Tag Archives: dredge and fill regulations

Regulations from the U.S. Army Corps of Engineers also called the 404(d) regulations requiring permits to dredge and fill waters of the U.S.

Water Usage

The Science Behind the 2023 WOTUS Rule

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No, regulation of the Waters of the United States (WOTUS) is not my favorite topic to write about, even though I’ve now completed seven posts on the subject.  The most I have written on any topic, because it has been and will ever be a never ending battle between the forces of science and the forces of development. Developers want to limit the application of Clean Water Act (CWA) regulations to “nonproductive” wetlands and upstream waters so they can infill them and use the land for houses, mines, agricultural fields, etc. Scientists though understand that the hydrologic cycle pretty much means every drop of water on earth is connected to every other drop of water and development in these supposedly disconnected wetlands and upstream waters will impact downstream waters considered to be WOTUS.

            Scientific investigations continue to confirm the scientists viewpoint, including the recent Technical Support Document (TSD) for the 2023 WOTUS Rule now on top of the ash heap of Supreme Court Decisions. See my post from earlier this year if you want to know more (Supreme Court Decision on Waters of the United States ).   I took up the TSD to see what new investigations have been conducted in support of the scientific viewpoint since the last great U.S Environmental Protection Agency (EPA) treatise on the subject in 2015 entitled “Connectivity of Streams and Wetlands to downstream Waters: A Review and Synthesis of the Scientific Evidence.”  Here’s a link to my post on the 2015 Report (A Review of the EPA’s Connectivity of Streams and Wetlands  ) if you want to do some catching up.

            It has been eight years now since the 2015 Report so let’s see what recent studies the 2023 TSD cites in support of the global connectivity of water.  EPA found 2,022 peer reviewed scientific papers published since 2015 relevant to the 2023 rulemaking.  Scientists have been busy.  Nothing spurs scientific investigation like a controversy and there was a lot of that after the 2015 Report was released.  The 2015 Report supported a widely unpopular WOTUS Rule regulating upstream waters and wetlands. The 2023 TSD documentation mirrors the earlier 2015 report.  It is divided into three areas of scientific investigation:

  • Ephemeral, intermittent and perennial streams
  • Floodplain wetlands and open waters
  • Non floodplain wetlands and open waters

The largest number of new investigations (986) concern ephemeral, intermittent and perennial streams.  There’s a reason for this.  It was the most controversial part of the 2015 regulation.  Ephemeral streams are those that flow only briefly usually as a result of localized rainfall.  Intermittent streams are those that flow seasonally.  Perennial streams have continuous flow.  It seems natural to most people that ephemeral and intermittent streams are not impacting downstream WOTUS much, but the people who live near these types of streams and are dependent on them think otherwise.  Many of these water bodies are in the western part of the U.S. and they are often important upstream waters for protecting downstream water quality.  When the Rule supported by the 2015 Report was pulled by the EPA, the first groups to sue were Indians tribes.  As a result many scientists wanted to investigate how these ephemeral and intermittent streams are acting as headwaters for downstream flows and water quality.  Ephemeral streams make up 48 percent of the stream length of all streams in the lower 48 states.  That’s a pretty big number.  The flow in ephemeral streams from precipitation events can have major effects on downstream waters due to abrupt increases in water that transport sediment, wood and other materials. 

Although their stream beds may visually appear dry, they still have water flow in the hyporheic zone (the stream bed lying below the surface.)  EPA cites Gallo and others in a 2020 study showing ephemeral and intermittent streams are providing valuable groundwater recharge from the hyporheic zone. Although ephemeral and intermittent streams might have observable flow only 1 to 82 % of the time, the presence of water in the hyporheic zone exists 4 to 33 times longer. 

Other studies cited by EPA include those of Covino and Magliozzi in 2018 showing ephemeral and intermittent steam without surface flow have complex and abundant hyporheic flow that maintain a downgradient hydrologic connection by supplying surface flows and maintaining habitat.

The second largest number of publications covered investigations of floodplain wetlands (660 scientific papers).  The 2015 Rule pretty much included all floodplain waters as being WOTUS. in its definition of what an adjacent covered wetland to a WOTUS is.  Of course that Rule was pulled in 2020 and the new rule that came in restricted what could be regulated as an adjacent wetland. 

Floodplain wetlands are actually part of stream and river systems with intricate connections, interactions and exchanges with them.  For example when river banks overflow during floods, floodplain wetlands serve as overflow storage.  Also there is a groundwater connection between a surface water body and it’s floodplain wetlands.

EPA cites a paper by Webb and others published in 2017 that shows how flood inundation of wetlands surrounding a surface water body contributes 72 to 76 percent of groundwater discharges to rivers. Simultaneously these inundated wetlands are being provided nutrient rich waters from the flooding stream systems.  It’s a sort of symbiotic relationship.  One can’t be disconnected from the other without impacts to both.  So if you infill a wetland, the flows that feed downstream surface waters are diminished and the nutrient sink that is the wetland is gone. Nutrients like nitrogen and phosphate are free to flow into surface waters where they can, as we all know, create a bunch of havoc.  In fact Gordon and others in 2020 showed that floodplain wetlands remove an average of 200 kilograms of nitrogen per hectare over a years time and 21 kilograms of phosphate.

Non floodplain wetlands had the fewest number of scientific investigations at a disappointing 491 published papers   Non floodplain wetlands are often dismissed by just about everyone as unimportant and “nonproductive”. These are waters like prairie potholes.  The research that has been conducted since 2015 is pretty conclusive as to the connectivity of these isolated wetlands with WOTUS even if a great part of the connection is to keep surface runoff from reaching downstream waters. 

These non floodplain wetlands comprise 16 percent of all wetlands in the lower 48 states by areal extent.  A huge number still considering how many have been infilled for all types of development.  EPA cites a literature review by Lane and others of all studies of non flood plain wetlands.  Their paper shows these isolated waters are all interconnected in some way to river systems, either through storing storm waters so they aren’t washed along with a bunch of nutrients downstream or serving as a source of base flow of groundwater to rivers during dry periods.  Another study cited by EPA is that by Thorslund and others who conducted an investigation in 2018 using chloride tracers to study how non floodplain wetlands in Florida contribute surface water to downstream river and streams. The study showed nonfloodpain wetlands are a watershed scale source of flow for  90 percent of Florida’s headwater streams.

The TSD also cites Brooks and others who performed a similar trace study using isotopes in North Dakota. The researchers found significant amounts of water from isolated wetlands are providing water to downgradient perennial streams.  Rains and Cohen both published papers in 2016 showing how non floodplain wetlands can attenuate surface water flow and provide storage on a watershed scale that helps prevent devastating floods.

Also like the floodplain wetlands, studies have shown non floodplain wetlands to be a dramatic reducer of nitrates, phosphates and carbon.  Cheng and Basu in 2017 showed that 50 percent of nitrogen removal across all water bodies occurs in small wetlands and Evenson and others. in 2021 found through watershed modeling that restoring just 2 percent of non floodplain wetlands in the Upper Mississippi basin would result in a 12 percent nitrate reduction.  This would be an amazing achievement if it could be done to help eliminate the dead zone in the Gulf of Mexico caused by unchecked nutrients washing off farm lands into the Mississippi River.

So I guess I can say in summary that scientists have advanced the state of knowledge of how ephemeral and intermittent streams as well as non floodplain and floodplain wetland are connected to traditional downstream WOTUS.  EPA goes as far as to say that “after analyzing the abstracts of all 12,659 papers published since 2014, the evidence is conclusive that ephemeral, intermittent and perennial stream, floodplain wetland and non floodplain wetlands are hydrologically, chemically, biologically and functionally connected to downgradient waters.”  The EPA has also calculated the value of these type of headwaters through their benefits to society including fishing, hunting, boating, bird watching, religious uses, production of fuel, forage and fibers, extraction of materials for biofuels, food such as shellfish, and medical compounds.  The dollar value assigned to headwater streams is $15.7 Trillion annually and that calculated for non flood plain wetlands is $673 Billion annually.  This looks to me like a pretty significant economic contribution from a bunch of upstream waters that people have been dismissing as “non-productive”.

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

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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.”

 

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

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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.

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Environmental Protection Agency Announces Clean Water Act Rule

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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.