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2017 ASWM Conference In Review - Top 10...

4/19/2017

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Last week I was fortunate enough to remotely attend the 3-day Annual State/Tribal/Federal Coordination Meeting organized by the Association of State Wetland Managers (ASWM). The meeting was titled Using Sound Science and Effective Communication to Strengthen Wetland conservation, Restoration and Management, and occurred at the National Conservation Training Center, Shepherdstown, West Virginia. This was my second year to observe this workshop and, like last year, I found it very informative as to what is occurring on a national level with our waters of the U.S.

Any information presented here does NOT represent any official governmental position…. Any errors in interpretation of the original presenter are ALL MINE, and these observations are made to generally reflect the crux of what went on at this meeting.
Top 10 Points:
1. Ken Murin, Chairman of the ASWM Board (also of the Pennsylvania Department of Environmental Protection) started out the meeting encouraging adaptability to the tenor of the current Administration’s environmental policies by mentioning the following quote -
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2. The Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule (released on February 28, 2017) was discussed. President Trump is requesting that “the heads of all executive departments and agencies”…“shall rescind or revise, or publish for notice and comment proposed rules rescinding or revising,…” [the Clean Water Rule]. It is hard to predict what may come out of this, but it appears something will change. [Officially published as Executive Order 13778 with additional information relative to this EO found in Executive Order 13777, Update 6-13-17].

3.  It was stressed that MESSAGING and COMMUNICATION were important to EPA’s programs by Mindy Eisenberg, acting Division Director & Associate Director of the Drinking Water Office. She shared that several stories relating successful wetland programs are posted on the EPA’s Excellence in Wetlands Programs webpage. There you will find 14 stories of how states and tribes are working to enhance and improve their natural resources, specifically wetlands, in all 10 regions of the EPA.


4.  The Federal Advisory Committee Act (FACA) of 1972 was explained to the attendees. FACA was enacted to “ensure that advice by the various advisory committees formed over the years is objective and accessible to the public.” Committees and sub-committees are created to obtain advice on a wide range of environmental issues for the Executive Branch decision-making process. Every committee meeting, no matter what the subject matter or where it is held, is dedicated to open government and citizen participation. [Source: https://www.epa.gov/faca/about-federal-advisory-committee-act-faca-epa]

5. Discussion also occurred about the potential for STATE ASSUMPTION of the Clean Water Act Section 404 Program, in lieu of the Army Corps of Engineers within the framework of the Federal Advisory Committee Act. As stated on the National Advisory Council for Environmental Policy and Technology (NACEPT) website, “States have raised concerns to the EPA that section 404 of the CWA and its implementing regulations lack sufficient clarity to enable states and tribes to estimate the extent of waters for which they would assume permitting responsibility and thus estimate the associated implementation costs.”  So the Assumable Waters Subcommittee was convened under NACEPT to provide advice and recommendations on how the EPA can best clarify which waters a state or tribe assumes permitting responsibility for under an approved Clean Water Act (CWA) section 404 program. [Peg Bostwick, ASWM’s Senior Policy Analyst, is a member of this esteemed NACEPT sub-committee.]


Currently there are only two states (Michigan and New Jersey) that implement the Section 404 permit program. The most onerous barriers of state assumption are state staffing and funding to implement the program. Another barrier to state assumption is the lack of clarity regarding the scope of waters of the U.S. that may be assumed by a state. In a letter (dated March 1, 2017) to Scott Pruitt from ASWM relaying 6 priorities for State Wetland Programs, they encouraged the new Administration to work towards helping ASWM and other interested parties to remove the current barriers to state assumption of the Clean Water Act Section 404 Permit Program.

​6.  Another executive order (released January 30, 2017) discussed at the meeting was the Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs which orders that “…it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, …” This executive order, commonly referred to as the 2-for-1 (a familiar term to avid shoppers), has a goal “…to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.” The Office of Management and Budget is tasked with this responsibility and according to recently released guidance, they will emphasize maximizing benefits versus compliance costs in their review process. [Officially published as Executive Order 13771, Update 6-13-17].

7.  Stephen Samuels (retired Department of Justice) presented a clear and succinct overview of the historical development of our current wetland regulations, along with the current status of the Clean Water Rule litigation [more on the current CWR litigation in a future posting in The Clean Water Rule section of the Water Regulations 101 blog]. 
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A slide summarizing the Rapanos 2006 Supreme Court fractured decision from Stephen Samuel's 4-11-17 presentation with some of my yellow notes to add his verbal details. Justice Stephens wrote in his opinion that the CWA jurisdiction should satisfy either the Scalia or Kennedy Standard. TNW=Traditional Navigable Waters
His graphic explaining the stance (acceptance or not or unclarified by court decisions) of the 2006 Rapanos fractured decision (4:1:4) for each of the 13 U.S. Courts of Appeal was very helpful in illustrating the complicated and confusing state of our current "waters of the U.S." definition.​ And this "state of the union" on the definition of waters of the U.S. is 11 years after the Rapanos Supreme Court decision!
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Another of Stephen Samuels' summary slides illustrating current stance of the 13 Courts of Appeals in accepting the 2006 Supreme Court Rapanos Decision. Where do you live? Where does your courts of appeals stand on this issue?

​And he well illustrated the reason why so much energy was spent on developing the Clean Water Rule – now in peril by the current political atmosphere and by the difficulty in communicating the strengths of the Clean Water Rule in clearing up current complexities.  [An important aside - Congratulations are due to Mr. Stephen Samuels as the latest recipient of ASWM’s Ruby Slippers Award for his public service to the cause of our nation’s wetlands and other natural resources.]

8.  Two states are pulling together multiple layers of natural resource information into a very user-friendly manner that can be easily accessed by anyone. The Maryland State Highway Administration (with many other partners) has developed the Watershed Resources Registry (WRR), and the Virginia Department of Environmental Quality (along with the Virginia Institute of Marine Science (VIMS))  has developed a Wetland Condition Assessment Tool (WetCAT). Both can be used by anyone looking for natural resource information about a specific site within those respective states. The Maryland WRR can be used to produce an Alternative Development Report where you can move a proposed line/development footprint and quantify NEPA report impacts for each alternative. 
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​9.  One common thread heard throughout the conference was the idea of state wetland managers BUILDING INTEGRATION between wetland management (protection/restoration) with other state efforts or programs like wildlife management, stormwater (319) programs, streams and surface water management, state energy or transportation projects, and floodplain management.

10.  The last day of the conference provided training for attendees with communications planning examples and specific tools for bringing together science, policy and people. ASWM has been working on a Communication Projects Report which includes 10 Case Studies from around the country of successful programs making a difference. This report will be available on the ASWM website soon.

Again, this is only a few of my notes from the many presentations, and much more can be gleaned from the recordings of this meeting. I encourage you to visit the 
ASWM website to learn more. 

-JMB
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Slide from ASWM's Brenda Zollitsch 4-13-17 presentation about The Role of Communications in Protecting Wetlands. A list of the 10 case studies to be released soon in ASWM's Communication Projects Report with a searchable matrix.
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2016 ASWM Wetlands Conference In Review - Top 10...

4/1/2016

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I am constantly amazed at the access to information found on the internet. This week I was able to remotely attend a 3-day meeting organized by the Association of State Wetland Managers (ASWM). The meeting was titled Managing Change - Wetland Protection and Restoration in an Era of Changing Water and Energy Demands, and occurred at the National Conservation Training Center, Shepherdstown, West Virginia. 

The presentations came from a variety of folks: U.S. Department of Justice; U.S. Army Corps of Engineers (Headquarters, ​no less); U.S. Environmental Protection Agency; Federal Highway Administration; National Oceanic & Atmospheric Administration; Federal Energy Regulatory Commission (FERC); 

​U.S. Fish &  Wildlife; Federal Emergency Management Agency (FEMA); Natural Resource Conservation Service (NRCS); The Nature Conservancy; Ducks Unlimited; various state natural resource departments; ASWM; and a slew of others.

In this blog, I want to share some of my observations from the information covered by this varied group of professionals. The subject of wetlands and their conservation, restoration, and regulation are complex and it takes cooperation among professionals with various expertise for us to put forth our best efforts on this important national concern.

Some of these observations are opinions expressed by those working in these different agencies and do NOT represent any official governmental position…. Any errors in interpretation are ALL MINE, and the observations are made to mostly reflect the heartbeat of what went on at this meeting.

1. The 2015 updated version of the National Wetlands Plant List is coming out soon. After 2016, the plant list will be updated biannually with revisions. [“Proposed rating changes will be compiled in January of odd years (i.e. 2017, 2019) and sent to the Regional Panels for input in February. The National Panel will assign wetland ratings to non-consensus species and will review all regional lists in April. The proposed changes will be compiled over the summer and published in the Federal Register for public comment in September. In October, public comments will be summarized and the National Panel will review and respond to comments. The final changes will be published in the Federal Register in December of odd years.” A quote from a Notice by the Engineers Corps on 09/14/2015.] 

2. There is a new publication out called Synchronizing Environmental Reviews for Transportation and Other Infrastructure Projects, commonly referred to as The 2015 Red Book (FHWA-HEP-15-07). ["The purpose of the Red Book is to function as a “how to” for synchronizing NEPA and other regulatory reviews. This handbook will be useful to Federal agencies that review permit applications, and Federal, State, and local agencies that fund or develop major transportation and other infrastructure projects. This document discusses the requirements of many statutes and regulations to facilitate the reader’s understanding of how compliance with those requirements can be fulfilled while implementing the synchronization concept discussed in the Red Book. By increasing the use of review synchronization, more effective and efficient regulatory reviews are anticipated that could result in projects with reduced impacts to the environment as well as savings of time and money… The handbook also includes best practices such as the use of transportation liaisons, innovative mitigation practices, and communication technology.” A quote from the U.S. DOT, Federal Highway Administration website.]

3. There is lots of activity going on regarding MITIGATION.  There was a presidential memo on mitigation in November 2015; a Department Of the Interior (DOI) departmental manual was released on mitigation in October 2015 (Implementing Mitigation on the Landscape-Scale); and the USFWS is currently drafting a revised mitigation policy which is open for public comment until March 8th. The USFWS is also drafting a compensatory mitigation policy which will be out in the Federal Register on April 15th.


There is also a recently released report called The Mitigation Rule Retrospective: A Review of the 2008 Regulations Governing Compensatory Mitigation for Losses of Aquatic Resources which summarizes the progress made in implementing the 2008 Mitigation Rule, including analysis of trends in aquatic resource impacts and compensation from 2010 to 2014 and trends in mitigation banking and in-lieu-fee programs from the mid-1990s through 2014. [Description comes from a COE Factsheet.]

4. It is likely that the issues surrounding The Clean Water Rule will be settled (or at least have clarity) within the next 12 months.

5. The current 2012 Nationwide Permits are undergoing a review process. The election year adds some constraints to this timeline. I included the proposed timeline to show you how this process is scheduled. OMB is the Office of Management and Budget.
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Slide captured from David Olson's, U.S. Army Corps of Engineers, ASWM meeting presentation, March 29, 2016. Purple added to focus attention to the Public Input area of the process for an upcoming lecture I have scheduled.
6. On April 1, 2016, there is likely to be a U.S. court response to the en banc review requested of the 6th Circuit Court of Appeals regarding the Clean Water Rule litigation.
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7. In clarifying the U.S. Army Corps of Engineers v. Hawkes Co. Inc. case at the Supreme Court level - the Corps' Jurisdictional Determination does not change legal status or obligation of a landowner. It is NOT until you are in the process of getting a permit (or required for impacts) that you have legal responsibilities and it can be taken to court. This is the debate. The cases that have been in the court system for the last 20 years involved those who were already in the permitting process.

8. Do the issues brought up in The Closing Circle: Nature, Man, and Technology (1971), by Barry Commoner, still hold true today? Check it out. Food for thought.

9. In 2015, Executive Order 13690 (Establishing A Federal Flood Risk Management Standard and a Process For Further Soliciting and Considering Stakeholder Input) was released which amends the previous E.O. 11988, Floodplain Management (1977). [“The amendments require federal agencies to use natural systems, ecosystem processes, and nature-based approaches to identify alternatives and require federal agency regulations or procedures to be consistent with the Federal Flood Risk Management Standard (FFRMS). The FFRMS provides 3 approaches that federal agencies can use to establish the flood elevation and hazard area for consideration in their decision-making for federally funded projects: climate-informed science approach, freeboard approach (adding 2-3 feet of elevation to the 100-year floodplain), and using the 500-year floodplain.” Quote from the U.S. Department of Energy.]

10. There is a need to use social and communication science more to inform and educate others regarding the issues surrounding wetlands.

This is only a few of my notes from the many presentations, and much more can be gleaned from the recordings of this meeting. I encourage you to visit the ASWM website to learn more. The Association of State Wetland Managers is doing a great job of getting the word out on wetlands!

-JMB
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Wetland Loss in the United States: ASWM 2015 Report

12/17/2015

 
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Since the Association of State Wetland Managers (ASWM) recently released a Status and Trends Report on State Wetland Manager Programs in the United States, I thought I would post the information regarding wetland loss in the United States and provide details on the four-state area and Texas.

​In reviewing the ASWM trends report, it turns out that the wetland loss data used by most states comes primarily from a 1990 report (directed by Congress in 1989) principally authored by USFWS Thomas E. Dahl of the National Wetlands Inventory in St. Peterburg, Florida.
​Below you can see the color-coded map by state and general percentage of wetland area loss.
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​The chart below details the amounts of historic wetland losses from the 1780s to 1990s for five states:
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​For other state summaries, click here.

You can see why President George H. W. Bush established the national policy of “no-net loss of wetlands” in 1989.  This policy set the groundwork to replace each newly impacted wetland with a replacement wetland of the same size and with similar wetland functions and values.  No-net-loss did not mean to imply no wetland impacts were allowable.  Wetlands may still be impacted, but those impacts must be replaced by additional wetlands via on-site creation, off-site mitigation banking or a combination of the two. Also, mitigation requirement ratios generally seen for impacts are more than 1:1.

-JMB

Sources:
Status and Trends Report on State Wetland Programs in the United States, Association of State Wetland Managers, 2015 (Last Updated 10/30/2015), by Dr. Brenda Zollitsch, and Jeanne Christie
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http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/water/wetlands/         
Natural Resources Conservation Services website, United States Department of Agriculture
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Dahl, T.E. 1990. Wetland Losses in the United States 1780’s to 1980’s, U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. 13 pp. [Report to Congress.]

Wetland Regulations 101

6/16/2015

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Wetland regulations are a complex issue.  To help clarify these issues, I decided to divide this topic into five different areas:  Past, Present, Future, FAQs, and Regulatory Terminology.

Past will cover some of the historical legal decisions, environmental concerns, and political movements that gave rise to our current environmental regulations.

Present will describe the environmental regulations as they stand today and how the Clean Water Act is currently interpreted.

Future will cover possible changes to wetland regulations and the issues that are being debated for change.

FAQs is a working list of frequently asked questions that I encounter from clients and interested others regarding wetland regulations.

Regulatory Terminology will be a working list of common terms in the field of wetland regulations that I will be working to clarify for your understanding.

As I begin to work on the path I have plotted, please be patient with me and check back for new postings and further development.

- JMB

UPDATE, January 23, 2018:  Since there has been SO much of my content on the Clean Water Rule, I have re-organized the Wetland Regulations 101 postings into these 5 areas: The Clean Water Rule, More on the CWR, Regulatory History, Regulatory Terminology, and FAQs. This Clean Water Rule saga looks to continue on indefinitely with yesterday's Supreme Court Opinion released which clarified that any challenges to the CWR must begin in the district courts. As time allows, I'll continue to improve this blog.

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