Category: Newsletter

USEPA’s Economic Analysis of Proposed Revised Definition of Waters of the United States

Swamp Stomp

Volume 13, Issue 51

An Analysis of the USEPA’s Economic Analysis of Proposed Revised Definition of Waters of the United States.

By: Marc Seelinger, Jr.

The EPA’s Economic Analysis of Proposed Revised Definition of Waters of the United States overlooks several important costs of the proposed redefinition and is a little too eager in its assessment of the purported benefits. Its analysis is, at best, incomplete and provides only a partial summary of the likely costs inherent in such a regulatory change. Particularly given the importance and magnitude of the proposed change, a more thorough analysis should be conducted prior to moving forward with any changes.

One of the most important shortcomings of the analysis is its reliance on largely anecdotal data for much of its cost-benefit analysis. Dozens of times throughout the report, the data used in various cost/benefit scenarios are derived from what “the agencies believe… [to be] a close approximation” of whatever the relevant data is. Reliable and verifiable data, rather than the “feelings” or “beliefs” of a nameless, faceless bureaucracy should form the foundation of an economic analysis. It is hard to find the report credible when so much of it depends on so little. Equally troubling is the EPA’s reliance on data (when it does use data) that is anecdotal or significantly out of date. The best example of this is in Section 7, under Estimate of Permit Application Costs, where the agency used data from a 1999 estimate to determine the likely change in permit application costs as a result of the rule change. In the same section, under Estimate of Compensatory Mitigation Costs, “phone inquiries” and the Internet formed the basis for an estimate of state-specific per-acre costs of wetland mitigation. One only hopes they did not use Wikipedia. So, much of the data which forms the foundation of the analysis is questionable, at best.

One of the leading benefits of this action, which is cited repeatedly throughout the report, is that questions of jurisdiction will be clarified and the EPA will not have to spend as much time litigating jurisdictional issues. It is true that economic activity is more likely to thrive when regulatory activity is more predictable and stable. However, given the scope of this rule and the tendencies of the current administration, entities subject to this regulation could rightly wonder whether this change is the final ruling (at least for the foreseeable future) or whether it is merely setting the precedent for larger regulatory changes down the road. So, rather than curtailing uncertainty, it is just as likely that this change will contribute to additional uncertainty and risk in the market. The analysis never addresses this issue, but it does suggest that there are significant ambiguities in the rule change that undercut this clarification benefit. The analysis notes that it is unclear how expanded jurisdiction will affect MS4 and oil spill permit costs and that there is even some ambiguity as to how many “Other Waters” would be affected. So, there is significant doubt about the size and scope of one of the primary benefits of this action.

The report also glosses over many of the costs that will arise as a result of this change. Regulation, by its very nature, constrains economic activity. The report pretends to believe that by expanding the list of what is subject to regulation, businesses will be able to become more productive because they will now have a better idea of what is subject to regulation (i.e. almost everything) and what is not. Yet, if a business was previously not subject to regulation and it must now subject itself to the regulatory regime, this is going to impact its bottom line in several different areas. First, there are the visible costs, things like permit application fees and mitigation expenses. There is also significant time involved in procuring permits for things like development projects. However, there is also a whole suite of invisible costs (or “opportunity costs”) that this regulation takes out of the economy. Whatever time and expense is spent complying with this regulation is time and money that cannot be spent on other projects. If a developer has to spend 12 months and $1 million to secure the necessary permits he needs to begin a project, that is 12 months and $1 million that he cannot dedicate to another project (or something equally as profitable). This is probably the single greatest harm that this rule change creates. The real damage to the economy is not in the additional processing fees developers have to pay or in the additional headaches the new rules create, but in the projects that never happen, the profits that are never generated, and the jobs that are never created. Whatever time and money is wasted redesigning a project to comply with the new rules crimps economic growth by decelerating business growth. This is an area that is almost completely unaddressed by the analysis. If this rule significantly increases that amount of time it takes to complete a project, then that slows down the rate at which businesses are able to generate profits and grow. As the report also notes, as more projects become subject to the Clean Water Act, more of them will also have to submit to consultation with other federal agencies to ensure compliance with the Endangered Species Act and the National Historic Preservation Act. So, there is also a regulatory multiplier effect built into this rule change. More projects will become subject to more regulation and will then become subject to additional regulation, prolonging compliance time and expense. This is a very significant drag on economic growth and one which the analysis barely addresses.

This rule change also imposes significant costs on state and local government agencies which are responsible for developing state water quality standards. In addition to re-evaluating their existing standards to ensure that they are compliant with the new rule, these agencies will also be responsible for monitoring and sampling additional waters. However, most states are still experiencing significant budgetary stress, and most states have made significant cuts to their environmental regulatory agencies. As a result, many of these state agencies are already under-funded. At this point in time, implementing this rule change would, in effect, be asking these state agencies to do more with less. As the outlook for the budgets of these agencies is quite dim, few of them will likely see staffing levels increase in the near future. Assuming this change goes into effect, these agencies will be responsible for continuing to monitor everything they were monitoring before while adding an unknown number of additional waters to their monitoring responsibilities. The only foreseeable result is a deterioration in quality. It will not be possible to maintain the same level of quality with such a broadening of jurisdiction without increasing staff levels. As that is unlikely to happen, the environmental quality of these areas will be put at risk. The EPA’s analysis does not account for this degradation in monitoring quality at all. This is significant as the stated goal of this rule change is to protect the waters subject to the EPA’s jurisdiction, yet the opposite is likely to occur.

There are several severe shortcomings in the EPA’s economic analysis of this rule change. The analysis overestimates the likely benefits of the change, while down-playing or (in many cases) omitting significant costs. This change will likely create significant costs for developers and project managers while requiring devastating changes at state and local government agencies. The analysis is imprudently optimistic about this rule change. The public would be better served by a more careful and reasoned analysis of the likely economic damage created by this change.

EPA’s 2014 Wish List

The Swamp Stomp

Volume 13, Issue 50

The US EPA has released its 2014 Statement of Priorities for 2014.  There are six major areas that they intend to focus upon:

  1. Making a visible difference in communities across the country;
  2. Addressing climate change and improving air quality;
  3. Taking action on toxics and chemical safety;
  4. Protecting water: a precious, limited resource;
  5. Launching a new era of state, tribal and local partnership; and
  6. Working toward a sustainable future.

Three of the EPA’s biggest goals are:

  • Carbon caps for power plants
  • Disclosure rules for fracking fluid
  • Protecting small waterways

The last of these has been the focus of our regulatory workshops over the last several months.  The regulatory rules are an interpretation of two US Supreme Court rulings from 2001 and 2006 that have created confusion over the EPA’s authority to regulate small water bodies under the Clean Water Act. As a result of this confusion, the EPA dropped hundreds of enforcement cases involving streams and isolated wetlands that share flood plains with or flow into the nation’s major water sources. These new rules would clarify the EPA’s authority to protect these waterways, based on the September EPA report showing that they are all interconnected with larger ones and therefore jurisdictional.  As a result all stream, riparian areas (not necessary wetlands), adjacent wetlands and most isolated wetlands would be under EPA’s review.

The EPA’s 2014 wish list is listed below.  It is not the easiest document to find so I do encourage you to read it over.  The wetland issues are briefly described as item #4.

epa

ENVIRONMENTAL PROTECTION AGENCY (EPA)

Statement of Priorities

OVERVIEW

For more than 40 years, the U.S. Environmental Protection Agency (EPA) has worked to protect people’s health and the environment. By taking advantage of the best thinking, the newest technologies and the most cost-effective, sustainable solutions, EPA has fostered innovation and cleaned up pollution in the places where people live, work, play and learn.

With a renewed focus on the challenges ahead, science, law and transparency continue to guide EPA decisions. EPA will leverage resources with grant and incentive-based programs, sound scientific advice, technical and compliance assistance and tools that support states, tribes, cities, towns, rural communities and the private sector in their efforts to address our shared challenges, including:

  • making a visible difference in communities across the country;
  • addressing climate change and improving air quality;
  • taking action on toxics and chemical safety;
  • protecting water: a precious, limited resource;
  • launching a new era of state, tribal and local partnership; and
  • working toward a sustainable future.EPA and its federal, state, local, and community partners have made enormous progress in protecting the nation’s health and environment. From reducing mercury and other toxic air pollution to doubling the fuel efficiency of our cars and trucks, the Agency is working to save lives and protect the environment. In addition, while removing a billion tons of pollution from the air, the Agency has produced hundreds of billions of dollars in benefits for the American people.

HIGHLIGHTS OF EPA’S REGULATORY PLAN

EPA’s more than forty years of protecting human health and the environment demonstrates our nation’s commitment to reducing pollution that can threaten the air we breathe, the water we use and the communities we live in. This Regulatory Plan contains information on some of our most important upcoming regulatory actions. As always, our Semiannual Regulatory Agenda contains information on a broader spectrum of EPA’s upcoming regulatory actions.

Six Guiding Priorities

The EPA’s success depends on supporting innovation and creativity in both what we do and how we do it. To guide the agency’s efforts, the Agency has established several guiding priorities. These priorities are enumerated in the list that follows, along with recent progress and future objectives for each.

  • 1. Making a Visible Difference in Communities Across the CountryEnhance Agricultural Worker Protection. Based on years of extensive stakeholder engagement and public meetings, EPA is developing a proposal to strengthen the existing agricultural worker protection regulation under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The changes under consideration aim to improve pesticide safety training and agricultural workers’ ability to protect themselves and their families from potential secondary exposure to pesticides and pesticide residues. The proposed revisions will address key environmental justice concerns for a population that may be disproportionately affected by pesticide exposure. Other changes under development are intended to bring hazard communication requirements more in line with Occupational Safety and Health Administration (OSHA) requirements, and seek to clarify current requirements to facilitate program implementation and enforcement.Environmental Justice in Rulemaking. EPA will continue to focus attention on improving the environment in communities that have been adversely or disproportionately impacted by exposure to environmental hazards and pollution. EPA is supporting innovative and sustainable solutions, integrated with community development and private investments.

    2. Addressing Climate Change and Improving Air Quality

    The Agency will continue to deploy existing regulatory tools where appropriate and warranted. Addressing climate change calls for coordinated national and global efforts to reduce emissions and develop new technologies that can be deployed. Using the Clean Air Act, EPA will continue to develop greenhouse gas standards for both mobile and stationary sources.

    Greenhouse Gas Emission Standards for Power Plants. In April of 2012, EPA proposed emission standards for reducing greenhouse gas emissions from new electric power plants. A supplemental proposal was issued in September of this year. The proposed standards, if finalized, will establish achievable limits of carbon pollution per megawatt hour for all future units, moving the nation towards a cleaner and more efficient energy future. In 2014, EPA intends to propose standards of performance for greenhouse gas emissions from existing and modified power plant sources.

    Carbon Capture and Storage. EPA proposed a rule to clarify the applicability of the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations to certain Carbon Capture and Storage (CCS) activities. The proposed rule, if finalized, will conditionally exclude CO2 streams from RCRA hazardous waste requirements when injected into a Class VI Underground Injection Control (UIC) well and meeting certain other conditions. Specifically, the rule will work in conjunction with the Safe Drinking Water Act’s Class VI Underground Injection Control Rule, which governs the geological sequestration of CO2 streams by providing regulatory clarity for defining and managing these CO2 streams, and help facilitate the deployment of CCS.

    Since passage of the Clean Air Act Amendments in 1990, nationwide air quality has improved significantly for the six criteria air pollutants for which there are national ambient air quality standards, as well as many other hazardous air pollutants. Long-term exposure to air pollution can cause cancer and damage to the immune, neurological, reproductive, cardiovascular, and respiratory systems.

    Reviewing and Implementing Air Quality Standards. Despite progress, millions of Americans still live in areas that exceed one or more of the national air pollution standards. This year’s regulatory plan describes efforts to review the primary National Ambient Air Quality Standards (NAAQS) for lead.

    Tier 3 Vehicle and Fuel Standards. In May of this year, EPA proposed vehicle emission and fuel standards to further reduce NOx, PM, and other harmful air toxics. These standards will also help states to achieve air quality standards. EPA expects to publish a final rule establishing these standards in February of 2014.

    Cleaner Air From Improved Technology. EPA continues to address hazardous air pollution under authority of the Clean Air Act Amendments of 1990. The centerpiece of this effort is the “Maximum Achievable Control Technology” (MACT) program, which requires that all major sources of a given type use emission controls that better reflect the current state of the art. In February of this year, EPA expects to propose a rule that will review existing MACT standards for Petroleum Refineries to reduce residual risk and assure that the standards reflect current technology.

    3. Taking Action on Toxics and Chemical Safety

    One of EPA’s highest priorities is to make significant progress in assuring the safety of chemicals. Using sound science- as a compass, EPA protects individuals, families, and the environment from potential risks of pesticides and other chemicals. In its implementation of these programs, EPA uses several different statutory authorities, including the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Federal Food, Drug and Cosmetic Act (FFDCA), the Toxic Substances Control Act (TSCA) and the Pollution Prevention Act (PPA), as well as collaborative and voluntary activities. In FY 2014, the Agency will continue to satisfy its overall directives under these authorities, and highlights the following actions in this Regulatory Plan:

    EPA’s Existing Chemicals Management Program Under TSCA. As part of EPA’s ongoing efforts to ensure the safety of chemicals, EPA plans to take a range of identified regulatory actions for certain chemicals and assess other chemicals to determine if risk reduction action is needed to address potential concerns.

    Addressing Formaldehyde Used in Composite Wood Products. As directed by the

    Formaldehyde Standards for Composite Wood Products Act of 2010, EPA is developing final regulations to address formaldehyde emissions from hardwood plywood, particleboard and medium-density fiberboard that is sold, supplied, offered for sale, or manufactured in the United States.

    Improving Chemical Facility Safety and Security. In addition to the actions noted in this Regulatory Plan, the Executive Order 13650 on Improving Chemical Facility Safety and Security directs federal agencies to work with stakeholders to improve chemical safety and security through agency programs, private sector initiatives, federal guidance, standards, and regulations. During the course of implementing this executive order, EPA, along with the Department of Homeland Security, including the National Protection and Programs Directorate, the Transportation Security Agency, and the United States Coast Guard; the Occupational Safety and Health Administration; the United States Department of Justice, Bureau of Alcohol, Tobacco, and Firearms; the United States Department of Agriculture; and the United States Department of Transportation, will assess whether its regulations should be modified or new regulations developed to improve upon chemical safety and security. EPA will initiate rulemaking if the assessment warrants it.

    4. Protecting Water: A Precious, Limited Resource

    Despite considerable progress, America’s waters remain imperiled. Water quality protection programs face complex challenges, from nutrient loadings and stormwater runoff to invasive species and drinking water contaminants. These challenges demand both traditional and innovative strategies.

    Stormwater. Urban stormwater is a leading source of impairment and a fast growing water quality concern. Over 60% of regulated municipal separate storm sewer systems (MS4s) discharge to impaired waters. Stormwater from newly developed areas is one of the nation’s largest growing sources of water pollution. Approximately 800,000 acres are developed every year and projected to grow to over 1.0 million acres by 2040. Development increases the amount of impervious cover in the landscape and even small increases in impervious cover lead to big impacts in receiving waters. As more land is developed and new impervious surfaces are created, the volume, velocity, and pollutants contained in storm water increases. EPA is considering a range of regulatory and non-regulatory options to reduce the pollutant loads delivered by storm water discharges to receiving waters and improve water quality and aquatic ecosystem integrity, and to protect water quality from certain currently unregulated storm water discharges. EPA plans to work closely with state and local governments in this effort and will consider innovative approaches to address these issues.

    Improving Water Quality. The Environmental Protection Agency (EPA) plans to address challenging water quality issues in several rulemakings during fiscal year 2014.

    Cooling Water Intake Structures. EPA plans to finalize standards for cooling water intakes for electric power plants and for manufacturers who use large amounts of cooling water. The goal of the final rule will be to protect aquatic organisms from being killed or injured through impingement or entrainment.

    Steam Electric Power Plants. EPA will establish national technology-based regulations, called effluent guidelines, to reduce discharges of pollutants from industries to waters of the U.S. and publicly owned treatment works. These requirements are incorporated into National Pollutant Discharge Elimination System discharge permits issued by EPA and states. The steam electric effluent guidelines apply to steam electric power plants using nuclear or fossil fuels, such as coal, oil and natural gas. Power plant discharges can have major impacts on water quality, including reduced organism abundance and species diversity, contamination of drinking water sources, and other health effects. Pollutants of concern include metals (e.g., mercury, arsenic and selenium), nutrients, and total dissolved solids.

    Definition of “Waters of the United States” Under the Clean Water Act. After U.S. Supreme Court decisions in SWANCC and Rapanos, the scope of “waters of the US” protected under Clean Water Act (CWA) programs has been an issue of considerable debate and uncertainty. The Act does not distinguish among programs as to what constitutes “waters of the United States.” As a result, these decisions affect the geographic scope of all CWA programs. SWANCC and Rapanos did not invalidate the current regulatory definition of “waters of the United States.” However, the decisions established important considerations for how those regulations should be interpreted. Experience implementing the regulations following the two court cases has identified several areas that could benefit from additional clarification through rulemaking.

    5. Launching a New Era of State, Tribal and Local Partnership

    EPA’s success depends more than ever on working with increasingly capable and environmentally conscious partners. States have demonstrated leadership on managing environmental challenges and EPA wants to build on and complement their work. EPA supports state and tribal capacity to ensure that programs are consistently delivered nationwide. This provides EPA and its intergovernmental partners with an opportunity to further strengthen their working relationship and, thereby, more effectively pursue their shared goal of protecting the nation’s environmental and public health. The history and future of environmental protection will be built on this type of collaboration.

    New Native American Affairs Council. By Executive Order, President Obama established the White House Council on Native American Affairs in 2013. The policy behind the formation of this council is to recognize the government-to-government relationship, as well as the unique legal and political relationship that exists between the federal government and tribes. Greater EPA engagement and consultation is critical to policies that advance tribal self-determination and prosperity.

    6. Working Toward a Sustainable Future

    Allowing the Use of Electronic Manifests. The e-Manifest Final rule will codify certain provisions of the “Hazardous Waste Electronic Manifest Establishment Act,” which direct EPA to adopt a regulation by October 5, 2013 that authorizes the use of electronic manifests to track hazardous waste shipments nationwide. The Act also instructs EPA to develop a user-fee funded e-Manifest system by October 2015. Pursuant to the Act, EPA will soon issue a regulation that will allow hazardous waste handlers to use electronic manifest documents to track hazardous waste from the time the waste leaves the generator facility where it was produced, until it reaches the off-site waste management facility that will store, treat, or dispose of the hazardous waste. EPA will issue a subsequent rulemaking that will establish the schedule of user fees for the system and announce the date on which the system will be implemented and available to users.

    Once the e-Manifest regulation is adopted and the national e-Manifest system becomes available, hazardous waste handlers will be able to complete, sign, transmit, and store electronic manifests through the national IT system, or they can elect to continue tracking the hazardous waste under the paper manifest system. Further, waste handlers that currently submit manifests to the states will no longer be required to do so, as EPA will collect both the remaining paper manifest copies and electronic manifests in the national system, and will disseminate the manifest data to those states that want it. The adoption of e-Manifest will eliminate the current impediments to automation in the current manifest regulations, such as the requirements to physically carry paper forms with hazardous waste shipments; sign manifest copies “by-hand;” manually file copies; and mail copies to waste handlers and authorized states. EPA will clarify which electronic signature methods may be used when executing electronic manifests in the first generation of the national e-Manifest system, as well as to specify how issues of public access to manifest information will be addressed when manifest data are submitted and processed electronically.

    The priorities described above will guide EPA’s work in the years ahead. They are built around the challenges and opportunities inherent in our mission to protect health and the environment for all Americans. This mission is carried out by respecting EPA’s core values of science, transparency and the rule of law. Within these parameters, EPA carefully considers the impacts its regulatory actions will have on society.

    Retrospective Review of Existing Regulations

    Just as today’s economy is vastly different from that of 40 years before, EPA’s regulatory program is evolving to recognize the progress that has already been made in environmental protection and to incorporate new technologies and approaches that allow us to accomplish our mission more efficiently and effectively.

    Pursuant to section 6 of Executive Order 13563 “Improving Regulation and Regulatory Review” (Jan. 18, 2011), the following Regulatory Identifier Numbers (RINs) have been identified as associated with retrospective review and analysis in the Agency’s final retrospective review of regulations plan. Some of these entries on this list may be completed actions, which do not appear in The Regulatory Plan. However, more information can be found about these completed rulemakings in past publications of the Unified Agenda on Reginfo.gov in the Completed Actions section for that agency. These rulemakings can also be found on Regulations.gov. EPA’s final agency plan can be found at: http://www.epa.gov/regdarrt/retrospective/.

    Regulatory Identifier Number (RIN) Rulemaking Title
    2060-AQ86 Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards
    2060-AO60 New Source Performance Standards (NSPS) Review under CAA -111(b)(1)(B)
    2060-AP06 New Source Performance Standards for Grain Elevators – Amendments
    2070-AJ75 Electronic Reporting under the Toxic Substances Control Act (TSCA)
    2040-AF15 National Primary Drinking Water Regulations for Lead and Copper: Regulatory Revisions
    2040-AF16 Water Quality Standards Regulatory Clarifications
    2040-AF25 National Pollutant Discharge Elimination System (NPDES) Application and Program Updates Rule
    2040-AF29 National Primary Drinking Water Regulations: Group Regulation of Carcinogenic Volatile Organic Compound (VOCs)
    2050-AG39 Management Standards for Hazardous Waste Pharmaceuticals
    2050-AG72 Hazardous Waste Requirements for Retail Products; Clarifying and Making the Program More Effective
    2050-AG20 Hazardous Waste Manifest Revisions – Standards and Procedures for Electronic Manifests

    Burden Reduction

    As described above, EPA continues to review its existing regulations in an effort to achieve its mission in the most efficient means possible. To this end, the Agency is committed to identifying areas in its regulatory program where significant savings or quantifiable reductions in paperwork burdens might be achieved, as outlined in Executive Order 13610, while protecting public health and our environment.

    Rules Expected to Affect Small Entities – By better coordinating small business activities, EPA aims to improve its technical assistance and outreach efforts, minimize burdens to small businesses in its regulations, and simplify small businesses’ participation in its voluntary programs. Actions that may affect small entities can be tracked on EPA’s Regulatory Development and Retrospective Review Tracker (http://www.epa.gov/regdarrt/) at any time. This Plan includes a number of rules that may be of particular interest to small entities:

    Regulatory Identifier Number (RIN) Rulemaking Title
    2060-AQ86 Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards
    2060-AQ91 Standard of Performance for Greenhouse Gas Emissions from Modified Sources: Electric Utility Generating Units
    2070-AJ92 Formaldehyde Emission Standards for Composite Wood Products

    International Regulatory Cooperation Activities

    EPA has considered international regulatory cooperation activities as described in Executive Order 13609 and has identified two international activities that are anticipated to lead to significant regulations in the following year:

    Regulatory Identifier Number (RIN) Rulemaking Title
    2070-AJ44 Formaldehyde; Third-Party Certification Framework for the Formaldehyde Standards for Composite Wood Products
    2070-AJ92 Formaldehyde Emission Standards for Composite Wood Products

     

    BILLING CODE  

Wetlands and the Goverment Shutdown

Swamp Stomp

Vol 13, Number 41

The recent government shutdown has affected all of us. It is not just that we cannot take a hike in a park or fish in a reservoir. There are direct economic consequences that affect the people of this country’s ability to conduct commerce. The government’s authority to regulate the economy of the individual arises from the Commerce Clause. This can be found the US Constitution Article I, Section 8, Clause 3.

beachclosed

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

The authority of the Government to regulate waters of the US stems from an interpretation of the Commerce clause. This has been the center point of all of the recent Supreme Court challenges to wetlands and waters regulation.

The regulatory definition of waters of the US found in 40 CFR 230.3(s) includes:

“All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;”

“…the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:”

At issue is that the power to regulate waters of the US remains with Congress. This was clarified in Wickard v. Filburn, 317 U.S. 111 (1942). This was the United States Supreme Court decision that recognized the power of the federal government to regulate economic activity. Three points were clarified.

  • First, Congress may regulate the use of the channels of interstate commerce;
  • Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities;
  • Finally, Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).

The Supreme Court has clearly interpreted that activities that could affect interstate or foreign commerce are subject to regulation by Congress. Navigable waters fall within this category.

So what do you do when this happens?

Miami Herald (10/5/13): Shutdown Day 3: Food distributor stalled, charter boat captains docked

“Charter guides received a message from the National Park Service this week informing them that they are not permitted to take clients fishing in Florida Bay until the feds get back to work. That means that more than 1,100 square miles of prime fishing is off limits between the southern tip of the mainland to the Keys until further notice.”

“The closing affects not only fishing guides, but anyone with a license to conduct business in the park, including tour operators and paddling guides — anyone with a Commercial Use Authorization permit, said Dan Kimball, superintendent of Everglades and Dry Tortugas national parks.”

“Biscayne National Park is also off limits. Enforcement rangers will be on duty, Kimball said.”

“Capt. Mike Makowski, owner of Blackfoot Charters in Key Largo, estimates this eliminates 60 percent to 70 percent of his hunting grounds.”

This is not limited to Florida. The “Slam the Dam” race in Lake Mead, NV has also been affected. The federal government shut-down has led to the closure of the national park and the subsequent cancellation of the popular multi-race event.

slamdam

These are just two of many examples of water related commerce affected by the government shutdown. The problem is that the Constitution clearly states that the regulation of commerce remains with the Congress. The shutting down of waters of the US due to the budget debacle is not under the sole authority of the Executive Branch.

Congress does have the authority to authorize these shutdowns of commerce. However, I can find no instance where such authorization has been declared. It would appear the shut down authorization stems for the President. This could happen in the event of a national disaster or national security breach. However, no such events have been disclosed. So under what authority are the shutdowns legal?

There is one more water related issues. EPA has just furloughed its regulatory workforce. This is from a recent article from the Guardian.

“Nearly all of the agency’s 16,205 employees across the country, with oversight of air quality, industrial waste, water and sewage treatment plants, have powered down their computers, updated their voicemail, filled in their last timesheets, and left buildings as part of the shutdown.”

“It stinks,” said John O’Grady, a union representative at the EPA’s Chicago office. “No one is going to be out inspecting water discharges, or wet lands. Nobody is going to be out inspecting waste water treatment plants, drinking water treatment plants, or landfills – nothing. None of that is going to be done.”

Under the National Environmental Policy Act (NEPA) all federal government agencies are to prepare environmental assessments (EAs) and environmental impact statements (EISs) for associated Federal actions such as shutdowns. EAs and EISs contain statements of the environmental effects of proposed federal agency actions. NEPA’s procedural requirements apply to all federal agencies in the executive branch. So, can someone send me the EA or EIS for this shutdown? Clearly, the EPA thinks there are environmental consequences.

So who ordered the government shutdown?

According to NBC news it was Sylvia Burwell.

Who is Sylvia Burwell?

Sylvia Burwell who, as the new director of the Office of Management and Budget (OMB), sent the email that initiated the process that has closed national parks, visitors’ centers and even the “panda-cam” at the National Zoo. She was appointed by the President Obama six months ago on March 1, 2013. She previously served with the OMB for three years during the Clinton Administration in the 1990’s. More recently, she held various top-level positions at the Bill and Melinda Gates Foundation before moving on at the end of 2011 to become president of the Wal-Mart Foundation, which focuses on ending hunger in the U.S.

Politics_ObamaNoms3_304_480x360

The perceived authority for the shutdown arises out of the Antideficiency Act (Public law 97-258). This Act was originally conceived in 1870 wherein many federal agencies, particularly the military, would intentionally run out of money, obligating Congress to provide additional funds to avoid breaching contracts. The ADA has been amended many times and today is cited as the reason for a government shutdown when Congress misses a deadline for passing an interim or full-year appropriations bill. All furloughed federal workers are prohibited from doing any work. This even includes reading emails.

This ought to leave you with a few questions.

  1. How can federal workers who are furloughed enforce access to public facilities such as parks and lakes?
  2. Is the OMB closing of fishing grounds and recreational lakes in conflict with the Rivers and Harbors Act and quite possibly the Clean Water Act?
  3. Is OMB required to conform to NEPA in its actions?

The manner in which this shutdown is being handled is already having significant economic effects. One would hope that all parties involved in this highly political dispute would have the best interests of the average American. However if you will recall, the Founders deemed it necessary to craft a citizen’s Bill of Rights. Its purpose was to protect the governed from the government. We should not forget that.

Best,

– Marc

USACOE Changes National Wetland Plant List (again)

Swamp Stomp

Vol 13, Number 40

Sometime between July 17 and July 22, 2013 the US Army Corps of Engineers published the 2013 National Wetland Plant List (NWPL) update. If you did not hear about this you are not alone. For the record the 2013 list was not published in the Federal Register. The previous list was published in the Federal Register for the 2012 NWPL. I only found 2013 list by pursing the NWPL website and saw a new link for the 2013 list.

This is a significant change especially in light of this “fact sheet” dated July 22, 2013.  The last statement is significant.

“Implementation: The Federal agencies will use the 2013 NWPL on all new Jurisdictional Determinations after September 1, 2013. Any delineations underway using the current list will be accepted, please just reference which list was used in your documentation.”

So what has changed?

2013NWPL

In short these are the numbers. The new list contains 7937 plant species, which is a reduction of 263 from the 2012 list. The majority of deletions were the removal of some upland species, taxonomic splits, merged species, and three errors. There were 12 requests for re-evaluation of indicator statuses and in seven of those species, the indicator status changed. All of these modifications accounted for 327 indicator status changes.

Now this may not sound like a big deal however the use of the list is a concern. The implementation statement above could be construed as a “rule.” I assume it is as your delineation will not be accepted if you do not use the new list.

Webster defines a rule as:

  1. a prescribed guide for conduct or action
  2. the laws or regulations prescribed by the founder of a religious order for observance by its members
  3. an accepted procedure, custom, or habit
    1. a usually written order or direction made by a court regulating court practice or the action of parties
    2. a legal precept or doctrine
  4. a regulation or bylaw governing procedure or controlling conduct

So can we assume if we are directed to use the new list that would constitute a rule? The veiled threat that the Corps will not review your delineation seems to constitute a reprimand if you do not follow the rule.

According to the “A Guide to the Rulemaking Process”, prepared by the Office of the Federal Register in 2011, a rule is:

“The proposed 
rule, or Notice of Proposed
 Rule Making
 (PRM), is the official
 document that announces and explains the agency’s plan to address a problem or accomplish a goal. All proposed rules must be published in the Federal Register to notify the public and to give them an opportunity to submit comments. The proposed rule and the public comments received on it form the basis of the final rule.”

Following the announcement that a new rule is proposed the public is the afforded the opportunity to comment on the rule. This can vary from 30-60 days.

The 2012 list went through the entire rulemaking process. The public comments were published and the draft list was finalized and published in the Federal Register as a final rule on May 9, 2012 (Federal Register / Vol. 77, No. 90).

The 2012 Federal Register notice does address the issue of updates to the 2012 list.

“The updating and maintenance of the NWPL will continue annually. Updates will include changes in nomenclature and taxonomy obtained from Biota of North America (BONAP), newly proposed species, changes as needed based on the results from challenges made to species wetland ratings, dataset analyses for regional and national-scale evaluations of wetland ratings, reevaluations of wetland ratings based on GIS and floristic provinces analyses, considerations of any new subregions, and several continuous quality control steps. These types of updates and maintenance steps will follow the same protocols used in the development of the 2012 NWPL update. Coordination will occur between the national and regional panels, the public and others, and the National Technical Committee for Wetland Vegetation as needed.”

At issue is the “using the same protocols…” and “Coordination will occur between …the pubic…”

What was put forth in July was a mandate not coordination. Who is the National Technical Committee for Wetland Vegetation and why do they get independent control over this list? I do not believe the intent of the 2012 publication was to give the Corps perpetual and unilateral control over what is and what is not a wetland plant species without any public involvement.

Perhaps you are wondering why I am getting so mad about this list. The issue is that vegetation identification is the most difficult of wetland assessment skills to master. The annual need to keep changing the names and indicators of the plants without any public input adds to the confusion of wetland plant identification. This translates into bad delineations. Virtually none of the commercially published and university published field guides contain the same names of many of the species listed in the 2013 list. Want proof? Look up poison ivy.

For your convenience we have posted all of the Wetland Plant Lists for each Regional Supplement on our Facebook Page. If you would like to download any of these just “like us”, fill out the form and download away. These documents are stored on the Swamp School servers so government shutdown or not you can always get them. Plus, they are FREE!  Well they are not really free.  You paid for them with your tax dollars, but I am not going to charge you for them.  😉

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Connectivity of Streams and Wetlands to Downstream Waters

Swamp Stomp

Vol. 13, Issue 39

About a week ago one of the most significant technical reports on wetland jurisdiction since the 1987 Wetlands Delineation Manual was issued for public comment by the EPA. It is entitled, “Connectivity of Streams and Wetlands to Downstream Waters” and written by the independent EPA Scientific Advisory Board (SAB). The purpose of the report is to help inform EPA and the U.S. Army Corps of Engineers in their continuing policy work and efforts to clarify what waters are covered by the Clean Water Act.

“This draft science report presents a review and synthesis of relevant peer reviewed scientific literature that will inform an upcoming joint USEPA/ Army Corps of Engineers rule making to enhance protection of the chemical, physical, and biological integrity of our nation’s waters by clarifying Clean Water Act (CWA) jurisdiction. Recent decisions of the Supreme Court have underscored the need for EPA and the public to better understand the connectivity or isolation of streams and wetlands relative to larger water bodies such as rivers, lakes, estuaries, and oceans, and to use that understanding to underpin regulatory actions and increase certainty among various CWA stakeholders. This report, when finalized, will provide the scientific basis needed to clarify CWA jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.”

This is also mentioned in EPA’s blog, “EPA Connect” found here.

“In addition to the release of this report, EPA, with the Army Corps of Engineers, has sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for inter-agency review. This draft rule takes into consideration the current state-of-the-art peer reviewed science reflected in the draft science report. Any final regulatory action related to the jurisdiction of the Clean Water Act in a rule making will be based on the final version of this scientific assessment, which will reflect EPA’s consideration of all comments received from the public and the independent peer review.”

WOUS_ERD2_SEP2013

The bulk of the report (and it is bulky at 331 pages) focuses on the issue of what to do about so called “isolated” wetlands. The issue is related to the point of law the Supreme Court has wrestled with over that last decade or so. Is a wetland jurisdictional if it lacks a significant nexus to a traditionally navigable water (TNW)? The published Corps guidance would suggest no. This new report takes on the challenge of what exactly is a significant nexus.

We are now looking at a few new terms and/or concepts. First is the issue of what is an isolated wetland? The report describes two types of wetlands as a function of the directionally of flows into our out of the system and streams. According to the report, streams by their very nature, will eventually connect to a TNW so they are all jurisdictional. This includes all perennial, intermittent and ephemeral streams. The transport of materials downstream seems to be the focus of the connections.

We now have to new classifications of wetland landscapes. These are bidirectional and unidirectional wetlands. Bidirectional wetlands have a two way hydrologic exchange. These seem to always be jurisdictional. Unidirectional wetlands discharge into the surrounding landscape but lack a two way exchange. These also are usually jurisdictional.

The next issue is what to do with wetlands that lack a bidirectional exchange? Wetlands like prairie potholes, vernal pools and playa lakes come to mind. These systems, while not directly connected to the TNW, can provide numerous functions that can enhance downstream water quality. If the wetlands are geographically isolated there is a question as to whether or not they are jurisdictional. However, these wetlands occur on a gradient of connectivity, and it is difficult to generalize about their effects on downstream waters from the currently available literature. Therefore these wetlands will need to be assessed on a case-by-case basis. It took 331 pages to come up with this!

These are the takeaways for this report

1. All streams are jurisdictional
2. All bidirectional and unidirectional wetlands are jurisdictional
3. Wetlands that are geographically isolated and lack a bidirectional exchange might still be jurisdictional

To be frank I do not see how this changes or clarifies anything. There does seem to be a major focus on material transport out of a wetland system as a connectivity feature. Perhaps this is some help. If anything it may bring some of the isolated wetlands back into a jurisdictional setting. But at the end of the day these would still be evaluated on a case-by-case basis which is what we do now.

You do have a chance to comment on this tome. Comments for the SAB review panel’s consideration may be submitted and reviewed using the Regulations.gov website. From the site, select “Environmental Protection Agency” and the keyword “EPA-HQ-OA-2013-0582” (for the docket ID) to submit comments. The comments are due by November 6, 2013.

Please comment.  This is very important!

NAMEPA

I have one last observation. Did anyone notice, “EPA, with the Army Corps of Engineers, has sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for inter-agency review”? Apparently this is an internal review and we the public are not privy to it. Anyone out there what to try to take this on as a Freedom of Information Act (FOIA) challenge? The new draft report is used to support the technical aspects of the new CWA rule. I would love to know what this new rule is. I suspect many of you would as well.

One more item.  The Science Advisory Board (not to be confused with Ayn Rand’s State Science Institute) is holding a meeting on December 16, 2013 in Washington, D.C. at the Washington Plaza Hotel to discuss this report.  You are all invited.  You can download more information about this event ==> HERE.

Have a great week!

– Marc

Wetlands could be key in revitalizing acid streams

Swamp Stomp

Volume 13, Issue 38

Wetlands could be key in revitalizing acid streams, UT Arlington researchers say
Media Contact: Traci Peterson, Office:817-272-9208, Cell:817-521-5494, tpeterso@uta.edu

A team of University of Texas at Arlington biologists working with the U.S. Geological Survey has found that watershed wetlands can serve as a natural source for the improvement of streams polluted by acid rain.

A stream in the Adirondacks
A team of UTA biologists analyzed water samples in the Adirondack Forest Preserve.

The group, led by associate professor of biology Sophia Passy, also contends that recent increases in the level of organic matter in surface waters in regions of North America and Europe – also known as “brownification” – holds benefits for aquatic ecosystems.

The research team’s work appeared in the September issue of the journal Global Change Biology.

The team analyzed water samples collected in the Adirondack Forest Preserve, a six million acre region in northeastern New York. The Adirondacks have been adversely affected by atmospheric acid deposition with subsequent acidification of streams, lakes and soils. Acidification occurs when environments become contaminated with inorganic acids, such as sulfuric and nitric acid, from industrial pollution of the atmosphere.

Inorganic acids from the rain filter through poorly buffered watersheds, releasing toxic aluminum from the soil into the waterways. The overall result is loss of biological diversity, including algae, invertebrates, fish, and amphibians.

“Ecologists and government officials have been looking for ways to reduce acidification and aluminum contamination of surface waters for 40 years. While Clean Air Act regulations have fueled progress, the problem is still not solved,” Passy said. “We hope that future restoration efforts in acid streams will consider the use of wetlands as a natural source of stream health improvement.”

Working during key times of the year for acid deposition, the team collected 637 samples from 192 streams from the Black and Oswegatchie River basins in the Adirondacks. Their results compared biodiversity of diatoms, or algae, with levels of organic and inorganic acids. They found that streams connected to wetlands had higher organic content, which led to lower levels of toxic inorganic aluminum and decreased presence of harmful inorganic acids.

Passy joined the UT Arlington College of Science in 2001. Katrina L. Pound, a doctoral student working in the Passy lab, is the lead author on the study. The other co-author is Gregory B. Lawrence, of the USGS’s New York Water Science Center.

The study authors believe that as streams acidified by acidic deposition pass through wetlands, they become enriched with organic matter, which binds harmful aluminum and limits its negative effects on stream producers. Organic matter also stimulates microbes that process sulfate and nitrate and thus decreases the inorganic acid content.

These helpful organic materials are also present in brownification – a process that some believe is tied to climate change. The newly published paper said that this process might help the recovery of biological communities from industrial acidification.

Many have viewed brownification as a negative environmental development because it is perceived as decreasing water quality for human consumption.

“What we’re saying is that it’s not entirely a bad thing from the perspective of ecosystem health,” Pound said.

The UTA team behind the paper hopes that watershed development, including wetland construction or stream re-channeling to existing wetlands, may become a viable alternative to liming. Liming is now widely used to reduce acidity in streams affected by acid rain but many scientists question its long-term effectiveness.

The new paper is available online at http://onlinelibrary.wiley.com/doi/10.1111/gcb.12265/abstract.

Funding for Passy’s work was provided in part by the New York State Energy Research and Development Authority. The Norman Hackerman Advanced Research Program, a project of the Texas Higher Education Coordinating Board, as well as the US Geological Survey, the Adirondack Lakes Survey Corporation and the New York State Department of Environmental Conservation also provided support.

The University of Texas at Arlington is a comprehensive research institution of more than 33,000 students and more than 2,200 faculty members in the heart of North Texas. Visit www.uta.edu to learn more.

Grinders, Minders and Finders

Swamp Stomp

Volume 13, Issue 37

Last week we spoke about the idea of doing your best as a means to succeed in life and business. It is a solid concept and not a new one. However, implementation of it can be a bit challenging. The problem arises when we start asking what we are good at. We need to start at “good” before we can get to “best.” If you boil this down a bit further we need to ask ourselves, “what are we doing in the first place and where do we fit in?”

There is an old business concept that helps us focus on where we are in an organization and how to move up the company ladder. It is quite popular in the legal profession and sometimes finds its way into engineering companies. I was first introduced to the idea when I was working for a fairly large engineering company. It was part of a new employee training program. The partners would meet with the new recruits for some business counseling. At the time I did not appreciate the wisdom of what they managers were trying to do. But in retrospect, it was a brilliant plan as it fostered an entrepreneurial spark and at its core encouraged me to do my best.

Each of us in our daily work has some aspect of being a grinder, a minder or a finder. The trick is to know which of these you favor and which of these you desire. There is no better or worse with each of these. Each one carries its own benefits and liabilities. The secret is finding the balance that makes you happy and in turn will be reflective of your best work.

To start, we will discuss what a grinder is. A grinder is the worker bee. They are the folks that actually make or do the things the company produces. Without the grinder there would be no goods or services. A grinder in their pure form shows up for work each day and is told what they will grind out each day. There is no expectation of them other than to produce the goods or services.

Typical examples of a grinder are the folks that put light bulbs in those paper sleeves or who puts the plastic tips on the ends of shoe laces. In the wetlands consulting business a grinder would most likely be the wetland delineation investigator. In short, the grinder is the one who does the work.

The major benefit to being a grinder is that you do not have to look for something to do every day. You go to your manager and they give you a task to do or send you home. Either way, there is no expectation that you will find work or get others to work with you. This is perhaps the lowest stress level of the three.

Of course there is a major downside to being a grinder. It pays the least. Stress and pay level seem to be inexorably linked. The more stress, the more pay.

There is also another major downside to being a grinder. You are always facing the possibility of being replaced by either a better grinder or by automation. I am pretty sure that there is a machine that puts the plastic caps on shoe laces now. The issue of older expensive grinders being replaced by younger cheaper grinders is also a very real phenomena.

Minders keep track of the grinders. These are the managers. They usually have a working knowledge of what the grinders do and organize them to be more efficient. Minders are concerned about production statistics. How many shoelaces did we make today?
The minders are the middle managers. They keep track of timesheets, billable hours, vacation days and production results. In the wetlands business these people are often referred to as project managers. They will do some grinding, but their main job is to make sure that the work is getting done. They may even have some client contact. They will submit progress reports with each invoice and crack the whip if work is not up to par.

The major benefit for a minder is that they make more money than a grinder and probably do not physically work as hard. Their days are mostly spent behind a desk answering client questions, filing reports and managing the grinders. These are the people the grinders go to with their problems.

With all risk there is reward. As a minder, you are acutely aware of how risky you job is. Consequently, the pay is a little better.

The major downside to being a pure minder is that you are in the middle. Guess who gets cut when the company slows down. You need the grinders to get the work done. Perhaps they can manage themselves? Every ten years or so, we go through a company re-engineering, empowering the employees to manage themselves. Sometimes it is called a paradigm shift or thinking outside the box. Aggggh! This is code for the company’s sales are down and they cannot afford the middle managers.

The apex of the company food chain are the finders. These are the rainmakers. These people find the clients that the company works for. These may be the partners, associates or the CEO of the company. They have the least amount of knowledge of how a grinder does their job, but they know people who will give the company money for the work the grinders do.

The major upside to a finder is that they make the most money. I have known some sales people who made substantially more than the company CEO. I worked with one salesperson that was making over $100K per month. He had no idea how the product was made, but he knew how to sell it.

There is a huge downside to being a pure finder. If you do not sell, you do not eat. Most finders work either on a commission basis or if they are a partner in the company, their compensation is some percentage of profit. Lots of risk, but a there is big return if successful.

The secret to your business success is to identify what role you have in the company and then chart a path for where you want to go. There is not right or wrong with your decision. There are many fine grinders out there that are perfectly happy with their lot in life. They may desire more pay, but they sooner eat glass than pick up the phone to make a sales call. That is OK, so long as they recognize that it is their decision to be a pure grinder.

Each of us has a little, grinder, minder and finder in us. Find the ratio that works for you and go for it. The real secret is to make the decision and then act. That is doing your best!

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]