Topics

Pics of Deregulating Waters


Noah Charney
 

Hi All,

Does anyone have compelling images of before/after of waterways that have been impacted by deregulation (state or federal) - for example, a beautiful vernal pool or ephemeral stream that would have been protected before water protections were rolled back but then was destroyed in a deregulated environment?  Or any good resources to make the case to the public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure the state keeps up with Federal WOTUS rollback etc by gutting the State's protections.  In anticipation, a statewide network of water advocates/organizations/professionals have started trying to pull together resources and stakeholders to make the case to the public and legislators that we need to keep these waters protected.  I'm not up on all the legislative intricacies, but compelling images that tell the deregulation story to the public was one piece of the puzzle we were trying to track down in a recent call.  Any other advice or resources are appreciated.  

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University


Kyla Bennett
 

I do Noah. Email me tomorrow at biojustus@... and I’ll send you some stuff you can use.

Best, Kyla


On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have been impacted by deregulation (state or federal) - for example, a beautiful vernal pool or ephemeral stream that would have been protected before water protections were rolled back but then was destroyed in a deregulated environment?  Or any good resources to make the case to the public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure the state keeps up with Federal WOTUS rollback etc by gutting the State's protections.  In anticipation, a statewide network of water advocates/organizations/professionals have started trying to pull together resources and stakeholders to make the case to the public and legislators that we need to keep these waters protected.  I'm not up on all the legislative intricacies, but compelling images that tell the deregulation story to the public was one piece of the puzzle we were trying to track down in a recent call.  Any other advice or resources are appreciated.  

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University


Mary Thomas
 

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment? Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections. In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected. I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call. Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org


--
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein


Kyla Bennett
 

Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







--
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







Matt Burne
 

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







--
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Kyla Bennett
 

Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







Matt Burne
 

I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact.

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Kyla Bennett
 

Thanks for this, Matt. Stunningly depressing…I will see if we can delve more deeply into the legal ramifications here. 

Thoughts on trying to get MA to amend their regs to disentangle CVP protections from WOTUS designations? I do believe we will ultimately prevail,  but this Administration has laid bare the flaws of relying on federal protection. 

Thanks,

Kyla

On Aug 5, 2020, at 8:56 AM, Matt Burne <mattburne@...> wrote:

I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact. 

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







Matt Burne
 

Please do, Kyla. I have no legal training (disclaimer), so I'm just a hack screaming into the void. I always stress that it comes down to jurisdiction, always. So I think that my reasoning is sound, but really am interested in additional opinions on this analysis.

Of course, WPA protection of vernal pools (certified or otherwise) is entirely disentangled from 401, and in many towns across the commonwealth, the local bylaw is further disentangled from even the WPA. Forest Cutting Practices Act is also entirely separate, with its own protections of vernal pools (certified or otherwise). So the Massachusetts picture for vernal pool protection is considerably less bleak than the national one. 

The strength of the 401 protections comes through the Surface Water Quality Standards' designation of CVPs as ORWs, and the strict no discharge standard that is applied to ORW. WPA and most bylaws don't have that kind of "just no" written into them. I doubt that the WPA would be fortified in light of a potential end of the 401 coverage, frankly, but that's another thing for local commissions to consider when drafting or amending bylaws.

Matt

On Wed, Aug 5, 2020 at 9:48 AM Kyla Bennett <biojustus@...> wrote:
Thanks for this, Matt. Stunningly depressing…I will see if we can delve more deeply into the legal ramifications here. 

Thoughts on trying to get MA to amend their regs to disentangle CVP protections from WOTUS designations? I do believe we will ultimately prevail,  but this Administration has laid bare the flaws of relying on federal protection. 

Thanks,

Kyla

On Aug 5, 2020, at 8:56 AM, Matt Burne <mattburne@...> wrote:

I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact. 

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Frederica Gillespie
 

Matt 
Thank you for this explanation. I was concerned when the Fed‘s new rule on   deregulation  first announced and raised it here, and understood you reply then to be pretty much the same as you’ve outlined here.
But to be clear - your comments only pertain to Massachusetts? 
Will other states face a bigger impact? 
Freddie

On Aug 5, 2020, at 8:57 AM, Matt Burne <mattburne@...> wrote:


I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact.

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Kyla Bennett
 

More than half the states in the country do not have state wetland protection laws. The new WOTUS regulation (which is already in effect everywhere except Colorado) removes all ephemeral streams and all “geographically isolated wetlands” from federal jurisdiction. So, yes…other states are facing horrendous impacts. For example, virtually all prairie potholes are no longer protected. Vernal pools are, by definition, almost always geographically isolated. The impacts out in the arid southwest will be astronomical…up to 90% of wetlands no longer have protection. Even large rivers like the Santa Fe river is ephemeral in parts and at risk. 

And they are not just at risk from filling, but also from dumping pollutants into. It’s a horror show. 

On Aug 5, 2020, at 10:04 AM, Frederica Gillespie via groups.io <fg481@...> wrote:

Matt 
Thank you for this explanation. I was concerned when the Fed‘s new rule on   deregulation  first announced and raised it here, and understood you reply then to be pretty much the same as you’ve outlined here.
But to be clear - your comments only pertain to Massachusetts? 
Will other states face a bigger impact? 
Freddie

On Aug 5, 2020, at 8:57 AM, Matt Burne <mattburne@...> wrote:


I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact. 

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







Matt Burne
 

Your map of the NPDES permits on not wetlands in NM is striking. As is the pothole aerial NWI v federal wetlands pair. I presume, then, that NPDES permits will no longer be required for any of these discharges?

Horror show, indeed. 

On Wed, Aug 5, 2020 at 10:09 AM Kyla Bennett <biojustus@...> wrote:
More than half the states in the country do not have state wetland protection laws. The new WOTUS regulation (which is already in effect everywhere except Colorado) removes all ephemeral streams and all “geographically isolated wetlands” from federal jurisdiction. So, yes…other states are facing horrendous impacts. For example, virtually all prairie potholes are no longer protected. Vernal pools are, by definition, almost always geographically isolated. The impacts out in the arid southwest will be astronomical…up to 90% of wetlands no longer have protection. Even large rivers like the Santa Fe river is ephemeral in parts and at risk. 

And they are not just at risk from filling, but also from dumping pollutants into. It’s a horror show. 

On Aug 5, 2020, at 10:04 AM, Frederica Gillespie via groups.io <fg481@...> wrote:

Matt 
Thank you for this explanation. I was concerned when the Fed‘s new rule on   deregulation  first announced and raised it here, and understood you reply then to be pretty much the same as you’ve outlined here.
But to be clear - your comments only pertain to Massachusetts? 
Will other states face a bigger impact? 
Freddie

On Aug 5, 2020, at 8:57 AM, Matt Burne <mattburne@...> wrote:


I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact. 

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Kyla Bennett
 

That is correct. No NPDES permit required.

On Aug 5, 2020, at 10:12 AM, Matt Burne <mattburne@...> wrote:

Your map of the NPDES permits on not wetlands in NM is striking. As is the pothole aerial NWI v federal wetlands pair. I presume, then, that NPDES permits will no longer be required for any of these discharges?

Horror show, indeed. 

On Wed, Aug 5, 2020 at 10:09 AM Kyla Bennett <biojustus@...> wrote:
More than half the states in the country do not have state wetland protection laws. The new WOTUS regulation (which is already in effect everywhere except Colorado) removes all ephemeral streams and all “geographically isolated wetlands” from federal jurisdiction. So, yes…other states are facing horrendous impacts. For example, virtually all prairie potholes are no longer protected. Vernal pools are, by definition, almost always geographically isolated. The impacts out in the arid southwest will be astronomical…up to 90% of wetlands no longer have protection. Even large rivers like the Santa Fe river is ephemeral in parts and at risk. 

And they are not just at risk from filling, but also from dumping pollutants into. It’s a horror show. 

On Aug 5, 2020, at 10:04 AM, Frederica Gillespie via groups.io <fg481@...> wrote:

Matt 
Thank you for this explanation. I was concerned when the Fed‘s new rule on   deregulation  first announced and raised it here, and understood you reply then to be pretty much the same as you’ve outlined here.
But to be clear - your comments only pertain to Massachusetts? 
Will other states face a bigger impact? 
Freddie

On Aug 5, 2020, at 8:57 AM, Matt Burne <mattburne@...> wrote:


I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact. 

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







Frederica Gillespie
 

Matt
Per the statement copied below, do you think there’s value in cities and towns across the Commonwealth to adopt local VP protection bylaws, and do they have the authority to do so given the new Fed rules? 
 Is there already a standard recommended local VP protection bylaw or should one be created (by members of this group or MACC) ?  
Freddie

“the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

On Aug 5, 2020, at 10:04 AM, FREDERICA J GILLESPIE <fg481@...> wrote:


Matt 
Thank you for this explanation. I was concerned when the Fed‘s new rule on   deregulation  first announced and raised it here, and understood you reply then to be pretty much the same as you’ve outlined here.
But to be clear - your comments only pertain to Massachusetts? 
Will other states face a bigger impact? 
Freddie

On Aug 5, 2020, at 8:57 AM, Matt Burne <mattburne@...> wrote:


I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact.

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Matt Burne
 

Hi Freddie,

Towns in Massachusetts have the ability to write and adopt a local wetlands bylaw. It must be as strict as the state law (local bylaws can't relax wetlands protections locally), but can be considerably more protective if that is desired and passed/adopted by the local government. 

There are many examples, some good, some better, and there's a model that can be found on the MACC website (https://www.maccweb.org/general/custom.asp?page=ElecResLibrary&DGPCrPg=1&DGPCrSrt=7D). I like to point people to the Sudbury bylaw that was written a long time ago and therefore has been tested many times over. There may be other "favorites" to be discovered by now. 

A couple of things to consider for a bylaw that improves protection of vernal pools: 
  • Increase the jurisdiction of the law - any ponded body of water can be included as jurisdictional. I believe Sudbury uses a 200 square foot area as its minimum size. Be careful to consider how you avoid "stinking mosquito ditches." This means the town can protect isolated vernal pools that do not meet size criteria for ILSF (10,000 cubic feet of volume)
  • Include a presumption that jurisdictional ILSF does provide wildlife habitat, thereby obviating the argument around certification.
  • Don't rely on certification for vernal pool protection.
  • Rather than defining buffer areas around vernal pools, make those zones jurisdictional resource areas. This means that a commission can condition work in the zones around the pool to protect the value of that zone, instead of having to do the pretzel logic of tying the work in the surrounding uplands to impacts in the wetland. These in defining the zone(s), the value to wildlife needs to be front and center so permits tie directly to the reason you want the zone protected.
There may be other things, but these come straight to mind.

Matt


On Wed, Aug 5, 2020 at 10:18 AM Frederica Gillespie via groups.io <fg481=verizon.net@groups.io> wrote:
Matt
Per the statement copied below, do you think there’s value in cities and towns across the Commonwealth to adopt local VP protection bylaws, and do they have the authority to do so given the new Fed rules? 
 Is there already a standard recommended local VP protection bylaw or should one be created (by members of this group or MACC) ?  
Freddie
“the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

On Aug 5, 2020, at 10:04 AM, FREDERICA J GILLESPIE <fg481@...> wrote:


Matt 
Thank you for this explanation. I was concerned when the Fed‘s new rule on   deregulation  first announced and raised it here, and understood you reply then to be pretty much the same as you’ve outlined here.
But to be clear - your comments only pertain to Massachusetts? 
Will other states face a bigger impact? 
Freddie

On Aug 5, 2020, at 8:57 AM, Matt Burne <mattburne@...> wrote:


I've been talking with folks like Gillian Davies about this to see if we can understand the implications here, and it's about as clear as a vernal pool after a class visit.

Yes, the ORW classification is a state designation, made within 314 CMR 4.00, the Surface Water Quality Standards. The authority for the SWQS comes from Mass General Laws ch 21, s 27, which is state law and defines wetlands really broadly, as basically everything. The purpose of the SWQS is to secure for the commonwealth the benefits of the Clean Water Act (federal). So a project proposing fill within a CVP does not meet the SWQS and there'd be no change to that fact.

One could interpret the new rule as not changing the purpose of the federal Clean Water Act, and therefore conclude that the rule change has no effect on the MA Surface Water Quality Standards. In fact, I think it's reasonable to conclude that the SWQS actually have no obligation to conform with anything other than securing for the commonwealth the benefits of the federal law, which actually says nothing about how wetlands are defined, just that we're trying to protect the chemical, physical, and biological integrity of the nation's waters.

However, the SWQS are used essentially as a litmus test for projects that seek a federal 401 permit through 314 CMR 9.00. That (314 CMR 9.00) clearly defines the jurisdiction as projects that require federal licensing or permits in waters of the United States within the Commonwealth. So ultimately, the SWQS can say whatever they want, but they don't come into play unless and until a federal permit or license is required for work proposed within a wetland under federal jurisdiction. 

My conclusion (and mine alone at this point) is that the new rule would obviate the requirement to obtain a federal license or permit for work in anything that doesn't conform to the federal definition of wetland, and therefore in most cases, ORW protections for vernal pools under the 401 Water Quality Certification at 314 CMR 9.00 won't even come up. There won't be an opportunity to apply SWQS to a project that doesn't require a permit or license.

I have heard that there are varying approaches to implementing the new rule across ACOE regions, and everything remains in flux as challenges to the rule play out (and elections loom), but I think if this goes into effect, the 401 protections that Certified Vernal Pools benefit from in Massachusetts will go away in cases where the pool doesn't meet federal definition of jurisdictional wetland.

By the way, and not to drag politics onto the listserve, but if you care about wetlands protection, especially as pertains to isolated and ephemeral wetlands, this upcoming presidential election is remarkably important. Get out and vote for wetlands protection or against it.

Matt

On Tue, Aug 4, 2020 at 4:37 PM Kyla Bennett <biojustus@...> wrote:
Yes, Matt, I believe you are right about the 401 WQ cert issue and waters of the US.

But aren’t certified vernal pools also considered Class B Outstanding Resource Waters under state law? I think they might still (theoretically) be afforded protection there?

Regardless, the new WOTUS rule is horrific. We should, perhaps, be asking MA to legislatively close these loopholes so that the Commonwealth’s protection is not dependent on the federal Clean Water Act definition of WOTUS. Even if we prevail in court, this can always happen again.

Kyla

On Aug 4, 2020, at 4:20 PM, Matt Burne <mattburne@...> wrote:

Thank you for these, Kyla. We're thinking a lot about implications for Certified Vernal Pools in Massachusetts with respect to Section 401 protections as well. Certified Vernal Pools are classified as Class B Outstanding Resource Waters in the Mass Surface Water Quality Standards (314 CMR 4.00) and as such have a very robust "no discharge" standard for any work that requires federal Clean Water Act related permits, including section 401 and 404 permits.  These regulations are used for issuing 401 Water Quality Certifications for discharges into "Waters of the United States within the Commonwealth" (314 CMR 9.01(1)&(2)). So that would pretty clearly imply that the jurisdiction of this set of regulations depends on determination of federal jurisdiction; that's always the way I've read it.  

If that is the case, then the 401 water quality standards regulating discharges into CVPs would be moot most of the time, given that most vernal pools will no longer meet the federal WOTUS definition. Depending on how the challenges to this new rule play out, it's possible/likely that the MA Surface Water Quality Standards will no longer apply to CVPs regardless their designation as ORWs. In the end, if there's no jurisdiction, there's no protection.

That said, and to echo Kyla's final statement, the Wetlands Protection Act and local bylaws will be the primary actors in keeping vernal pools present and functioning on the landscape of Massachusetts. In parts of the country where state and local laws are less stringent, vernal pools and other ephemeral wetland systems are queuing up for a mighty challenge.

There's a lot more to play out with this whole definition and implementation process, but this rule change presents significant concern for vernal pools as a class of wetlands.

Matt




On Tue, Aug 4, 2020 at 9:49 AM Kyla Bennett <biojustus@...> wrote:
Hi, Mary. I sent Noah these:

Parts of the Hockomock will no longer be jurisdictional, and will be destroyed by the South Coast Rail: https://www.bostonglobe.com/metro/2020/01/18/trump-administration-allegedly-cuts-federal-scientists-out-new-water-policy/eRq03KhTRl7WteOJPce5tJ/story.html





Here in MA, because we have a fairly strong state wetlands protection act (although implemented unevenly across the towns), the differences will not be as apparent. But a lot of the ILSF will no longer be jurisdictional, and potential (uncertified) vernal pools are all at risk. 

Hope this helps.

P.S. PEER is part of a coalition of NGOs suing EPA over the WOTUS rule.

On Aug 4, 2020, at 9:09 AM, Mary Thomas <wzzw19@...> wrote:

Before and after images of this kind would be useful for Conservation
Commissions that want to educate the public about wetlands. Any
possibility we could all see your pix Kyla?

Mary

On 8/3/20, Kyla Bennett <biojustus@...> wrote:
I do Noah. Email me tomorrow at biojustus@... and I’ll send you some
stuff you can use.

Best, Kyla
On Aug 3, 2020, at 10:01 PM, Noah Charney <ndcharney@...> wrote:


Hi All,

Does anyone have compelling images of before/after of waterways that have
been impacted by deregulation (state or federal) - for example, a
beautiful vernal pool or ephemeral stream that would have been protected
before water protections were rolled back but then was destroyed in a
deregulated environment?  Or any good resources to make the case to the
public that further deregulating of water protections is a bad idea?

Down in Tennessee, it appears that forces are getting ready to make sure
the state keeps up with Federal WOTUS rollback etc by gutting the State's
protections.  In anticipation, a statewide network of water
advocates/organizations/professionals have started trying to pull together
resources and stakeholders to make the case to the public and legislators
that we need to keep these waters protected.  I'm not up on all the
legislative intricacies, but compelling images that tell the deregulation
story to the public was one piece of the puzzle we were trying to track
down in a recent call.  Any other advice or resources are appreciated.

Thanks!
-Noah

~~~
Noah Charney, Phd
Executive Director, Radnor to River
Associate, Harvard Forest, Harvard University
www.NoahCharney.org







-- 
"No problem can be solved from the same level of consciousness that
created it." Albert Einstein




Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933









-- 
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association

Kyla Bennett, PhD, JD
Director, New England PEER
P.O. Box 574
North Easton, MA 02356
508-230-9933







--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


--
Matt Burne
Senior Ecologist, BSC Group, Inc.
Vice-President, Vernal Pool Association


Arthur Allen
 

Good summary Matt. Also, if the pool is not certified, or is part of a non-state isolated wetland, there will be no protection. Kudos to those who have local wetlands protection as most bylaws and ordinances protect isolated wetlands and uncertified pools.