Wetland Study Finds Accelerated Losses of Coastal Wetlands,
Despite Restoration Efforts
A joint study by NOAA and the U.S. Fish and Wildlife Service found that the United States lost over 360,000 acres of wetlands in the four-year period between 2004 and 2009. The study calculated the average wetland loss rate at 80,000 acres a year. This is a 25% increase in the loss rate over a prior study covering the period between 1998 and 2004. The increase comes despite efforts to restore wetlands, and to offset wetland losses. The study expressed concern over the losses because wetlands provide important wildlife habitat, and crucial ecosystem services such as water filtration and storm protection.
The greatest loss of wetlands occurred in the Gulf of Mexico. The study cited both human and natural factors as causes for the continued decline. Hurricanes Katrina, Rita, and Ike battered saltwater wetlands along the Gulf of Mexico. The cumulative impacts of oil and gas development also influenced the vulnerability of these wetlands to intense storms and sea level rise. Freshwater forested wetlands represented the most sizeable freshwater wetland loss. The study attributed those losses primarily to silviculture and increased coastal development in southeastern states.
The study is titled “Status and Trends of Wetlands in the Coastal Watersheds of the Conterminous United States 2004-2009,” and is available at: http://www.fws.gov/wetlands/Documents/Status-and-Trends-of-Wetlands-In-the-Coastal-Watersheds-of-the-Conterminous-US-2004-to-2009.pdf
Fact sheets relative to the report, as well as the prior 1998-2004 study, are available at: http://www.habitat.noaa.gov/highlights/coastalwetlandsreport.html
Contributed by Lauren M.Williams of Curtin & Heefner, LLP, Doylestown, PA
Eleventh Circuit Clarifies Notice Requirement for CWA Citizen Suit
The 11th Circuit Court of Appeals has decided a matter of first impression in the Circuit regarding the notice requirements of the Citizen Suits provision of the Clean Water Act, 33 U.S.C. §1365. Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Case No, 12-15409, (11th Cir. Nov. 13, 2013). http://www.ca11.uscourts.gov/opinions/yestops.php
Plaintiffs sued an Alabama mining company for alleged violations of new source performance standards. Section 1365(b) provides that the usual 60-day notice period for a citizen suit is not required for actions concerning new source performance standards. Both the District Court and the Eleventh Circuit Court of Appeals sided with the defendant and held that the notice period was required because the defendant’s NPDES permit incorporated the performance standards and, therefore, the permit was integral to the suit.
The 11th Circuit stated: “To allow a citizen to evade the 60-day waiting period by suing a permit holder for alleged violations of the new source performance standards without regard to the conditions of the discharger’s permit would both undermine the overarching permitting scheme and nullify the statutory preference for governmental enforcement.” Opinion at 14.
Proposed Rule on Waters of the United States
A new proposed rule that concerns waters of the United States and clarifies jurisdiction of the Clean Water Act appears to be close to release for public comment. Bloomberg BNA released an early description of the rule. Use this link to find the BNA article. http://www.bna.com/epa-corps-propose-n17179879956/ A link in the first paragraph takes you to a draft copy of the rule, which has not yet been officially released for comment.
The related technical report document on connectivity of streams and wetlands to downstream waters can be found at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345. The Scientific Advisory Board is scheduled to meet December 16 - 18, 2013, to review comments on the connectivity report. According to Bloomberg BNA, EPA does not plan on releasing the proposed rule until the board completes peer review of the study.
SEER and your WQ&W Committee are preparing a webinar to discuss the rule soon after its release.
Agricultural Stormwater Discharge Decision
Addressing a disputed CWA violation concerning an 8-house poultry operation (a concentrated animal feeding operation or CAFO), the U.S. District Court for the Northern District of West Virginia issued an order holding that “litter and manure which is washed from [a] farmyard to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge, thereby rendering it exempt from the NPDES permit requirements of the Clean Water Act.” Alt v. EPA, Case No. 2:12-cv-00042 (N.D. W.V. Oct. 23, 2013). Challenging a violation and order, the plaintiff introduced evidence that the entire poultry operation was under cover so that manure, feed, and other materials associated with the operation were not exposed to precipitation. Access the entire docket at the court’s PACER website at https://ecf.wvnd.uscourts.gov/cgi-bin/ShowIndex.pl