Author: Amy Numbers

On August 16, South Carolina Federal District Court Judge David Norton issued an order which reinstated the 2015 rule that updated the definition of the Waters of the United States (WOTUS). The EPA and Army Corps of Engineers utilize the definition to determine what waters are jurisdiction of the United States under the Clean Water Act (CWA). The EPA under the Trump administration had amended the 2015 rule to delay the applicability date of it until 2020. Judge Norton ruled that the Trump administration failed to comply with rulemaking requirements under the Administrative Procedure Act in suspending the implementation of the new rule that was adopted under the Obama administration. Specifically, Norton said that the government provided no “reasoned analysis” for delaying the effective date of the rule and no “meaningful opportunity” for public comment. The ruling means that the Clean Water Rule will go into effect in 26 states attached (see map courtesy of www.NAHBnow.com.) The Trump administration is working to repeal the 2015 rule and replacing it with a version of their own.

Recently, a very rare sighting of a solitary Roseate Spoonbill (Platalea ajaja) occurred at the Hebron Fish Hatchery Wetlands Mitigation Bank site in Licking County, Ohio. Located on land owned and managed by the Ohio Department of Natural Resources (ODNR), Division of Wildlife, the mitigation bank was established in 1993 by the Stream + Wetlands Foundation in partnership with ODNR. The Hebron Fish Hatchery Mitigation Bank was the first mitigation bank established in Ohio and was one of the first in the country.

The Spoonbill was first discovered on the Hebron site on August 9 and then again on August 11, 12, 13 and 14. For a list of all sightings, visit the Ebird.org/Ohio Rare Bird Alert website. (Photo credit: Alex Eberts, member of Birding Ohio).

Earlier this year, a Spoonbill was seen in June in Lorain County and again in July in Holmes County. It may be the same bird working its way southward. Prior to the 2018 Ohio sightings, there were two prior sightings in 1986 and again in 2002.

On June 15, the Environmental Protection Agency (EPA) and Army Corps of Engineers submitted a new proposed “Waters of the U.S.” (WOTUS) regulatory definition to the White House Office of Management and Budget for review. This is a major step toward rewriting the Obama-era water pollution rule. The WOTUS rule defines which bodies of water are subject to federal jurisdiction under the Clean Water Act.

The Clean Water Act mainly covers large, navigable waterways like rivers and bays. But the EPA must also protect some upstream waterways that feed into them. The Obama rule centered on the concept that waterways with a “significant nexus” to navigable ones would be regulated. Written in 2015, the original rule was intended to clarify that small waterways like ponds and headwaters can be protected. Agriculture, developers and other industries, however, complained it was too far-reaching. The rewrite is expected to be more industry-friendly.

At Stream + Wetlands Foundation, the concern we have with the delay of an update to the WOTUS definition is that the uncertainties associated with the existing regulations will continue to cause unnecessary confusion for permit applicants. We are hopeful a reasonable WOTUS definition can be achieved soon to help improve predictability for permit applicants and the regulatory agencies.

Monday Creek Watershed is located in the Appalachian Region of southeastern Ohio. Since 1994, Rural Action, Inc. – a membership-based nonprofit who is developing the region’s many assets in environmentally, socially and economically sustainable ways – has worked together with Monday Creek residents, federal and state agencies, non-profit organizations and educational institutions to identify water quality problems, conduct field research and site characterization, as well as prioritize and plan on-going restoration activities.

In her recent article in Places Journal, author Elizabeth Dodd discusses the watershed monitoring efforts by Rural Action at the Monday Creek Restoration project.

To find out more about the project at Monday Creek, visit Rural Action’s website at http://ruralaction.org/.

Wetland & Science Practice, a newsletter published by the Society of Wetland Scientists, has recently included an article by Dr. William J. Mitsch, Ph.D. about a new experimental wetland mesocosm compound in Naples, Florida. This is a third-of-its-kind research project, the other two are located in Ohio near Defiance and Buckeye Lake.

Stream + Wetlands Foundation is proud to have entered into a partnership with Dr. Mitsch in this multi-year project to study the design of wetlands to decrease downstream eutrophication, including harmful algal blooms and hypoxia, while replacing the requirements of additional fertilization for agricultural production with a recycling mechanism that will return those nutrients to the soil.

To read more about this project, click here.

On Thursday, March 22, Ohio Governor John Kasich’s administration — after years of resistance on behalf of agriculture — announced it will declare the open waters of western Lake Erie as impaired, marking a reversal on what has been northwest Ohio’s most contentious water-policy issue. Although details of the impairment designation are still to be worked out, it will invariably mean tighter rules for agriculture and others that release nutrients into western Lake Erie tributaries. To find out more about this decision, read the full article in the Toledo Blade.

Through a Public Notice released on Feb. 23, the U.S. Army Corps of Engineers (USACE) have detailed a new approach for the functional assessment of streams. USACE has developed its Stream and Wetland Valuation Metric (SWVM) for the state of Ohio to provide a method for determining the level of functions and values provided by aquatic resources in Ohio. This release is for the stream portion of the SWVM tool to be used in Ohio. USACE is still developing the wetland SWVM tool for Ohio.  The SWVM tool will be used by permit applicants to evaluate the amount of function and value lost when aquatic resources are impacted.  It will also be utilized as the basis for evaluating the magnitude of improvements associated with compensatory mitigation projects. Previously, impacts to streams and stream mitigation projects were evaluated based on linear feet and credit ratios.

For more information on SWVM, contact Vince Messerly at vmesserly@streamandwetlands.org.

Dominion Energy is one of the nation’s largest producers and transporters of energy. The Dominion Energy Charitable Foundation annually awards up to $1 million through a competitive environmental education and stewardship grants program. Eligible organizations include nonprofit 501(c)(3) organizations and public and private K-12 schools in communities served by Dominion Energy companies. The Foundation considers grant requests up to $25,000 that focus on specific, short-term projects that promise measurable results to improve the environment, and K-12 requests up to $5,000.

Eligible organizations in Ohio, Connecticut, Maryland, North Carolina, South Carolina, Utah, Virginia, West Virginia and other areas within Dominion Energy’s footprint, can submit applications through Feb. 26, 2018. Recipients will be announced in April.

For more information about this unique education and stewardship grant program, check out their website here.

On Jan. 22, the U.S. Supreme Court issued a decision regarding which federal courts have jurisdiction to hear challenges to the 2015 Waters of the U.S. (WOTUS) rule. The WOTUS rule, which defines the scope of waters protected under the federal Clean Water Act, is a joint rulemaking by the U.S. EPA and the U.S. Army Corps of Engineers. The Supreme Court found that appeals of this rule must be brought in to the federal district courts rather than circuit courts ─ a decision that will finally allow litigation over the rule to move forward.

“The real concern we have with the delay of an update to the WOTUS definition is that the uncertainties associated with the existing regulations will continue to cause unnecessary confusion for permit applicants,” said Vince Messerly, President of Stream + Wetlands Foundation.  “Hopefully, a reasonable WOTUS definition can be achieved soon to help improve predictability for permit applicants and the regulatory agencies.”

To find out more about this recent ruling and its implications on the WOTUS rule, click here.

R.D. James, a Kentucky native has been confirmed as Assistant Secretary of the Army for Civil Works (Head of the U.S. Army Corps of Engineers). In his new role, James will establish policy direction and provide supervision of the Department of the Army functions relating to all aspects of the civil works program of the U.S. Army Corps of Engineers. Read this article for more information about Mr. James.