Category: Newsletter

The Economics of Exiguity

Swamp Stomp #149

A sign of the times
A sign of the times

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Happy Labor Week and do your best!

– Marc

USACOE suspending the existing general permits

Swamp Stomp

Volume 13, Issue 35

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

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

Nationwide B

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

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

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

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

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

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

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

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

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

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

Securing a Jurisdictional Determination

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

Approved JD’s

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

An approved JD:

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

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

Preliminary JD’s

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

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

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

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

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

Wetland Soil Auger Buyers Guide

The Swamp Stomp

Weekly Wetland News

August 13, 2013

Wetland Soil Augers

augers

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

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

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

Tube Sampler

tubesampler

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

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

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

Screw Sampler

oakfield

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

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

Bucket Auger

bucketauger

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

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

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

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

Dutch Auger (My Favorite)

comboauger

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

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

Sharp-Shooter

shovel

 

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

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

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

Quick Connect or Not

quick-connect-connection-1

 

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