Category: Newsletter

Wetlands and the American Farm Bureau Federation

Wetland Wednesday

January 22, 2020

Over the past several years we have discussed much about the waters for the US and wetland definitions. At issue is which wetlands and waters receive federal protection under the Clean Water Act. Under this Act both the federal government and the state have a role in deciding what is protected and what is not. However, all of the media attention has been on the federal role.

On Sunday January 19, 2020, in a speech given to the American Farm Bureau Federation President Trump discussed his vision for the federal wetland protection role. In short, he is passing the buck back to the states. The repeal of the Clean Water Rule, the recodification of the 1986 Waters of the US definition and the new draft 2020 Waters rule are all an effort to reduce the federal role in wetlands and waterway protection. He wants the states to do this.

This is not a new idea. In fact, it was always the vision of the authors of the Clean Water Act that the state would manage the non-navigable waters and wetlands based upon its own needs. To date two states, New Jersey and Michigan have formally adopted non-navigable waters regulations and have done so for over 30 years.

The other 48 states and tribes in various ways have also incorporated non-navigable wetlands and waters into their jurisdiction. This is usually done by a water quality classification system derived from the powers of the Clean Water Act 401 program. Typically, there is a wetland or waters classification that restricts use if the water body meets the classification. State examples include North Carolina (Unique Wetlands), Pennsylvania (Exceptional Value Wetlands), New Jersey (Exceptional) and more.

Just about all of these wetlands are rated high value if they provide habitat for endangered or threatened species. However, there are a number of other factors such as proximity to trout streams that may also trigger the high value rating. This rating imposes significant restrictions on the development of the water body and sometimes work in the vicinity of that water body.

It has always seemed strange to me to have the United States Army involved with assessing wetlands on private land. I believe the primary mission of the US Army has something to do with defense. Other than perhaps building a moat around D.C. to keep the bad guys out (or in) their historic role in wetlands regulation has always seemed to be at odds with their primary objectives.

The President in Sunday’s announcement, has made it clear that the state should be managing its own wetlands programs. While the American Farm Bureau may have been cheering for this perceived “regulatory relief” they may not be fully aware of the implications. After all, most of their wetland headaches are based upon the Food Security Act and not the Clean Water Act. The Food Security Act subsidies that are given to farmers are based upon a “do no harm” clause to wetlands. To date, there have been no repeals to that. It would be up to the state to define what is a wetland and most have already.

Changes to CWA 401 Rules

Wetland Wednesday

January 15, 2020

The 401 certification program is undergoing some major updates. This past August, the USEPA published its Economic Analysis for the Proposed Clean Water Act Section 401 Rulemaking. This is a fascinating document as it explains the economic rational for the proposed new 401 rules.

This document discusses the status of the existing processes and suggested efficiencies that are intended to expedite the permit process. The proposed EPA clarifications to the existing certification regulations include:

  1. Timeline: The timeline for action on a section 401 certification is proposed to begin upon receipt of a certification request by the certifying authority. Review timeline is reinforced as one year.
  2. Scope: The scope of a section 401 certification review, and the decision whether to issue or deny a section 401 certification, is proposed to be limited to an evaluation of whether the potential discharge will comply with applicable provisions of sections 301, 302, 303, 306, and 307 of the Clean Water Act and EPA-approved state or tribal Clean Water Act regulatory program provisions.
  3. When the EPA is the certifying authority, the EPA is proposing additional procedures for prefiling engagement and requests for additional information. Under the proposal, project proponents would be required to request a pre-filing meeting with the EPA, when it acts as the certifying authority, at least 30 days prior to submitting a request for certification to help ensure a timely section 401 certification decision. As proposed, when EPA is the certifying authority, it would be allowed to request additional data from the project proponent within 30 days of receipt of a request for certification; the EPA would only request additional information that could be collected or generated within the established reasonable period of time; and the EPA would include a deadline for the project proponent response, allowing sufficient time to review the information and act on the request within the federal agency’s timeframe.

This proposed rule was published in the Federal Register on August 22, 2019. The public comment period ended on October 21, 2019. These changes are in response to the April 2019 Executive Order 13868: Promoting Energy Infrastructure and Economic Growth.

There is quite a lot of information about the changes and I encourage you to dive into the proposed rules. They can be found at: https://www.regulations.gov/document?D=EPA-HQ-OW-2019-0405-0025

New EPA new Science Advisory Board

Wetland Wednesday

January 8, 2020

The USEPA has established a new Science Advisory Board (SAB) to consider a scientific rational for establishing jurisdiction over Waters of the US (WOTUS). The stated goal of this effort is to establish a scientific basis for making a waterway jurisdictional. This was done in the past to justify the Obama era Clean Water Rule and is now being used for the proposed WOTUS replacement rule.

In the past several years the SAB has met less frequently and its member makeup has changed dramatically. Historically, the SAB had mainly consisted of academics. Today, according to the Union of Concerned Scientists, the number of industry experts on it has tripled and the number of academics has been cut nearly in half.

However, despite or perhaps because of the political nature of the recent WOTUS rules and challenges there is some honestly about the EPA’s position. In a recent email obtained by the Washington Post, EPA spokeswoman Corry Schiermeyer said several of the proposed changes, such as the water pollution rule, reflect limits imposed by the Supreme Court as well as Congress. She said, “As a result, the definition of ‘waters of the United States’ may be informed by science, but science cannot dictate where to draw the line between federal and state or tribal waters.”

Despite this statement, the EPA SAB concludes, “The proposed definition of WOTUS is not fully consistent with established EPA recognized science, may not fully meet the key objectives of the CWA – “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” and is subject to a lack of clarity for implementation.”

WOTUS Rule lawsuits

Muddy Monday (AKA Wetland Wednesday)

December 30, 2019

Last Monday, the NEW Waters of the US (WOTUS) rules went into effect. Fourteen State’s Attorney Generals have field lawsuits just ahead of the effective date. The basis of the challenges is that the new regulation reduces Federal wetland protections.

One big difference with these lawsuits is that they all have to start in District Court. This is a result of a recent Supreme Court Ruling that requires Waters of the US challenges to start in District Court rather than Circuit Court which had been a strategy in the past. This somewhat alleviates the immediate Nationwide implications of a Circuit Court ruling. A successful challenge to the WOTUS would be limited to the District Courts jurisdictional area.

Right on the heels of the new WOTUS Part 1 rules is the Part 2 replacement rules that were published in draft form this past summer. The Trump Administration has announced plans for Final Part 2 rule to be published in a matter of weeks from now.

New WOTUS Rule goes into effect

Muddy Monday

December 23, 2019

Today is the day the NEW Waters of the US Rules go into effect. We thought this would be a good reason to move up our regularly scheduled Wetland Wednesday newsletter. Besides, it is Christmas!

We have been talking about this new rule for some time. There is one major change that may or may not be a typo. It has to do with the definition of a wetland. There are two versions of what a wetland is in the new regulation.

The old and familiar definition is:

“Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”

This definition is found in several sections of the regulation and has been in use since about 1986.

However, today’s regulation also has a new version of this definition that changes the last sentence to:

“Wetlands generally include playa lakes, swamps, marshes, bogs and similar areas such as sloughs, prairie potholes, wet meadows, prairie river overflows, mudflats, and natural ponds.”

This is significant as it includes some of the more controversial wetland types.

Both versions of the wetland definition are included in the new regulation. What does this mean?

Waters of the US definition

Wetland Wednesday

December 18, 2019

As you may or may not be aware, next week is a pretty important week for wetland regulation. On December 23, 2019 the new Waters of the US definition goes into effect nationwide. So far there are no stays or court challenges that have derailed the implementation of the new rule. In short, the 2015 Obama era Clean Water Rule is repealed and the old WOTUS rules remain in effect. However, there are some subtle changes that may have big impacts depending on the type of project you are working on.

Waters of the US News Alert

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News Alert

September 13, 2019 – Washington, D.C.

We are going back to the 1980s… The EPA has formally repealed the 2015 Clean Water Rule!

On September 12, 2019 EPA Administrator, Andrew R. Wheeler signed the final rule on, with signature by Mr. R.D. James, Assistant Secretary of the Army for Civil Works finalizing the repeal of the Obama Era Clean water Rule.  This is the final step of the rule-making process that started several years ago.  There is no public comment period as the draft version of this rule was vetted through the review process last year.  The official publication date of the rule pending its appearance in the Federal Register which is anticipated in a week or so.  Once the rule is published in the Federal Register it will be effective 60 days from then.

“The agencies are repealing the 2015 Rule for four primary reasons. First, the agencies conclude that the 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos. Second, the agencies conclude that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(b). Third, the agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachments of federal jursidiction (sp) over traditional State land-use planning authority. Lastly, the agencies conclude that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies find that these reasons, collectively and individually, warrant repealing the 2015 Rule.” (USEPA, 2019).

The Swamp School has obtained a copy of the prepublication rule that you may download HERE.  The EPA Docket ID No. for this regulation is:  EPA-HQ-OW-2017-0203 and can be found at regulations.gov.

The net effect of this rule will be to nullify the 2015 Clean Water Rule.  This will result in one Waters of the US definition to be used nationwide.  This will mean that the states currently using this definition will revert to the pre-2015 definition that includes the 1986 published definition of a waters of the US.

The Trump Administration has published a draft waters of the US definition of its own that is currently undergoing agency review of the public comments.  The Administration has stated that the new regulation will be finalized before the end of the year.  In the meantime, its back to the 80’s.

The prepublication rule listed above is 172 pages long! You are free to review it or take our brand new on-demand webinar – the [NEW] Waters of the US on October 16, 2019 and let the Swamp School walk you through all the new changes and important points before they go into effect. Click the button below to learn more and register for this important webinar.[/vc_column_text][vc_empty_space][vc_btn title=”Check Out the New Webinar” style=”custom” custom_background=”#3f912d” custom_text=”#ffffff” size=”lg” link=”url:https%3A%2F%2Fswampschool.org%2Fproduct%2Fnew-waters-of-the-us%2F|||”][/vc_column][/vc_row]

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

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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).

Species Region Current 2016 Rating* Proposed 2019 Rating
Aristida palustris AGCP NOL FACW
Artemisia dracunculus AW NOL FACU
Artemisia dracunculus WMVC NOL FACU
Bassia hyssopifolia AW FACU FACU
Bromus nottowayanus MW NOL FACU
Bromus nottowayanus NCNE NOL FACU
Delairea odorata AW NOL FAC
Delairea odorata WMVC NOL FAC
Dichanthelium wrightianum AGCP NOL FACW
Epilobium brachycarpum AW NOL FAC
Epilobium brachycarpum WMVC NOL FAC
Hymenocallis latifolia AGCP FACW FACU
Hymenocallis latifolia CB FACW FACU
Hymenocallis occidentalis AGCP OBL FAC
Hymenocallis occidentalis EMP OBL FAC
Hymenocallis occidentalis GP FACW FAC
Hymenocallis occidentalis MW OBL FAC
Ilex opaca AGCP FAC FAC
Iva axillaris AW FAC FACU
Iva axillaris WMVC FAC FACU
Liriodendron tulipifera AGCP FACU FACU
Liriodendron tulipifera EMP FACU FACU
Penstemon rydbergii AW FACU FACU
Penstemon rydbergii WMVC FACU FACU
Pleopeltis polypodioides AGCP FAC UPL
Polymnia canadensis EMP NOL FACU
Polymnia canadensis MW NOL FACU
Polymnia canadensis NCNE NOL FACU
Pycnanthemum muticum EMP FAC FACU
Quercus michauxii AGCP FACW FACW
Tussilago farfara NCNE FACU FACU
Verbena brasiliensis AGCP NOL FACU
Verbena brasiliensis EMP NOL FACU
Verbena brasiliensis MW NOL FACU
Verbena incompta AGCP FACW FACU
Verbena incompta EMP FACW FACU
Verbena incompta MW FAC FACU

 

*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.[/vc_column_text][/vc_column][/vc_row]

2019 Wetlands Jobs Report

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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![/vc_column_text][vc_column_text]

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.[/vc_column_text][vc_single_image image=”23371″ img_size=”medium” alignment=”center”][vc_column_text]

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.[/vc_column_text][vc_btn title=”Download Jobs Report” style=”classic” shape=”square” color=”success” size=”lg” align=”center” link=”url:http%3A%2F%2Fswampschool.pagedemo.co%2F|||”][/vc_column][/vc_row]