigable waters.

Key Elements of the Revised WOTUS Rule:

  1. Narrowed Definition: The new rule focuses on waters that are:
    • Traditionally navigable waters, including oceans and large rivers.
    • Perennial and intermittent tributaries that contribute flow to traditional navigable waters.
    • Certain lakes, ponds, and impoundments of jurisdictional waters.
    • Wetlands adjacent to other jurisdictional waters that meet specific criteria for a direct hydrological surface connection.
  2. Exclusions: The rule specifically excludes:
    • Features that only contain water in response to rainfall.
    • Groundwater.
    • Many ditches, including most roadside and farm ditches.
    • Prior converted cropland.
    • Waste treatment systems.
  3. Implementation Status: As mentioned, the implementation of this rule is currently mixed due to ongoing litigation:
    • In 23 states, plus the District of Columbia and U.S. Territories, the 2023 rule is in effect.
    • In 27 other states, authorities continue to use the pre-2015 regulatory definitions pending further court decisions.
  4. Legal and Regulatory Framework: The rule is designed to align with the Supreme Court’s narrower interpretation which limits federal jurisdiction to those waters with a significant nexus to navigable waters.
  5. Impact on Regulatory Practices: This revision affects how businesses and landowners manage their land and water resources, particularly concerning permits for development and land use changes.

The practical application of these changes means that permit requirements may vary significantly depending on the state and the nature of the water bodies involved. This complexity underscores the need for ongoing legal guidance and compliance strategies for those affected by these regulations.

For complete details on the regulatory definitions and implications, you can view the official documentation and additional resources provided by the EPA on their WOTUS Rule Information Page.

Mastering Soil Analysis: How to Use the Munsell Soil Color Chart

Image showing woman using the Munsel Soil Chart.

Soil color is more than just an aesthetic attribute; it offers significant insights into the soil’s composition, fertility, and health. Professionals in agriculture, environmental science, and geology rely on precise tools to determine soil characteristics, and one of the most effective tools is the Munsell Soil Color Chart. In this post, we will explore how to use this chart to accurately identify soil color, providing a practical guide for anyone needing to conduct detailed soil analyses.

Understanding the Munsell Soil Color Chart

The Munsell Soil Color Chart is a standardized tool used to determine the color of soil. It is structured around three color attributes: hue (the type of color), value (lightness or darkness), and chroma (color intensity). The chart consists of a series of color chips with coded notations that represent these three attributes, allowing users to match soil samples with high precision.

Equipment Needed

  • Munsell Soil Color Chart
  • Clean white paper
  • A spade or soil auger
  • Water (optional, for moistening the soil)
  • Natural light conditions (preferably on a cloudy day or in shaded area)

Steps to Identify Soil Color

1. Collecting the Soil Sample

Begin by collecting a fresh soil sample from about 10-20 cm below the surface to avoid weathered or altered topsoil. Use a spade or an auger to extract the soil and place a representative pinch of it on a clean white paper.

Soil auger with a core sample.

2. Preparing the Soil Sample

Crumble the soil gently to remove any clumps and debris. For the most accurate color reading, the soil should be free of organic material like leaves and roots. You can choose to analyze the soil color when it’s dry or after moistening it with a bit of water. Moist soil tends to show the truest color.

3. Using the Munsell Soil Color Chart

Open your Munsell Soil Color Chart and begin comparing your soil sample to the color chips. Start by matching the hue, then adjust for the value, and finally, match the chroma. It’s important to conduct this comparison in natural light, as artificial lighting can distort the color perception.

4. Recording the Color Match

Once you find the closest match, record the notation from the Munsell Chart. This notation consists of the hue (expressed as a fraction or a number), followed by the value and chroma (e.g., 10YR 6/4, where “10YR” is the hue, “6” is the value, and “4” is the chroma). This notation allows you to communicate the soil color accurately in reports or analysis documents.

5. Interpreting the Results

The color of the soil can tell you a lot about its composition. For example, red or orange soil often indicates the presence of iron oxides, while gray soil may suggest organic content or water saturation. Understanding these nuances can help in assessing soil conditions for agricultural purposes, environmental assessments, and more.

Tips for Accurate Soil Color Identification

  • Consistent Lighting: Always use natural light for color matching, as artificial sources can alter how colors appear.
  • Moist vs. Dry Soil: Note that soil colors can vary significantly between their dry and moist states. It’s useful to assess both conditions if possible.
  • Regular Practice: The more you use the Munsell Soil Color Chart, the more proficient you will become in quickly and accurately matching soil colors.
Soil game

Conclusion

The Munsell Soil Color Chart is an invaluable tool for anyone involved in soil analysis. By following these steps, you can accurately determine the color of the soil, leading to better understanding and management of the land. Whether you’re a farmer assessing soil health, an environmental scientist monitoring restoration projects, or a geologist mapping out a site, mastering the use of this chart enhances your ability to make informed decisions based on the ground beneath your feet.