Category Archives: Water Usage

Information on drought, over allocation, and human activity affecting the availability of water

An American River in Distress

November 30, 2016 Waterblogger Leave a comment

Trivia question for you. What is the largest American river that does not empty into a sea? I’ll give you a hint. If you look down from the edge of the Grand Canyon, you’ll see this river twisting and winding its way through the scenic gorge it carved out of the mile thick rock layers on which you are standing. Yes, the answer is the Colorado River. Don’t believe me? Check out the photos in this U.S. Geological Survey fact sheet on the 2014 Bureau of Reclamation’s one-time historic release of water from reservoirs on the Colorado River (https://www.usgs.gov/news/a-river-ran-through-it-and-brought-life-least-a-while ), during which water finally reached the Sea of Cortez in Mexico. Water from the Colorado River has only reached the sea a couple of times since the 1960s. Why? Because, the Colorado River is not really a river anymore. It is just a 1450 mile long over engineered water supply ditch.

There are eight major reservoirs on the Colorado River. (Reservoirs are dammed structures that hold water). The Colorado has several famous reservoirs – Lake Mead behind Hoover Dam in Nevada and Lake Powell behind Glen Canyon Dam in Utah. In 2015, the eight reservoirs on the Colorado River were storing 30.2 million acre feet of water. Hydrologists and engineers use “million acre feet” as a way to measure water. An acre foot is around 326,000 gallons or essentially enough water to cover an acre of land with one foot of water. Currently, the reservoirs are at only 51 % of their capacity. Storage capacity for the reservoirs is about 60 million acre feet or somewhere around four years worth of the annual flow of the river. Yes that’s right the average yearly flow of the river over the last 100 years is about 16.4 million acre feet, so more water is being stored in reservoirs than flows down the river in a given year.

The water is released as needed during years when it is very dry and natural flow falls under the average. Forty million people depend on the water from the Colorado River for their water supply and farmers depend on the river’s water for irrigation. And that’s just the United States. There’s a treaty with Mexico that requires the U.S. to provide water to Mexico. So most years between all the users, the natural evaporation, loss of water to vegetation along the river, etc. the entire flow of the river is pretty much used up. Amazing as this may seem, the problem is only getting worse.

The Colorado River Basin is really big. When hydrologist’s talk about a basin they are talking about an area covered by all the tributaries of a river. This is a map of the Colorado River Basin.

Source: Managing Water in the West Colorado River Basin Water Supply and Demand Study, Bureau of Reclamation, December 2012

As you can see the basin encompasses seven states (Arizona, California, Colorado, New Mexico, Nevada, Utah and Wyoming) which are the driest in the country. Yet four of these states (Arizona, Colorado, Nevada and Utah) are among the top 10 states with the fastest growing population. This is a problem for water managers – a giant problem. They have to maintain water supply for domestic and industrial purposes, for agricultural irrigation and livestock watering, and for in-stream water flows to support wildlife and fish.

A federal agency – the Bureau of Reclamation – and the 7 Colorado Basin states manage the river’s water supply together. There has been a lot of head scratching by this group about the future water supply from the Colorado River. In fact, in 2012, the Bureau of Reclamation issued a report entitled: “Managing Water in the West: Colorado River Basin Water Supply and Demand Study.” The study looked at the future potential water flow in the river and the demands for that water all the way to the year 2060. I don’t usually cover engineering studies like the Bureau of Reclamation report in this blog, but the study is of interest because it seeks to inform decision-makers of the extent of future water supply deficiencies and options available to alleviate the deficiencies.

All sorts of decisions have been made in the past without studies. Case in point, in 1922 Herbert Hoover as Secretary of Commerce began the first in a series of decisions that would eventually make the Colorado River nothing more than a glorified pipeline for water supply eventually depriving the Sea of Cortez of a major source of fresh water flow. Hoover’s decision legally divided the Colorado River into Upper and Lower Basins using the point of Lee’s Ferry in Arizona as the demarcation line. All areas draining into the Colorado River above Lee’s Ferry are considered the Upper Basin, which includes Colorado and Wyoming and parts of Arizona, New Mexico, and Utah. The Lower Basin includes the areas draining into the Colorado River below Lee’s Ferry, encompassing the other parts of Arizona, New Mexico, Utah, and the entirety of Nevada and California. Hoover’s decision essentially gave 7.5 million acre feet of Colorado River water to each of the basins to be allocated by the states. Allocated means given a right to use the water. Ten other decisions from the 1920’s to the 1970’s form what is euphemistically called the “Law of the River” making the Colorado River one of the most regulated and controlled water bodies on the face of the earth with the sole purpose of providing water supply.

The 2012 Bureau of Reclamation study predicted possible future water supply from the Colorado River by looking at trends in the variability of the flow in the river. It looked at the historical record over the last hundred years, which is based on actual real life measurements of water flow and it looked at paleontological types of records, like tree rings, to estimate flow before measurements were kept. I think everyone knows that when you cut a tree, you see a cross section of rings. These rings can be wide or narrow depending on how much a tree grew in a particular season. If they are narrow, it indicates a dry season and the tree didn’t have much growth. A wide ring indicates a rainy period where the tree grew a lot. There are about a dozen other ways, besides tree rings, scientists use to reconstruct climate conditions. For example, scientists use ice cores from glaciers to determine rain and snowfall amounts and they use soil cores to determine the distribution of pollen and dust. This is all common sense stuff the average reader knows, when there’s more precipitation then glaciers grow, when there’s more rain then trees put out more flowers and pollen, when its dry then more dust and dirt blows around. So scientists can reconstruct the climate based on these paleontological types of data and show what the trends in stream flows were in the past. Such reconstructions are called paleo-reconstructed models of climate. The Bureau of Reclamation study developed a projected stream flow record for the Colorado River from a paleo-reconstructed model. For a third type of future water flow projection for the Colorado River, the study combined the trends based on paleo-reconstructed data with the trends based on measurements from the last hundred years. They described this projection as a paleo-conditioned scenario.

Very interestingly, the paleo-reconstructions of stream flow showed a great variability over the last 1250 years. In fact during the period between 762 and 2005 there were some hugely long dry periods of up to 16 years where stream flows were reduced beyond anything seen in recent times. Over the last 100 years there has been a general decline in stream flow. There has also been a major seasonal “shift” of when the most runoff enters the Colorado River. This shift is due to a decrease in the amount of spring snowmelt.

Projections of future water supply in 2060 from the river based on the various paleo-reconstructed models showed mean water flows of 14.7 to 15.0 million acre feet, similar to the current observed mean of 15.0 million acre feet. The study also made some projections based on the general circulation models for climate. These models are developed by the International Program on Climate Change sponsored by the United Nations. These projections were not good. Projected mean flows were around 13.7 million acre feet if temperature increases of between 1.3 and 2.4 degrees Centigrade occur – a decrease of 8.7 % from the current observed mean.

The real problem is not necessarily the amount of water available though, it is the projected future demand for water in the area. The study looked at possible future uses in the Colorado River Basin – population growth, agricultural growth, tribal water right settlements, increased energy production – and also looked at possible increases in future efficiency in water use. You know what efficient water use is – landscaping without grass and other water hungry plants, recycled water like you see at car washes now, low flow toilets, etc. Based on a number of variations in these different factors (for example normal population growth versus rapid population growth) the projected additional water in million acre feet needed from the amount used in the Basin area today ranged from 1 % to 3 %. But we’re talking total water use here, not just the water supply from the Colorado River. Some of those increases are going to come from other sources, mostly in Colorado and California.

Expected increased needs from the Colorado River are due mostly to increased population and industrial growth. The study anticipates municipal and industrial demands from the river will grow from the 3.4 – 3.5 million acre feet today to 4.5 – 6.2 million acre feet by 2060. The study projects another 3.2 million acre feet of water above the river’s projected mean annual flow will be needed by 2060. This is what water supply managers call an imbalance. There have been occasional imbalances of this magnitude in the past, but as you’ve learned, the reservoirs made up the deficiency. A prolonged imbalance will mean less water available to store in those reservoirs. The future doesn’t look bright for maintaining water supply in the Colorado River Basin without some big changes either in development of new water sources, like desalination of ocean water and importing water from other rivers in the U.S. through pipelines and via ocean going tankers, or massive water conservation and watershed management projects. In the end, the Colorado River becomes even less of a river and more of just a conduit for water supply. How far upstream will the trickle come to a stop?

Water Usage

Environmental Impacts of Removing Dams

December 23, 2015 Waterblogger Leave a comment

For years I followed the Klamath Dam removal proposal. The Klamath River flows from Oregon through California, cuts through the Cascade Mountains, and empties into the Pacific. The dams on the Klamath are a classic case of a bunch of old dams (built as a result of Congress’s authorization of the Reclamation Act of 1902) making an unnatural mess both environmentally and economically. It is probably where the term “farmers versus fish” comes from. Building hydroelectric dams with reservoirs on the Klamath River provided irrigation water and cheap electricity for farmers. However it decimated the fish population. Enforcement of the Endangered Species Act (authorized by Congress in 1973) required dam operators to release a minimum flow of water from the dam reservoir to protect three different endangered fish downstream, including the Coho Salmon. There was a big uproar during the first decade of the 21^st century when drought in the Klamath River Basin resulted in a cutoff of water for irrigation to farmers in order to protect the endangered fish (fish 1, farmers 0). Then there was an Administration change in the White House and the minimum water flows from the dam reservoir sustaining the endangered fish were reduced and more water was released for irrigation purposes (fish 0, farmers 1). Reduction of minimum flows led to a huge fish kill of Coho Salmon and restrictions on salmon fishing in the Pacific Ocean. In all cases people were ticked. Farmers were ticked, fishermen were ticked, native tribes who depend on fish for subsistence living were ticked, environmentalist were ticked.

Then the electric company who operated the dams decided that providing hydroelectric power from the Klamath dams wasn’t very economic. From what I recall, the electric company wanted to raise electric rates by about a 1000 percent. As you can imagine, that didn’t go well for the company at all. Then re-licensing of the dams came up, and the company decided the dams weren’t worth operating anymore. So, this all led to a proposal to remove the dams. There was a whole lot of uproar about that too. But interested parties, meaning the states of California and Oregon, native tribes and the electric company came to an Agreement in 2010 to seek removal of the dams. Unfortunately, nobody wanted to pay for the dam removal. I think there was some federal legislation proposed around 2014, but the estimated costs were pretty astronomical and the legislation has gone nowhere. If it ever gets passed, it will be the largest dam removal project in the United States. And it will give us the results of what the environmental impacts of a dam removal to a major river system will be.

Right now we don’t have the answers to what the actual environmental impacts of dam removal are. There are studies of course, which outline what scientists believe will happen. But the actual studies of what really happens after dam removal are pretty limited. There are a number of dams around the country which have been removed, but up until the last ten years no one has been studying the effects of dam removal on changes in sediment transport and stream morphology or changes in plant and fish communities. For instance, there’s a dam removal program in Massachusetts. I’ve heard a number of talks at restoration conferences about efforts to restore streams in Massachusetts. Massachusetts has been highly populated by non-native people for quite awhile. They are the Plymouth Rock folks who came over on the Mayflower. Once these non-native people arrived, they started damming streams and rivers up – mostly for mills; first flour mills then textile mills. They have some 3000 dams in the state, many built between the 17^th and 19^th century. Can you imagine? Many of these dams are not even functioning for any purpose, but they are still there mucking up fish habitat and natural stream functions.

Massachusetts has an aggressive dam removal program, but if you go to look for reports on the impacts after the dam is removed, you will not find any. You’ll find feasibility studies for the removal of a dam, you’ll find studies of the contaminated sediments existing in many of the dams in the industrial areas in eastern Massachusetts, and you’ll even find records of community input to dam removal. But I’ve yet to find a report documenting changes to a stream or river after a dam was removed in Massachusetts. There’s probably a reason why. It cost money to study a stream or river system after the dam is removed. Also everybody thinks dam removal will restore natural stream functions, so why bother to study the actual results. The lack of information on the impacts of dam removal has been so great, that the Gulf of Maine Council on the Marine Environment put together a document in 2007 outlining procedures for monitoring the outcome of dam removal. It is entitled “Stream Barrier Removal Monitoring Guide” (http://www.gulfofmaine.org/streambarrierremoval/). Massachusetts is one of the American states whose river systems empty into the Gulf of Maine. The Council cited lack of post dam removal monitoring data nationwide as a reason for establishing monitoring procedures. It has been the “hue and cry” of restoration specialists everywhere that there is money for restoration but no money for monitoring the results of restoration to see whether the efforts have succeeded and to what extent.

The Council’s guide is a pretty good one, especially when examining the hydrological impacts of dam removal. The guide’s monitoring parameters include such items as establishing monumented crossections downstream of the dam, conducting longitudinal profiles of the stream, and determining sediment grain size distribution. Cross sectional profiles will document how the stream banks and channel width adjusts to post dam removal flows and the increases in sediment being transported by those flows. The longitudinal profiles along the length of the stream will show how the channel slope is adjusting to the dam removal and what natural stream characteristics like pools and multiple channels are being created. And sediment grain size distribution studies will help determine whether you are getting more fine sediment in the channel and whether the newly free flowing stream has the power to move coarser sediment further downstream. These are all terrific ways to tell if your stream or river system is righting itself to pre-dam conditions.

The only full studies I have ever seen of post dam restoration are from the Elwha Dam removal in Washington State. Actually there were two dams on the Elwha River – the Elwha Dam and the Glines Canyon dam. The dams were built back during the dam building heydays of the early 1900’s. The Elwha River flows north out of the Olympic Mountains into the Strait of Juan de Fuca. It’s outlet into the straits is just a little west of the town of Port Angeles, which I like to think of as the gateway town to Olympic National Park, but other people know it better for its ferry service to Victoria, British Columbia. The two dams sat right in the Olympic National Park and the Park Service has lots of great photos of the dams and the dams being removed (http://www.nps.gov/olym/learn/nature/elwha-ecosystem-restoration.htm.) The dam removal began back in late 2011 so they are gone now. Several years worth of post dam removal data has been collected. I pulled out some recent papers on the results. They are actually quite phenomenal. Probably the best one was published in 2015 in the journal Geomorphology. Geomorphology for all of you non-scientists is the study of landforms and how they developed. It was one of the first geology classes I ever took and it is a fascinating subject. You get to examine all sorts of topographical and geologic maps, aerial photos and satellite images. So the paper (referenced below) was on coastal geomorphic changes as a result of the dam removal.

First of all, the Elwha is a short river. It is less than fifty miles long. Coming off the north face of the Olympic Range, its vertical profile (as you can imagine) is quite steep. Studying such a steep river by conducting the kind of longitudinal, cross sectional, and grain size studies downstream of the dam, which are recommended in the “Stream Barrier Removal Monitoring Guide” referenced above, would be seriously hard and probably of little use. But studying the output of the river to its delta in the Strait of Juan de Fuca will tell you a lot. Beaches and land on the strait near Port Angeles have been eroding for some time. The dams have been storing up all the sediment coming off the north slope of the Olympic Mountains in the Elwha River Basin and robbing the shoreline. The study states there was 20 million cubic meters of mud, sand and gravel stored in the reservoirs behind the two dams. The study further estimated, based on the accumulation of sediment in the reservoirs, 240,000 cubic meters of sediment a year was prevented from being carried down the Elwha River to the delta and shoreline. This is a lot of sediment. The delta and beaches were essentially being starved and the constant erosion by tidal currents and waves was taking its toll on the shoreline.

During the first year of dam removal the researchers measured 113,900 cubic meters of new sediment deposition on the delta, beaches and seafloor. This is five times what was being deposited before dam removal. In addition, the researchers measured changes to the delta found at the mouth of the river. They found the delta had increased in size by 100 meters. During the second year, researcher measured 2,221,000 cubic meters of new sediment deposited on the delta, beaches and sea floor. This increased sediment accumulation and extended the delta at the river outlet another 200 meters offshore. Shorelines east of the river mouth were measured to have extended an average of 40 meters into the strait. With all this new sediment, researchers saw some big changes on the sea floor. Before dam removal the seafloor was rocky, because no fine sediments from the river were entering the strait. The rocky seafloor supported a lot of different kelp species. With the increase in sediment, the kelp population is decreasing. The researchers reported the area was moving toward a river dominated geomorphology, just as it was nearly a hundred years before the dam was built. So, it looks like in the case of the Elwha River, natural processes are being restored once a dam has been removed.

Here’s the full reference for the Elwha Dam Removal: “Large Scale dam removal on the Elwha River, Washington, USA: Coastal Geomorphic Change”, Guy Gelfenbaum, Andrew Stevens, Ian Miller, Jonathan Warrick, Andrea Ogston, Emily Eidam, Geomorphology, Vol 246 (2015), pp. 649-668.

Water Usage

Dams and their Impacts on Rivers and Streams

December 8, 2015 Waterblogger Leave a comment

There’s a large body of scientific work going back several decades on the impacts of dams to rivers and streams. Scientists have looked at dams all over the United States to determine what the impacts are both downstream and upstream of the dam. Upstream effects seem pretty similar, but downstream impacts are variable depending on what the dam is operated for and how the dam is managed. For example if the dam is used for hydroelectric generation there is a regular release of water depending on when electric power is needed to feed the overall electric grid. Oftentimes that electric generation is needed during peak daytime hours and not needed so much at night. Sometimes the power is needed more in the summer to supply electricity for all the air conditioners running out there and needed less in the winter. If the dam is being operated for water supply, flood control or recreation, then there may be state to state contracts or other management controls on how much water has to be released on a daily basis to provide water for downstream users. The water releases in these circumstances can be more controlled by the dam managers. They can release it continuously or they can release it intermittently. It depends on what the management controls are. Do they need to provide water for downstream fish habitat? Do they need to supply a certain number of acre/feet of water downstream for irrigation? Do they need to provide freeboard in the reservoir to avoid destructive flooding? Controlled releases are kind of a new game in dam management. In the heyday of dam building in the early 20^th century, there certainly was no thought of controlled releases or providing sufficient water downstream. It took the Endangered Species Act and a bunch of ticked off water users with an army of lawyers to put management controls in place.

It has been a long time since a new major dam was built in the United States. I suspect any new dam wouldn’t make it through a review under the National Environmental Policy Act (NEPA). But when most dams were built, there was no NEPA. There are a lot of dams. A statistic from the U.S. Geological Survey claims there are 75,000 dams over six feet high in the United States. The high dams like Glen Canyon Dam and Hoover Dam on the Colorado River have big reservoirs behind them. When the dams were first built, it took a while for those reservoirs of water to fill up and form the giant artificial lakes which exist today. What happens to those reservoirs is kind of interesting and is a big impact to both the upstream reservoir and the downstream river. The reservoir starts filling up with sediment. Essentially a river gets to the reservoir and drops its load of sand, silt and clay. After so many years, the reservoir fills up. There are a couple of problems with this. Oh for heaven’s sake, there are tons of problems with this.

Number one, the sediment accumulating in the reservoirs is not always very nice. Some of it is contaminated from past industrial practices which released water with contaminants upstream of the dam. Sometimes the sediment entering the reservoir is full of naturally eroded minerals from upstream areas with lots of metals and this results in an accumulation of toxic metals in the reservoir. And reservoirs can be full of agricultural runoff with loads of phosphate and nitrogen. The reservoir accumulates all these contaminants and it results in a great big mess of nasty sediment at the bottom. If you wanted to remove a dam as many environmental advocates propose, you might have to deal with the release of reservoir sediment as a potential source of toxins to fish and other wildlife downstream. Good grief.

Water released out of a dam and flowing downstream is free of sediment. It’s nice clear water. It comes right out of the gates or spillways on a dam like spring water; sometimes just as cold. The big problem with water rushing out of a dam clear and free of sediment and with big gaps between flows is that it is unnatural and what happens as a result is unnatural. A lot depends of course on how the dam is managed but typically the released water starts undercutting rivers banks immediately downstream and scouring the riverbed.

In some southern rivers the river downstream of a dam begins to look like a big muddy mess with highly eroded concave banks where trees actually are perched out on a shelf over the river. Once the river reaches the coastal areas and sea level, the velocity of the water flow slows down and it spreads out into the wetlands where all that new sediment drops out, essentially choking up the marshland.

If it’s a western river, water released from a dam starts scouring the downstream river bed and removing sediment in the form of sandbars. Some people describe it as armoring the river bed. Essentially the released water removes all the sand and silt downstream, leaving nothing but gravel, cobbles and bedrock. The only thing that can move the gravel and cobbles is a good flood and guess what? A dam controlled river rarely floods.

In the north and Midwest, rivers are so frequently dammed in series with numerous reservoirs joined by short stretches of river channel that practically no sediment makes it down the river. As a result, downstream beaches on shorelines become starved of new sand. Or in the overpopulated and overdeveloped east coast, the dam retention of sediment offsets the huge amount of eroded material coming in downstream from cities and agricultural lands. On some rivers in the east if the dams weren’t there, all the extra sediment now in reservoirs would be clogging up estuaries and creating excessive need for dredging in ports and navigable waterways.

Probably one of the more interesting questions about the sediment in the reservoirs behind dams is: What happens when the reservoir fills up with sediment? A lot of dams on rivers in the United States were built in the early 1900s. They have been accumulating sediment for a long time. You’d think some of them would be almost full by now, wouldn’t you? Well it just happens some of them are. Take for example the dams on the Susquehanna River. The Susquehanna River is a huge river. It is one of the largest rivers in the United States and flows about 450 miles through New York, Pennsylvania, and into Maryland’s Chesapeake Bay. There are three dams on the lower Susquehanna River. The last dam on the Susquehanna River is the Conowingo Dam about 10 miles upstream from the River’s entry into the Chesapeake Bay. It was commissioned in 1928. This dam is almost 90 years old. It has been collecting sediment for a long time.

Back in 2011, a very big storm passed over this part of the country. It was called Tropical Storm Lee. If you passed over the Chesapeake Bay Bridge anytime in the immediate weeks following that storm, you would have seen a big muddy mess with trees and garbage floating down the bay. A lot of the muddy mess was caused by sediments out of the Conowingo Dam. The Geological Survey did a great study after the storm. They have had a stream gauge at the Conowingo Dam for almost 50 years. The gauge measures water volume flowing through the Susquehanna at the dam. In the last 30 years measurements for nitrogen, phosphorous and suspended sediment also have been taken. The Geological Survey said the discharge at their stream gauge after Tropical Storm Lee was the second largest maximum daily flow in the history of monitoring at the station. Flow is measured in cubic feet per second. So the stream flow on September 9, 2011 was 709,000 cubic feet per second. The only flow higher was during Hurricane Agnes in 1972. Hurricane Agnes is kind of legendary in the Mid-Atlantic States. If you visit Maryland, Virginia and Pennsylvania you will see commemorative signs everywhere about the impacts of the floods during Hurricane Agnes. The National Oceanic and Atmospheric Administration reports 122 people were killed during the Hurricane.

The Geological Surveys report says the reservoirs behind the three dams on the lower Susquehanna are almost full of sediment; they give a calculation of 80 percent. They further say that flood events are creating sediment scour within the reservoir and the sediment now flows downstream when floodwaters are released. This is what happened after Tropical Storm Lee. They also have calculated what flow levels will scour the sediment and send it down the river and into the Chesapeake Bay – 390,000 cubic feet per second. The Geological Survey calls this the “scour threshold”. But they also note as the reservoir continues to fill, the normal surface slope in the reservoir will increase resulting in increased velocity of the water on a day to day basis. Eventually the “scour threshold” will be at a much lower discharge rate than 390,000 cubic feet per second. So people who live along the Chesapeake Bay will be in for more muddy messes flowing through their lovely estuary. Also coming with all those suspended solids will be all the other contaminants that the dam has been holding back. Of greatest concern will be the phosphorous and nitrogen. The Geological Survey pointed to an earlier report from the mid-1990’s which calculated reservoirs were trapping 2 percent of the nitrogen and 40 percent of the phosphorous the Susquehanna River would have otherwise been contributing to the Chesapeake Bay. Bad news for the denizens of the Bay, like Rockfish and blue crab as algal blooms will increase, consume oxygen and result in zones where fish and crustacean cannot survive. Here’s a link to the Geological Survey’s great report: http://pubs.usgs.gov/sir/2012/5185/pdf/sir2012-5185-508.pdf

Water Usage

Dams and their Impacts on Wetlands

November 2, 2015 Waterblogger Leave a comment

In my post on the Clean Water Rule and floodplain wetlands, I mentioned floodplain wetlands had been reduced so much after hurricane Katrina that scientists were concerned about the increased risk of flooding from future storms. I didn’t have time while I was writing the post to do a fact check on how much of the wetlands in Louisiana had been impacted, but I decided to follow-up just for my own information. I sat through a presentation by U.S. Geological Survey scientists twice on this subject, so I went looking to see if I could find the information on their website. I was amazed to find the very PowerPoint presentation I’d seen some eight years ago now. It was produced by the Geological Survey’s Wetlands Research Center and the Louisiana Coastal Area Land Change Study Group. It provides a close look at land loss after the hurricane in comparison to land loss before the hurricane. They used satellite images to make their determination. I also found their final report on the subject: “Land Area Changes in Coastal Louisiana after Hurricanes Katrina and Rita.” (Here’s a link:http://pubs.usgs.gov/circ/1306/pdf/c1306_ch5_b.pdf). Bet you forgot about Rita, but yes there were two very destructive hurricanes affecting the Gulf Coast in 2005. The final report put the loss of wetlands from the two storms at a total of 217 square miles.

That sounds like a lot doesn’t it? But the reports from the Geological Survey put wetland loss from 1956 to 1978 in Louisiana at about 40 square miles a year. That’s an 880 square mile loss over 22 years. The Geological Survey also reports an approximately 35 square mile loss of wetlands per year from 1978 to 1990 for a 12 year loss of 420 square miles. Of course all these losses took years not hours to occur, but what is the reason for such incredible losses of wetlands?

People who are familiar with Louisiana and the great Mississippi River know the answer to that question. The Mississippi River isn’t really a river any more. It’s just a channel conducting water. The same goes for its major tributaries: the Missouri River, the Arkansas River, the Ohio River, and so on. Yes the mighty Mississippi, storied in American history and literature, is an over engineered navigational conduit to get goods from North to South and a pesky source of flooding to landowners along its length. The start of all the troubles began early, even before Mark Twain’s time as a steamboat captain. The steamboats went aground all the time in big piles of snagged trees in the middle of the river and on sandbars. So engineers devised ways to remove those snags and dredge the sand. But the real change for the Mississippi came after the flood of 1927, which was the beginning of the end for the free flowing great water body. I went back to the Army Corps of Engineers documents and also looked around at some of the National Research Council’s reports, but the best document I found on the channelization of the Mississippi came from a compilation report produced by the Geological Survey back in 2012. It is titled: “A Brief History and Summary of the Effects of River Engineering and Dams on the Mississippi River System and Delta.” (Here’s a link to the report: http://http://pubs.usgs.gov/circ/1375/C1375.pdf). I like the Geological Survey’s reports. They are always well written, not like the mumbo jumbo you get out of some federal science agencies.

The report says that in 1927 about 43,500 square miles of land in 7 states was flooded and 246 people were killed. The flood of 1927 was kind of a legendary flood but most people today have never heard of it. All sorts of historic events are claimed to be a result of the flood, including the great migration of displaced African Americans from the Mississippi delta to northern cities and the election of Herbert Hoover as president of the United States based on his oversight of the flood relief efforts. (Presidents Hoover and Carter are the only engineers ever elected president). Basically a plan was implemented starting in 1929 to straighten out this flooding problem. And I do mean straighten out. Rivers are big complex bodies of water. They don’t have one channel, they have multiple channels. They meander over their floodplain. The basic mechanism creating meanders is high velocity water undercutting a river bank then depositing the sediment downstream on a bank on the other side of the river where the velocity of the water is lower. A program of cutoffs was instituted to reduce the number of channels and to cutoff large meanders. This program literally shortened the river. The lower Mississippi river lost some 145 miles as a result of this program. Then revetments were added to the banks of the Mississippi. Don’t know what a revetment is? They are essentially concrete mats that cover the entire bank of a river all the way to where it joins the submerged river bed. Rip rap is also used. Back when the engineers were first seeking to control the river, they used a lot of rock and matting. The idea is to stop bank erosion and keep the river from migrating.

There were already levees before the time of the 1927 flood. Now there are miles of levees. You probably remember seeing them on television during the Katrina hurricane coverage. They are tall, wide compacted, earthen dam like structures that parallel a river. The Geological Survey says there are 3500 miles of levees just in the lower part of the Mississippi River Basin. There are levees everywhere in Louisiana on the banks of the Mississippi. In New Orleans you can stand on the ground in some areas and see the levees towering overhead with the river at the crest of the levee and a cargo boat steaming by above you. The levees are there to keep the river from flowing into its’ floodplain when water in the river is high. They also starve the floodplain of sediment and nutrients.

The other types of engineering control you’ll find on the Mississippi River are floodways and dikes. You’ll see floodways in New Orleans and other towns on the Mississippi River. They are there to redirect flood waters from the river away from a city into an area that is not quite as populated. They are big structures and the lower Mississippi in Louisiana has three really large ones. Dikes are just like the dikes you see sticking out into the ocean when you go to the beach, but on rivers they are usually protruding at an angle from the river bank. The purpose of the dikes is to direct the strong currents away from the bank to prevent erosion and meandering. What results is a strong current right down the middle of the river which scours out the river bed sediments and actually makes the river deeper.

One thing you won’t see on the Mississippi River thank goodness is a dam, at least in the lower part of the river. The upper Mississippi has a series of navigational locks and dams starting around Minneapolis that extend down to the Missouri River. All the main tributaries to the Mississippi have dams though. The Missouri river has six big ones. The Missouri River is essentially a system of reservoirs interspersed with channels. Again the dams provide flood control, but the big thing they prevent is sediment moving down into the Mississippi River. The Geological Survey says that the dams on the Missouri River have resulted in an enormous amount of sediment from reaching the Mississippi River and subsequently the floodplain wetlands in Louisiana. I didn’t realize that the Missouri River was the greatest contributor of sediment to the Mississippi from any of its tributaries. The Missouri drains the Great Plains and includes flow from the Arkansas and Red River Basins. Due to the semi-arid environment and lack of vegetative cover to stabilize soils, there is a lot of erosion. You would think with the dry climate there wouldn’t be a lot of transport of the sediment, but apparently rains during the fall are sufficient to wash those sediments into the Mississippi. Or at least that’s what used to happen. Now with all those dams, the sediment is just sitting there filling up the reservoir behind the dam and starving the downstream wetlands.

The Geological Survey report says that only about 40 % of the sediment that used to be transported by the Mississippi River makes its way to the Louisiana coast now. No wonder there is such a big loss of wetlands. Add in all those levees in south Louisiana preventing the river from connecting with the floodplain wetlands and you get essentially what I would call an ecological disaster in the making. Here’s something even worse though, although the Missouri River provides the lion share of sediment to the Mississippi River, it only contributes about 12 percent of the water. Half of the water going into the Mississippi comes from the Ohio River. Well of course, there is a lot more rain in Ohio, Illinois, Indiana, Kentucky, Pennsylvania and West Virginia through which the Ohio River flows than the states through which the poor old Missouri River flows (Montana, South and North Dakota, Nebraska, Kansas and Missouri). But you know what exists along the Ohio River – lots of farms with soybeans and corn and lots of farms with cows and pigs and other animals. What with all the fertilizer and manure runoff, the Ohio is the largest contributor of nitrogen to the Mississippi River. If you have been reading my posts on the Clean Water Rule, you will know that wetlands are a great means of removing nitrogen from water. You disconnect the river from the floodplain and wetlands and all that nitrogen goes down and empties into the Gulf of Mexico. What happens next is famous – the Gulf of Mexico dead zone. All this nitrogen pouring into the Gulf results in a massive growth of phytoplankton which depletes the oxygen in the water and results in fish kills. The Geological Survey report said that in 2002 the dead zone in the Gulf of Mexico was as large as the state of Massachusetts.

So there you have the result of a river not being a river anymore. Dams exist on so many of our major rivers and have forever altered the landscapes downstream. I will be looking at the scientific literature on dams over the next few months and writing about the impacts to water quality and morphology of landforms.

Water Usage

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 4 – Non-Floodplain Wetlands

October 14, 2015 Waterblogger Leave a comment

I am a big hiker. I love to hike and I have hiked all over the United States and much of the world. There is nothing better than taking off with your backpack and a tent and spending days on the trail enjoying nature. It has given me an opportunity to get a close look at many different watersheds and wetlands. One of my husband’s favorite stories about me took place while we were hiking the Coast to Coast trail in northern England. We were picking our way up a hill through a bog, when I stepped on a patch of the bog that was not solid enough to handle my weight and I sank down to my waist. He had to pull me out all dripping wet and dirty. Vertical bog? Yes, it rains constantly in some areas. I have some cities on my smart phone weather app that no matter when I look at them, it is raining there. Maybe it’s not a hard rain, but it just rains and rains. If you want to hike in northern England and Scotland get yourself a good rain suit. You will need it. In these areas the water may runoff a little bit, but much of it just soaks into the soil and vegetative mass and forms bogs. Bogs are non-floodplain wetlands.

Other types of non-floodplain wetlands are also on hillsides. They are called slope wetlands by some people, but I’ve always known them as seeps. I see them when I’m hiking in the mountains all the time. Mostly they are small but I have seen some pretty large ones too. Just this spring I walked over boards through a seep wetland. I must have hiked about a quarter of a mile on those boards. Seeps are groundwater fed and are usually found at slope breaks, at the contact of two geological formations, or where the water table is really high.

I’ve also worked in many remote areas of the United States and around the world. I worked in South and North Dakota for awhile. While I was there I got an opportunity to drive through some of the prairie pothole areas in North Dakota and get out and take a look. It is a fascinating continental glacial terrain. Apparently those continental glaciers were huge. In places geologist estimate continental glaciers were several miles thick. That’s a lot of ice. And a lot is going on with those continental glaciers. They move, although very slowly. They are grinding up the countryside underneath them and pushing it in front of them. They have channels of water running through them and on top of them. They spread out and then retreat leaving frozen blocks of ice behind in unsorted glacial silt, sand and gravel. The continental glaciers that covered large parts of the northern mid-west left an interesting terrain. There are broad mounds of glacial gumbo called moraines that run for miles. There are long sinuous ridges of well sorted glacial sands and gravels called eskers. There are symmetric and asymmetric depressions containing water called kettles. And the whole area is covered by several hundred feet of poorly draining glacial till. Many of these glacial terrains are characterized by non-floodplain wetlands, including what are called prairie potholes.

There are a lot of different kinds of non floodplain wetlands and EPA describes them in laborious detail in their report “Connectivity of Streams and Wetlands to Downstream Waters.” They describe non-floodplain wetlands which are simply topographic depressions and may or may not have surface water inlets or outlets, such as: kettles, potholes, vernal pools, playa lakes and Carolina bays. They describe a host of slope or seep wetlands including something called a fen. I actually had to look this one up in the dictionary. Fens are kind of like bogs but not as acidic so they support a lot of diverse vegetation. And further, EPA describes mineral soil flat wetlands which include relic lake bottoms, peat bogs, and the like. In other words there are a ton of different kinds of non-floodplain wetlands.

In my last post I discussed the findings of the Environmental Protection Agency’s (EPA) scientific assessment of the connection of floodplain wetlands to downstream waters. Today’s post looks at the connection between non-floodplain wetlands and downstream waters. This is the fourth in a series of posts which review the EPA’s report: “Connectivity of Streams and Wetlands to Downstream Waters.” EPA’s report is an assessment of the scientific literature published in peer review journals which present research on interactions within watersheds that affect “waters of the United States.” The report is the scientific support for the Clean Water Rule. If you have read the other posts in this series, you will know the Clean Water Rule, which was issued in the summer of 2015, defines “waters of the United States” under the Clean Water Act. The Clean Water Act allows regulation of the “waters of the United States” but never wholly defines it. As a result there have been various interpretations by regulators on what is covered as “waters of the United States”, which in turn have caused a lot of surprise for a few people who have filled in wetland areas and then received federal violations under the Clean Water Act. Some of these surprises have ended up in the legal system and a few over the years have wound their way up to the Supreme Court. The Court has not been in the mood to define “waters of the United States” and why should they? It is really not their job. So EPA who has the responsibility for writing regulation and rules under the Clean Water Act took on the challenge.

EPA’s report “Connectivity of Streams and Wetlands to Downstream Waters” looks at the physical, chemical and biological connection of streams, floodplain wetlands and non-floodplain wetlands to determine if there is a “significant nexus” to downstream waters of the United States. “Significant nexus” are the words the Supreme Court used to tell EPA a connection must be established between wetlands and a river if wetlands are to be regulated as waters of the United States under the Clean Water Act. Establishing a clear connection between the hugely different and diverse types of non-floodplain wetlands to downstream waters using the scientific literature was probably EPA’s Waterloo for the Clean Water Rule. As the report describes it, in the case of non-floodplain wetlands, there can be a range of connectivity. The connection can be permanent, but it can also be occasional or rare. The connection can be by channels intersecting the wetlands and downstream waters or through groundwater flow. Sometimes the wetlands are connected to downstream waters only through connection to other wetlands. And sometimes non-floodplain wetlands are completely isolated and have no connection to downstream waters.

But where there are connections, even when the connection is only occasional or rare, the connection can have a significant impact to downstream waters. EPA cited one study in Maine that showed non-floodplain seep wetlands were providing 40 to 80 percent of baseflow in downstream waters. Another study EPA cites is on vernal pools in California. Vernal pools are usually dry; they only fill up during heavy rain months or when there is a lot of snowmelt. The study showed that water from the pools spilled into downstream channels 60 percent of the time water filled the vernal pools. A study of Carolina bays showed there were intermittent seasonal surface water connections to streams when water tables were high in the spring and fall. A study of depressional wetlands on the Texas Gulf coast showed there were connections to downstream waterways through surface runoff. There’s even a study showing prairie potholes can be connected temporarily to other potholes through surface water flow during really wet years.

Similar to floodplain wetlands, non-floodplain wetlands help reduce flooding in downstream rivers and streams. Surface flow from snowmelt or large rain events is caught and “stored” by non-floodplain wetlands, but not in all cases. EPA cites several studies where non-floodplain wetlands in permafrost areas and seep wetlands provide no storage of water. And even where non-floodplain wetlands are directly connected to downstream waters if the wetland is already saturated, then there is no ability for it to retain further moisture and reduce downstream flooding.

And just like floodplain wetlands, non-floodplain wetlands have the ability to remove and transform nitrogen and phosphorus. Even if the non-floodplain wetland is not connected to downstream waters, the vegetation in wetlands are busy slurping up nutrients for growth and energy, micro flora and fauna are breaking down organic material, and sediment from surrounding areas is piling up. If the non-floodplain wetland is connected to downstream waters than all the same benefits provided by floodplain wetlands in reducing nitrogen and phosphorous runoff into streams and rivers applies. If the non-floodplain wetland isn’t connected to downstream rivers and streams, well guess what, the benefit is still there. Non-floodplain wetlands are reducing overland run-off, full of nitrogen and phosphorous, which would eventually end up in rivers and stream. EPA cited one very interesting study that found some depressional wetlands absorbed two times as much phosphorous as floodplain wetlands.

And what are the bugs and frogs up to? All sorts of flying insects that you find in floodplain wetlands are breeding in the non-floodplain wetlands too: mayflies, caddisflies, diving beetles, backswimmers, whirligig beetles, waterstriders, waterboatmen, crane flies and midges. If you are a fly fisherman you probably know these bugs. So unconnected wetlands are still providing food for fish. EPA says the use of frogs of non-floodplain wetlands and their connection to populations of frogs downstream is well documented in the scientific literature. Also apparently is the connection for alligators. I guess if you fly or hop or crawl or walk, you don’t have to worry about a triviality like running water.

In the end EPA made some observations based on their findings about non-floodplain wetlands and I would like to quote them but in the interest of brevity, for which most scientists are not famous, I’m going to summarize it. Basically non-floodplain wetlands (as we’ve seen in this post) are extremely diverse and even if you think a wetland is isolated it might not be (just because it looks that way on a map or satellite image doesn’t mean it is isolated if data quality of the image isn’t good or if the view is obscured by vegetation); and some non-floodplain wetland complexes could have a connection to downstream waters through channels even if individual non floodplain wetlands within the complex are isolated. So to wrap it up, EPA kind of said: it’s complicated.

And unfortunately it is complicated. In college I was taught about the hydrosphere and the hydrologic cycle. Water precipitates from the sky, it falls on the ground, and it runs off into wetlands, streams and rivers which in turn run into the ocean. Or rainwater soaks into the earth and becomes groundwater which is stored in an aquifer or moves slowly through the rock and discharges into a seep or a stream or a river. Water evaporates from wetlands, streams, rivers and oceans and form clouds. Then it starts all over again as it rains once more. So loosely, you might say every drop of water connects with every other drop of water in some way. Trying to disconnect all that water through defining the “waters of the United States” is obviously a challenge.

Just an update for those of you who have been following the legal battle on the Clean Water Rule. Last week on October 9, 2015, the Sixth Circuit Court of Appeals in Cincinnati, Ohio issued a nationwide stay in the implementation of the Clean Water Rule. You may remember the Clean Water Rule was effective back on August 28, 2015 and that a North Dakota Court similarly blocked implementation of the Rule almost immediately afterward. This earlier injunction was only applied to the 13 states that were plaintiffs in that case. So 18 other states petitioned the Sixth Circuit Court of Appeals to block implementation of the Clean Water Rule nationwide while challenges to the Rule wind their way through the legal system. I read the Sixth Court’s decision and was particularly pleased to see the following statement which acknowledges the science and expertise EPA brought to the task of writing the Clean Water Rule:

“Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule. See Rapanos, 547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121(1985). In one sense, the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

Water Usage

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 3 – Floodplain Wetlands

October 7, 2015 Waterblogger Leave a comment

Picture if you will, a river flowing through the countryside with farms and forests alongside its banks. Imagine you are on a boat floating down that river. Look as you pass the tributaries coming into the river. See cows and barns in the distance. Notice the erosion along the banks of the river. See shallow waters lapping along sandbars and mudflats which sometimes trail along the sides of the banks. Pass a tangle of forest with bushes and vines and trees overhanging the river. Notice the banks tapering away and a marsh with reeds appearing. Watch as another forest comes into view, this time with trees standing in shallow water then gradually transitioning into trees standing in mud left behind from when the river was higher, maybe back in the spring when there was a flood. Pass back into the sunlight as the bank rises again and more farmland appears.

Then imagine what the same landscape looks like from overhead as if you were floating by in a hot air balloon. Acres and acres of land are set out below you, with a long and wide sinuous river wandering through it. You see the square plots of farmland and the little dots of farm buildings. You can’t see the cows from up here. Look at all the forests and swamps along the banks of the river stretching far into the farmland. You can see all the vast network of tributaries entering the river. You can see some of them entering directly into the river. Others go into and wind through the marsh before flowing into the river. Sail over state forest land running for miles along and away from the river, disappearing into the horizon. What you are looking at from up here in the hot air balloon is the watershed of the river. You may not see all of it, because it is a big river with no other large water body in sight. But up here, you can see the tributaries all branching off of the river which means all the water in the area is going into the river. That is a simple way hydrologist often define watershed: it is an area where all the surface water is flowing into the same place; in our case here – a river. Water washes off the forest land, it washes off the farm, it enters a tributary, and it goes out into the river. Watersheds can be large or small. In fact, the U.S. Geological Survey has coded them by size in their system of Hydrologic Units that covers the United States. Marshes and forested wetlands are an integral part of the watershed.

The Environmental Protection Agency’s (EPA) January 2015 report “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” looks closely at wetland features adjacent to rivers in order to determine if they have a “significant nexus” to the chemical, physical or biological integrity of downstream waters of the United States. “Significant nexus” are the words the Supreme Court used to tell EPA a connection must be established between wetlands and a river if wetlands are to be regulated as waters of the United States under the Clean Water Act. The Supreme Court has taken up a number of cases over the last fifteen years where plaintiffs have sued the United States because of federal Clean Water Act violations they received for filling in wetlands. Dredge and fill regulations under the Clean Water Act are actually handled by the Army Corps of Engineers not the EPA. But EPA is largely responsible for writing the rules and regulations under the Clean Water Act. So the EPA took on the challenge that the Supreme Court gave them and issued what the EPA calls the Clean Water Rule. The Rule seeks to define the waters of the United States. In order to write the Rule, EPA prepared a scientific report containing the summation of their review of thousands of research papers by scientists in many different fields of study from hydrology to biology who have examined and researched watersheds all over the world.

Today’s post reviews the section of EPA’s report examining wetlands adjacent to a river; the ones we have seen in our boat trip and our cruise in the hot air balloon. These adjacent floodplains can be permanent low lying wetlands or temporary wetlands during a flood. Wetlands, which we often refer to as marshes or swamps, and found in the floodplain of a river or stream, are called riverine wetlands. Some people call them riparian wetlands. And although they can be reed filled or filled with scrub and shrub, they are mostly known for supporting forested wetlands (often called forested swamps). These types of wetlands have been studied endlessly for a long time. There is a huge body of scientific work that documents them. There is even a classification system for them. What EPA was looking for, in this large body of research dating back to the 1960’s, was data that shows the connection of riverine wetlands to their rivers. You would think, just by them being called riverine wetlands, they would have a connection to the river, wouldn’t you? But EPA needed to document the physical, chemical and biological connection in order to write their Clean Water Rule.

One of the chief things that EPA set out to document was the hydrologic connection between the wetlands and the river. Many of these wetlands are inundated during flooding. As you can imagine, a scientist could probably find a lot of grant money for this type of research. People are interested in floods; generally because they don’t want them. The slowing of flood waters downstream by riverine wetlands is well documented in the scientific literature. Water during a flood goes over the river bank into the floodplain wetlands. The wetland hangs on to that water and keeps areas downstream from flooding worse than if the wetland didn’t exist. In fact, that was the big talk after Hurricane Katrina. Scientists determined that floodplain wetlands had been reduced so much in Louisiana that they no longer had the ability to moderate flooding. One of the big projects going on right now in Louisiana is the attempt to restore the floodplain wetlands. Scientists can approximately calculate the floodwater that can be stored in a riverine wetland based on the number of acres and so forth. Once the flood stops, water in the wetlands can flow back through the soils and through channels into the river. It is kind of a two way street. Water goes in and water comes out.

Water in watersheds doesn’t move just through channelized bodies, there is a lot of overland flow moving into the whole watershed system. Some of this flow can come off of farmland in the case of our watershed, or in a less attractive and more urban environment it can come off of city streets and other paved surfaces. The great thing about floodplain wetlands is that they serve as a kind of buffer for the deposit of sediments from agricultural lands. EPA cites one study that showed wetlands were removing greater than 80 percent of sediments leaving agricultural fields in North Carolina. That kind of removal really helps streams from being overwhelmed with sediment. Of course we know that rivers overtopping their banks can bring a lot of sediment out of the river during a flood and deposit it in the wetlands and other areas adjacent to the river. I think we’ve all studied, at some point in our elementary school education, the River Nile and how thousands of years ago flooding which deposited sediments in the land adjacent to the river made the Nile valley a hugely fertile agricultural area and gave birth to a major civilization. Or maybe people don’t study that in school anymore.

A major connection EPA documents in their report is the influence floodplain wetlands have on nutrients entering a watershed. The big three nutrients in water are nitrogen, carbon and phosphorous. All three are needed for a healthy biologic community, but when they get out of whack in a river system, it can create problems with oxygen levels and result in fish kills and unhealthy streams. EPA cites recent studies looking at how riverine wetlands adsorb these nutrients in organic matter and sediments, how they are taken up by the living vegetation and animals in the wetland, and how they are transformed into other compounds by microbes that live in the wetlands. All of these processes reduce the amount of nutrients entering a river system. So wetlands provide a useful service to improve water quality. EPA’s report cited a recent study in which scientists calculated that three fourths of the nitrates in runoff from Maryland agricultural fields are removed by forested wetlands. Another study was cited that showed forested wetlands in Georgia removed 65 percent of nitrogen and 30 percent of phosphorous from nearby agricultural fields. These wetlands are providing a significant service in the health of our river systems.

Another service riverine wetlands are providing to the river system is the input of carbon to the food chain for the vast amount of biological life living in the watershed. You know carbon. We are carbon based life forms on this planet, including the plants and the trees. Carbon is a major nutrient. Lots of carbon forms in floodplain areas where algae and microorganisms enjoy the huge supply and multiply unchecked. They in turn are a great source of food for wetland biologic communities like insects, who are then eaten by fish, frogs and the like. These wetland sources of carbon also flow from the wetland into a river and are a source of nutrition for downstream bugs.

EPA also looked at biological connections in their scientific assessment. What and who lives in floodplain wetlands and what connection do they have to the adjacent rivers and streams. One thing that we noted on our earlier tour of the riverine environment is the diverse aquatic vegetation. There are also microscopic plants living in the wetlands too – all sorts of phytoplankton. Both types of plants move from wetland to river system and beyond. Seeds are transported out of wetlands and move downstream to seed other areas. Phytoplankton move easily with the water into and out of the floodplain areas.

Insects, crayfish and mollusks are all living in the wetlands too as well as microscopic invertebrates – zooplankton like copepods. EPA looked at studies during their assessment which showed that the greater the connection between a river and a floodplain wetland, the greater the abundance of invertebrates. You might not care, but the fish and the frogs sure do. Even just periodic flooding allows dormant eggs of some invertebrates laid in floodplain areas to hatch, providing ongoing populations of those invertebrates. Flying insects such as katydids and their fellow fish snacks are more prevalent in a watershed when there are floodplain wetlands. You probably don’t care to know the scientific research, since you have probably experienced the increased numbers of flying insects yourself whenever you have been near a wetland. But just to let you know, there are people who set out sample trays in wetlands to count the vast hordes of the bugs living and breeding there.

All these great sources of food for fish and animals are just one way the floodplain wetlands benefit river systems. Fish and mammals regularly commute between rivers and wetlands. EPA cites numerous studies of fish movement between both environments in their hunt for food, their need for breeding and rearing habitat, or just to take refuge when they are having a bad day. And mammals, well they get out of the river and use wetlands too. One study referenced by EPA said otters poop in the wetlands. Really I am not making this up.

EPA says the scientific evidence is strong that there is a physical, chemical and biological connection of rivers to floodplain wetlands even when the wetland is infrequently inundated by water. I think we clearly can see the connection in how a floodplain can store water and reduce flooding, how they can store sediment and nutrients, and how back and forth flow can affect both the river and the wetland and all the critters therein. I think EPA can declare victory on establishing the connection between rivers and riverine wetlands through their assessment of the scientific literature.

My next post on the science report behind the Clean Water Rule will be EPA’s greatest challenge yet: the assessment of the connection between river systems and non-floodplain wetlands.

Water Usage

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 2 – Streams

September 22, 2015 Waterblogger Leave a comment

Have you ever looked at a big river like the Mississippi or the Colorado and admired the beauty of the flowing water, the little eddies around sand banks, the floating logs and leafs, the sight of a fish jumping, the reeds along the banks, and wading birds foraging for frogs and other goodies in the shallow water? There is a certain calmness in looking at a river and all the water making its way to sea. Maybe that is why there are so many songs about rivers. My favorite is “Old Man River” from the musical Showboat. And maybe it is why artists so frequently paint rivers. I think my favorites are all those wonderful paintings of the Thames that Whistler did or maybe it is that beautiful painting by Van Gogh of the Rhone River at night. If you’ve thought these things, you are probably an artistic soul.

Have you ever looked at a big river and wondered where does all that water come from, why are there so many sand banks, how did all those logs make their way into the river and what in the world is going to happen to all those leafs, what kind of fish is that in the river and how did it get there, what kind of reeds are those, and what in the world is the bird eating that is wading around in the reeds? If you have wondered these things, you are probably a scientist and you would love reading the Environmental Protection Agency’s (EPA) January 2015 report entitled: “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.”

The report synthesizes the work of thousands of scientific papers found in the peer reviewed journals where scientific research is published. The report provides a scientific basis for the definition of the “waters of the United States.” The definition was issued as the Clean Water Rule in the summer of 2015. EPA and the Army Corps of Engineers have long been regulating upstream and adjacent waters to rivers as “waters of the United States.” This led to a number of court cases over the years which eventually wound up in the Supreme Court. The Supreme Court told EPA that they needed to find the physical, chemical, and biological connection upstream and adjacent waters had to downstream waters and define the connection clearly so that the Court didn’t have to be continually harassed by plaintiffs seeking relief from violations they’d received from the federal agencies. Well that’s not exactly what they said but it is the boiled down version.

Today’s post reviews the part of the report covering the connection of streams to rivers. Yes I know that sounds silly. We learned in elementary school that streams are connected to rivers or other water bodies like lakes (even in the desert, streams connect to playa lakes). Look at a map. All the little blue lines indicating water are connected to other larger blue lines. We know them from geography class as tributaries. Who hasn’t walked along a stream and found another little stream coming into it? Who hasn’t jumped the little incoming stream and walked further along the stream bank to find yet another little stream coming into the bigger stream? And if you turned up one of the little incoming stream, you might find the same thing – more tiny incoming streams- all forming a network of tributaries coming into a larger stream which eventually flows into a river.

The uppermost reaches of tributaries are called headwaters. You might call them the origin point of a river’s network of streams. Headwaters have been the source of many an adventurous real life epic. Take for example the great age of explorers back in the 19^th century and all those guys like John Speake, Samuel Baker and his wife Florence, and Richard Burton who risked malaria, nasty critters, and a lot of discomfort looking for the headwaters of the Nile River. But in the 21^st century we tend to like more facts and figures drawn from satellite imagery versus slogging around in the bush. We also like collecting data. So many rivers and streams have permanent hydrographs installed which collect flow data. EPA’s report shows in many parts of the country, headwater streams make up over 50 % of the total stream length in a river’s network of streams. Headwater streams are also called 1^st order streams. First order streams run into second order streams which then run into 3^rd order streams and so forth. Anyway these headwater streams are providing a lot of the water going into rivers. EPA cites one study done in the northeastern part of the United States which shows all the headwater streams in the river systems there are contributing 60 % of the flow to the downstream network of streams and rivers.

The water from those headwater streams comes not just from precipitation but also from groundwater. You may have heard someone say a creek is spring fed. That means groundwater is entering the stream. Groundwater can also feed a river directly. Probably the most striking example I have ever seen of groundwater entering a river is on the Snake River in Idaho where there are rivulets of water cascading from the high basalt banks into the river. Groundwater often provides what hydrologists call baseflow in a stream during dry periods.

So physically streams are connected to rivers by water flow. Even headwater streams that are dry most of the year are providing downstream flows. If you are an easterner, you may not realize in the western part of the United States that people need to be aware of storms going on upstream. Many a person has drowned on a sunny day in a slot canyon when a storm upstream produced a wall of water that swept down an ephemeral stream and filled up a slot canyon where hikers had no escape route.

All sorts of things can affect the physical flow of water in a stream. EPA’s report outlines many of the types of physical flow of water through a river network and how flow in headwater streams impacts the flow downstream through physical changes in the streambed, stream banks and the channel itself. Stream networks are messy natural systems. They are not smooth conduit like pipelines providing a nice unimpeded flow. Large amounts of sediment are being carried by headwaters downstream. Sediment can come from bank erosion and also from natural runoff. Strong storms and floods can move boulders and cobbles downstream. Trees fall into headwaters and are also carried downstream. I spend a lot of time looking at streams. Many of their flows are turbulent because of the amount of sandbars, the huge piles of boulders and cobbles, and the enormous log jams of trees. So obviously the flow of water downstream is being affected by what is being washed out of the headwaters.

EPA also cites temperature as another physical connection linking streams and rivers. This may surprise you, but not if you live on the water. Riparian trees are often protected all along a river network. Ask my ex-neighbor who got a big fine for cutting down trees along the creek bank so he could have a better view of the water. Trees and other vegetation provide shade and lower the water temperature. Solar heat, size of the tributary and entry of groundwater into surface water all control temperature. Temperature has all sorts of effects on downstream waters including eutrophication (low oxygen) which result in fish kills. EPA refers to a number of scientific studies which show upstream waters can impact downstream temperatures over long distances.

EPA has made a clear case for streams having a significant physical “nexus” to rivers. Now let’s look at their evidence for a chemical connection between streams and rivers. The strongest connection as you might well guess is that of nutrients. If you live anywhere near a river you are sensitive to how nutrients impact water. EPA primarily looked at nitrogen and phosphorus. I’m old enough to remember when they took phosphorous out of laundry detergent. Now they’ve taken it out of lawn fertilizer where I live. It’s that old eutrophication problem. The reason phosphorus is in lawn fertilizer is because it promotes plant growth. Put it in the water and it does the same thing. Algae just love it and you get algal blooms which deplete the water of oxygen, which fish need to live. Phosphorous runoff is natural of course, but these days a lot of it comes from agricultural practices. Nitrogen is also a natural occurring nutrient but agricultural development can be a large contributor in stream systems as well.

There have probably been more scientific studies looking at nutrients in river networks than any other kind of study and these studies have clearly documented nutrient connection between headwaters and downstream waters. EPA’s report cites a study which says 1^st order streams contribute 65 % of nitrogen to second order streams and approximately 40 % of the nitrogen in 4^th order and higher streams. EPA also cites studies on processes in headwater streams where nitrogen is sequestered thereby improving water quality downstream. EPA further cites studies where both dissolved nitrogen and phosphorous entering headwaters are taken up by algae and microbes which can be consumed by larger organisms, transported downstream as particulates, and returned to the water via death and decomposition. There are all sorts of complex interactions going on with nutrients in headwater streams that impact downstream water in rivers. EPA has made another clear cut case of connection within river networks.

For me a more interesting chemical connection point is the giant amount of organic detritus entering headwaters and being transported downstream. Not something I’ve thought about much, but all that dissolved and particulate organic matter entering the headwaters from leafs, eroded soil, wetlands and so forth is providing energy for the whole biologic community up stream and down. Downstream organisms such as microbes and algae are feasting on the organic carbon, larger organisms like invertebrates are feasting on the microbes and algae, and fish are feasting on the invertebrates. EPA estimates 31 % of total carbon in downstream waters comes from headwater streams.

This leads right into EPA’s assessment of the biological connection between headwaters and downstream rivers. Again the biological connections between the two are well documented in the scientific literature. All those invertebrates eating and breeding up there in the headwaters are a great source of floating food for downstream fish. I never knew all the functions that these little invertebrates performed nor that so many people spend their time studying what they are up to, but EPA cites a large number of studies that show how invertebrates are breaking down organic particulates into finer and more mobile dissolved forms, how they are promoting algal and microbial productivity, and temporarily storing and transferring sediments, nutrients and even contaminants by their actions. And the fish? Well of course we know that salmon, eels and so forth migrate from the ocean up whole river systems to spawn in headwaters. But did you know other fish spawn in one place then make a runner for it. EPA cites a study of cutthroat trout that spawn upstream than migrate up to 80 kilometers downstream after spawning. There’s even another study of a fish whose eggs float downstream up to 144 kilometers before hatching. Fascinating. Anyway it is pretty clear fish don’t just stay in one place; they travel up and down river networks for breeding, spawning, feeding and other activities of the daily grind.

I think we can clearly put a mission accomplished banner up for EPA on proving through existing research that headwater streams are connected to downstream waters physically, chemically and biologically.

Today’s post is the second post in a series reviewing EPA’s report “Connectivity of Streams and Wetlands to Downstream Water.” In my next post I’ll discuss EPA’s findings on connectivity of riparian and floodplain wetlands to downstream

Water Usage

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 1

September 9, 2015 Waterblogger Leave a comment

Connectivity. What a great word. I always think of the butterfly effect when I think of connectivity. Someone told me once that it is actually a real effect. It is a part of chaos theory which describes how a small change in one condition can effect a much larger change in a later condition. The butterfly is a metaphor I suppose. The idea being that the flapping of a butterfly’s wings somewhere in South America can change the course of a hurricane in the Atlantic. When I think of connectivity, I also think of six degrees of separation. You know that one: the idea that everyone is connected to everyone else in the world through six other people.

The Environmental Protection Agency (EPA) uses the word “connectivity” as part of the title of their report issued in January 2015, which provides the science supporting the Clean Water Rule. The report is entitled: “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” The purpose of the report is to use currently available science in determining the connection of upstream and adjacent waters such as tributaries and wetlands to downstream waters. If you have been reading this blog for awhile you know the EPA issued the Clean Water Rule in the summer of 2015 in order to clarify the definition of the “waters of the United States.” They did so because of several Supreme Court cases where the Court’s written opinion essentially told EPA to determine which upstream and adjacent waters have a “significant nexus” to the chemical, physical or biological integrity of downstream waters of the United States before regulating those upstream and adjacent waters under the Clean Water Act. “Significant nexus” is the court’s word and I guess it is fancy lawyer talk for connection. At least that’s how EPA decided to interpret the word.

EPA is a regulatory agency with a lot of scientists and a lot of lawyers. The scientists and lawyers got together and they decided that “significant nexus” means connection. So they came up with some basic science questions that needed to be answered: What are the physical, chemical, and biological connections to and effects on downstream waters of 1) upstream ephemeral, intermittent and perennial streams, 2) adjacent riparian or floodplain wetlands and open waters, and 3) non-flood plain wetland and open waters.

Ephemeral, intermittent and perennial streams are tributaries to downstream waters. Perennial streams flow most of the year and there is usually a good connection between local or regional aquifers to the stream which keeps them flowing. Intermittent streams are dry part of the year but may have variable flow along their length depending on connection to groundwater. Ephemeral streams are dry most of the year and flow is dependent on short lived rainfall events or melting snow. Adjacent riparian or floodplain wetlands are the wetlands we see along the banks and in the shallow water areas of rivers, lakes and streams and in the floodplains of those water bodies. Think of the mighty Mississippi and all those floodplain areas with swamps. Those occur not only at the large scale of a river but at the small scale of a stream. Non-flood plain wetlands are the more diffuse and often widespread type of wetlands. The ones I’m more familiar with are the prairie potholes that exist in the north central part of the country in places like North Dakota, Minnesota and Montana. This area of the country was heavily glaciated during the Ice Age. The big land glaciers covering these states pretty much ground down and flattened everything in their path. When the glaciers receded they left a gouged up terrain of small depressions that fill with water and have all sorts of little microecologies. In many areas the prairie potholes connect with the water table in the glacial alluvium also left behind by the glaciers.

The reason the Supreme Court and the EPA are interested in those physical, chemical and biological connections or their “significant nexus” is because the main objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. So you can see it would be pretty hard to maintain and restore the nation’s waters if the upstream and adjacent waters connecting to them are going “all to heck.” It is kind of like the butterfly effect. How does the larval cycle of an invertebrate in an adjacent wetland affect the welfare of the downstream fish population? And it’s kind of like the six degrees of separation too. How does the water in a downstream river make its way there through a whole set of hydrologic connections, like tributaries and shallow aquifer recharge.

So the determination of connection through chemical, physical and biological processes is what the scientists at EPA considered in determining what would be covered under the Clean Water Rule. The report is a compendium of science from the scientific literature, meaning peer reviewed journals in which scientists publish their findings. So EPA performed no new science to make their determinations. EPA only looked at the work of others and synthesized it in about a 500 page report which reads like a textbook. In fact you could probably use it as a textbook on hydrologic connectivity.

Textbooks do a lot of defining of terms. It’s sometimes like learning a whole new language. And EPA’s report does a lot of defining of terms as well. One of the chief terms they defined was the definition of connectivity. EPA defined it as “the degree to which components of a watershed are joined and interact by transport mechanisms that function across multiple spatial and temporal scales. Primary transport mechanisms are surface water and groundwater flows, transport and transformation of physical and chemical materials and movements of aquatic and semiaquatic organisms.” Well that is a mouthful. My interpretation of this definition is that EPA is going to consider the various waters in a watershed connected when waters serve to increase or reduce chemicals downstream, when they impact on the supply and other physical attributes of downstream waters, and if there are organisms like fish that use upstream and adjacent waters to spawn, feed, and all the other things organisms do.

Today’s post is the first in a series on EPA’ Connectivity of Streams and Wetlands to Downstream Waters. The next posts will cover how EPA uses their definition of connectivity in determining through the scientific literature what tributaries, what riparian and floodplain wetlands, and what non-riparian, non-floodplain wetlands are part of the Clean Water Rule.

Water Usage

Injunction Delays Implementation of the Environmental Protection Agency’s Clean Water Rule

September 1, 2015 Waterblogger Leave a comment

If you read my last post on the Clean Water Rule then you are probably not too surprised that after the Environmental Protection Agency issued its final Clean Water Rule back in June 2015 that everyone got lawyered up and sued the EPA. I certainly wasn’t surprised. Nor was I surprised about the entities who sued EPA over the new Rule. Specifically it was a bunch of state governments – thirteen of them to be exact. All of the states who sued are west of the Mississippi River, except for Missouri. I don’t know why Missouri joined the lawsuit. Maybe they were just feeling frisky that day. Generally no one in the eastern part of the United States cares so fervidly about water issues as they do in the west. I’ll drag out that old bon mot about water in the west often attributed to Mark Twain: “Whiskey’s for drinking; water is for fighting.”

So a little background on why western states are so up in arms about the Clean Water Rule. As you may recall, the new Clean Water Rule seeks to clean-up the definition of what is and what is not a “water of the United States.” Numerous cases have been dragged up to the Supreme Court regarding the federal government’s interpretation of waters of the United States. The cases are primarily a result of the federal government issuing violations to certain parties who failed to acquire dredge and fill permits under the Clean Water Act. The last time such a case went to the Supreme Court, there were a number of Court members who were a little perturbed that EPA has never cleared up the definition. So EPA set off to write a Rule to clarify the meaning of waters of the United States.

A number of states in the west did not like the fact that EPA was writing a Rule. They didn’t like the Rule when it came out. And they have designated the Rule as a “federal water grab.” Water is managed by the state. In the west, where there is very little water, the state’s right to manage water is inviolate in their eyes. Why? Because, water is a local issue. This inviolate right to manage water is codified in Water Rights legislation throughout the west. There are State Engineers and government boards within the western states that manage the water within the states. Who has the right to each drop of water has been dissected and discerned by these government officials and boards. Still there are constant fights among water users. Lots of the water rights issues end up in court. The state governments are sensitive because they are dealing with a bunch of riled up citizens who have to fight and scrape for their share of water. So you get the picture, anything to do with water and water management in the west is a contentious issue.

Now put on top of that a new federal rule that is fairly encompassing and somewhat confusing. Although EPA sought to clarify the definition and the actual Rule itself is short, there was simply a lot of concern by the states involved in the lawsuit that the Rule was too encompassing. Personally I found the Rule pretty confusing and in seeking to understand it a little better I read the 300 page preamble. Preambles to Rules can be lengthy, but regulators use them to determine what the Rule actually means and how it was derived. By the time I finished reading the preamble I was thinking of the difficulty of determining on the ground what the Rule proposed. For example the Rule says tributaries to rivers are waters of the United States. That makes sense. Any waterway intersecting a river will affect the water quality, the biota in the river, and the physical nature of the river (size, flow, etc.).

The Clean Water Rule went on to include perennial, intermittent and ephemeral tributaries as covered under the Rule. Perennial streams are the ones that flow with water in the surface and alluvium most of the year. Intermittent streams are the ones that flow with water in the surface and alluvium some of the year. Ephemeral streams don’t have regular flow of water in the surface or in the alluvium. Ephemeral streams are precipitation dependent. They are the conduit of what my dad used to call gully washers. We all know that those gully washers can be sudden and huge. The precipitation event may not happen for long, but it can wash a ton of stuff into a gully and downstream into a river. So it makes sense that they are included as waters of the United States because such events can affect water quality. But then the preamble goes on to say that tributaries are characterized by the presence of physical indicators of flow: bed, banks and ordinary high water mark.

EPA uses the Army Corps of Engineer’s definition of ordinary high water mark: “The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”

This is not a new definition. It has been used for a long time. The Army Corps of Engineer’s guidance on how to determine the ordinary high watermark can be found in their Regulatory Guidance Letter No. 05-05 issued back in December 2005. Making the determination is tough enough in the east where there is a lot of water flow even in ephemeral streams, but trying to make that determination in some of these ephemeral streams in the west? I could see it as a bit hard. I suspect there might be a lot of fighting between two reasonable hydrologists in many such cases.

Frankly I kind of got lost in the preamble on the EPA discussion of adjacent waters. Adjacent waters are included in the definition of the waters of the United States. Adjacent means bordering, contiguous or neighboring rivers and streams, like wetlands, ponds, lakes, oxbows impoundments and the like. EPA gives three further definitions of what is covered. I won’t bore you with what those are. They are quite specific. But then EPA goes on to say, well there are some adjacent waters that will have to be determined whether they are a water of the United States on a case by case basis. These include prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, coastal prairie wetlands in Texas, and (oh by the way) waters within the 100 year floodplain of navigable waters and within 4000 feet of the high tide line of navigable waters. Well if you include all that in a case by case designation, then how can you consider the Clean Water Rule as a clarification of the meaning of waters of the United States.

EPA says in writing the Clean Water Rule that they used not only a compendium of scientific analysis from peer reviewed scientific literature, but they also used their forty some years of technical expertise in implementing the Clean Water Act.

EPA’s Clean Water Rule was supposed to take effect on August 28, 2015. What happened instead was that a Federal District Court in North Dakota issued an injunction against implementation of the Clean Water Rule. That means that the Clean Water Rule will not be implemented until the lawsuit brought by the 13 states is resolved in court (probably the Supreme Court).

I don’t blame EPA for a confusing Rule that broadly captures so much into the definition of waters of the United States. This is tough stuff and not an easy call. I’d say it’s what happens when you have to regulate natural processes like rivers and streams to make sure that the water quality is good and supporting a healthy group of biota, like fish. It is not at all clear-cut. I am going to read the EPA’s Science Report published as a support document for the Clean Water Rule. I suspect it will inform us of the many scientific certainties and uncertainties that EPA had to address in writing the Rule. I will be writing posts on the report. The EPA report is titled “Connectivity of Streams and Wetlands to Downstream Waters.”

Water Usage

Environmental Protection Agency Announces Clean Water Act Rule

June 9, 2015 Waterblogger Leave a comment

The Environmental Protection Agency announced May 27, 2015 the final Rule to clarify the definition of waters protected under the Clean Water Act. Predictably a News Release was issued entitled “Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy.” If you didn’t know what the Rule was about in advance then you certainly wouldn’t be able to discern it from the Press Release. Having followed the issue for many years, I will offer a short explanation of what this Rule is and why it was issued. In future posts I will write about the science used in making the Rule.

Let’s start with the Clean Water Act. It was written in 1972, over forty years ago now. But just like today, the legislation was written by Congress. Congress often writes very vague legislation from which the federal agencies are then tasked with developing regulations. Agencies have to interpret Congress’s meaning and intent. Sometimes the federal agency writes regulations that don’t exactly meet the wording of the legislation. When the Agency goes to enforce the regulation they then get sued by the person or company being enforced upon. More or less that is why the Clean Water Rule was written.

The Clean Water Act makes it unlawful to discharge dredged or fill material into “navigable waters” of the United States, tributaries of such waters and adjacent wetlands without a permit. There are regulations that the cognoscenti in the environmental world call the 404(d) regulations. The 404(d) regulations require permits for discharge of dredge and fill material. The regulations expanded upon what was written in the Clean Water Act by including interstate wetlands, lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, tributaries of such waters and adjacent wetlands. That covers a lot of territory. The agency responsible for issuing 404(d) permits is not the Environmental Protection Agency. It is the United States Army Corps of Engineers. Go figure. Anyway they have offices all over the United States just like all the other federal agencies and these individual offices have to interpret what the regulations mean when they are reviewing a permit or looking at a potential violation.

In Michigan in 1989, some wetlands on private land were filled by a developer. The wetlands were near ditches that eventually emptied into navigable waters. The Corps of Engineers said it was a violation of 404(d) regulations and fined the developer. The serious thing about the Clean Water Act though is that it has criminal violations as well as civil penalties. So you can get into a lot of trouble with not getting a federal permit. The developer sued. The lower courts ruled in favor of the Corps of Engineers. The developer appealed to the Supreme Court. The case is called Rapanos versus the United States. It was argued in front of the Supreme Court on February 21, 2006 and a decision was issued on June 19, 2006. The arguments and decision included another case called the Carabell case where a permit to deposit fill in a wetland separated from a drainage ditch by an impermeable berm was denied.

Anyway the Supreme Court decision was to send the cases back to the lower courts because they had applied the wrong standard to determine if wetlands are covered as “waters of the U.S.” and also because there was a lack of record by the lower court in their decision. The decision contained an opinion by Justice Scalia which was the most scathing Supreme Court opinion I have ever read. There were probably two reasons behind the tone of the opinion. First the Clean Water Act forthrightly states that the State governments have primary responsibility and right to plan the development and use of land and water resources and it is not the Clean Water Acts intent to change that responsibility. Management of land use and water resources is a jealously guarded privilege of State governments and these two cases as well as others seemed to be getting into a federal management of private land use and water. The second reason is because the Supreme Court had heard a similar petition back in 2001 called the SWANNC case, which is the Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers. I won’t bore you with the particulars of the case but the Supreme Court’s decision said the scope of the Corp of Engineer’s regulations was inconsistent with the Clean Water Act. So you can see why Justice Scalia might be a little testy. After the SWANNC case decision, the Corps of Engineers and the Environmental Protection Agency did initiate a rule making but it went nowhere. I don’t have the inside scoop on why.

So some years after the 2006 decision by the Supreme Court, the rule making initiative started up again. The first time I heard about the new rule making initiative was in 2009 at a meeting of a large gathering of state water officials. A poor guy from the Environmental Protection Agency came to the meeting and presented the agency’s plans in regard to writing the Clean Water Rule. There was nearly a riot. Well maybe I’m exaggerating a little, but he was told that the Environmental Protection Agency didn’t need to be addressing water issues that were clearly the state’s purview. There has been constant concern from state governments about federal regulation intruding into state water management. There have been concerns about the extent of coverage by the Clean Water Rule from farmers, natural resource developers, property developers…literally anyone who has large land holdings.

The Clean Water Rule is therefore written to say as much about what it doesn’t apply to as to what it does apply to. The Rule is nine pages. Two pages tell you what is covered under the meaning of “Waters of the United States.” and two pages tell you what isn’t covered under the meaning. The rest of the Rule is definitions of terms used in the other four pages. This is a carefully crafted and wordsmithed Rule.

Here is a link (http://www2.epa.gov/cleanwaterrule/clean-water-rule-factsheets) to an Environmental Protection Agency Fact Sheet that tells you what is covered in the new Clean Water Rule.

WaterBlogger

Category Archives: Water Usage

An American River in Distress

Environmental Impacts of Removing Dams

Dams and their Impacts on Rivers and Streams

Dams and their Impacts on Wetlands

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 4 – Non-Floodplain Wetlands

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 3 – Floodplain Wetlands

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 2 – Streams

Clean Water Rule: A Review of the Environmental Protection Agency’s “Connectivity of Streams and Wetlands to Downstream Waters” Post 1

Injunction Delays Implementation of the Environmental Protection Agency’s Clean Water Rule

Environmental Protection Agency Announces Clean Water Act Rule

Water + Science + Environment