Association of State Wetland Managers - Protecting the Nation's Wetlands.

Wetlander's Pick of the Posts Collaboration can save the Mississippi River Watershed

By Mississippi River Cities & Towns Initiative – AG Professional – October 15, 2015
A diverse group of more than 400 businesses, associations, government agencies, science organizations, academic institutions and non-profit organizations released the first-ever report card evaluating the condition of one of our nation’s most storied and central waterways. This effort, known as America’s Watershed Initiative, was undertaken to provide information on the challenges facing the waters and lands that make up the 31-state Mississippi River Watershed and the 250 rivers that flow into it. For full story, click here.

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View from the blog-o-sphereHydropower Doesn’t Need Any More Loopholes

By Scott Bosse – American Rivers Blog – September 18, 2015
A bill pending in the U.S. Senate would give the hydroelectric industry and the Federal Energy Regulatory Commission the kind of unconditional authority more akin to what the Robber Barons enjoyed in the late 1800s, than to what reasonable people might expect today. For full blog post, click here.

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conollyblog102215by Professor Kim Diana Connolly
SUNY Buffalo Law School

Every captivating story needs a plot twist. And while the story of what gets to be (has to be?) considered a jurisdictional water of the United States has not always been captivating, it has had its exciting moments (a few of which I explored in a much earlier work). In an exciting turn of events, two weeks ago the U.S. Court of Appeals for the Sixth Circuit provided a ratings boost to this extended saga.

The long story of what should be deemed “jurisdictional” waters of the United States began shortly after passage of the Clean Water Act back in the 1970s. There was an immediate skirmish as to how many and what kinds of waters Congress meant to cover under the Act. In 1975, the District Court for the District of Columbia declared thatCongress intended to assert federal jurisdiction over the nation’s waters to the maximum extent possible under the commerce clause.”

Though not appealed, this lower court decision was the first in hundreds of cases in which many courts had the opportunity to consider exactly which waters the Clean Water Act should govern. Subsequent cases have circled around this broad definition, and attempted to set some tests, or even “bright lines,” for where so-called “jurisdictional” waters begin. This wrangling has even made it to the Supreme Court a number of times, including most recently in 2006 in Rapanos v. United States.  In that case, a divided plurality issued a convoluted decision that invited a sequel when it left stakeholders with a lack of certainty as to how to apply it on the ground. There were calls (based on language in various portions of the decision) for the administrative branch to step in and issue new regulations. And many more lower court cases ensued.

Cut to present day. In a brand new Clean Water Rule that went into effect on August 28, 2015, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers attempted to address these years of uncertainty, and redefine the term “waters of the United States.” The agencies provided extensive background materials and supporting documents about lengthy process and scientific support leading to this new definition. Yet the press release announcing the new rule foreshadowed the issues it faces now. While its title declared that “Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy,” its lead screamed in large print that the rule “[d]oes not create any new permitting requirements and maintains all previous exemptions and exclusions.” Much hullabaloo ensued. People on all sides (including we law professors who just love to have opportunities to write more footnotes) weighed in with strong opinions.  And many parties filed lawsuits.

whitehouse102315Those who needed to deal with the new rule worked hard to get ready. In the months leading up to its official deployment, trainings to support the move to the new rule were rampant. These trainings came from the federal agencies, and from various experts, such as the Association of State Wetland Managers, as well as from myriad various private actors. Meanwhile, the law suits percolated along, and jurisdictional nerds watched closely.

Then, the latest big plot twist. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of the Rule based on a petition from 18 states. This stay effectively halts the enforcement of the Rule. The petitioners had challenged the new rule on many theories, including that it granted too much federal jurisdiction over what has previously been thought of as state-controlled waters, that it was not in line with existing precedent, and that its adoption failed to follow mandatory federal rulemaking procedures. Oral arguments will be heard on December 8th in this matter.

The court, in granting petitioners’ stay, acknowledged that petitioners’ arguments had the possibility of success. But, it turns out that it is not entirely clear whether challenges to the rule are properly in Circuit court to begin with, or whether federal district courts might be the appropriate venue. So another possible plot twist is out there as that matter is explored.

Scholars are, of course, doing what we do…debating many aspects of the Sixth Circuit stay (see, for example, Professor Oren, who saysall of this may turn out to be a tempest in a teapot”) and Professor Adler, who notes “there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts”, and many others). We professors will continue to watch and write footnotes and be excited from the sidelines (though note that those of us who are clinical law teachers may be in the mix more directly with our students lawyering on behalf of clients).

Meanwhile, the usual stakeholder representatives on all sides are making impassioned arguments as to how this story should unfold, while at the same time trying to figure out how to continue or delay activities proposed to take place in potentially jurisdictional waters. And the fact of the matter is that, while there may be short-term answers soon, longer-term answers are not going to be easy to come by.

As I have mentioned in previous work, a “happily ever after” ending in the Clean Water Act jurisdiction debate may not ever be possible. In that piece from eight years ago, I wrote that “[t]he controversial history of the Section 404 permitting program, as well as a cursory examination of the current situation, easily could lead to the conclusion that the stakeholders have become so divided and the battles so embittered that no functional zone of potential agreement exists.” And while I wrote “current” many years ago, this statement still holds true.

But the plot twist offered by the Sixth Circuit may give us another chance to reflect, together, on whether there is a way to come to some sort of peace. It may still be possible to interpret language enacted over four decades ago in a way that provides both predictability and protection in appropriate measure for activities on the edges of where water ends and land begins. If so, it may be conceivable that those attempting to govern could be provided a framework with a sense of certainty as to the road ahead. The next step in this process will be oral arguments on this matter before the Sixth Circuit in Cincinnati on December 8th.

Bear in mind that, if “happily ever after” actually happens, this soap opera might enter its final season, and all the actors who have played parts big and small in the controversy itself may have to find other work. So, let’s watch this plot twist carefully, to see if indeed it is the beginning of a final chapter to this decades-old debate, or just another episode of “How the Wetlands Turn.”

Posted in Clean Water Act, Clean Water Act Jurisdiction, Clean Water Rule, Connectivity to Navigable Waters, environmental law, federal jurisdiction, rulemaking, wetland regulation | Leave a comment

View from the blog-o-sphereCelebrating Wisconsin’s Wetlands of International Importance

By Tracy Hames – Natural Resources Foundation of Wisconsin – October 6, 2015
As executive director for Wisconsin Wetlands Association, I have had the chance to visit hundreds of beautiful wetlands across our state. And while I love every Wisconsin wetland, it’s especially fun to visit rare wetland types like Chiwaukee Prairie along the Lake Michigan shore in southeast Wisconsin. Wisconsin Wetlands Association recognized this rare wetland as a Wetland Gem® in 2009, and just recently I joined more than 150 government officials and nonprofit conservation group members at an event celebrating its designation as a Wetland of International Importance. The designation makes Chiwaukee Prairie Illinois Beach Lake Plain the 39th designated Wetland of International Importance in the United States. For full blog post, click here.

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Wetlander's Pick of the Posts Incorporating Natural Infrastructure and Ecosystem Services in Federal Decision-Making

By Tamara Dickinson, Timothy Male, Ali Zaidi – White House Blog – October 7, 2015
Our natural world provides critical contributions that support and protect our communities and economy. For instance, Louisiana’s coastal wetlands provide billions of dollars worth of flood protection and other benefits. Preserving and restoring forests in the Catskill Mountains enables New York City to access clean water at a cost several times less than the cost of building a new water-filtration plant. And current efforts to plant trees along Oregon’s salmon-rich rivers will improve local water quality – saving costs associated with installing expensive machinery to achieve the same purpose.  For full blog post, click here.

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For Peats Sake LogoBy Marla J. Stelk, Policy Analyst, ASWM

It’s been a great autumn for nature. On Wednesday, October 7th, the Administration released a new memorandum directing Federal agencies to factor the value of ecosystem services into Federal planning and decision-making. And on Thursday, October 8th, the vote of the U.S. Water Resources Council was unanimous in favor of accepting the “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.”

moose101615Scientists and advocates have been extolling the benefits of “the natural and beneficial functions” of natural ecosystems, such as wetlands and floodplains, for decades. The Administration’s new memorandum recognizes this and states that “nature provides vital contributions to economic and social well-being.” The new memorandum directs agencies to develop and institutionalize policies “to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal is to better integrate consideration of the full suite of ecosystem benefits and trade-offs inherent in decision-making, including “benefits and costs that may not be recognized in private markets because of the public-good nature of some ecosystem services.”

Some benefits, ecosystem “goods”, are accounted for in our market system (e.g., commercial fish and shellfish harvesting, and silviculture). However, many ecosystem “services” (e.g., buffering against storm surges and attenuating floodwater) are not. There is no price tag associated with these important functions that are not bought or sold directly on the market, and therefore damages to those ecosystems and their subsequent functions are not accounted for in our market system. However, the loss of them has been felt profoundly, both socially and economically, by many communities who have experienced the destruction of natural disasters such as hurricanes, flooding, and drought. The impacts on habitat have also negatively affected wildlife.

wabash101615Executive Order (EO) 11988 – Floodplain Management, issued in 1977, was amended on January 30, 2015 by President Obama when he signed EO 13690 – Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input. On October 8, the Water Resources Council approved the recommendations of the Mitigation Framework Leadership Group to issue the revised Guidelines for Implementing EO 11988 and EO 13690. The new Federal Flood Risk Management Standard (FFRMS) now includes a directive for agencies to use, where possible, natural systems, ecosystem processes and nature-based approaches when developing alternatives for consideration.

If an agency has determined to, or proposes to, conduct, support, or allow an action to be located in a floodplain, the agency shall consider alternatives to avoid adverse effects and incompatible development in the floodplain. Where possible, an agency shall use natural systems, ecosystem processes, and nature-based approaches when developing alternatives for consideration. (Guidelines for Implementing E.O. 11988 and E.O. 13690, p. 22)

The spotlight on the benefits of ecosystem services and the natural and beneficial functions of nature is intricately tied to climate change planning. In fact, President Obama states in EO 13690 that the impacts of flooding “are anticipated to increase over time due to the effects of climate change and other threats.” Climate change, in other words, has forced us to reevaluate our relationship to nature. The other night I was talking with some friends about the fact that the term “sustainability” has been around for many years – in fact I was first introduced to it in college in the early 1990s and the concept of sustainable development was formally introduced by the Brundtland Commission of the United Nations back in 1987. But it didn’t really gain any traction until the reality of climate change began to seriously impact our lives. Now we are moving on from “sustainability” to “resiliency” and “preparedness.” It’s an indicator that we’re at a point now where we’ve crossed floodingdelaware101615a threshold. Sustainability is still an important concept and practice that we should employ, but now that we are experiencing the impacts of not living sustainably for so many years, we must now also find ways to be more resilient and prepared for the impacts of natural disasters associated with climate change. It’s the difference between mitigation and adaptation. We have to tackle this issue from both fronts.

This is good news for nature and for humankind. Nature always has a way of finding balance – it is its own natural imperative. We can learn a lot from studying nature’s functions and processes – we are, after all, an integral part of nature and if we fully recognize our interdependence with it we can achieve balance as well. We are making great strides but we need to up our game.

In the words of Aldo Leopold: “The last word in ignorance is the man who says of an animal or plant, “What good is it?” If the land mechanism as a whole is good, then every part is good, whether we understand it or not. If the biota, in the course of aeons, has built something we like but do not understand, then who but a fool would discard seemingly useless parts? To keep every cog and wheel is the first precaution of intelligent tinkering.”

So for Peat’s Sake – let’s celebrate these great accomplishments and keep making even greater strides to ensure a healthy, safe, sustainable and resilient future for all.

Posted in adaptation, climate change, ecosystem services, floodplains, mitigation, natural hazards, sustainability, watershed, wetlands | Leave a comment

Wetlander's Pick of the Posts How a Manmade Tidal Lagoon Could Change the Future of Clean Energy

By Feargus O’Sullivan – CityLab – October 7, 2015 – Video
Just outside the Welsh city of Swansea, the U.K. is planning one of the most innovative power plants ever constructed. It’s not the plant’s size that is striking, though it could ultimately provide power to 155,000 homes for 120 years. It’s the source of its power that breaks ground: tides channeled into an artificially constructed lagoon. For full story and to view video, click here.

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View from the blog-o-sphereA Really Good Day: Building the East Capital Urban Farm

By Jeff Corbin – EPA Connect – October 8, 2015
As much as I love my job, and as proud as I am of the work that EPA does every day, I must admit that some days are just better than others. I’m speaking of those days when you get to be part of something that just makes you feel good. Something that makes you say: “We did well today…this is what we are all about.” Two weeks ago, I had one of those days. Let me tell you how this all started. For full blog post, click here.

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by Brenda Zollitsch, Policy Analyst

For a child, the annual question arises, “What am I going to be for Halloween?!”  It’s one of the BIG questions for a kid — right up with “What do I wear for the first day of school to reinvent myself for the new school year?” and “What should I ask Santa for this year?”  And we don’t outgrow the challenge of finding that “just-right” costume.  As an adult, we are tasked with coming up with something for the costume competition at our friend’s annual Halloween party or to go out trick-or-treating with our kids.  So how do we select something that will catch the eye?  Find something that will AMUSE people?

wetlandhalloween1With these deeply contemplative issues in mind and Halloween only a little less than a month away, I share with you my suggestions for additions to your spooky Halloween wardrobe.  I say, leave the toga behind and don your wetland-themed finest!

First, may I suggest the Swamp Thing costume — a bit cliché but always good for a laugh.  It elicits the “Whoa, Dude.  What ARE you?” …opening that all important opportunity for a wetland teachable moment.  For instance, not all wetlands are swamps.  There are indeed wetlandhalloween2no “swamp things,” but they provide a rich habitat for… ok you get the picture.

Or check out this Adult Al Gator costume and rock the reptile.  Who would blame you for chomping down all the best Halloween treats at the potluck as this backwoods bayou party animal?  To wig out your wetland buddies, add a pair of reptile contact lenses.  No one is going to try to keep the candy away from you in a pair of these babies!

wetlandhalloweenbeaver1wetlandhalloweenbeaver2In honor of nature’s wetland restoration expert, another fine selection might be the adult Busy Beaver costume or for us ladies, this Ladies Buck-tooth Beaver Hat.  This costume comes in a number of variations. By the way, for some reason I am not sure that I personally would look just like this model wearing this hat, but you never know…  Your friends are sure to invite you to their party, especially if they have a tree they need taken down in their backyard or want to raise their groundwater levels.

wetlandhalloweenturtleAre all of these costumes perhaps a little too “in your face”? Are you perhaps a little more Zen?  If so, how about going with an “easy going wetland sunbather” and don this Adult Turtle racmonCostume to help you come out of your shell?

“What if you have kids?”, you ask.  OF COURSE there are great options for the “under twelve Halloween set”.  For your tween sprite, you might want to consider the Furry Sweet Raccoon wetlandhalloweenfrogcostume.  For your young prince, the child Deluxe Frog costume.  For any child with the guts to wear it, of course I advocate for the child Swamp Thing Costume (a never-fails option no matter the age) or perhaps the Swamp Frog Monster costume for something a little more “neighborhood-friendly.”

wetlandhalloweenriverotterThe options are nearly endless.  If you are really cheap, you can go with the simple River Otter Foam Mask, especially if you have ever asked yourself how in the world you acquired so many brown clothes.wetlandhalloweenmosquito

If you are “bugged” by cheap costumes, the best of the best wetland-themed just shy of mascot-quality costume on the market is the Hunger Mosquito costume…because on Halloween it’s not only the vampires who get to suck some blood!

wetlandhalloweencostumeIf you are REALLY cool, you could even make your own wetland costume, like this young lady did.  She hand-sewed this costume of a wetlandhalloweenmossneotenic Mexican axolotl salamander, an endangered species that spends a critical part of its lifecycle in wetlands.  Or perhaps you can transform yourself into Moss Man, but don’t get arrested at a British museum like he did.

If you add your imagination, the sky is the limit on your wetland-inspired costume options!

Once you have made your costume selection, packed your party food and added an extra layer to account for the unexpected frost on Halloween night (if you live in New England)— it’s time to plan your All Hallow’s Eve After Party.  And for that, you’re going to need a little spooky viewing.

Check out these wetland-based sci-fi/horror classics:

Voila!  You are all set for the “other” big night.  We here at ASWM keep our favorite Big Night reserved exclusively for the amphibians!  I wish you a safe and happy Halloween, filled with all the delights that rot your teeth and go bump in the night.   Viva la wetlands!

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View from the blog-o-sphereConnecting diverse communities and groups helps strengthen our collective watershed work

Chesapeake Bay Program – October 1, 2015
For ten years, individuals and groups from around the Chesapeake Bay region have been invited to connect with and learn from one another at the annual Chesapeake Watershed Forum, hosted by the Alliance for the Chesapeake Bay. This year’s Forum, held in Shepherdstown, West Virginia, focused on highlighting ten years of progress and sharing strategies to get new results for the Chesapeake Bay and its communities. The Forum was also organized in a way that allowed for new voices of the Chesapeake to be heard and new relationships to form. For full blog post, click here.

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