On March 25, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) jointly released a proposed rule to clarify Clean Water Act jurisdiction.  The purpose of the proposed rule is to resolve much of the confusion and uncertainty created by the SWANCC and Carabell/Rapanos Supreme Court decisions in 2001 and 2006 respectively.  The proposed rule is available on a new page on EPA’s website which also contains a great deal of useful information about the purpose and benefits of the proposed rule.  It will be published in the Federal Register shortly and there will be a 90 day comment period that will start the day it is published. Following the public comment period the agencies will review what is likely to be hundreds of thousands of comments.  A final rule is not likely until sometime in 2015.

The proposed rule is consistent with the approach to jurisdiction outlined in the proposed guidance from a couple years ago but with much more specificity.  In very general terms under the proposed rule, waters of the U.S. include:

  • All tributaries where there is an identifiable bed and bank and ordinary high water mark, and
  • All wetlands and other waters (such as oxbows, lakes and other natural aquatic features) located in floodplains and riparian areas.

However, wetlands and other waters beyond the floodplain/riparian boundary must, in most cases, be evaluated on a case by case basis to determine whether or not they have a ‘significant nexus’ with navigable waters.  The proposed rule would allow for the Army Corps/EPA to assert jurisdiction over a group of similarly situated waters with similar functions, so an argument may be made at some future date for prairie potholes or playa lakes or other high value wetlands to be identified as a class of waters that are jurisdictional.  However, it is not clear that the scientific basis for linking these wetlands to the health of downstream navigable waters (as required in the proposed rule) currently exists.

In sum, millions of acres of wetlands – all those that are not adjacent or neighboring to a stream or other water body – are likely to remain unprotected by the Clean Water Act.  This includes the majority of prairie potholes, playa lakes, vernal pools, Carolina bays, Nebraska’s rainwater basin, desert springs, bogs, fens and many more.

As disappointing as this is for people concerned about the protection and conservation of wetlands, it is not unexpected.  EPA and the Army Corps are trying to clarify jurisdiction after two Supreme Court decisions drastically reduced the scope of protections under the Clean Water Act for isolated wetlands and created considerable confusion about the status of other waters. The proposed rule clarifies that jurisdiction still remains for river and stream systems as well as wetlands and other waterbodies located in adjacent floodplains and riparian areas, but requires a significant nexus test for other waters.

The Association of State Wetland Managers was one of many organizations who have been formally on record in support of rulemaking to clarify the two Supreme Court decisions.  Others include the Association of Clean Water Administrators, Association of State Floodplain Managers, American Farm Bureau Federation, National Association of Manufacturers, Ducks Unlimited, National Wildlife Federation and many more here.

In addition to publishing the proposed rule on Clean Water Act jurisdiction, EPA and the Army Corps also published an interpretive rule “regarding the Applicability of the Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water Act to Certain  Agricultural Conservation Practices” that can be found here.  It goes into effect immediately. It provides clarification of when certain practices fall under the agricultural exemption. There will also be a public comment period for this interpretive rule.

The interpretive rule signals very clearly that EPA and the Army Corps have gone to great lengths to address the concerns expressed by members of the agricultural community.

Given the constraints the Supreme Court has placed on what the agencies could do to reassert jurisdiction over waters regulated prior to 2001, the agencies have worked hard to bring clarity and certainty to Clean Water Act jurisdiction.  The rule provides greater clarity about some areas that are regulated such as rivers and streams and those that are not, including groundwater, prior converted croplands, upland ditches and wastewater treatment facilities.  It specifically asks for comments and recommendations in a number of areas—because that is the purpose of a proposed rule.  It is a proposal that will benefit from thoughtful comment by the American public.

For more information visit:

Geographically Isolated Wetlands of the United States

Waters of the United States

Background Information on Clean Water Act Definition of “Waters of the U.S.”

Science Advisory Board Connectivity Report

Interpretive Rule on Agriculture Exemption

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Wetlander's Pick of the PostsClimate Change and Ecological Restoration

By – Zollers Ecological Restoration Company – February 7, 2014
As evidence mounts of the scope of climate change and its varied impacts on the world, it makes sense to consider its impact on ecological restoration projects. It is not always clear how best to accomplish this. For full blog post, click here.

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View from the blog-o-sphereRecovering from a heavy dose of winter

By Jennie Saxe – Healthy Waters Blog – March 20, 2014
Is this winter over yet? Fortunately, we’ve had a few days in the mid-Atlantic that make me think spring could be just around the corner. Even as we prepare to turn the page weather-wise, some remnants of winter will stick around. This year, one of those remnants is salt…lots of salt. For full blog post, click here.

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By Marla J. Stelk, Policy Analyst, ASWM

Like many of you, I wear many different hats. But one of my favorite hats is that of the advocate for local land use planning efforts. I have a strong background in the development of grassroots organizations, creative and cultural economic development and land use planning. However, I do not believe in using only a ground up or top down model. I believe that no matter what the issue at hand is, the outcome of any effort to address it will only be successful if there is room for both approaches. This is why working for the Association of State Wetland Managers is so interesting for me. The state level approach allows for a middle ground perspective and dialogue between federal-state-local decision-making. It’s kind of like being the middle child – the peacekeeper.

However, since significantly more money comes to state programs from federal revenue than local revenue, the issues that get addressed are primarily focused on the state-federal relationship. I have personally found a disappointing dearth of dialogue between state and local land use efforts and an even bigger gap between federal and local. This needs to change. We need more balance.

I recently had dinner with a graduate school friend who is currently working as a Planner for a small city in New Hampshire with a population of about 23,000 according to the 2010 US Census. The only source of revenue for local government in New Hampshire is property taxes. As we all know, the majority of wetlands are situated on privately owned lands. So there is the rub – how do you restrict land use on private land when the private landowners are funding your department and most of them do not have a background in wetland science or policy?

Planners in small towns such as this wear many more hats than any of us and are expected to know a lot about everything – from architecture, to building codes and zoning methods, to Comprehensive Plans, to downtown revitalization and economic development, to GIS techniques, to facilitation methods, to surface water protection and much, much more. These local planners are overwhelmed with expectations and too often are totally lacking in the capacity to meet those expectations. And to top it off, they generally have no real political power – at least not in New England. Typically the Town Council or Board of Selectmen directs the planning department efforts, and often those local decision makers have no land use planning knowledge or skills.

Here is an example of this quagmire from my friend in New Hampshire:

This city recently adopted a Surface Water Protection Ordinance which was adopted as part of the city’s Zoning Ordinance. According to this new ordinance, in order to get approval to encroach into a buffer area around a surface water, an applicant must propose “extraordinary mitigation” as part of a Conditional Use Permit application. However, there is no legal definition provided as to what “extraordinary mitigation” is nor is there anyone in the Planning Department with a wetland science background who is qualified to do any sort of wetland functional assessment or even suggest what that definition might be. They barely have money to run their own department – how will they find the money to hire a consultant?

Furthermore, as my friend said to me in a follow-up correspondence:

“in NH state law declares that single family units/homes and duplexes are exempt from site plan review or any review by the Planning Board, so most development the City regulates is large residential, commercial, or industrial. It makes it very difficult to ensure that people are meeting the requirements of the Surface Water Protection Ordinance when they don’t come before the board or have any requirements to submit plans. It falls upon Code Enforcement when people apply for a building permit to verify that there are no surface waters… So what we’re seeing now are tons of applications through the winter months when it’s even more difficult to verify the presence of a surface water and no one wants to go trek around people’s properties in 2 feet of snow looking for iced-over puddles.”

Recent studies have shown a significant shift in demographics – people are moving into cities and away from more rural areas. I suggest that if we do not do a better job of reaching out to and supporting local efforts to incorporate and enforce watershed planning into local ordinances, we risk undercutting all of our efforts on the state and federal level.

Fortunately, some efforts to fill this gap are beginning to make traction. The Wisconsin Wetlands Association has developed a Land Use and Wetlands Publication Series which includes:

I hope to see more outreach and collaboration efforts like this in the future. I know I’ll be starting this conversation in my own home town, where we are updating our Comprehensive Plan. At the last Town Council meeting, the Chairman scoffed at the inclusion of language to increase minimum setbacks for streams with native brown trout habitat to 100 feet.  The response from our Planning Department was…”well we just transferred that over from the last plan” from 1996. For Peat’s Sake, we clearly have a lot of work to do.

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View from the blog-o-sphereClimate Change and Ecological Restoration

The Unblinking Owl of Ecological Restoration – February 7, 2014
As evidence mounts of the scope of climate change and its varied impacts on the world, it makes sense to consider its impact on ecological restoration projects. It is not always clear how best to accomplish this.

A commonly asserted idea is that plant populations must move northwards (see for example Handel’s editorial in Ecological Restoration, December 20131) to ensure their survival. This seems logical – as the world warms, colder-adapted plants (species and genetic strains of species) would be expected to feel more welcomae north of their existing homes in cooler regions. However, this is unlikely to be universally applicable. Uncritically repeating this idea could do considerable damage. For full blog post, click here.

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Wetlander's Pick of the PostsTime to End the Quagmire Over Quagmires

By Steve Fleischli – Huffington Post Blog– March 13, 2014
People who care about clean water — parents, hunters and anglers, brewers and anyone who likes to go for a swim or turn on a tap and enjoy a cool drink — are telling EPA and the Obama administration that it’s high time to let the long-awaited proposal to affirm Clean Water Act protections for small streams and wetlands go out for public comment. For full blog post,
click here.

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Salameanderby Peg Bostwick, ASWM

In 1989 the report Wetland Creation and Restoration – Status of the Science, edited by Jon Kusler and Mary Kentula, was compiled by a group of well-known and nationally Wetland Creation and Restoration – Status of the Science,regarded wetland scientists.  A version published a year later remains available through Amazon (at a “sale” price of $90).  However, the original version prepared for EPA is available for free in a digital format through Google books, if you are interested.

ASWM is interested.  At our recent state/federal meeting in Shepherdstown West Virginia, four of the original authors – Robin Lewis, Joe Shisler, Joy Zedler, and Rob Brooks – joined us (either in person, or via electronic communications that were not readily available in 1989) to provide a retrospective look at this publication.

Among their comments (based on my notes)…

Dr. Rob Brooks Dr. Rob Brooks – Professor of Geography and Ecology and Director of Riparia at Pennsylvania State University – noted that he “thought we would be farther along with restoration and mitigation by this time.”  On the other hand, 25 years ago he did not foresee the dramatic expansion of voluntary restoration projects carried out under the Farm Bill and other programs.

Rob described the long term development of a large set of monitored wetland reference sites in the Atlantic region, and all that he and his colleagues and students have learned from them.  Given scientific advances, he feels that “practitioners are ready to raise the bar on mitigation and restoration.”  What concerns them is whether regulatory agencies will back them up by requiring a higher level of “success.”

The challenge posed by Rob is to insist that we improve outcomes in compensatory mitigation and voluntary restoration – using reference sites as a template – in order to provide wetlands that will replace natural functions.

Dr. Joseph Shisler Dr. Joseph Shisler – principal ecologist for ARCADIS in Cranbury, New Jersey, focused on coastal wetland restoration and creation after 25 years.   Joe stressed that we have the technology to successfully restore many types of wetlands, although some are more difficult than others.  He stressed that the “key is to understand the complexity and functions of wetland systems to be created or restored” with a focus on site specific needs over cookbook approaches.

Joe stressed that “habitat restoration is not landscaping” – and suggested that even though the success of wetland restoration has increased, it is difficult to measure that success given the complexity of wetland systems.

Dr. Joy Zedler Dr. Joy Zedler – Professor of Botany at the University of Wisconsin – Madison, and Aldo Leopold Professor of Restoration Ecology and Research Director at the Arboretum – talked about hitting wetland “targets.”   She listed a number of the reasons why we fail to achieve restoration goals or targets,

•  The established targets may be unachievable (for a variety of reasons).

•  Performance of the restoration site may not be adequately assessed (are we using the correct measures?).

•  We may have insufficient knowledge regarding restoration of a particular type of wetland system.

•  Regulations and required best management practices are lagging behind restoration research – there must be incentives to do well.

•  A site may be too small – we should be thinking on a watershed scale.

•  We may not include biological processes in models during design, and for that reason projected outcomes may not be reached.

•  New knowledge is resisted; we may be falling back on old standby models.

Joy discussed actions that can be taken to address these shortcomings, and also suggested the need for a “National Ecosystem Restoration Act” with funding to implement, assess, and manage adaptively.

Roy R. “Robin” Lewis III

Roy R. “Robin” Lewis III – President of Lewis Environmental Services, Inc. and Coastal Resource Group Inc. – made a strong argument that experienced professionals do not teach enough.  As he put it, “There are very few of us old moss-backed turtles out there” and stressed the need to share our knowledge with other professionals and with new generations.

Robin also agreed with other panelists in stating that “The technology is there to do the [wetland restoration] job right.  However, most such projects do not meet permit criteria, or just fail.”  He has found that professionals consistently report about 30-35% failure rates for restoration projects.  As a result, we are failing to meet no net loss goals.

Robin feels that training and monitoring of project success are the weak links in restoration programs. He notes that most wetland dollars are spent on policy development and permitting with little on training and retraining, and with very little on compliance monitoring, enforcement, and adaptive management.  Robin suggests raising the bar by improving technology transfer, and specifically through re-issuance of Wetland Restoration and Creation – Status of the Science – with an update by each author.

Overall, while the panel expressed a degree of disappointment that we have not done more over the past quarter century, they all believe that the success of both mitigation and voluntary restoration can be improved given advances in wetland science.  Like so many other aspects of wetland management, improving restoration will require collaboration – more training and information sharing, more clearly defined regulatory standards and practices, more consistent evaluation of what works and what does not.

ASWM plans to follow up on these and other key approaches for improving wetland restoration success. It’s good to know that these experts believe that we have the tools available to greatly improve wetland restoration success.

For more information:  Watch the ASWM web pages for links to recorded presentations from the Shepherdstown meeting – available soon – if you would like to hear this panel presentation in its entirety.

To download a free digital version of Wetland Creation and Restoration – Status of the Science, click here.

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Wetlander's Pick of the PostsFrequency of Flooding Across Europe May Double by 2050

By Tim Radford – Climate Central – March 9, 2014
The catastrophic floods that soaked Europe last summer and the United Kingdom this winter are part of the pattern of things to come. According to a new study of flood risk in Nature Climate Change annual average losses from extreme floods in Europe could increase fivefold by 2050. And the frequency of destructive floods could almost double in that period. For full story,
click here.

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View from the blog-o-sphereEPA Invokes Clean Water Act for Pebble Mine Fight

By Bob Marshall – Field & Stream The Conservationist – March 4, 2014
Those fighting to save Bristol Bay from the Pebble Mine operation moved once step closer to victory last week – but mine supporters have vowed to go down swinging. Opponents of the mine that threatens the priceless fisheries in Bristol Bay, Alaska – and the self-sustaining industries they support – were thrilled by the surprise EPA announcement it will invoke rarely used authority under the Clean Water Act to preemptively limit or stop the mine before the permit is filed because of its potential harmful impacts. For full blog post, click here.

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View from the blog-o-sphereMidwestern Clean Water Advocates Rally in Defense of the Chesapeake Bay

By Tom Pelton – Chesapeake Bay Foundation – Bay Daily – March 3, 2014
Clean water advocates across the country are rallying in support of the Chesapeake Bay cleanup effort, which is under attack by lawyers for the agricultural industry and their allies. The Chicago-based Alliance for the Great Lakes, the Ohio Environmental Council, the Lake Erie Waterkeeper, and the Sierra Club are the most recent organizations to express their support for EPA pollution limits for the Chesapeake Bay and the Chesapeake Clean Water Blueprint.
For full blog post, click here.

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