Browsing by Subject "Clean Water Act"
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Item Open Access An Evaluation of GIS Prioritizations for Selecting Wetland Mitigation Sites: Cook Inlet Case Study(2011-04-25) Leduc, EliseRecent scientific research has demonstrated the multitude of ecosystem services and functions provided by wetlands. Despite the astronomical cost that would be required to replace these vital services with manmade mechanisms, humans have a long history of filling and destroying wetlands for development. Recent decades have seen wetland protection improve under the aegis of Section 404 of the Clean Water Act (CWA). The CWA requires compensatory mitigation for wetlands destroyed during development, but specific mitigation requirements remain vague and many projects continue to fail. Developing better wetland mitigation site selection would provide improvements to mitigation without requiring a CWA amendment. Sites have traditionally been chosen based on geographic or monetary convenience. This study explores an increasingly popular method of selection: GIS prioritizations. GIS prioritizations can increase the efficiency, repeatability, and transparency of site selection. This project analyzes a case study in Cook Inlet, Alaska utilizing a GIS prioritization to locate high quality mitigation lands to compensate for a bridge proposed by the Knik Arm Bridge and Toll Authority. Mitigation is required because the construction will destroy 390 acres of wetlands. To determine the most appropriate mitigation locations, 3047 nearby parcels were evaluated using 8 selection criteria. The results ranked all parcels and identified the most suitable sites to compensate for the proposed effects of the bridge. This study also compares the effectiveness of GIS prioritizations to other selection methods. GIS prioritizations were determined to be the most efficient technique for analyzing and ranking thousands of parcels. Initiating mitigation planning with a GIS prioritization can effectively direct fieldwork to just a subset of potentially high value wetlands. Hopefully better site selection with GIS prioritizations can improve overall wetland mitigation. Such improvements would not only fulfill the mitigation requirements under the CWA, but also effectively preserve remaining wetlands for future generations.Item Open Access Clean Water Act jurisdiction for Little Sycamore Wash, Arizona: Hydrologic connectivity and changing federal regulatory interpretation in the arid western U.S.(2019-04-26) Landes, Laura; Meyer, Christopher; Muzzy, Laurie; Yeh, SaraInfrequent streamflow in arid landscapes presents challenges for determining Clean Water Act (CWA) jurisdiction. Because of such uncertainty, Freeport McMoRan (Freeport) – the second-largest copper producer worldwide – requested an assessment of possible federal jurisdiction for Little Sycamore Wash, a headwater tributary, in Arizona. CWA jurisdiction depends on the definition of “Waters of the United States” (WOTUS), which has been widely interpreted and continuously litigated nationwide. Mining activities impacting the wash would be federally regulated only if it is a WOTUS (referred to here as jurisdictional water) or there is evidence of hydrologic connectivity to a jurisdictional water. Over the past 40 years, courts and agency interpretation and guidance have shaped the definition of WOTUS, making the scope of jurisdiction broader and narrower as practice changed. Currently there are three definitions of jurisdictional waters that are relevant: 1) pre-2015 practice, shaped primarily by guidances issued by EPA and USACE following Supreme Court cases in the 2000s, 2) the 2015 Obama administration Clean Water Rule (2015 CWR), which broadened the scope of jurisdiction in some cases and aimed to clarify questions of jurisdiction, and 3) the 2019 Trump administration proposed rule (2019 proposed rule), which takes a narrower view of jurisdiction. Due to a complex legal landscape, some parts of the U.S. are subject to pre-2015 practice and some are subject to the 2015 CWR. The 2019 proposed rule is being developed into a final rule as of April 2019, and therefore will also become relevant. Because of these complexities, the jurisdictional status of Little Sycamore Wash depends on which definition is in place. Furthermore, the way jurisdictional waters are defined in arid landscapes can be problematic, as regulation and practice were generally developed based on humid landscape characteristics and associated assumptions. Physical indicators of channel form, such as Ordinary High Water Mark (OHWM), are not necessarily representative of the same flow regimes in humid and arid landscapes. Because of these difficulties, we use physical flow connectivity to determine possible jurisdiction. A standard, simplified flow routing model (HEC-HMS) is used to quantify the probability of continuous hydrologic connectivity along the arid stream river network to the closest Traditionally Navigable Water (Santa Maria River to outlet at Alamo Lake by proxy). Modeling results indicate that there is a low level of hydrologic connectivity via stream flow during storm events. When three of the major headwater sub-basins of the Santa Maria experience simultaneous 10-year frequency storms, the river does not discharge to its outlet under realistic field conditions. Based on these results, we estimate that it is unlikely that there is continuous hydrologic connectivity more than once a decade to downstream jurisdictional waters. Based on this lack of connectivity, the wash is unlikely to be considered jurisdictional under past, present, or anticipated future definitions of WOTUS. The study area is unlikely to be deemed jurisdictional by any version of the rule analyzed or proposed. In order to be jurisdictional Little Sycamore Wash would have to meet these qualifications: 1) Pre-2015 practice: Ephemeral streams are jurisdictional depending on a significant nexus test, which consists of case-by-case determination of whether flow function significantly affects chemical, physical, and biological integrity of the TNW (this is current Arizona practice as of April 2019). 2) 2015 CWR: If flow of the wash contributes flow directly or indirectly to a TNW and the wash is indicated by physical markers of bed, bank, and OHWM. 3) 2019 proposed rule: If the wash is flowing during the wet time of year or flowing continuously during a typical year. Arizona is in the process of developing a state program to assume administration of the 404 program. They are in the middle of a stakeholder engagement process. They formed technical working groups on a variety of topics, including Jurisdictional Determinations and the Permits Process. The working groups have written white papers focusing on their technical area with an analysis of the current state, ideal future state, and gaps between the two. Arizona state law requires that the program, if assumed by the state, be no more stringent than the federal program; federal law requires regulation to be no less stringent in states than in the federal government. This would leave Arizona’s 404 program exactly the same as federal environmental regulation, and the only aspect that may change for the regulated community is the party to which applications are submitted. Therefore, regardless of whether and how specifically Arizona decides to assume the program, the jurisdictional status of Little Sycamore Wash is unlikely to change. Although it is not likely that Little Sycamore Wash is a jurisdictional water, Freeport would benefit by investing in additional monitoring gauges to obtain a more accurate depiction of physical hydrologic connectivity in the Santa Maria watershed. This would allow Freeport to make the strongest possible case for whether the wash should be considered jurisdictional and avoid regulatory uncertainty. Freeport should also monitor the Arizona 404 assumption process to stay abreast of any developments that may impact their operations in this uncertain regulatory and political climate.Item Open Access State of the Coast: A Review of Coastal Management Policies for Six States(2023-01-17) Karasik, Rachel; Pickle, Amy; O’Shea, Maggie; Reilly, Kelly; Bruce, Molly; Earnhardt, Rachel; Ahmed, IqraThis analysis of coastal habitat policy in six US states—California, Florida, Massachusetts, North Carolina, Texas, and Washington—aims to identify promising policy approaches for improved protection and restoration of oyster reefs, mangroves, salt marshes, and seagrass. Coastal habitats provide critical environmental, economic, and recreational services valued at billions of dollars in the United States alone. However, the quantity and quality of most coastal habitats have been under decline for centuries due to a variety of threats. Coordinated policy responses across levels of government are required for protection and restoration of coastal habitats because they do not have discrete jurisdictional boundaries and are often harmed by distant anthropogenic activities. The analysis finds that state-level management is principally guided by federal coastal protection and management statutes, namely the Clean Water Act and Coastal Zone Management Act. State and federal policies are rarely habitat-specific and do not comprehensively address threats, which can result in a fragmented policy landscape that struggles to meet habitat protection and restoration goals. With limited long-term monitoring data and few effectiveness studies, our ability to understand which policy levers work and the extent to which they can be replicated in other states is limited. A successful path forward may be found through local initiatives tailored and designed for their local context that have effectively restored degraded habitats and employed innovative regulatory mechanisms intended to streamline the permitting process for restoration. Dedicated funding for sustained, long-term monitoring to best understand the effects and outcomes of habitat protection and restoration policy efforts will also be critical to identify enabling conditions and replicate effective measures in similar contexts. The Pew Charitable Trusts supported the development of this report. Pew is not responsible for any inaccuracies and does not necessarily endorse the findings.Item Open Access U.S. Federal Water Pollution Control: How History Has Contributed to the Mismatch Between the Legal Framework and the Current State of the Science(2015-04-24) Campbell, ChristopherThe current framework under which federal authorities regulate waters of the United States is in many ways constrained by our history. Regulatory policy and scientific understanding have developed on parallel but independent trajectories, with little crossover. In 2006, the Supreme Court addressed the scope of federal regulatory authority under the Clean Water Act in the case Rapanos v. United States, and reached a split-decision that left no clear mandate for the lower courts to follow. I examined the influence of Rapanos on the current regulatory landscape, and found highly variable application of the Supreme Court’s split-decision in the lower courts. Some courts have begun to consider hydrologic connectivity and ecological function, but the mismatch between policy and scientific understanding largely remains. There are simple tools and techniques that can be used to identify which areas of a landscape are likely to be most influential to waters of the United States. To demonstrate, I used terrain analysis techniques to examine a watershed in Montana and identify influential areas based on spatial and temporal hydrologic connectivity.Item Open Access Use of Preservation in North Carolina Wetland and Stream Mitigation(2017-03-27) Young, Ben; Olander, Lydia; Pickle, AmyTo better protect the nation’s wetlands and streams, the Clean Water Act allows use of compensatory mitigation to replace the benefits of lost wetlands and streams. This study summarizes North Carolina’s use of preservation for compensatory mitigation by private mitigation banks and a state-operated in-lieu fee (ILF) program. Within private mitigation banks, preservation activities have generated 5.6% of wetland credits and 9.1% of stream credits since 2008. Within the state in-lieu fee program run by the Division of Mitigation Services, 45.0% of wetland credits and 6.2% of stream credits have resulted from preservation. However, a majority of the wetland credits generated by preservation in the ILF program came from one site described as unusually large by program staff. Since 2008, North Carolina’s ILF program and mitigation banks have continued to use preservation at relatively low rates for both wetland and stream mitigation. Mitigation providers have stated that the clarity of the state’s preservation policy makes it easier for preservation to be included in projects in North Carolina than in projects in some other states. Notably, between 2012 and 2015, no wetland preservation was used for mitigation by the ILF program.Item Open Access Wastewater Pollution from Petrochemical Refining Industries: Modernizing Treatment Technologies & Downstream Impacts(2024-04-26) Satagopan, Nanditha Ram; Furr, Tiajahlyn; Li, DiliThe Clean Water Act of 1972 was created to regulate pollutant discharge into the surface waters of the United States and aims to produce fishable, swimmable waters across the U.S. and eliminate the pollution of navigable waters by 1985. Over the last few decades, petrochemical refineries have expanded capacity and the volume and variety of the pollutants they discharge have increased exponentially. Through the Clean Water Act, the EPA is required to set effluent limit guidelines (ELGs) for discharge based on the best available treatment technologies (BATs). However, revisions have not been made since 1985 and standards do not reflect the advances in the BATs used by oil refineries. Our research aims to provide evidence to the Environmental Integrity Project (EIP) to advocate for updated pollution control standards enforced by the Clean Water Act, identify possible explanatory factors for differences in effluent levels, and evaluate the impacts on downstream populations disproportionately affected by refinery discharges.Item Open Access Watershed Management in the Federal Government(2011-04-25) Vuxton, EmilyWatersheds in the United States are very valuable. Their waters support a wide range of purposes, including irrigation, fisheries, industrial operations, recreational pursuits, aquatic habitat, and drinking water. Efficient and effective watershed management must consider all of these purposes and plan accordingly. Watershed management is conducted by many entities, with one of the largest and most important partners being the federal government. Although many federal agencies conduct watershed management, they often act out of concert with one another, even across the same watersheds. This lack of coordination leads to duplications of efforts as well as gaps in services offered. Among federal agencies, the U.S. Forest Service, in particular, has major responsibilities for protecting water resources because of its position as owner of many of the nation’s headwaters. This paper highlights duplications and gaps which occur across the federal government in watershed management, and offers policy recommendations on how to streamline efforts. It details the history of the U.S. Forest Service in watershed management. It argues how a paradigm shift in resource management within the U.S. Forest Service has negatively affected morale in a manner which hinders successful watershed management. A history of forest planning is provided. Finally, there is an analysis of the 2011 Planning Rule with predictions on how implementation of the rule will affect watershed management. Results indicate that greater coordination of water quality monitoring data collection efforts would be accomplished with the establishment of a central clearinghouse, as well as the designation of a single agency responsible for coordinating efforts. More data are necessary to properly assess and address water quantity concerns in the United States. The U.S. Forest Service has struggled, and will continue to struggle with watershed management due to its many priorities as well as a lack of general employee morale in the agency. The 2011 Planning Rule, although flexible and adaptable, grants unprecedented levels of discretion to officials. It remains to be seen what effect this will have on watershed management in the U.S. Forest Service.