Peter, Paul, and Mary could very easily have been talking about our country’s wetlands instead of flowers in their 1962 hit, “Where Have All the Flowers Gone.”  When wetlands were first forming, thousands of years ago as the ice age ended, the United States was 90% covered with wetlands. Today, coastal and inland wetlands cover only about 5.5% of the United States. 

The Ramsar Convention estimates that nearly 90 percent of all the world’s wetlands have disappeared since the 1700s, and those that remain are at risk of disappearing three times faster than forests. In 1989, Congress directed the Department of the Interior to compare the estimated total number of wetland acres in the 1780s and in the 1980s in the areas that now comprise each state. The report, released by the U.S. Fish and Wildlife Service (FWS), was designed as a one-time effort to document historical wetland losses from colonial times through the 1980s. This report is updated every 10 years providing new information based on a statistical analysis of wetlands changes from the 1970s through the 1980s.

As with historical estimates, data on present wetland acreage must be interpreted with caution. For some states, wetlands have been mapped for the entire state by the FWS National Wetlands Inventory. However, for those states where wetlands are not completely mapped or where acreage summaries are not yet compiled, an accurate accounting of wetland acreage is not always available, so the best national or regional data available to determine statewide totals was used. Additionally, the status of wetlands in the United States is constantly changing. It is estimated that, on average , over 60 acres of wetlands have been lost every hour in the lower 48 states during this 200-year time span.

Considerable changes in wetland distribution and abundance have taken place since the 1780s. In the conterminous United States, only an estimated 104 million acres of wetlands remained through the 1980s, representing a 53-percent loss from the original acreage total. If Alaska and Hawaii are counted, an estimated 274 million wetland acres remain.

By all estimates, the national decline in wetlands from the 1780s to the 1980s is dramatic. Losses in particular regions of the country such as the mid-western farm belt states of Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, and Wisconsin are even more startling. Alaska stands alone as the only state in which wetland resources have not been substantially reduced. 

Incomplete baseline data on the wetlands in the United States prevents an accurate appraisal of the “health” of these remaining resources. However, population growth and distribution and agricultural development greatly affect land-use patterns that impact wetlands . Despite increased efforts to conserve wetlands through state and federal legislation, hundreds of thousands of acres have been drained annually. Wetland acreage has diminished to the point where environmental and even socio-economic benefits are now seriously threatened.

The years from the mid-1950s to the mid-1970s were a time of major wetland loss, but since then the rate of loss has decreased. How will climate change and global warming affect wetlands as our country and the rest of the world continue to experience unprecedented heat waves. The fact that the definition of a wetland changes often makes these numbers even harder to predict. The total amount of wetlands can change in an instant depending on the wording of a government document. 

Various factors have contributed to the decline in the loss rate of wetlands including implementation and enforcement of wetland protection measures and elimination of some incentives for wetland drainage. Public education and outreach about the value and functions of wetlands, private land initiatives, coastal monitoring and protection programs, and wetland restoration and creation actions have also helped reduce overall wetland losses.  Hopefully, this will be enough.

References:

https://share.america.gov/us-protects-wetlands/

https://www.archives.gov/

https://georgewbush-whitehouse.archives.gov › 2004/04

The Wetlands Initiative; Founded, 1994,  http://www.wetlands-initiative.org/

How the U.S. Protects the Environment, From Nixon to Trump By Robinson Meyer

Dahl, T.E. and C.E. Johnson . 1991. Status and Trends of Wetlands in the

Conterminous United States, Mid-1780’s to Mid-1980’s. U.S. Department of

the Interior, Fish and Wildlife Service, Washington, D.C.

Reprinted from Coastal Review

Commercial shrimpers can continue to harvest by trawler in the Pamlico Sound without a Clean Water Act permit, and the state will continue to manage its fisheries.

The U.S. Court of Appeals upheld a district court’s Sept. 17, 2021, decision that trawling in the North Carolina estuary does not violate the Clean Water Act, as alleged in a lawsuit that the North Carolina Coastal Fisheries Reform Group filed in August 2020 against a half-dozen commercial shrimping businesses. 

The reform group argued that bycatch being thrown back into the water is a pollutant and disturbing sediment with trawl nets is dredging, either of which, the group contended, would require commercial shrimpers to obtain a Clean Water Act permit. The three-judge panel rejected the argument.

The district court dismissed the suit in 2021 because the Clean Water Act does not regulate bycatch — the state does — and that disturbing sediment with trawl nets does not violate the act.

The Clean Water Act establishes “the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters,” the EPA explains.

The Court’s Decision

“We affirm the district court’s decision that Fisheries Reform Group fails to plausibly allege that shrimp trawlers are violating the Clean Water Act by either (1) throwing their bycatch back into Pamlico Sound, or (2) disturbing sediment on the Sound’s floor with their trawl nets, thereby causing it to resettle,” Judge Julius Richardson wrote in the panel’s unanimous opinion decided Aug. 7. 

Congress leaves fisheries management, including bycatch, to the state or the National Marine Fisheries Service for waters 3 miles offshore, not the Environmental Protection Agency, which enforces the Clean Water Act, he notes.

The fisheries reform group, a Wilmington-based nonprofit established in 2020, “to change how the State of North Carolina manages our public trust marine resources,” filed the lawsuit against Capt. Gaston LLC, Esther Joy Inc., Hobo Seafood Inc., Lady Samaira Inc., Trawler Capt. Alfred Inc., Trawler Christina Ann Inc., and Trawlers Garland and Jeff Inc. 

The reform group’s legal counsel, Jim Conner, told Coastal Review in an email that “the massive corporate-owned shrimp dredges are tearing up Pamlico Sound” and destroying fisheries across the entire region. 

“Their dredges tear up the bottom and their nets capture and kill four pounds of finfish and other life for every one pound of shrimp, killing billions of fish every year that are simply dumped back into the water as pollutants,” he said. “The Court missed an opportunity to apply the clear and unambiguous wording of the Clean Water Act to protect North Carolina estuaries and fisheries.”

“A Win for All Fishermen”

North Carolina Fisheries Association Executive Director Glenn Skinner said in a press release last week that while the organization was not in the lawsuit, members paid attention because the decision would have had “tremendous repercussions” for shrimpers, the industry, and commercial and recreational fishermen nationwide.

“This is a huge win for all fishermen, commercial and recreational. If the courts had decided with Mr. Joseph Albea and the Coastal Fisheries Reform Group, the results would have been devastating for both sectors,” Skinner said in a statement.

Judge Richardson explains in his published opinion that the major-questions doctrine was the deciding factor in this case. The major-questions doctrine is a legal background rule for when the question at hand has “significant political and economic consequences.” In this case, “whether returning bycatch qualifies as a ‘discharge’ of a ‘pollutant’ under the Act is a major question.”

Richardson explains that this is different from other major-questions cases because with those, it’s usually an agency asserting more power than is authorized by Congress. Here, it’s a citizen suit between private parties, and the authority that the Fisheries Reform Group seeks for the EPA would have significant political and economic consequences.

“Interpreting the Act to require the EPA to regulate bycatch would give it power over ‘a significant portion of the American economy,’” he writes. 

“If we sided with Fisheries, the immediate consequence would be to simply ban the shrimpers from throwing their bycatch into Pamlico Sound. That might sound like a small effect; yet the consequences would be vast,” Richardson writes. “For, if we adopted Fisheries’ reading of the statute and held that bycatch falls within the Act’s definition of pollutant, then that same reading would force the EPA to regulate not just all bycatch, but virtually all fishing, through the Act’s permitting scheme. The economic and separation-of-powers stakes of our ruling thus mirror those at play in other major-questions cases.”

The North Carolina Fisheries Reform Group first petitioned the North Carolina General Assembly in January 2020 by letter, expressing its concerns with how the state manages fisheries. Shortly after, group members retained Conner as counsel. 

On May 13, 2020, the group sent to the Division of Marine Fisheries, North Carolina Department of Environmental Quality, and the commercial fishing businesses a 60-day notice of intent to file a citizen suit under the Clean Water Act’s “prohibition against discharging pollutants into navigable waters and provisions regarding dredging activities.” 

The reform group filed Aug. 4, 2020, the lawsuit in the U.S. District Court for the Eastern District of North Carolina against the commercial shrimpers, NCDEQ and Division of Marine Fisheries. The group voluntarily dismissed its claim against the state, but pursued the lawsuit against the businesses. 

In an interview last week, Skinner with the North Carolina Fisheries Association, a nonprofit commercial fishing trade group, said he had spoken to a few of the defendants, and they were relieved. 

“The big problem is, and I don’t think most people look at it this way, Mr. Albea and his group didn’t sue the EPA. They didn’t sue a state or federal agency. They sued individuals who were operating legally. You’re allowed to shrimp in Pamlico Sound,” Skinner said. This lawsuit “cost those people hundreds of thousands of dollars for nothing.”

Skinner said that through the Shrimp Fisheries Management Plan, “And most people aren’t aware of this, we have to work to conserve habitat.” 

Shrimp Trawling in NC

North Carolina has a little over 2 million acres of estuarine waters and a million of that is permanently closed to shrimp trawling, either because it’s a nursery area for juvenile wildlife or to protect seagrass or habitat. “We’ve closed half of our estuary already permanently,” he said.

The North Carolina Marine Fisheries Commission, the rulemaking body for estuarine and marine fisheries management, has had its Shrimp Fishery Management Plan in place since 2006. The Division of Marine Fisheries implements and enforces the measures approved by the commission. 

Depending on the type of trawl used in the Pamlico Sound, average vessel length ranged from 22 to 53 feet in 2010-2011, according to the plan’s Amendment 1. The Pamlico Sound has accounted for about 56% of total commercial shrimp landings in North Carolina since 1994, the Amendment 2 published in 2022 states.

Division Biologist Supervisor Chris Stewart, in an email response to questions about how the Shrimp Fishery Management Plan works, explained that the 2006 plan implemented several area closures and a 90-foot head rope limit in the waters that surround the Pamlico Sound. 

The head rope is the top line of the net, or trawl webbing, that is measured from the outermost mesh knot at one end of the trawl following along the line to the outermost mesh knot at the opposite end, according to the division. 

Amendment 1 established a maximum combined head rope length of 220 feet in the Pamlico Sound and convened an industry workgroup to test gear combinations that achieved at least a 40% reduction in finfish bycatch, Stewart explained.  

Under the May 2018 revision to Amendment 1 and continued through Amendment 2, fishers are required to use one of four gear combinations that achieved at least 40% finfish bycatch in all shrimp trawls, except skimmer trawls, in the Pamlico Sound and portions of the Pamlico, Bay, and Neuse rivers. 

“It is important to note that these reductions in bycatch are in addition to the 30% reduction in finfish bycatch mandated by the federal bycatch reduction device (BRD) certification process and achieve nearly twice the federal requirements for reducing bycatch,” he said. “With the adoption of Amendment 2, shrimp trawling was prohibited in crab spawning sanctuaries designated at Oregon, Hatteras, Ocracoke, and Drum inlets.”

Stewart said that that the division doesn’t have bycatch numbers. 

“While the portion of bycatch that is sold (incidental catch) is recorded on trip tickets, the portion of bycatch discarded at sea is highly variable and characterization studies completed by the division are spatially and temporally limited. Thus, more data is needed to quantify the total magnitude of bycatch in the shrimp trawl fishery,” Stewart said. “Currently, the Division is investigating the feasibility of developing a long-term shrimp trawl observer program to better monitor and quantify annual shrimp bycatch.”

Source

Allen, J. (2023). Court upholds that trawling doesn’t violate Clean Water Act. Coastal Review. Retrieved from https://coastalreview.org/2023/08/court-upholds-that-trawling-doesnt-violate-clean-water-act/

On 3 August 2023, the U.S. Army Corps of Engineers (Corps) issued a final rule to adjust its civil monetary penalties (CMP) under the Rivers and Harbors Appropriation Act of 1922 (RHA), the Clean Water Act (CWA), and the National Fishing Enhancement Act (NFEA) to account for inflation.  With this new rule, the new statutory maximum penalty levels listed in on Table 1 below and will apply to all statutory civil penalties assessed on or after the effective date of this rule. This represents a 7.745% increase over the 2022 rate.

In addition, violations are considered Class I administrative penalty orders under Section 309(g) of the Clean Water Act, judicially-imposed civil penalties under Section 404(s) of the Clean Water Act, and Section 205 of the National Fishing Enhancement Act. Under Section 309(g)(2)(A) of the Clean Water Act.  Class I civil penalties may not exceed $25,848 per violation, except that the maximum amount of any Class I civil penalty shall not exceed $64,619. Under Section 404(s)(4) of the Clean Water Act, judicially-imposed civil penalties may not exceed $64,619 per day for each violation. Under Section 205(e) of the National Fishing Enhancement Act, penalties for violations of permits issued in accordance with that Act shall not exceed $28,304 for each violation.

The statutory civil monetary penalty amounts are for violations that occurred after November 2, 2015, and are assessed on or after August 3, 2023.

Table 1

Citation	Civil Monetary Penalty (CMP) amount established by law	2022 CMP amount in effect prior to this rulemaking	2022 Inflation adjustment multiplier	CMP Amount as of August 3, 2023
Rivers and Harbors Act of 1922 (33 U.S.C. 555)	$2,500 per violation	$6,270 per violation	1.07745	$6,756 per violation.
CWA, 33 U.S.C. 1319(g)(2)(A)	$10,000 per violation, with a maximum of $25,000	$23,990 per violation, with a maximum of $59,974	1.07745	$25,848 per violation, with a maximum of $64,619.
CWA, 33 U.S.C. 1344(s)(4)	Maximum of $25,000 per day for each violation	Maximum of $59,974 per day for each violation	1.07745	Maximum of $64,619 per day for each violation.
National Fishing Enhancement Act, 33 U.S.C. 2104(e)	Maximum of $10,000 per violation	Maximum of $26,269 per violation	1.07745	Maximum of $28,304 per violation.

Reprinted from Coastal Review

They are neither confined to the Carolinas, nor are they bays. That their name is misleading is in many ways very appropriate for the enigmatic formations known as Carolina bays.

But it isn’t what they are that holds the mystery; rather it is how did they get here?

Found in the coastal plains along the Atlantic shoreline, Carolina bays are shallow wetland depressions that are fed by rain or groundwater. They range in size from less than an acre to thousands of acres.  Most of the 500,000 or so Carolina Bays are in the Carolinas and Georgia, with the highest concentration found in Bladen County in North Carolina’s southeast coastal plain.

The term “bay” is a nod to the various species of bay trees and shrubs commonly found growing alongside most Carolina bays, but they are also unique reservoirs of many species of carnivorous plants, salamanders, frogs, turtles, birds and mammals.

Viewed from the ground they could easily be overlooked. But when viewed from above, Carolina bays create a dramatic imprint on the landscape. They all have a distinct elliptical shape, with a northwest to southeast orientation. They could be described as the crop circles of the wetlands. And oddly, this wouldn’t be their only connection to extraterrestrial theories.

When aerial photography was used to survey farmland in the 1930s surveyors were surprised to see thousands of elliptical depressions across the Eastern Seaboard. Interest in their origin quickly grew, with hypotheses ranging from ocean currents, wind patterns and sinkholes, to meteor showers and prehistoric gigantic beavers.

The mystery of the Carolina bays reached a fever pitch in the 1950s, when a respected University of North Carolina geologist named William Prouty steadfastly contended that the bays were a result of a meteor or comet colliding with the Earth over 12,000 years ago. This idea made quite an impact, so to speak, and debate continued for years about the cosmic nature of Carolina bays. One popular theory links the extinction event known as the Younger Dryas extinction (the same one responsible for wiping out the mammoth) to the formation of Carolina bays, suggesting that the wind and debris created from a comet colliding with the Earth near the Great Lakes region caused the depressions that became the bays.

Exploding comets and mass extinctions make for quite a dramatic birth story. And while everyone enjoys a bit of drama in their tales, doubt about the cosmic creation of Carolina bays led scientists to investigate individual bays more closely. What they found turned out to be a much more earthly creation process.

For instance, if Carolina Bays were the result of a single impact event then they should all be the same age.

“Data negates they [Carolina Bays] were formed at the same time,” said Anthony Rodriguez, associate professor of coastal geology at UNC’s Institute of Marine Sciences in Morehead City.

Rodriguez, along with then-graduate student Matt Waters and UNC associate professor, Michael Piehler, set out to study the origin and evolution of Lake Mattamuskeet, a conglomeration of multiple Carolina Bays in Hyde County on the Albemarle-Pamlico peninsula. Not only did they find no evidence linking these Carolina bays to a cosmic event such as the Younger Dryas extinction, but they also discovered that Lake Mattamuskeet is much younger, by at least 6,000 years, than Carolina bays were assumed to be.

Instead of an icy comet raining onto the Earth, Rodriguez and his colleagues discovered that Lake Mattamuskeet had a fiery beginning. Their analysis of the lake showed that cycles of burning peat associated with dry periods in the climate caused a basin to form where water later accumulated. Winds transported sand and silt, shaping the rim into the characteristic elliptical pattern. And, ta-da, after 1,000 years or so you have a Carolina bay.

When asked about the celestial hypothesis about the origin of Carolina bays, Rodriguez says carefully, “I think in the scientific community it certainly is not believed to be the case. But there is still a subset of believers in a cosmic beginning.”

He has reason to be careful in his response. A web search on Carolina bays brings up multiple sites that provide personal theories touting their cosmic beginnings, interspersed with a limited number of sites detailing the current scientific understanding. It appears that by many, the belief in a cosmic origin is still as passionately supported as it was in the 1950s.

This is not lost of Rodriguez. Parents to similarly aged children, Rodriguez and Piehler were surprised to open their children’s science textbook at a school open house to find that Carolina bays are still being linked to cosmic events.

“On one hand, at least they were in there,” said Rodriguez. “But this just isn’t the case. We couldn’t believe that this is still being told about Carolina bays.”

Still, Rodriguez and his colleagues are cautious to apply the results of their study on Lake Mattamuskeet to explain the origin of other Carolina bays.

“Although we think Lake Mattamuskeet formed by a peat fire, and other bays also might have, they probably aren’t all formed this way,” said Rodriguez.

But he does believe that wind is the driving force in shaping most, if not all, Carolina bays into their characteristic elliptical shape.

“These are soft substrates that shift with wind direction over time. The old timers, from the ‘30s to ‘50s, if you draw a line along the long axis (of the Carolina bays they surveyed) that line shifts a little bit as you move farther south. This goes along with wind direction,” explained Rodriguez.

Despite the growing understanding of the origin of some Carolina bays, the vast majority of them have yet to be closely studied. Rodriguez notes that he has had difficulty receiving funding for additional studies on Carolina bays, causing him to table future research on other sites.

And while some are protected as state or national parks, many of the Carolina Bays are already gone. Over the years, thousands of Carolina Bays have been drained and turned into farmland, recreational spaces, or converted to roadways — erasing these unique geological and ecological formations — and taking the mystery of their origin with them.

Source

Loomis, C. (2013). The Fiery Origins of Carolina Bays. Coastal Review. Retrieved from https://coastalreview.org/2013/08/the-fiery-origins-of-carolina-bays/

Republished from Virginia Mercury

Virginia’s Department of Environmental Quality released a memo last month detailing how it will approach reviews of applications for permits involving wetlands following a recent U.S. Supreme Court ruling that sharply limits the number of wetlands subject to federal protection.

Last month, the U.S. Supreme Court ruled that wetlands must have a surface connection to a larger navigable body of water, rather than only an underground connection, in order to be federally protected.

Virginia officials and environmental groups say the state already has strong laws on the books that provide broad protection of both tidal and non-tidal, or inland, wetlands. But the Supreme Court ruling in Sackett v. U.S. Environmental Protection Agency reduced federal involvement in reviewing protections and shifted more responsibility to states.

Jurisdictional Determinations

The biggest change Virginia will face is in handling jurisdictional determinations, or identifications of water body boundaries through a process known as delineation that is used to determine whether the government has oversight of a particular water. 

Previously, DEQ relied on the U.S. Army Corps of Engineers to make those determinations. That relationship was already in flux: In May, the Corps requested that all new applications for permits come with completed determinations, citing workload issues, and it paused determinations as the EPA sought a change to a rule defining what federal waters are. The Sackett ruling has exacerbated that situation, with the Corps unlikely to resume determinations until the new rule is finalized in light of the decision.

Amid uncertainty among developers on who will conduct the determinations and in anticipation of an increased workload to process applications with the loss of their federal partners, DEQ released the June 29 memo detailing its review process under the new interpretation of the law.

“At this time, the Department of Environmental Quality (DEQ) does not know how the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) will implement the Sackett decision in permitting and delineation boundary decisions,” the memo states. “We anticipate that there may be new federal guidance, checklists, field procedures, regulations and other information made public in the future.”

Jeff Steers, Virginia Department of Environmental Quality

Permit Guidance

The memo says the agency will “strive” to review permit applications for projects that already have delineations within 30 days. Under DEQ’s new process, all delineations must be conducted by professional wetland delineators certified by the Department of Professional and Occupational Regulation. 

A footnote to the memo notes there are an estimated 118 professional wetlands delineators in Virginia, with over 100 in the private sector. 

DEQ will still accept applications with delineations identified by non-certified professional delinations, but the agency says it “cannot provide a time frame on how long that review will take.”

DEQ’s request for all delineations to be performed by certified professionals is a way for “projects to move forward in a timely manner,” a news release from the agency states.

“Balanced economic development and environmental protection are integrally linked,” said DEQ Director Michael Rolband in a statement. “We are doing everything possible to ensure that the Sackett decision does not harm Virginia’s growing economy or environment.”

Andrew Clark, vice president of government affairs for the Home Builders Association of Virginia, said that the Corps’ freeze on issuing approved jurisdictional determinations could extend into next year and have a “chilling effect” on development. 

“Jurisdictional determinations provide clarity on the legal and regulatory requirements applicable to a project and allow developers to identify site constraints that may impact community design, site planning, infrastructure placement, unit types, and density,” Clark said in an email. DEQ’s approach, he said, “will minimize permitting delays and regulatory uncertainty.”

Wetland Delineations

One avenue of uncertainty for wetlands protections is how the delineations will be made going forward.

Virginia state code requires delineations to follow guidance laid out in a 1987 manual from the U.S. Army Corps of Engineers. But even though Sackett has reduced the scope of the Corps’ oversight of wetlands, Jonathan Gendzier, a staff attorney at the Southern Environmental Law Center, said he hasn’t “heard of any” changes planned to the manual. 

The new review process outlined by DEQ is “applaudable,” said Chris French, a member of the Protect Hanover group that has been fighting for wetlands protections during the development of a Wegmans distribution facility outside Richmond, but the 30-day window may be a tight opportunity for a thorough review. Delineation decisions can be complicated and frequently require field verification, explained French.

The process is “pretty comprehensive,” French said. “For a large site like Wegmans, one company spent weeks on it. [DEQ] is trying to meet a need with the resources they have. You don’t want to have delays. You don’t want to have impacts to wetlands either. You have to ensure they’re complementary.” 

Maintaining Protection Efforts

Environmental groups like nonprofit Wetlands Watch say staffing levels at DEQ will also need to remain high to keep Virginia’s wetland protections intact. 

“Virginia doesn’t want to go back,” said Wetlands Watch Executive Director Mary-Carson Stiff. 

Peggy Sanner, Virginia executive director for the Chesapeake Bay Foundation, said DEQ has developed a “thoughtful process to help address the need for wetlands protection and permitting efficiency,” but added, “It is imperative that Virginia continues to safeguard wetlands that are no longer federally protected.”  

Martha Moore, vice president of government relations for the Virginia Farm Bureau, said Virginia’s guidance “is consistent with the [Sackett] ruling as it referred to the states to regulate, which Virginia already did.”

“DEQ, like a number of state agencies, has a lot of vacancies so I would assume this would [be] like any other regulatory program they administer that they have to utilize the resources they have,” Moore said. “I think the issue is finding people as opposed to not filling positions. They would need qualified people to help implement the regulatory requirements of all of their programs.”

Source

Paullin, C. (2023). Virginia offers wetland permit guidance following Supreme Court’s Sackett ruling. Virginia Mercury. Retrieved from https://www.virginiamercury.com/2023/07/14/virginia-offers-wetland-permit-guidance-following-supreme-courts-sackett-ruling/