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Old 03-02-2017, 04:11 PM   #1
B Littleton
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posted this under a different thread title that was waaaay too long...


https://www.whitehouse.gov/the-press...m-and-economic

https://www.whitehouse.gov/the-press...otus-executive

I know I've brought this up before, but I'd like to continue the conversation to see what ya'll think now that the full text and intention is clear. The intention to regulate by the Scalia opinion will exclude ephemeral headwater streams and adjacent (not-abutting wetlands). Here are some photo examples (from my work) of the features that will no longer be protected under federal regulation if this executive order's intent is realized...

Cypress Swamp adjacent to, but not directly abutting the Angelina river...


Ephemeral headwater stream in Collin County (1 day after a rain event)...


Headwater wetland that feeds two ephemeral headwater streams in Walker County (These connect to Carolina Creek and then to the Trinity)


Now, I know many of you will reference overreach by the EPA in cases like Andy Johnson's in Wyoming. This is undoubtedly a problem that needs to be corrected. However, this is also a case of not needing to throw the baby out with the bathwater. While individual cases of a landowner impounding an ephemeral or intermittent stream on his property may only have a negligible effect on receiving waters, the cumulative effect (watershed level) of unchecked modification to stream systems is known and well documented. As up-gradient portions of watersheds are developed (e.g. ephemeral streams filled and re-routed, headwater wetlands converted to impervious surface, etc.), down-gradient discharge velocities, sediment load, and volume change substantially. These changes can have significant impacts on processes in receiving waters (e.g. traditionally navigable or relatively permanent waters), often times resulting in loss of property downstream resulting from increased flooding or channel instability causing property (land) to actually fall into the river. Not to mention the significant effects on water quality and wildlife habitat. So, as I've illustrated above, it is not so simple as "it's my land and I should be able to do what I want". If this E.O. is successful in its intent, it will not only result in Joe landowner being able to build a stock pond without a permit (which by the way, there are Agricultural exemptions for this type of activity if you can prove the need), it will result in every land developer out there being able to fill in millions of acres of wetlands and ephemeral streams, resulting in significant economic (flood control infrastructure, bridge and culvert repairs, bank stabilization, etc.) but also ecological problems.

My hope is that the true intent of this order is to begin the discussion of how to appropriately address regulatory uncertainty and establish clearer guideline on what is and is not permissible without a permit and mitigation under the CWA. We shall see.
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Old 03-02-2017, 04:16 PM   #2
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I haven't read the EO, nor am I an expert in EPA doings BUT, I do not believe a farmer/landowner should have to jump thru hoops to build a stock pond on HIS land nor should he have to prove anything to the EPA in order to build it. . THE EPA has been out of control for years and needs chopping back, way back. The Federal overreach has gone on too long. In my opinion.
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Old 03-02-2017, 04:18 PM   #3
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I Want the EPA to stay as far away from me and my land as possible.
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Old 03-02-2017, 04:23 PM   #4
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Originally Posted by DTala View Post
I haven't read the EO, nor am I an expert in EPA doings BUT, I do not believe a farmer/landowner should have to jump thru hoops to build a stock pond on HIS land nor should he have to prove anything to the EPA in order to build it. . THE EPA has been out of control for years and needs chopping back, way back. The Federal overreach has gone on too long. In my opinion.
building a "stock" pond, by rule, is exempt from the requirements of Section 404 of the CWA...

https://www.epa.gov/cwa-404/exemptio...t-requirements

At what point would you draw the line between a "stock" pond and a reservoir? Also, what is the intended use of the pond? do you need a 25 acre on-channel lake to water a couple hundred head of cattle? probably not.

These are the kind of questions that need clear and concise answers/limits.
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Old 03-02-2017, 04:25 PM   #5
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A lot of people just don't understand (or simply don't care) that actions they take on their place can have severe negative impacts on their neighbors, especially when dealing with water resources.

I hope this doesn't cause a lot of damage. Draining wetlands and impeding/damaging even small tributaries can be irreversible.
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Old 03-02-2017, 04:29 PM   #6
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Originally Posted by Razrbk89 View Post
A lot of people just don't understand (or simply don't care) that actions they take on their place can have severe negative impacts on their neighbors, especially when dealing with water resources.

I hope this doesn't cause a lot of damage. Draining wetlands and impeding/damaging even small tributaries can be irreversible.
I think it is a combination of don't understand and don't care (out of sight out of mind).

It isn't like this for everything though. People seem to have no problem following floodplain regulations, probably because they know that if they build in the floodplain there is a good chance their property will be destroyed.

The impacts are a little more difficult/less immediate with impacts to streams and wetlands.
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Old 03-02-2017, 04:36 PM   #7
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Let me start here. This is somewhat of a moving target for me at this point. My stance is the TRUTH or CORRECT action is in the middle somewhere. I am not totally sure why this was so important to the administration as it appears (not accusing but being observant) that developers (including Trump himself) were somewhat promoting this change. As someone who owns timberland with a creek less than 1/2 mile off the Sabine I have zero issues with the guidelines now. Also, as a landowner I don't like over reaching governments......local/state/ or federal.
I will say this. The changes will/may "potentially cause more issues" than the discomfort (yes, understanding some is in the millions of dollars) being experienced by a handful individuals throughout the nation. For those in the limbo position it should be a reasonable process to solve conflicts, not add more legislation or in this case another executive action!!!!. Both sides tend to get so entrenched that neither will come up for air to find a workable solution.
Not to geaux off-track but I do have some concerns about this constant mantra about dismantling the EPA. Not sure if that is the BEST idea either. Do I agree with much of there non-sense in the EPA........absolutely NOT, but getting them under control (mission statement, etc) may very well be a better solution. Spending a large portion of my career with a large multi-national chemical company I know first hand the pure pain they can inflict...........but growing up in America's real life cancer alley (Baton Rouge downstream to NOLA) I can easily understand the need for oversight. Again, the truth is somewhere in the middle on these issues for me!!!
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Old 03-02-2017, 04:38 PM   #8
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Originally Posted by Landrover View Post
Let me start here. This is somewhat of a moving target for me at this point. My stance is the TRUTH or CORRECT action is in the middle somewhere. I am not totally sure why this was so important to the administration as it appears (not accusing but being observant) that developers (including Trump himself) were somewhat promoting this change. As someone who owns timberland with a creek less than 1/2 mile off the Sabine I have zero issues with the guidelines now. Also, as a landowner I don't like over reaching governments......local/state/ or federal.
I will say this. The changes will/may "potentially cause more issues" than the discomfort (yes, understanding some is in the millions of dollars) being experienced by a handful individuals throughout the nation. For those in the limbo position it should be a reasonable process to solve conflicts, not add more legislation or in this case another executive action!!!!. Both sides tend to get so entrenched that neither will come up for air to find a workable solution.
Not to geaux off-track but I do have some concerns about this constant mantra about dismantling the EPA. Not sure if that is the BEST idea either. Do I agree with much of there non-sense in the EPA........absolutely NOT, but getting them under control (mission statement, etc) may very well be a better solution. Spending a large portion of my career with a large multi-national chemical company I know first hand the pure pain they can inflict...........but growing up in America's real life cancer alley (Baton Rouge downstream to NOLA) I can easily understand the need for oversight. Again, the truth is somewhere in the middle on these issues for me!!!

I agree. I tend to find that the truth is almost always in the middle on most issues. It's become increasingly frustrating to have such an opinion.
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Old 03-02-2017, 04:42 PM   #9
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All those words, perfectly constructed paragraphs, and complete sentences...and the end result is...

"the truth is somewhere in the middle" ?
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Old 03-02-2017, 04:56 PM   #10
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Originally Posted by systemnt View Post
All those words, perfectly constructed paragraphs, and complete sentences...and the end result is...

"the truth is somewhere in the middle" ?
Okay, here is the "truth" as I see it.

With regards to constructing impoundments or working within wetlands/waters of the U.S as an individual (rancher, farmer, recreational land owner, etc) a nationwide permit or nationwide letter of permission should be established with reasonable (the exact acreage may need to vary depending on region and resource type) impact thresholds allowing the activity without pre-construction notification. 50 of these types of permits http://www.usace.army.mil/Portals/2/...-06-091151-173 already exist and a large part of my job is keeping developers and O&G companies within the non-notification limits of these permits (which is fairly easy to do in most instances).

What does not need to happen is wholesale de-regulation of our nations headwater streams and wetlands.
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Old 03-02-2017, 05:00 PM   #11
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You aint lyin! That was one long thread title
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Old 03-02-2017, 05:04 PM   #12
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Originally Posted by B Littleton View Post
Okay, here is the "truth" as I see it.

With regards to constructing impoundments or working within wetlands/waters of the U.S as an individual (rancher, farmer, recreational land owner, etc) a nationwide permit or nationwide letter of permission should be established with reasonable (the exact acreage may need to vary depending on region and resource type) impact thresholds allowing the activity without pre-construction notification. 50 of these types of permits http://www.usace.army.mil/Portals/2/...-06-091151-173 already exist and a large part of my job is keeping developers and O&G companies within the non-notification limits of these permits (which is fairly easy to do in most instances).

What does not need to happen is wholesale de-regulation of our nations headwater streams and wetlands.

as I mentioned before, there are already agricultural exemptions where most peoples "stock" ponds would be covered. I can't find enough information on exactly what happened with the Wyoming enforcement action (Andy Johnson), but my suspicion is that an angry neighbor reported him for a violation. Seeing as his property was only 8 acres, he probably couldn't produce evidence that a pond the size he built (not sure how big, can't find that data) was necessary for whatever agricultural activity he was claiming. In reality, he probably just wanted a fishing hole. Problem with that is that in impounding that stream he cutoff downstream flow and probably ****** off a neighbor who reported him. If he'd built it as an over-flow, or bypass pond, he probably could have had it without even resulting in a regulated activity (discharge of fill material into a water of the U.S.).

Also, it seems to me that developers will use this individual enforcement example as dynamite to blow the whole in the regs so they can save money on permitting costs. Real world natural resource impacts be ****ed.

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Old 03-02-2017, 05:34 PM   #13
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Quote:
Originally Posted by B Littleton View Post
What does not need to happen is wholesale de-regulation of our nations headwater streams and wetlands.
That is my concern, especially as a hunter conservationist. Something about this just seems really odd and not passing the sniff test very clearly.
Quote:
Originally Posted by systemnt View Post
All those words, perfectly constructed paragraphs, and complete sentences...and the end result is...

"the truth is somewhere in the middle" ?
yep, but think about it a little differently. The pendulum has swung to far one way with added regulations or added fines.......also the folks on the other side (us) have taken actions that are way outside reasonable limits. Lets all review what we have and come up with reasonable and sensible guidelines that do ONLY what they were intended to do. Thus, the truth is already in writing (in the middle of the crap loads of jibberish) but it has gotten buried under the nonsense that has ensued in the last 30 years or so.
Quote:
Originally Posted by B Littleton View Post
as I mentioned before, there are already agricultural exemptions where most peoples "stock" ponds would be covered. it seems to me that developers will use this individual enforcement example as dynamite to blow the whole in the regs so they can save money on permitting costs. Real world natural resource impacts be ****ed.
U r on the right track sir! There is more to this action.........just seems odd honestly.....not a conspiracy but odd at best! Just seems throwing the baby out with the bath water because we are to dang lazy to work thru the maze of confusion we have formed for ourselves unnecessarily.
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Old 03-02-2017, 07:11 PM   #14
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Originally Posted by Landrover View Post
That is my concern, especially as a hunter conservationist. Something about this just seems really odd and not passing the sniff test very clearly.



yep, but think about it a little differently. The pendulum has swung to far one way with added regulations or added fines.......also the folks on the other side (us) have taken actions that are way outside reasonable limits. Lets all review what we have and come up with reasonable and sensible guidelines that do ONLY what they were intended to do. Thus, the truth is already in writing (in the middle of the crap loads of jibberish) but it has gotten buried under the nonsense that has ensued in the last 30 years or so.



U r on the right track sir! There is more to this action.........just seems odd honestly.....not a conspiracy but odd at best! Just seems throwing the baby out with the bath water because we are to dang lazy to work thru the maze of confusion we have formed for ourselves unnecessarily.


I think the most telling thing to that end, is the fact the first place this was mentioned after the election, was under the America first energy plan. This is not about individual property rights, this is about industry trying to save on permit costs. Which I believe, backed by data and professional experience, will have a deleterious effect on our natural resources.


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Old 03-03-2017, 03:56 PM   #15
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Originally Posted by B Littleton View Post
I think the most telling thing to that end, is the fact the first place this was mentioned after the election, was under the America first energy plan. This is not about individual property rights, this is about industry trying to save on permit costs. Which I believe, backed by data and professional experience, will have a deleterious effect on our natural resources.


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Thus, furthers my uncomfortable position on this subject.

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Old 03-03-2017, 04:13 PM   #16
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You are obviously a lot more well-versed than most of us on WOTUS. You should also probably stop using them big words on TBH. It's deleterious.

I thought Tiffany Dowell from Texas Agriculture Law explained it well: "The late Justice Scalia’s opinion (which was joined by Justices Thomas, Alito, and Roberts) held that the Clean Water Act applied to “relatively permanent, standing or continuously flowing bodies of water” traditionally recognized as “streams, oceans, rivers and lakes” that are connected to traditional navigable waters. Also within the scope of the Act, according to the Scalia opinion, would be wetlands abutting these water bodies if they contain continuous surface water flow connection such that the wetland and the water were “indistinguishable.” This stands in contrast to the approach taken by the 2015 rule, which would seem to follow more along the lines of the Justice Kennedy concurrence in Rapanos, adopting the “significant nexus” standard."

http://agrilife.org/texasaglaw/2017/...e-order-wotus/
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Old 03-03-2017, 04:39 PM   #17
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You are obviously a lot more well-versed than most of us on WOTUS. You should also probably stop using them big words on TBH. It's deleterious.



I thought Tiffany Dowell from Texas Agriculture Law explained it well: "The late Justice Scalia’s opinion (which was joined by Justices Thomas, Alito, and Roberts) held that the Clean Water Act applied to “relatively permanent, standing or continuously flowing bodies of water” traditionally recognized as “streams, oceans, rivers and lakes” that are connected to traditional navigable waters. Also within the scope of the Act, according to the Scalia opinion, would be wetlands abutting these water bodies if they contain continuous surface water flow connection such that the wetland and the water were “indistinguishable.” This stands in contrast to the approach taken by the 2015 rule, which would seem to follow more along the lines of the Justice Kennedy concurrence in Rapanos, adopting the “significant nexus” standard."



http://agrilife.org/texasaglaw/2017/...e-order-wotus/


That is a good description, and personally I agree with kennedy's significant nexus interpretation for the reasons stated above. Just because a stream's flow is, ephemeral doesn't mean it isn't an integral part of the the overall surface tributary system. Likewise, just because a wetland isn't continually hydrologically connected with the receiving water, doesn't mean that it doesn't perform important protective functions (e.g. Detention, filtration, sediment sequestration, etc.).


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Old 03-06-2017, 12:23 PM   #18
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I Want the EPA to stay as far away from me and my land as possible.
Ok. That is understandable. But, how do you propose managing common resources (like streams) that may flow through your land, but are not geographically constrained by your property boundaries.

This is not a smart *** questions. I really want to know how landowners think common resources (water, air, wildlife, etc.) should be managed.
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Old 03-06-2017, 12:26 PM   #19
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I'm with ya B.
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Old 03-06-2017, 01:46 PM   #20
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Originally Posted by B Littleton View Post
Ok. That is understandable. But, how do you propose managing common resources (like streams) that may flow through your land, but are not geographically constrained by your property boundaries.

This is not a smart *** questions. I really want to know how landowners think common resources (water, air, wildlife, etc.) should be managed.
Cha ching! It is a bigger picture. Get the idiots in DC under control and let them do what they were formed for in the 70's.

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Old 03-07-2017, 10:47 PM   #21
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The problem with regulatory agencies is, they want to regulate ! They're just like beavers, they just want a little more water/regulations every day ! No common sense, just big words on paper to fit every situation. That's why they're out of control. I don't think any hunter or fisherman wants dirty water or air, but they don't want the EPA up their butts for putting in a culvert or damming up a seasonal creek either. Sometimes to get someone's attention, you have to ( figuratively ) slap them up side the head. The EPA needs such a slapping, and then some common sense needs to prevail. With that, I'm leaving the politics/current events forum, I was only here because I was bored.......
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Old 03-08-2017, 09:45 AM   #22
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Originally Posted by Drycreek3189 View Post
The problem with regulatory agencies is, they want to regulate ! They're just like beavers, they just want a little more water/regulations every day ! No common sense, just big words on paper to fit every situation. That's why they're out of control. I don't think any hunter or fisherman wants dirty water or air, but they don't want the EPA up their butts for putting in a culvert or damming up a seasonal creek either. Sometimes to get someone's attention, you have to ( figuratively ) slap them up side the head. The EPA needs such a slapping, and then some common sense needs to prevail. With that, I'm leaving the politics/current events forum, I was only here because I was bored.......
Do you have direct personal experience with the USACE or EPA acting in such a way? In my experience, working in the Texas, Oklahoma, Kansas, Arkansas, and Louisiana, the EPA rarely gets involved in Section 404 issues. I know that it happens, but it is typically in cases where some egregious violation has occurred. As I stated before, I don't have enough details about the Wyoming enforcement issue to know exactly what happened, but I would bet that there are two sides to the story.

I have worked in this industry for over a decade, and in my experience the USACE (the agency to which authority is delegated to regulate discharges into waters of the U.S. under Section 404 of the CWA in most cases) has been consistent in their assessment of jurisdiction since the Rapanos decision in 2006. The new rule did not extend jurisdiction to any additional features, it merely cleared up some gray areas.

Pre-Rapanos decision (2006), pretty much every aquatic feature, isolated or not was regulated in some form or fashion under the CWA. Post Rapanos, by using the significant nexus determination, many features were able to be removed from federal jurisdiction because the demonstration could not be made that there was more than a speculative effect on the physical, chemical, or biological integrity of the receiving water.

In truth, a large percentage of development work takes place in violation of the CWA and the violations go unnoticed because the USACE and EPA don't have the budget or manpower to police things. I have personally seen way more instances of developers getting away with violations than being held responsible and having enforcement actions against them.

Drycreek3189, in my experience working closely with these agencies and regulations, I just don't see the behavior you are claiming. I am not saying it doesn't exist, and I believe that it probably does in other areas of the country as we see very significant differences in the way these regs are handled just between the USACE Fort Worth District and Galveston District. I guess my point is, in my professional opinion, that we need to address consistency between agencies and regions (to fix regulatory uncertainty), but we do not need to reduce the jurisdiction of the law. Whether you or anyone else want to admit it, there is undeniable scientific and engineering evidence that supports the need to protect headwater (seasonal as you put it) streams and wetlands in order to maintain the integrity of receiving waters (traditionally navigable waterways). If for no other reason than the cost of flood control infrastructure and bank stabilization if we don't (there are many other reasons that I would argue are as important, but money always seems to get people to listen).
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