EXECUTIVE BOARD MEETING – CONFERENCE CALL – MEETING MINUTES
September 26, 2014, 9:00 AM – 10:15 AM CST
I. CALL TO ORDER (Hagy)
a) Dr. Heath Hagy called the conference call to order.
b) Officers present: Dr. Heath Hagy (Chair), Dr. Lisa Webb (Vice-Chair), Jennifer Chutz
(Secretary/Treasurer)
c) Also present: Dr. Scott Yaich (former WWG officer), Chief Scientist at Ducks Unlimited
II. NEW BUSINESS (Hagy, Yaich, Webb, Chutz) – Gathering ideas for TWS Comment on the
EPA/USACoE proposed "Waters of the United States" (WOTUS) ruling as published in the Federal
Register (Vol.79, No.76) on April 21, 2014
a) Summary: Yaich gave a great summary of the proposed ruling, it's history, and the current
issues at hand. TNC put together the WOTUS Key Questions that Scott distributed.
b) Significant nexus definition
i. Definition of exactly what is "significant"
a. Would not argue for a quantification of what is significant because there's no way to
brush broad enough to include all conditions and situations. Rather, let's raise the issue
that the word significant needs more clarity.
b. In the definition, significant means it is "more than speculative or insubstantial". They
are utilizing the quote from Judge Kennedy (Federal Register 4/21/2014 - WOTUS
proposed ruling p.22192), but this is not the scientific definition of significant, nor is it
really saying much. Significance is way past speculation and beyond insubstantial.
c. Discuss that significance is different for different things, i.e., a certain quantity of
polluting toxin vs. that same quantity of nitrate loading or sediment loading. Example
given that a toxin dumped into an originally non-jurisdictional wetland would not take
long to significantly affect a jurisdictional wetland due to hydrological connections,
either surface or subsurface. This should then cause the non-jurisdictional wetland to
become jurisdictional.
ii. Encourage the EPA/USACoE to think about significant nexus in an ecological context.
a. Emphasize connectivity and persistence of wetland persistent taxa to get at the
underlying mechanisms of wetland function, the alteration of which would negatively
affect the physical, chemical, and biological integrity of the wetland and downstream
water as well as the persistence and longevity of healthy populations of plant and
animals in these habitats.
b. Biological attributes that could be utilized in determining a significant nexus include (as
discussed in the EPA Science Advisory Board's (SAB) "Connectivity" report - section 1.2):
1. The connectivity between waters that includes the exchange of water, sediment,
wood, organic matter, nutrients, chemical contaminants, organisms including their
seed or eggs.
2. The ability of adjacent or neighboring wetlands and waters to retain "floodwaters,
sediment, nutrients, and contaminants that could otherwise negatively impact the
condition or function of downstream waters", to "remove and transform excess
nutrients such as nitrogen and phosphorus", and to temporarily store "local
groundwater that supports baseflow in rivers".
3. Recognize that for certain functions, "downstream effects arise from wetland
isolation rather than connectivity".
iii. The word "watershed" is used as basis of significant nexus definition.
a. We supported using the watershed as the fundamental unit of evaluation in the report
"Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis
of the Scientific Evidence", recognizing that this varies from small to large scales. But,
will the legal system recognize what we as scientists understand this to mean?
b. Should we consider the use of the word "hydrologic unit" or just reference the
established maps found in the USGS National Hydrography Dataset and Watershed
Boundary Dataset? Keep in mind that the HUC maps show where to find a tributary, but
not what is jurisdictional.
c) Adjacency
i. Support rule's restored protection to adjacent wetlands, but adjacency as currently defined
indicates a proximity that is very close.
ii. There is a need to go well beyond proximity. If they are going to fill the purposes of the
Clean Water Act (CWA), they need to go way beyond proximity.
iii. Encourage them to define adjacency from a functional perspective through ecological
adjacency and connectivity related to physical, chemical, and biological attributes rather
than physical closeness.
iv. Reference SAB's 9/17/2014 Draft Letter similar comments on adjacency.
v. Yaich gave an example of adjacent wetlands affecting water rights and cfs available for sale:
On the South Platte River, water is bought and sold based on the ability of water to get from
the wetlands on the landscape into lotic water bodies.
vi. Neighboring is referenced for purposes of defining adjacency.
i. Discuss the ambiguity of what is a "shallow subsurface hydrologic connection".
"Shallow" is in and of itself an ambiguous term. Note that groundwater is specifically
mentioned as not being jurisdictional in and of itself. But, they do recognize shallow
water connectivity.
ii. In addition, there instances such as the playa wetlands that recharge the Ogallala
aquifer which in turn recharges several rivers, the whole process taking hundreds to
thousands of years.
iii. Discuss that shallow is insufficient and suggest that the term "shallow" be removed from
the definition of neighboring.
d) Floodplain
i. Offer support for rule restoring categorical classification to floodplain wetlands. However,
the rule's definition of floodplain may need some clarity and fleshing out.
ii. As written, the definition requires the floodplain to be an area that is "inundated during
periods of moderate to high water flows". Man-made levees prevent the flooding of
wetlands on many landscapes, which would then restrict the breadth of wetlands protected
due to this word choice. Suggest adding the word "historically" in front of "inundated".
iii. Rather than mentioning any one specific flooding frequency (i.e., 100-year flood) as
sidebars for the floodplain to be covered by this definition, suggest that even "low
frequency" floods over the landscape should be considered. "High frequency" and "low
frequency" are appropriate terms currently used by hydrologists.
e) Tributaries
i. Support for rule restoring protections to all tributaries.
ii. Support the SAB's Draft Letter remarks that tributaries are anything with a "bed, bank, and
other evidence of flow" and do not necessarily have an "ordinary high water mark".
f) Other wetlands
i. Support for their use of science so far and push for the scientific analyses to be front and
center in their future decision-making on case-by-case basis.
ii. Encourage looking at systems in the aggregate. Support recognizing the value of the
aggregate assessment of many wetlands in context with each other and their affect on
downstream waters in the report. Can support that in this definition too.
iii. However, discuss the inherent problem with deciding what "in the aggregate" wetlands
might look like. Courts are going to want specific cases of the exact wetlands brought up in
any one case proving that they are known to have a significant nexus to jurisdictional
waters. Current studies are lacking that would show exact grouping of wetlands that can be
categorically lumped together. Using existing literature will fall short due to study design,
proximity of studies to universities, etc... There is no time now to initiate these studies, nor
is there enough time, money, etc... to ever prove every wetland's nexus to jurisdictional
waters.
iv. Therefore, emphasize the need to be scientifically pragmatic. Broadly apply science, but be
true to specific conditions. There might not be a study conducted on every single wetland
in existence, but we can use broad scientific themes and conclusions as well as region to
site-specific studies.
v. Ecoregions
a. Support that subcategories of wetlands should, in advance, be defined as jurisdictional
and that this ruling should offer protection for whole regions of wetlands.
b. Support existing Level III Ecoregions list on Fed Reg p.22215, while adding Ecoregions
such as the playas, PPR, etc... that should be considered. Review existing Ecoregion
maps to see if they already cover some playas, potholes, etc...
c. Review discussion of playas on page 22216 (right column)
g) General
i. General support for their proposed inclusion of floodplains, tributaries, and adjacent
wetlands in jurisdiction of the CWA.
ii. Perhaps make comment that authors of the ruling should keep in mind the difference
between legalese and scientific speak as discussed on Fed Reg p.22262.
III. FUTURE WORK
a. Dividing up the 1st draft of the WWG's comments to send to TWS National
i. Heath
a. Definitions (significant nexus, adjacent, tributary)
b. 1st stab at biological connectivity
ii. Jen
a. Front load compliments & support for existing definitions, commenting that we think we
could make some suggestions.
b. Case for being scientifically pragmatic, i.e., case-by-case basis is not a good approach
unless in UNIQUE situations. Significant portions of US are outside of ecoregions that
they will support jurisdiction for. These are conditions where case-by-case will take its
place. Lump this into discussion under "other wetlands" above.
c. General intro and wrap-up
iii. Lisa
a) Ecoregions
b) 2nd stab at biological connectivity after Heath
iv. Scott offered his services to review our comment before it is sent to National.
b. 1st draft to be submitted to fellow officers for review on TUESDAY SEPTEMBER 30th
c. Final comments DUE to TWS National on FRIDAY OCTOBER 3rd
Minutes prepared by: J.Chutz, 9/26/2014