Thursday, September 18, 2014

A Post-Mortem of the EPA's "New Clean Water Rule" and a Retort to Bob Marshall

A typical federally regulated "stream," as defined by the US EPA
This was specifically prohibited by SCOTUS, but is
still in use by US Army Corps and EPA staff.
Today, counter to the EPA's wishes for Congress to codify changes in the Clean Water Act's enabling legislation, the House, in a bipartisan move, passed HR 5078, the "Waters of the US Regulatory Overreach Protection Act of 2014."   The bill was drafted specifically to halt EPA's "New Rule for the Clean Water Act."

I could start this essay with a recap of Bob Marshall's recent diatribe in Field and Stream, "SINO, the Latest and Greatest Threat to American Sportsmen."  That article beautifully lays out Bob's  opinion that if you don't get behind the EPA, then you aren't a real sportsman.  But I won't start with that.

 Instead, I'll start by describing a set of peculiar emails that my coworkers and I, and thousands of other boots-on-the-ground conservationists started receiving in March, 2014.  They were from clean water activists who work with my employer, and they implored us to "help" the EPA gain important protections for wetlands and streams back under the federal regulatory umbrella of the Clean Water Act.  It's notable that six out of seven times the Clean Water Act (and EPA, its administrating agency) have been to the US Supreme Court, the EPA, and arguably cleaner water, have lost out.     EPA would like to recoup those jurisdictional losses, which in most cases I support.   Wetlands are important.  Soil is important.  Headwater protection is important.  I spend my days working on them, fixing them, patching them up.  How they are protected is what caught the ire of the Supreme Court...repeatedly.

EPA hasn't been deterred by these findings of mere mortal Supreme Court Justices, each time issuing EPA's own new guidance from their own legal counsel, in each case threading impossible logical (and ecological) needles, including this whopper that first (correctly) affirms that per SCOTUS and POTUS, the agency cannot regulate ditches, because they are non-navigable waters lacking seasonal flow.

 However, EPA  informed itself simultaneously that if water flows through the ditch, other than during a rain storm, that it's in fact a stream, and thus, may be protected under the Clean Water Act as a "non-navigable tributary that is not relatively permanent." That's a big name for a farm ditch!  Of course, this statement (and many others by EPA) is in broad and specific conflict with SCOTUS - a fact that doesn't seem to affect EPA's opinions on the matter.

So....back to 2014.  In March, we began receiving emails, the series of emails eventually containing EPA-created graphics on the proposed "New Rule," which would of course straighten all of this nonsense out, and make everything that ever moistens on earth's surface the jurisdiction of the federal government, and thus life would become shiny, new, and neat.   As reported by the Washington Post and gleefully advertised by EPA in their closed-circuit communiques with preservationist activists, "All ephemeral and intermittent streams, and the wetlands that are connected or next to them, will be subject to federal oversight under the New Rule."   Remember - the EPA considers most ditches in the United States to be  "ephemeral streams."  Ask a developer in Maryland or Pennsylvania.

 Better yet, ask an employee of Ducks Unlimited or Trout Unlimited, who has to beg for federal permission (a 2 - 12 year process costing in excess of $75,000 each time) to touch these ditches to conduct basic habitat restoration activities.   You'll find, especially you, Bob Marshall, that there's a sad truth in there.  The EPA staff, certainly at the Regional Office level, doesn't much care for habitat restoration.  My interpretation is that they'd rather that we just leave those tire dumps in wetlands, leave those fish passage blockages in place, and hope the migrating ducks find some food in the Walmart parking lot.  EPA staff regularly decry the fact that obtaining federal permits to restore aquatic habitat is "too easy," and in fact, have referred to restoration advocates - folks like Trout Unlimited and Ducks Unlimited - as "T.U.R.D.s" - "Totally Unsubstantiated Resource Developers."  (a similar tale holds that the "U" stands for "Undocumented").  It seems clear to me that the EPA staff equates habitat restoration with condo construction.   That we are developers.  Bob Marshall, if you think that EPA staff, as a whole, are overly concerned about restoring habitat or supporting sportsmen, you may want to reassess, my brother in T.U.R.D.dom.

So now we'll get to the fun part.  As soon as the EPA leadership and PR groups finished their press junket for the preservationists and water quality activists, describing how great and profound the changes to water quality and habitat would be "if only" the New Rule would be implemented, those same officials began a press offensive with the actual developers, as well as farmers. The EPA message was essentially, "Hey, just roll with it, this won't affect you.  No big deal.  It's just paperwork."  Here's a doozy from the EPA twitter feed:




Now, we have the EPA on record saying that any ephemeral stream would absolutely be regulated under the New Rule.  They've made that clear.  Their response would obviously be, "But not ditches!" And of course not - their over-regulation of ditches has landed them in federal court repeatedly (in almost all cases, ending with an EPA loss).  But does EPA really exempt ditches?

Here's a photo that's representative of a concrete ditch that was regulated by the EPA in Maryland in 2003 as a "stream," on the side of I-95.  It's strikingly similar to a ditch in Delaware, along a cloverleaf/exit ramp from I-95, that was regulated by the EPA in 2004 as a "federal wetland" because there were wetland plants growing in sediment on top of a small section of the concrete.  Both ditches were thousands of feet from another federal resource (stream), which itself places the sites in violation of the key SCOTUS rulings.  In both cases, the state highway agency had to pay tens of thousands of dollars to offset or "mitigate" the damage to those poor, sensitive concrete ditches that resulted from paving over the existing concrete.  I was the permit writer for both projects.  EPA is promising the conservation community that under the New Rule, this "natural resource" will always be regulated as a stream.  Meanwhile, EPA tells the development and farming communities that this "ditch" will never be regulated as a stream.  Both of those things can't be true simultaneously. That means either conservationists or developers are being sold a bad bill of goods by the EPA.

In fact, as the Post reports in the article linked above, the EPA proposes not to regulate farming activity "which does not discharge a pollutant."   For those of you who have been on a farm and seen manure piles and pesticide being sprayed, I don't have to tell you what it means for those ditches that are receiving those chemicals.  And I'll out myself here - I don't oppose regulating that at all.  We should be regulating farm runoff. But I do oppose dishonesty and lack of transparency.  How can  you tell conservationists that these areas will be "protected" while telling farmers the same areas will be "exempted?"


When I received a tweet with this image (right) from the EPA in August, I was intrigued.  I have stood on proposed stream restoration sites where EPA staff claimed that a permit would not be granted because of impacts to the upland floodplain.  The EPA's Water Resource Registry will spit out information on a parcel of land saying that having trees in an existing floodplain is a solid basis for not conducting stream restoration.  So I responded to the tweet, "EPA is currently regulating floodplains that do not contain wetlands, and advising applicants to avoid floodplain impacts."  The tweet was deleted by EPA staff.  I retweeted the same comment.  Again, it was deleted.   Why doesn't the EPA want anyone to see that comment, I wonder?  I heard from other Twitter users that their similar comments were deleted by the EPA as well.  Interesting.

I support strict headwaters protection.  I support strong restoration efforts.  I support strong, well funded preservation efforts where native pre-1607 resources are still highly intact.   I understand that these things come at an expense and potential infringement to landowners, farmers, and taxpayers, and I think the benefits of such strong actions override the short term costs.   For that, I've been called many nasty things, including Communist.   But it has to be legal.  It has to make sense.  I can speak with nearly 20 years experience working in federal waters that the proposed "New Rule" (RIP) is likely neither legal or sensible.   How can a law "protect vast unprotected resources" while "allowing all current exemptions?"

The Clean Water Act, notably the portion dealing with nonpoint source pollution, isn't working.  It over-regulates resources that are not even natural resources, and under-regulates resources that matter.  I'm sure folks like Bob Marshall know this already, but the EPA and Corps of Engineers approve over 99% of completed applications to fill or drain federal waterways and wetlands.   The New Rule won't change that.  And I'm sure it's common knowledge that in 25 years of "No Net Loss" federal policy, the EPA has yet to achieve one single year of "no net loss."   The New Rule won't change that either (it would add acres to both the "existing" and the "lost" column).  It's simply not working.   

And that's why I can't support the EPA's New Rule.  Even if Bob Marshall thinks I'm a Sportsman in Name Only. 




Friday, September 12, 2014

Writing About Charter Trips

I don't mind charter boats or even head boats.  You just relax and fish.  That's a great thing.  But it's hard to actually sit down and write about the trip, because all of the thought, strategy, and preparation for the fishing trip was done by someone else.   So, what to make of the story?

I've figured out that the story is whatever the conversation was about during the fishing trip.  With so many charter trips focused on work-related networking, though, there's not a lot of stuff worth sharing.

Recently, I was out on such a trip, out of Chesapeake Beach, Maryland on the Semper Fidelis III.  It was great, and there were some notable people onboard from the conservation community.  We put fish in the boat early, and ultimately limited out on rockfish.  We caught a ton of bluefish as well, always rushing in to steal the bait before the rockfish can get around to eating.   All in all, a fun trip, and completed by 2pm.  Live lining spot in the upper Chesapeake Bay...that's pretty much the story!







Thursday, September 4, 2014

Plans, Plans, Everywhere Plans

It's been a hard summer to get outdoors in the Mid-Atlantic.  Rain came nearly twice a week through early July, and a near drought has ensued since then.   And I've been busy.  Big plans.  I hope.




For almost a year, I've been writing a novel about people who stay and people who go from a place that's barely on a map.  It's about 70% complete and I hope to finish writing before the holidays this year.  Editing is a different story.  That'll be a serious job.   But I love the place and I am enjoying the act of creating this very real story.









I started working when I was 15, which is 25 years ago.  While I've traveled over much of the western Hemisphere to fish, surf, kayak, and hunt, I've never had the luxury of taking two consecutive weeks off of work to travel.  Recently I booked a two week trip to South Florida for early 2015.   Hoping for some great kayaking, kayak fishing, shoreline fishing, and maybe some surfing and/or hunting as well.  It's guaranteed to be a fun trip.






Photo: Gerald Smith


A while back, I won a trout fishing trip at a Trout Unlimited event.  It's in Connecticut, which doesn't really seem like a trout destination, but I'm going in late October during a trip to NYC.  Should be a neat break from the bustle of the city over that 3-4 day trip.













At that same TU event, I won a kayak fishing trip to Savage Reservoir in extreme western Maryland. Hope to line that up for October as well.  Should be super mellow.






On top of all of that are hopefully some successful waterfowl hunts in Maryland.....

...and hopefully the opportunity to close out the hunting season with a weekend in Virginia's baldcypress swamps, celebrating our victory to gain Sunday hunting in the Commonwealth. 
Photo: Virginia DCR.

Hopefully all these efforts will pay off - I suppose we'll know soon enough.


Wednesday, August 20, 2014

Five Surprises About Portland, Oregon

A typical day in Portland, according to Portlandia
(still from the show)
I was in Portland, Oregon for a week.  It was really pleasant.  I didn't meet a single negative person, at least non-junkie persons.  I caught a single fish, a smallmouth bass,  on the Columbia River. And I got to talk and listen a lot to the various environmental goings-on as they relate to the crappy water that comes off of parking lots and heads to streams.   Here's what was most surprising - things you won't read on tourism websites or watch on Portlandia.





1.  People are outstanding.  Even the panhandlers are polite. If you say something snarky or "east coast funny," the standard response is, "Man, I'm sorry you're dealing with all that negativity.  I try not to dwell in that space.  I truly hope your day gets better, friend."   People aren't overly touchy-feely, as it seems that the entire town is composed of introverts.  But they are really nice people.  The meanest person I met in six days was a really high junkie who just yelled "Heeeeeyyyyyyyy!" at me when I walked past her hangout, in the shadow of a strip club.  For a reality check, I live in Baltimore, where panhandlers will attack you with bricks if you look at them the wrong way or appear to be racist.  But back to the story - in Portland, Oregon, everyone will let you borrow a cigarette.  Everyone will give you directions.  Everyone will tell you that they hope your day gets better, since they can tell you're from the east coast, which they equate with eternal unhappiness.

2.  You already know it has great transit.  Did you know the traffic sucks, though?  Portland has approximately 93 major highway bridges into downtown.  No matter what time of day it is, these bridges (the ones that hold cars) are full of stand-still traffic.   Why?  Where are all these Subarus going?  Why are so many people driving to work at 1pm? Whoops...Eastern time....WAIT...why are all these people driving to work at 10am PACIFIC TIME? Anyway, just take the train.  You can buy a 7-day pass for all transit for $26!  Can you imagine this, east coasters?  $26 is what you  pay in one way tolls between New Jersey and New York City!  Despite the extreme cheapness (i.e. well subsidized) and utility (in several routes, trains come every FOUR minutes!) of Portland transit, ridership is still pretty light, and auto traffic is still pretty bad.

3.  Portland is a train town.  A quick ride into town shows you endless junctions, shop yards, timber yards, cattle yards, and yards for anything else you can put on a train track.   It makes a lot of sense, since Portland is a critical secondary port to Seattle.  It just hadn't occurred to me that freight rail is so important.

4.  Portland is not as close to the great outdoors as one might think.  Many Portland visitor guides sport pictures of Mount Hood (possibly the most scary ass mountain I have ever seen).  Problem is, it's a 90 minute drive just to the lower trails.   Other PR pieces show guys catching fish in the "local" areas of the Columbia River (2-3 hours from Portland) and Deschutes River (3-4 hours from Portland).  That's not local, in east coast terms.  Also unhelpful is that most of the fishing guides are booked up at least a year in advance.  

Now, my high school buddy Rob and I did tour around the Port of Portland, an area where decent outdoor access exists within perhaps a 40 minute drive of downtown.  The scenery of that trip was a bit spoiled by the fact that the area was, I'm told, heavily utilized by the Green River Killer.   In seven days, I didn't meet a Portlandian who was an angler, hunter, or paddler.   And despite the hundreds of tourists and visitors I interacted with, I only met one person who intended to go outdoors during their week in town - he had booked a two hour rafting trip three hours from town.    I tend to think that Portland could use some outdoor access planning and PR.

5.  Portlandians care about where food comes from...but without the east coast attitude you'd get at a locavore bistro in Atlanta, DC, or NYC.  From the absolutely ridiculous burgers and fresh fruit smoothies at Burgerville, to the well-sourced and explained Chinese fare from Seres, it's clear that people care about food.   My friend Rob told me that Oregon state subsidies aggressively target farms in Oregon, Washington, and northern California to make sure the freshest food stays local.    Again, though, Portlandians don't want to hit anyone over the head with it.  They're proud of where their food comes from - and they should be.   It was all amazing...and all without lectures about the industrio-military food production industry complex.

6.  Okay, one more.  The coffee.  Now, beer is amazing in Portland.  Or I should say "beer can be amazing in Portland."  Many Portlandians drink really, really bad beer, which is a shame because some amazing breweries are in town.  Amazing local beers are indeed available on tap at every bar (even hotel bars), but nobody really seems to care all that much.  So, let's call it a wash on the beer culture.

But the coffee.  Oh, the coffee.  Like the beer, or like any town, there's McDonalds.  And there's Denny's.  So I'm sure if you want a cup of coffee that tastes like it was brewed through a sock, you can still get that.  But unlike beer, Portland's coffee status quo was high and consistent everywhere.  Baristas in the hotel lobbies.  High end espresso inside the convention center.   I had awesome coffee every day - coffee that in most cases was roasted locally.   One of the two only establishments in Portland where I saw a line was indeed the famous Stumptown Coffee Roasters.   Oh, the coffee.

There's a lot to see in Portland.  Start with some of these ideas, and you'll be way ahead!  Just don't harsh anybody's mellow.