SWANCC In 2019

One of the most misinterpreted rulings by the Supreme Court of the US (SCOTUS) is the 2001, Solid Waste Agency of Northern Cook County (SWANCC). The pedestrian result is that isolated wetlands are non-jurisdictional with regards to the Clean Water Act. This is a gross misstatement, and the US Army Corps of Engineers and the US EPA have done very little to clarify what the ruling actually said. Furthermore, the proposed definition of Waters of the US (WOTUS) currently awaiting final release has also grossly underestimated the extent of the CWA reach.

The 2019 WOTUS rule relies on two crucial SCOTUS cases. The first one is the SWANCC decision in which the Court made two essential points.

  1.  The SWANCC waters were not wetlands. They were small ponds that were created as a result of sand and gravel mining. The wet areas lacked one or more of the USACOE’s three criteria to define a wetland. Mostly, wetland vegetation was missing.
  2. The SCOTUS only ruled that the migratory bird rule was not sufficient to establish federal jurisdiction over the SWANNC ponds. The SCOTUS never ruled if the SWANCC ponds were or were not WOTUS for any other reason. They also admonished the USACOE for what amounted to dereliction of duty in not bringing any other jurisdictional evidence forward.

The second critical SCOTUS case is the 2006 Rapanos and Carabel indecision. This case was vacated due to a split 4-1-4 ruling and remanded to the lower Courts who maintained the wetlands in question were jurisdictional. The USACOE prepared a guidance document based upon the sole Kennedy opinion that required that WOTUS must have a significant nexus to a downstream navigable waterway. Four Justices confirmed that the wetlands in question were jurisdictional, and four others did not feel the government had established sufficient cause to prove jurisdiction. Justice Scalia had written about needing a physical connection to navigable waterways to establish jurisdiction, but his opinion did not represent the majority of the Court.

The CWA was passed in 1972 to restore the physical, chemical, and biological integrity of WOTUS. The original extent of WOTUS was not limited to only navigable waters. In 1977, the definition of WOTUS under the CWA was clarified to include wetlands an isolated waters. The extent of this jurisdiction was confirmed in 1985 in the SCOTUS Riverside Bayview Homes case that confirmed adjacent wetlands are jurisdictional. No limits on what was not jurisdictional were discussed by the Court.

It was Congress’ original intent to clean up and restore America’s waterways by the passage of the CWA. Congress did not delineate jurisdictional and non-jurisdictional waters in the Act. They intended to make all waters in the US cleaner. One way to do this was to establish a permit program administered by the USACOE. Recognizing that the CWA gave the USACOE the authority to regulate all waterways, the USACOE established a Nationwide Permit program. This permit program included discharge of fill into headwater wetlands and waters under Nationwide 26. The idea was that the USACOE regulated these very small waters, but did not want to impose Individual permit conditions on them. The first version of the Nationwide 26 allowed for 10 acres of fill in headwater areas. This was reduced to 1 acre, and then eventually the Nationwide 26 was not renewed.

The point of the Nationwide 26 is that these wetlands and waterways were regulated by the USACOE from the start. As some sort of relief, the USACOE issued the Nationwide 26 to ease the regulatory burden imposed by the CWA. However, at no time was intended to imply that these wetlands and waters were not subject to regulation.

The limits of Congress to impose limits on what can and cannot be done to waters and wetlands is based upon the impacts to commerce. This has been confirmed in every SCOTUS case and has also included aggregate impacts to wetlands and waters. One individual wetland loss may not have a visible impact to commerce, but multiple impacts to similarly situated waters or wetlands have been upheld by SCOTUS as having an aggregate commerce connection. This further underscores Congress’s original intent to regulate all wetlands and waters.

It is impossible to cleave a commerce connection from any waterbody. Water is the most important natural resource we have. It costs money to gather, clean, and distribute water. Clean, usable water is necessary for all life needs and extends to numerous commercial enterprises.

Currently, the USACOE and EPA are reviewing the public comments associated with the new 2019 Waters of the US definition. What makes a water jurisdictional under this new rule is its direct physical connection to a navigable water. This is a highly politically motivated rule and will remove many of the protections on wetlands and waterways that have been in force for over 40 years.

In the majority of SCOTUS rulings, there has been a call to Congress to clarify what it had intended to regulate under the CWA. The original authors of the CWA were fairly clear on their intent, and when recently questioned, they confirmed it was to regulate all waters. Is this still the intent of Congress?

Write your representatives and let them know what you think and ask them for a direct answer to this question. If the people of this country no longer support the original intent of the CWA, then Congress should be informed. If we do support the notion that clean water is essential no matter the location, then Congress needs to know. We should not be relying on unelected government officials to dictate what will be protected and not. In 1972, we passed the CWA to make this very clear. Perhaps we need to remind the government that they are answerable to the people, not the other way around.

National Wetland Plant List 2018/2019 Updates

The Swamp Stomp

Volume 19, Issue 14

On June 10, 2019 the US Army Corps of Engineers announced that an update to the National Wetland Plant List (NWPL) is now available for review and comment. The public comment period ends on August 9, 2019.

The direct link to comment on the list is: https://www.federalregister.gov/documents/2019/06/10/2019-12129/national-wetland-plant-list

For the 2018 NWPL update, the NWPL National Panel (NP) and Regional Panels (RPs) reviewed proposed wetland rating changes or additions for 20 species and 37 regional ratings (some species were reviewed for multiple regions) submitted by the general public.

Eight of these species were proposed for addition to the NWPL, and 12 species were submitted for a rating change request in one or more regions. Submitted information was reviewed by the NP and RPs, and proposed 2018 ratings for these species were determined, as detailed below.

Note that all submitted species are included here, regardless of whether or not the NP and RPs proposed a rating change. Hence, for those species where the current and proposed ratings are the same, a rating change request was submitted, but after review of the submitted information no rating change is being proposed for the 2018 update.

For the time being, it would appear that we are calling this the 2018 update to the NWPL. Perhaps this will be changed to 2019 in the final version.

The Federal Register notice also reiterates the wetland rating definitions for OBL, FACW, FAC, FACU and UPL. The percentage definitions used in the past are only used for testing and problematic species. Plus and minus designations and wetland indicator designations such as No Indicator (NI), No Occurrence (NO), and No Agreement (NA) are no longer used on the NWPL.

Users are encouraged to submit literature citations, herbaria records, experiential references, monitoring data, and other relevant information.

Specific knowledge of, or studies related to, individual species are particularly helpful. Commenters should use their regional botanical and ecological expertise, field observations, reviews of the most recent indicator status information, appropriate botanical literature, floras, herbarium specimens with notation of habitat and associated species, habit data, relevant studies, and historic list information.

This is also an opportunity to suggest new ratings for species not included on the short list below. The Corps is also discouraging guessing ratings. I am not sure what that means, but don’t do it.

These are the proposed changes.  Be sure to note American Holly (Ilex opaca).

SpeciesRegionCurrent 2016 Rating*Proposed 2019 Rating
Aristida palustrisAGCPNOLFACW
Artemisia dracunculusAWNOLFACU
Artemisia dracunculusWMVCNOLFACU
Bassia hyssopifoliaAWFACUFACU
Bromus nottowayanusMWNOLFACU
Bromus nottowayanusNCNENOLFACU
Delairea odorataAWNOLFAC
Delairea odorataWMVCNOLFAC
Dichanthelium wrightianumAGCPNOLFACW
Epilobium brachycarpumAWNOLFAC
Epilobium brachycarpumWMVCNOLFAC
Hymenocallis latifoliaAGCPFACWFACU
Hymenocallis latifoliaCBFACWFACU
Hymenocallis occidentalisAGCPOBLFAC
Hymenocallis occidentalisEMPOBLFAC
Hymenocallis occidentalisGPFACWFAC
Hymenocallis occidentalisMWOBLFAC
Ilex opacaAGCPFACFAC
Iva axillarisAWFACFACU
Iva axillarisWMVCFACFACU
Liriodendron tulipiferaAGCPFACUFACU
Liriodendron tulipiferaEMPFACUFACU
Penstemon rydbergiiAWFACUFACU
Penstemon rydbergiiWMVCFACUFACU
Pleopeltis polypodioidesAGCPFACUPL
Polymnia canadensisEMPNOLFACU
Polymnia canadensisMWNOLFACU
Polymnia canadensisNCNENOLFACU
Pycnanthemum muticumEMPFACFACU
Quercus michauxiiAGCPFACWFACW
Tussilago farfaraNCNEFACUFACU
Verbena brasiliensisAGCPNOLFACU
Verbena brasiliensisEMPNOLFACU
Verbena brasiliensisMWNOLFACU
Verbena incomptaAGCPFACWFACU
Verbena incomptaEMPFACWFACU
Verbena incomptaMWFACFACU

 

*NOL = “Not On List” and indicates proposed additions
OBL—almost always occur in wetlands
FACW—usually occur in wetlands, but may occur in non-wetlands
FAC—occur in wetlands and non-wetlands
FACU—usually occur in non-wetlands, but may occur in wetlands
UPL—almost always occur in non-wetlands

Be sure to mention in your comments and suggestions related the the 2016 name changes of species.  There is no mention that these will be updated with the new release.  There had been a discussion that the 2014 names should be used.  This has been a big issue when trying to key out a plant only to find that the Corps has changed the name and there are not academic references to support the name changes.  This has lead to misidentification in the field of species wetland ratings.

2019 Wetlands Jobs Report

Click to Download our Free Jobs Report

Are you looking for the keys to a successful Wetlands career?

Are you a student wondering if you are getting the right education that your future employers will be looking for in their next hire?

Or maybe you are a seasoned Wetland Professional who just wants to take the next step up the career ladder and needs some certifications?

Well, Swamp School’s 2019 Wetlands Jobs Report is a free whitepaper that you will NOT want to miss.

You will gain a better understanding of the Wetlands Industry as a whole from a list of wetland job titles, the most requested experience or expertise for a job in the wetlands, as well as current legislation and policies driving wetland jobs. Read through an extensive list of where most wetland jobs are located as well as the major wetland industry employers (governmental and private).

This white paper is written for graduates in the environmental sciences to show them how to get the experience they need in the classroom and in the field and to be eligible to do land a job working with saving the wetlands. Education and training in specific wetland duties should be part of the graduate’s resume on graduation!

Free Wetland Career Advice

As an exclusive over the next few months, Swamp School is also offering free Wetlands Career Advice!

For those who feel like they are stuck trying to land that perfect job in the field. We have decades of experience to help guide and mentor you. If Free Wetland Career Consultation is something that you are interesting, click here to enroll.

Read some of what other Swamp School students have said about our courses in the past:

I really like the class format and all of the matetrial in it. It has been a lot of fun and it was great to get out of the office to go hunt down some plants.” – Kelley M.

I really enjoyed this class and would recommend it to others. I really enjoyed the discussions between the members of the class. – William B.

Swamp School is trusted by over 600 clients such as the United States Environmental Protection Agency (EPA), the Department of Energy in the United States, and the US Army Corps of Engineers to name a few.

Preview of the 2019 Wetlands Job Report

Finding a Job is the most stressful part of graduating from college. The Dr. Suess book entitled “Oh, The Places You’ll Go” is given as a gift at many graduations. The problem is that, collectively, colleges do not prepare graduates with marketable training for a job AFTER college.

You expect to find a job in your major because that is WHY the money is spent, and soon you realize that the training is not there. Especially if you have a degree in environmental sciences.

You’d like to do something rewarding that is done outdoors os you don’t sit at a desk all day. However, you have no experience or training in a marketable skill.

The most common degree awarded to students studying Environmental Science is a bachelor’s degree. A roadmap designed to lead graduates with bachelor’s degrees in environmental sciences, ecology, geology, biology, etc., into an environmental career would reduce the stress of finding a job. Wetlands provide many careers for science degree candiates.

This white paper is written for graduates in the environmental sciences to show them how ot get the experience they need in the classroom and in the field and to be eligible to land a job working with saving the wetlands. Education/training in specific wetland duties should be part of a graduate’s resume on graduation.

A listing of job titles is included in this whitepaper as well as a listing of the most requested experience or exprtise for a job in the wetlands. It also includes a list of current legislation and polices driving wetland jobs.

Marc Seelinger, PWS, Founder the Swamp School

CONTENTS

1 – Introduction

2 – Legislation

3 – Job Locations

3 – Job Titles

4 – Major Employers

5 – Curriculum

6 – Training

7 – Swamp School

What is driving the increased need in the Wetland Business? Legislation Supporting Wetland Protection…

To keep reading click the button below.

Beavers Benefit Bare Banks

The Swamp Stomp

Volume 19, Issue 13

Often thought of as vermin, beavers have been trapped and shot, while their dams have been destroyed by dynamite and bulldozers. However, the dry climates that have caused droughts throughout the West have brought beavers back to the forefront of landscape preservation.

By creating their dams, beavers raise the water table along rivers, which supports the tree and plant growth that stabilizes banks and prevents erosion. The dams also contribute to improved fish and wildlife habitats and encourage richer soil to develop. However, in the dryer parts of the country that have been suffering from severe droughts, the most beneficial contribution of beavers is the water their dams collect.

Before beavers were considered pests, the tens of millions of semi-aquatic rodents that dwelled in North America formed an integral part of the hydrological system. Jeff Burrell, a scientist for the Wildlife Conservation Society in Bozeman, Montana, described how important the beaver once was for environmental stability. He said, “The valleys were filled with dams, as many as one every hundred yards. They were pretty much continuous wetlands.”

However, by 1930 the beaver population dropped to less than 100,000—most of which dwelled in Canada—because of fur trapping. Since then the number of beavers has bounced back to an estimated 6 million, and an appreciation for beaver dams has begun to grow.

Lately, hydroelectric and reservoir dams have been heavily criticized because of the extensive changes they cause to the natural environment. The benefits of beaver dams, both natural and artificial, have, subsequently, become an attractive alternative. In fact, the demand for natural damming has risen so much over recent years that government agencies sponsor workshops on the West Coast to train wetland workers on how to attract beavers.

Burrell claimed that as long as beavers are able to help, we should take advantage of the resource. He said, “We can spend a lot of money doing this work, or we can use beavers for almost nothing.”

Beavers are the ecosystem’s natural engineers. Each time a family of beavers moves to a new territory, it begins a new dam in order to create a pond and shelter. As the water trapped behind the dam increases because of the buildup of twigs, mud, and stones, the entrance to the beaver’s shelter becomes submerged underwater and thus is protected from predators.

The new pond nourishes nearby willows, aspens, and other trees, as well as providing a safe place for fish that require slow-moving water. Land creatures such as deer, elk, and songbirds benefit from the grasses and shrubs that grow as a result of the pond.

The greatest benefit of the pond, however, is the increased levels of underground water. The boosted water supplies would considerably lower the groundwater costs for farming. Cheaper water preservation will be crucial going forward, especially in areas suffering from drought. Burrell claimed, “People realize that if we don’t have a way to store water that’s not so expensive, we’re going to be up a creek, a dry creek. We’ve lost a lot with beavers, not on the landscape.”

The danger of allowing beavers to dam streams freely is that their damming may cause floods in residential and urban areas; if unchecked beavers can be destructive to ecosystems that are not already short of water. Therefore, it is important to only encourage beaver activity in areas that need help managing and retaining water.

Beaver activity has been increased in arid climates such as those found in Arizona. However, the consequences of doing so are largely unknown. Julian D. Olden, an ecologist at the University of Washington, discovered that beaver ponds made in Arizona proved to be ideal habitats for invasive fish, such as carp, catfish, and bass, which will eventually overrun the native species. He concluded, “There’s a lot of unknowns before we can say what the return of beavers means for these arid ecosystems. The assumption is it’s going to be good in all situations, but the jury is still out, and it’s going to take a couple of decades.”

It appears clear that beaver activity is not recommended in all situations, but the positives of allowing beavers to dam water supplies in low-water-areas seem to outweigh the negatives. As mentioned by Olden, the overall consequences will only be able to be gauged after a large amount of time has passed. Until then, all we can do is hope that the positives continue to outweigh the negatives.

Marine Mammals: a Military Defense

The Swamp Stomp

Volume 19, Issue 12

When you think about military operations and tactics, a wide array of technological systems and machinery probably come to mind, but were marine mammals on your list? Many military forces across the globe, including the US Navy, have been training marine mammals for some time. Since the 1960s, the US Navy has been training sea lions and bottlenose dolphins to not only search for underwater mines and trespassers but to also search for lost equipment. The Russian navy and later the Ukrainian navy also trained bottlenose dolphins for similar work.

But what makes marine mammals so skilled at these tasks? Marine mammals exhibit many abilities that make them superior to even some of the most sophisticated military equipment available today. For starters, cetaceans (a group of animals including whales and dolphins) have incredible echolocation. With echolocation, cetaceans can send out sound waves that bounce off objects in the water, letting the animals know what is ahead. Their echolocation is far better than any available technology, especially since bottlenose dolphins can work in noisier areas than today’s technology can handle. They can even use this ability to distinguish different types of metals, which is very useful in terms of the military’s needs. Dolphins also possess one of the best memories of any animal, making them very easy to train.

Sea lions also possess some very useful abilities. The California sea lion is often trained by the US Navy to detect objects in the water. They have great eyesight and can quickly tell when something is not supposed to be there, like lost equipment or mines. They are also amphibious, which means they can function both on land and on water. This makes them very easy to train and they can be brought up on boats when needed, making them more valuable to the Navy than most other marine mammals.

Although bottlenose dolphins and California sea lions make great military animals, there are some marine mammals that do not make the cut. In 2017, Russia tried to train beluga whales to perform the same things as the bottlenose dolphins and sea lions do. However, belugas cannot handle being in the Russian waters’ lower temperatures for long periods of time.

Since the introduction of marine mammals into military operations, there has been quite a bit of success. They were used back in the Cold War by the Soviet Union to detect anything suspicious or to find lost objects like torpedoes. They have also been known to be used by the US Navy in both Gulf Wars and during Operation Enduring Freedom, in which President George Bush announced airstrikes on Al Qaeda and the Taliban shortly after the terrorist strike on September 11, 2001. Since these operations, military forces around the globe continue to train these incredibly smart animals to help military programs run smoothly and more efficiently. And next time there is any conversation about military personnel and their astonishing jobs, you can add marine mammals to the list!

Sources:

“Dolphins In Defence: How Marine Mammals Are Used By The Military.” Forces Network, 29 Apr. 2019, www.forces.net/news/dolphins-defence-how-military-uses-marine-mammals.

Lee, Jane J. “Military Whales, and Dolphins: What Do They Do and Who Uses Them?” National Geographic, National Geographic Society, 3 May 2019, news.nationalgeographic.com/news/2014/03/140328-navy-dolphin-sea-lion-combat-ocean-animal-science/.

The Threat to Pangolins

The Swamp Stomp

Volume 19, Issue 11

Pangolins are quite lovable and exotic creatures. They are solitary, shy, and nocturnal. Their size ranges from 12 to 60 inches and they are covered in remarkable scales. Not only do they have unique diets consisting of just a few specific types of ants and termites, but they also constitute their own taxonomic order. Their powerful tongues attach all the way to their sternum, making them even more intriguing.

What makes them even distinctive though unfortunately, is that among mammals, they are the most heavily trafficked non-human mammals. Between the years 2000-2013, an estimated one million pangolins were trafficked, with 67 countries and territories involved. There are many traits about pangolins that make them so coveted by humans. For starters, they make great bush meat and their meat is considered a delicacy in Vietnam and China. However, their most coveted trait is their scales. Their scales are used in traditional medical practices in China and some African countries, including Ghana, Nigeria, and South Africa. The keratin in their scales is what is sought after, and has been known to be of benefit for health problems such as lactation issues, arthritis, and rheumatism.

Although some African countries practice traditional medicine that uses pangolin scales, it is China where most shipments are sent. In China alone, there are approvals of 29 tons of scales yearly in the pharmaceutical business. In this business, there are about 200 pharmaceutical companies and 60 medicines that are produced using the scales.

This measure of trafficking hasn’t gone unnoticed by conservationists. In 2017, CITES (Convention on International Trade in Endangered Species) issued a worldwide ban on commercial pangolin trade. Before this, in 2000, trade of four of the eight species was prohibited. Despite these efforts, pangolin trade is still highly prevalent in the black market. Although officials cannot estimate how many are traded yearly, National Geographic estimates that hundreds of thousands of pangolins are killed each year for trade purposes.

The biggest issue in spreading the word about pangolin conservation is the pharmaceutical business’ “need” for pangolin scales. In the mid-1990s, China hunted pangolins into their seeming disappearance. There were stockpiles of scales that Chinese pharmaceutical companies gathered their needs from, but conservationists doubt that those stockpiles would still be meeting their needs two decades later. Still, even though the scales are coveted greatly in traditional medicine, there is no scientific proof that the scales even have positive effects when used medicinally.

Chinese companies, licensed by the Chinese government to do so, have tried to breed pangolins in captivity for commercial purposes and to keep them out of the trade. However, pangolins are arduous animals to keep in captivity simply because they stress easily, so efforts have not been successful. On top of the difficulties of pangolin captivity, several Chinese companies that try to breed pangolins were raided since authorities were suspicious of their motives. Even though they are trying to do good by keeping pangolins out of the trade and in their own hands, they should instead try and eliminate the use of pangolin scales altogether.

Education is the biggest help to pangolin conservation. There is no scientific proof that pangolin scales have any effect when used medicinally, and there are many known alternatives to the scales. Since breeding them commercially would be a nearly impossible effort to pursue, educating about alternatives in the world of pharmaceuticals could make the biggest impact.

There have also been some groups that have been quite successful rescuing pangolins found in the trade and nursing them back to health to be released. The Tikki Hywood Foundation is a renowned wildlife rescue center that was founded by Lisa Hywood in 1994. They are based in Zimbabwe and have rescued nearly 180 pangolins from illegal trade since 2012. Save Vietnam’s Wildlife is another renowned organization. They are a non-profit rehabilitation group that also takes a big part in pangolin conservation. In 2017, they rescued 407 pangolins. Because of these groups, and several others, many pangolins have had a second chance at life in the wild, free from capture and the dangers of trade. Aside from rehabilitation programs around the world, many organizations (like Save Pangolins and Pangolin Conservation) have helped to raise money to help educate people about why there is a need for pangolin conservation and rehabilitation. With further education about this cause, pangolin trade can hopefully disappear completely from around the world.

Sources:

Bale, Rachel. “Poaching Is Sending the Shy, Elusive Pangolin to Its Doom.” National Geographic, National Geographic, 15 May 2019, www.nationalgeographic.com/magazine/2019/06/pangolins-poached-for-scales-used-in-chinese-medicine/.

“Wildlife Rescue.” Save Vietnam’s Wildlife, Save Vietnam’s Wildlife, 2019, www.svw.vn/our-work/wildlife-rescue/.

Using a Laser Level for Ecological Studies

The Swamp Stomp

Volume 19, Issue 9

The use of a survey grade level is critical for obtaining accurate measurements of various biological features, biological benchmarks, etc.  This information is used for many purposes including stream restoration, coastal restoration, wetland restoration, and other design purposes.

There are two types of levels used for construction and design. The older of the two is known as the Dumpy level. This level is like a spotting scope with crosshairs. It is highly accurate (despite its name) and also has an added advantage of being able to measure distance. However, it does require much more work to operate and is limited to a range of about 30 feet.  It also requires two people to operate.

Laser levels are the other commonly used measuring tool and are a great improvement over the Dumby levels. The major benefit is that the distance away from the level is pretty much as far as you can see.  This reduces the number of station moves and speeds the process along.  You also only need to have one person to operate the level.

There is a third option which is to use a surveyor total station. This, however, is a very complicated process and usually beyond the level of detail needed for most biological assessments.  A corollary to this is the use of GPS.  GPS is great for x and y coordinates, but it is often meters off on the elevation (z).

Laser Levels

You do not need to spend a lot of money to purchase a quality laser level. You can often find these for sale in big box home improvements stores and hardware stores.  They are around a couple of hundred dollars.  You can also rent one from a survey supply shop for about $20-$30 per day.  They will also be happy to sell you one if you need to use it more than just a few times.  Survey grade levels are usually in the $500 to $1000 range.  This is worth the investment if this type of work is a regular thing for you.  Also, do not cheap out on the box.  The level will get bounced around so you will need a quality instrument case.  This is sometimes a problem with the home center levels.

The laser receiver is usually included with the laser level.  This is a little box that attaches to the survey rod with thumb screws.  It takes batteries and makes a tone when the laser beam from the level hits it.

You also need legs. The level should be placed upon a quality tripod. This is not the same type as you use for a camera. Survey grade tripods are usually made of wood or aluminum and have steel spikes to set it into the ground.  The legs are adjustable so that you can level your level. The level should be about chest high when mounted so the tripod needs to be 4-5 feet high when set up.

Next on your shopping list is a survey rod. You want to get the smallest rod that will serve the purposes of the site work you are doing. A 12-foot rod is much better than a 25-foot rod if you only need to go up a few feet. The bigger the rod the more sway you have and the measurements will be less accurate. However, if you have a steep slope on your site a bigger rod may be necessary.

You will also need a measuring tape or carpenter’s rule.  It is better to get one that is calibrated to 1/10’s of a foot rather than inches.  The survey rod is almost always in 1/10’s of a foot, however, make sure you are not using some sort of metric rod.  That really clean rod in the back of the tool closet that nobody uses might be there for a reason.

Set Up

The first thing that you want to do is take a walk around the area that you need to survey. You want to find the best place to set up the level so that you do not need to move it more than necessary. Keep an eye on slope, trees and other obstructions.  The level needs a clear line of sight. You can clear some of the vegetation away, but it is usually easier to find a spot that would require the least amount of work to get your shots. The tripod should be set up above the highest point you are going to survey. You need to include the height of the level receiver on the rod when you are making this estimate. This translates to about 5 feet above your highest point. The level needs to be able to “see” the receiver.  If the level is set is too low it will shoot below the receiver mounted on the rod.  You can move the receiver down, but that would require that you recalculate for those shots.

Keep the level in the box until you are ready to place it on the tripod.  Do not attach it to the tripod and then walk around with it.  It should be boxed when moving it around the site.

Set the legs up on as level a surface as you can. Adjust the legs so that the level mounting plate is fairly level. You can use a hand level to do this or the bubble level on the laser level itself.

The laser level attaches to the tripod by way of a large screw below the mounting plate. Do not tighten this too much until you have leveled the level. There are three or four leveling screws on the level. There is also a glass bubble level on the mounting plate. Adjust the leveling screws so that the level is dead on the level in all directions. This will require that you spin the level around and make adjustments. If you have attempted to level the tripod before you mounted the level, this will go fairly quickly.  It is critical that the level is mounted level. Otherwise, your data is junk.

Instrument Height

There is usually a marking on the level where you should measure downwards to the ground. We are also going to determine the height of the instrument using the back site, but you should always measure the distance from the instrument to the ground. We don’t really use this data, but it seems that it is always done. It is sort of a cross check.

Backsight

You should place a project benchmark somewhere near the level set up. This serves as your project control and can be surveyed for real later if you need to derive actual elevation points from your level runs. This control should be set using a pin, rod, pipe or other relatively permanent makers. Wooden stakes do not work as they can be easily removed or damaged.

The backsight elevation is any number that makes sense. The convention is to set it at 100.  You may come back later in drag control onto the site to determine the actual elevation, but that is not necessary for this type of work.

The laser level indicator should be attached to the rod, usually at the tip. Note the location of the indicator. For example, it is on the rod at 4.5 feet.  Most telescopic rods have a height indicator on the back of the rod.  As you raise the rod the height indicator numbers will change.  Be careful to raise the rod in the proper order.  This varies with some rod types so be sure to check with the manufacturer on the use of the rod.

A Direct Elevation Rod or a “ Lenker Rod ” is the most common type and has numbers in reverse order on a graduated strip that revolves around the rod on rollers. Figures run down the rod and can be brought to the desired reading—for example, the elevation of a point or benchmark. Rod readings are preset for the backsight, and then, due to the reverse order of numbers, foresight readings give elevations directly without calculating backsights and foresights.

Turn the laser on and position the rod on the benchmark and raise the rod until you hear a steady tone. You will usually hear a slow chip when you are just below the laser beam and a fast chirp when you go past it.  Note the rod reading. That is your backsight reading. Add the elevation from the benchmark rod reading and you have your height of instrument (HI).

For example, your benchmark is elevation 100.  Your rod reading on that benchmark is 4.06.  Therefore, your Height of Instrument (HI) is 104.06’.  Your benchmark elevation should be lower than the instrument ground location.  If not, you need to adjust the detector and do some more math. It can be done, but it takes more time.

Now you are ready to go to work on the foresight.

Position the rod directly on the ground at each feature shot. The rod should be straight up and down. There are plumb levels you can attach to the rod to help you.  Some laser detectors will also beep at you if you are too far out of plumb.

Raise the rod until you hear that steady tone. Note the rod reading. Make sure that you raised the rod in the right order and that the numbers are being read correctly.  Usually, this is a matter of checking reality.  If your rod reading suddenly jumps by 5 feet from the last point you may have raised the rod sections in the wrong order.

Record each feature and provide some notes.  A level book works great for this.  This is an example of a level book set up.

Set  Up  1

Station

BS

HI

FS

Elev

Notes

(feet)

(+)

(-)

4.06

104.06

100

Benchmark

6.63

0+25

97.43

MT

5.35

0+50

98.71

MHW

At each feature subtract the foresight (FS) from the Height of Instrument (HI) to derive the elevation.

In this example, we have a 1.28’ difference from mid tide (MT) to Mean High Water (MHW).  We can, therefore, assume that our total tidal exchange would be 2.56’ from Mean Low Water (MLW) to MHW.

We would need to check many other points. Usually, for a biological benchmark survey, we would to stationing along a cross-section.  Each feature would be relative to the feature type and its location on the cross-section.  In our example above, the distance from the MT to MHW is 25’.  This is measured by setting a fixed starting point at 0+00 and measuring along that line.

If you need to move the level you will need to calculate a new HI.  Make sure to reference the setup with the data.  Start a new table for a new set up.

Finally, if you need to determine the real elevations of your features survey the benchmark. This will require a surveyor to locate nearby elevation control and drag that onto the site using traverse lines. You can also use high-end GPS for this.  In our example above the real elevation for the benchmark is 456’ NAVD 88.  Our new HI is 460.06.  We need to make sure we cite the vertical data source. In this case, it is North American Vertical Datum of 1988 (NAVD 88). Therefore our MT is 453.43’ NAVD 88 and the MHW is 454.71’ NAVD 88. You can do this for all of the data associated with the benchmark.

One final note of caution

If you are doing level runs for design purposes, you may or may not need a licensed land surveyor to sign off on them.  However, if you are doing any floodplain calculation work you will most likely need the help of a licensed surveyor. Some jurisdictions allow licensed professional engineers to do this as well. This is a matter of state and federal law so be careful and ask questions.

Natural Shorelines

The Swamp Stomp

Volume 19, Issue 8

After studying the effects of Hurricane Irene on the Outer Banks of NC, scientists faced some surprising data.  The surprising part was that so little information was available on the resilience of coastlines. Environmental Scientist at the University of North Carolina at Chapel Hill, Rachel Gittman, was quoted saying, “The more I researched, the more I realized that we just don’t know very much. So much policy and management are being made without the underlying science.” (1) Scientists understood the physics, but it was never put in a form the policymakers could easily understand. 

As Gittman was studying the shorelines, she noted that concrete walls were out weathered by the marshes. Irene damaged 76% of bulkheads surveyed, while no damage to other shoreline protection options was detected. However, in terms of habitat loss statistics, 30 to 50 percent of wetlands have already been lost, 19 percent of mangroves were lost from 1980–2005, and 75 percent of the world’s coral reefs are now rated as threatened. (3) 

Almost all money, historically, to protect the coastline has been spent on “gray infrastructure.” These include bulkheads, levees, seawalls, and rock revetments.  However, as research on “green” coastal protection is measured in the long term, this is beginning to change. It has become clear that living shorelines are a great defense against storms and surges.   

“Living shorelines” is a term used to define shoreline protection allowing for natural coastal processes to remain through the strategic placement of plants, stone, sand fill, and other structural and organic materials. (4) Yet the value of these ecosystems considered as “green infrastructure” is still not fully accepted or understood by policymakers, and these valuable ecosystems continue to be lost and degraded. Wetlands across the U.S. and the world continue to disappear at a rapid rate due to global warming, increased populations, and infrastructure. 

Storm responses suggest that marshes with and without sills are more durable than hard structures and may protect shorelines from erosion better than bulkheads in a Category 1 storm. Wetlands, i.e. marshes, coral reefs, and mangroves, prevented $625 million of damage during Irene from flooding although 60-90 percent of protective wetlands had been previously lost.  Coastal and marine ecosystems, particularly coral reefs and mangroves can reduce exposure to wind and waves, and they provide natural protection. Coral reefs are the most effective system for flood control. They form natural sea walls where nature intended and, thus, reduce wave energy up to 97%. Reviving reefs and mangrove ecosystems are also more cost-effective than artificial breakwater construction and maintenance.   

After Hurricane Irene, the vegetation in marshes was reduced, but the vegetation only took a year to replenish and become even thicker, and denser than prior to Irene.  However, scientists are now finding that a sill (a berm that is in front of the seaside edge) will bear the brunt of wave energy and will also trap sediment, so the grasses thrive. The marsh floor is sometimes built up as a result.  The sills are green protection and made of hard materials like rock, shells and stone or concrete.  

Along the San Francisco shoreline, restoration is taking on the most novel structure called horizontal levees.  Instead of a vertical wall, horizontal levees are mudflats, marshes, and grasslands that are broad and rise from the edge of the water sometimes hundreds of meters back onto land.  These types of levees are 40% of the cost of a traditional levee.   

NOAA has recently taken living shorelines to the center stage of its coastal resilience plan. 

Some of the recent legislation is: 

  • San Francisco Bay Clean Water, Pollution Prevention and Habitat Restoration Measure passed  in 2016 which allocates $25 million a year for 20 years,  
  • The Living Shorelines Act which designates $20 million in grants to living shoreline work,  
  • North Carolina’s Coastal Resources Commission has approved an easier way to get a living shoreline permit, now comparable to the permit required for a bulkhead, and  
  • Maryland has a strong law requiring property owners to prove the need for a bulkhead as opposed to a living shoreline.  

“Benefit-cost analysis” policy now favors investment in natural infrastructure and coastal restoration may be getting some well-deserved attention. This emphasis should result in federally funded projects in Florida, Puerto Rico and the Gulf Coast. The importance of coastal resilience and natural shorelines will guide development worldwide. “When this happens, it will mark a moment when society realizes nature is not a luxury. It is the future.” (1) 

Sources:

(1) Rowan Jacobsen, “Beyond Seawalls,” Scientific American, Vol. 320 Number 4, April 2019. 

(2) Gittman, Rachel K., “Marshes with and without Sills Protect Estuarine Shorelines from Erosion Better Than Bulkheads during a Category 1 Hurricane,” Ocean and Coastal Management, Vol. 102, Part A, Pages 94-102; December 2014. 

(3) Beck, M.W., Lange, G.M. “Managing Coasts with Natural Solutions: Guidelines for Measuring and Valuing the Coastal Protection Services of Mangroves and Coral Reefs,” World Bank, January 2016. 

(4) Living Shorelines Academy: www.livingshorelinesacademy.org 

The Threat of Toxic Algae and Aquatic Dead Zones

The Swamp Stomp

Volume 19, Issue 7

The last few decades have seen an increase in efforts to better understand the toxic algae and oxygen-hungry aquatic dead zones that have been appearing around the world. These threats are currently two of the largest dangers facing the world’s oceans and freshwater reserves. Little benefit has emerged from increased research, however. In fact, recent evidence suggests that such algae and dead zone hotspots are growing in size, and pose greater threats to fisheries and consumable drinking water.

Studies published in Science, a respected scientific journal, suggest that both phenomena are effects of the increased amounts of fertilizer, manure, and wastewater running into lakes, rivers, and oceans. Such studies have received backing from the U.S. National Science Foundation and other similar institutions.

August 2014 saw the drinking water plant in Toledo, Ohio, one of the largest cities located on the Great Lakes, closed due to a toxic bloom. This was the first time that a large American city has faced such an incident. However, since 2004 toxic algae infestations have shut down water supplies to more than 3 million people over 3 continents. Outbreaks to Australia’s Murray River, China’s Lake Taihu, and Kenya’s Lake Victoria are only a few instances of the problem escalating on a global scale.

When algae blooms die, the areas that they once consumed become dead zones. These low-oxygen areas decompose, causing the fish and other wildlife native to the habitat to either flee or die as a result of the new water conditions. Similar to toxic algae outbreaks, the amount of dead zones are increasing. A 2008 study by the Virginia Institute of Marine Science discovered over 400 dead zones that together cover 245,000 square kilometers worldwide.

If these obstacles are not addressed, then the events that occurred in 2007 to China will act as a warning to what the world can expect in the future. Significant algae bloom affected Lake Taihu—a 2,250-square-kilometer lake that supplies water to over 10 million people for consumption, as well as for industrial and agricultural purposes—and left 2 million people without water. It took a month to clean the lake and restore full drinking water service. The inhabitants of the nearby city of Wuxi were forced to only drink from bottled water for the duration of the cleansing period.

Hans Paerl, a professor at the University of North Carolina-Chapel Hill who worked to curb the algae in Lake Taihu, claimed, “We are using Lake Taihu as a looking glass for how bad things could get here [in the U.S.].” He said that “back in the ’90s, the lake had gone through a state change where the blooms initially started appearing but were not too serious.” However, he continued, “Within a matter of 5 to 10 years, the lake shifted to a situation where blooms started to pop up in the spring and persist through the summer. The change is very extreme. Now, blooms start in early May and run all the way into November—more than half the year.”

Paerl concluded that in order to remedy the problem in China, the amounts of phosphorus and nitrogen running into the Lake Taihu must be reduced by 50 percent. Considering the incident at Lake Taihu is viewed as a warning of what may happen to the United States in the future, it is reasonable to expect that similar proposals may be made in the not so distant future as prevention measures.

These phenomena do more than only cause environmental trouble, however—they also prove to be large economic obstacles. The increase in toxic algae blooms and aquatic dead zones cause a loss in seafood sales, higher drinking water costs, losses to livestock, and lower tourism revenues. The National Oceanic and Atmospheric Administration estimates that the U.S. loses 82 million dollars annually due to toxic algae and dead zones on coastal waters—a much lower number than those of Australia and the European coastal countries.

The combination of environmental and economic qualities makes the handling of toxic algae and aquatic dead zones a possible major talking point in upcoming political conversations.

Wigginton, Nicholas S., January 2015, Droughts and Dead Zones on the Rise, Science, Vol 347, Issue 6220, pp 385-386

Toxic Algae Blooms May Be Longer, More Intense Due To Climate Change, Huffington Post

Waters of the US 2019 Comments

Swamp Stomp

Volume 19, Issue 06

I would like to share our public comment on the 2019 WOTUS rule below. Be sure to send in your comments to EPA before April 15, 2019. Please feel free to use our comments to help you expand on any of the issues we have presented. You can comment on our post below, but it is more important that you send your thoughts and questions to the EPA. Try to avoid seminar comments and only send in thoughtful and insightful topics. The Agencies tend to ignore the bulk mail type comments. The link to submit your comments is here: https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0149

Best, Marc

Writing on behalf of the Swamp School, LLC I respectfully request that the government respond to my questions and comments pertaining to the proposed Waters of the US definition as published in the Federal Register on February 14, 2019.

The Constitution of the United States grants the US government certain powers to regulate interstate and foreign commerce under Article 1, Section 8 known as the “Commerce Clause.” This power extends to any activity that would effect an economic change between states, tribes and nations.

The United States government through its many agencies has published numerous reports documenting the economic importance of water resource management. These include studies on flooding, water quality, wildlife resources, agricultural management and many more. These underscore the economic important of aquatic resources associated with wetlands and waterways throughout the nation.

With the passage of the Clean Water Act, Congress formally acknowledged that it had a sovereign duty to protect the aquatic resources of the nation and adopted a policy that all wetlands and waterways were jurisdictional waters regardless of the size, source or direction of flow. This was demonstrated by the fact that in the initial round of nationwide permits released by the US Army Corps of Engineers (Corps), the nationwide 26 permit authorized fill into small headwater systems.

While this permit was extremely unpopular with environmental protection groups, it does acknowledge that the Corps had jurisdiction over these small ephemeral, intermittent, and perennial systems and was regulating what Congress had intended to protect.

In 2001, a decision by the US Supreme Court in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, resulted in a change of policy on what the Corps would regulate as waters of the US. This is the only case that has come before the Supreme Court that has resulted in a reduction of jurisdictional wetlands. However, this case has been misinterpreted with regards to isolated wetlands for years. The Court did not rule that isolated wetlands are non-jurisdictional rather, that the Migratory Bird Rule in of itself did not provide the commerce nexus to make the wetlands on the site, jurisdictional. The issue of whether the wetlands on site were jurisdictional was not resolved. That was not the case put before the Court. Simply put, the Migratory Bird Rule did not provide the jurisdictional nexus. However, the issue of what may provide the jurisdictional nexus was never discussed.

I respectfully request that the government respond to this comment with a confirmation and explanation of how the SWANCC decision has been interpreted in the proposed rule. Specifically, I am asking the Agencies to comment on the fact that the SWANCC decision has resulted in a misinterpretation by the Agencies, that all isolated wetlands are non-jurisdictional. This seems to be the basis for excluding many wetlands in the proposed rule and I am concerned that there may be a misrepresentation of fact and law in the rule.

The second issue of concern relates to how the proposed rule affects the farm community. It has been represented by the EPA that this new rule is somehow a win for the farmers. This is a gross misinterpretation of how wetlands affect farming.

The Food Security Act Manual defines wetlands as having the presence of hydric soils, wetland vegetation, and wetland hydrology consistent with the Corps wetland manuals. It does not make the distinction that a wetland must be a jurisdictional waters of the US in order to receive protection under the Food Security Act (FSA). The FSA provides subsidies to farmers who avoid wetland impacts and penalizes farmers who do impact wetlands by revoking subsidies as adjudicated by the National Appeals Division of the USDA.

In short, the proposed rule appears to remove the CWA violations from impact to some wetlands by farmers, but it does not address the FSA penalties. At issue, is that under the new rule, the USDA, EPA, and Corps all have a different definition of what a wetland is.

How does the US EPA and Corps plan on addressing the issue of farmers losing farm subsidies as a result of impacting a non-jurisdictional wetland? At the very least they should be informed of the risk.

During the December 11, 2018 presentation, Secretary Wheeler (USEPA) went to great lengths to describe how easy it should be for anyone to look out onto the landscape and know what is jurisdictional and what is not. This is overly simplified and very unrealistic. Wetland science has evolved over the years and we have a much greater understanding of the nature of wetlands and their borders than we did when the CWA was first passed.

Land management is a complex process requiring many different disciplines to safely and responsibly develop a project to ensure highest and best use, balanced with the least possible environmental impact. Imagining that someone could just look out across the landscape and divine the presence of jurisdictional wetlands heralds us back to a time when rivers were catching fire and was a major reason for the passage of the Clean Water Act in the first place. Quite frankly, it undermines the credibility of the EPA as it represents a failure to uphold the laws with which they are tasked to enforce and a complete disregard for the state of the science of wetlands.

Furthermore, if anyone can identify a wetland, then it is required that the EPA and Corps present an economic analysis of the job loss associated with the civil and environmental engineering professions. A review of the Bureau of Labor Statistics data for wetland-related jobs estimates that over 500,000 individuals work with and around wetland science. A 500,000-person layoff would certainly have a significant economic impact that needs to be addressed. To date, this has not been discussed by the Corps or EPA and I respectfully request that this be addressed with an economic analysis as required by the Administrative Procedures Act.

In addition, there is an entire wetland and stream restoration industry that would be directly affected by the loss of wetlands and the streams being regulated. This is a billion-dollar industry with individual projects often in the millions. If there is no longer a need to replace certain wetlands and streams that have been lost, then there would be a significant reduction in wetland and stream mitigation services. The lack of regulation for what has been historically regulated would result in significant tax revenue loss related to this industry alone. Can the Agencies provide a detailed analysis of the tax revenue lost and a description on how they plan to mitigate this significant economic impact to the US Treasury?

To counter an expected Agency response to the aforementioned tax loss it is expected that the Agencies would cite some sort of economic gain as a result of not having to spend money on mitigation by a permittee. However, even if a wetland or stream were to be deemed non-jurisdictional the permittee would need to spend significant money and time to verify that the area in questions is in fact non-jurisdictional. The fines for filling a wetland or stream are significant, and a landowner would be undertaking an extremely risky process to do it on their own despite Secretary Wheeler’s comments.

Most land developers are more concerned with uncertainty and time delays for their projects. It is unlikely that they would proceed with some sort of “do-it-yourself” business model for land assessment. Because it is very unclear what constitutes a jurisdictional nexus, this tends to be their biggest concern. Most developers would rather write a check for mitigation and proceed with their project, rather than some sort of protracted jurisdictional review. Time is truly money and generally the cost of mitigation, while expensive tends to fall in line with the cost of doing business and has proven not to be an impediment. What has proven to be an impediment is long delays for jurisdictional reviews often running into years. Please explain the process of how the Agencies will be accelerating the jurisdictional review process, especially “jurisdictional determination only” requests as outlined in the Corps’ RGL 16-1. Please also detail the costs associated with the new hires EPA and the Corps will need to bring on to manage these jurisdictional determination requests. If this is an unfunded mandate to the Agency’s rank and file, then please detail the time delays associated with the current and projected workload.

On a technical note, there is a significant issue with the EPA and Corps understanding of the water cycle. This seems odd as the last administration published a detailed report documenting the connectivity of wetlands to downstream waters. It would appear that both the Corps and the EPA are abandoning the scientific findings of their report. Is this to satisfy a political agenda or are there new scientific discoveries that are the basis for the proposed rule? I would appreciate a direct answer to this question.

The proposed rule excludes both ephemeral systems and groundwater. As it would appear the Agencies need a review of the water cycle I will explain. When it rains water falls from the sky creating storm water (ephemeral flow). This flow makes its way across the landscape infiltrating into the ground and creating groundwater. Some wetlands and many intermittent and perennial stream systems are intersected by groundwater as the systems major source of water. It would appear that this groundwater nexus (often associated with the hyporheic zone) would not result in a water of the US. This is at complete odds with the aforementioned EPA Science Advisory Board’s report.

Similarly, since these same systems receive rain on a regular basis, this is also a major source of non-jurisdictional hydrology. I am unclear as to what other sources of water would support any wetland or stream system. Could the EPA and Corps clarify where the water would have to come from in order for a wetland or stream to become a waters of the US? High humidity, perhaps?

The proposed rule states that is is based upon the “Scalia” opinion in the Rapanos case brought before the Supreme Court. At issue, is that there was no majority opinion in that case and it was vacated. How do the Corps and EPA plan to reconcile the fact that the entire premise of the proposed regulation is based upon a vacated and undecided case? The result of the case was that the wetlands in question were deemed jurisdictional by the lower courts and Rapanos had to pay a fine and mitigate and Carabell did not get his permit. Basing any regulation on a failed court ruling seems irresponsible and I would appreciate an explanation on the Agencies justification for this.

The issue of ditches is also a concern. If a wetland or waterway results in some sort of interstate commerce it is up to the government to regulate it (Article 1, Section 8 of the US Constitution). This has been the test brought before the courts for years. The only purpose of a ditch is to drain the landscape for some economic purpose. A roadside ditch keeps water off the road so that interstate trucking can proceed. A farm ditch allows a farmer to drain the land so they can grow crops that they can sell to other states or nations. Flood control ditches are used to prevent or reduce economic hardship in flood prone areas that may result in job and property loss. In short, the only purpose of a ditch is to support commerce. Therefore, should not all ditches be regulated as waters of the US?

Lastly, there is the issue of how the states will manage a non-waters of the US. These are not assumable 404(g) waters. If the state wishes to regulate a vernal pool for example, it would have to pass legislation to do so. As there is no federal jurisdiction, the state is left to “condemn” these types of wetlands under an eminent domain process and the landowner would be entitled to some compensation for the loss of use pursuant to the Uniform Relocation and Assistance Act. It is unlikely that the states have the funds to do this. So, it is a bit disingenuous to assume that the states can just pick these up. What mechanism would the states use to manage these non-404(g), non-jurisdictional wetlands?

In summary, I believe that this proposed regulation is fatally flawed and will result in much more confusion, legal challenges, job loss, and economic hardship. It was always Congress’s intent that all wetlands and waterways were waters of the US. The problem arose in the last administration’s attempts to redefine what a water of the US is. The idea that something is not a waters of the US means that you can do whatever you want to it is misguided, especially if you are a farmer. Perhaps, rather than focusing on the definition, the Corps could reexamine its Nationwide permit program to allow for more latitude in some of the permits.

On a final note, I know I have been highly critical of this proposed rule. I want to issue a shout out to both the EPA and Army Corps rank and file. I know very few of you have had anything to do with the rule and my comments are not directed at you. I have the greatest admiration for the hard work you do and I know that you are working under very difficult times. It is a shame that this topic has become a purely political one and I look forward to a time when we can all get back to work managing our natural resources in a responsible manner.

Respectfully,

Marc Seelinger, Director

The Swamp School