Friday, November 28, 2014

Bed Rest and Bow Test

"Stay home.  Just....stay home."  It's a poorly kept secret that moderation in the outdoors is not my strong suit.  I try to make as many things fit as possible in the very limited amount of time I have.   The problem, that is if you listen to the "doctors" and their "sound medical advice," is that I'm apparently not 24 years old anymore.   Among other things, apparently that means that when I get sick, I am supposed to take time off to recover.  And who has time for such things?

In all seriousness, I took Thanksgiving week off of work to recover after my pneumonia relapsed last weekend.  I got incredibly tired and weak and the blood work told the tale.  I had taken a few short work days, for sure, and I hadn't hunted or fished since my pneumonia diagnosis (though in the three days between my bronchitis and pneumonia diagnosis, truth be told, I bow hunted twice).

I missed my first goose opener since 2005, and missed the entire November waterfowl season for the first time since 2001.  So here I am.   What to do....what to do....

I decided to test out the Bear Apprentice II I received last summer.  It's a "large youth" bow, perhaps a womens bow as well.  With adjustable pull up to 50lb and a pull of 27" (my draw is 27.5"), I figured I could enjoy it until young Hank gets strong enough to use it in another several years.  And it weighs three pounds.  A three pound compound bow!  Once I have more time with it, I'll be posting a review.

I bundled up, and keeping with doctor's orders, stood in our kitchen doorway (one floor above ground) and took shots at a target block.   I wasn't technically outside.

But the testing had to start somewhere...first shots, bow out of the box:



Just a bit high (aimed at center target)!  A few horizontal and vertical adjustments....


Unfortunately, I was still aiming at the center target....more adjustments....


Well....we got the right-to-left adjustment pretty close...now for more vertical tweaks....


Hooray!  At this point, I'm two inches left of target @ 10 yards. I think the vertical is correct, but my arm was getting a bit tired, so I think my shooting was a touch sloppy.  Two inches wouldn't be a huge deal except that it can make the difference between hitting the shoulder blade of a deer and hitting the lung.  I've closely tuned the bow enough to be afraid of undoing my work with the slip of a wrench.   Guess we'll see...but for now, it's back to the couch.  More bed rest.

Wednesday, November 26, 2014

Ferguson, Dash Cams, and the Police State We Built

Meet the $200 tool that could be saving citizens from police
brutality, saving honest cops from false accusations, and
putting citizens at ease.  But there's a catch - the cops don't
want them.  
It's fascinating, twelve hours after a grand jury decided not to indict Ferguson, Missouri police officer Darren Wilson, to read the very strong opinions that people have on the case.  People who don't have the facts (nor do I).  People who aren't medical examiners (nor am I).  People who have never been in a violent encounter themselves (I have).  Visceral cries of "racism" exude from both sides.    And I get it.   Surely (on Officer Wilson's part) there must be a better way to detain a potential suspect than shooting him in the face (12 shots fired and 10 misses...so much for that "police are better trained to use guns" argument).

 And for Michael Brown or anyone encountering hostile law enforcement officers, there has to be a better way to respond than punching the officer in the face, backing up, and then charging him head on, as the cop draws his gun and starts throwing bullets around the entire zip code.   What happened beyond those two facts is very much a mystery, because Ferguson, Missouri's Police Department doesn't utilize dashboard cams or body cams - both of which are cheap, very accessible technology that help tell the stories of good cops and good citizens who get into bad situations with bad cops and bad citizens.

And that's what I'd like to examine here.   Our country, personified by the Nixon era but not at all limited to Nixon, has generated and embraced a tome of police-provided "safety" over the last 60 years.   If we are societally afraid of things - narcotics, violent crime, guns, terroristic threats, etc., we simply "ban" such things and give our law enforcement agencies very broad powers to enforce the ban - civil rights be damned.   In our heads, we want to believe that as a result of a "ban," bad things and bad people seem to just evaporate from our daily lives.   And I don't think we're bad for wanting that to be so - for crime, lawlessness, and violence to be preemptively banned from taking place.  That those things may be prevented is a laudable goal, however impossible and fantastical.

Any police officer will tell you that they don't go to work to prevent crimes, but merely solve crimes that have been committed, with a (statistically flawed) hope of discouraging future similar crimes, due to legal consequences incurred by the criminals.   To achieve this fantasy of public safety provided by a police force, we've done many questionable things as a society.  We've incarcerated more citizens than any other nation (per capita) in the history of the world, save Nazi Germany and Soviet Russia.  We've militarized the police, and we've given them more civil rights (and gun rights) than average citizens.

Perhaps most significantly, we've made "non compliance" with police orders a crime in itself ("failure to comply with a lawful order").  Police officers - even former police officers - are broadly exempted from gun control regulations and other laws, even as those laws would (and should) apply to their personal time and personal lives.  Think I'm off-base? Check out this link, this link, and, oh bother, just Google "Only police should have guns," and you'll retrieve over 46,000,000 individual web pages.     And how many times during the gun debates in recent years have you heard gun control advocates say, "Citizens don't need these guns! Only the police need them!"  Right. Well, perhaps that's the case, but here we are.  Ferguson, Missouri.

If a citizen believes they are in danger, and they shoot another person in public, it is a virtual guarantee that the citizen shooter will stand trial, at least for the minor crime of "illegally discharging a firearm in public," if not for the act of shooting the person.    As Nate Silver's shop reported this week, grand jury indictments of such cases involving private citizens are over 99.99% likely.   That statistic (% indicted) for police officers?  Roughly 1%.    That's right.  To quote President Nixon, "It's legal because I'm the president."  I'm sure that seemed like a good idea at the time.

Now let's circle back to body cams and dashboard cams.   Body cams run $200 per officer.  Dashboard cams? $3,000 each.  Ferguson has 18 cruisers, 54 commissioned officers, and a $5.2 million annual budget.  Therefore, getting the Department to upgrade to 2005 technology for the sake of protecting officers from false claims of police corruption and brutality (while protecting citizens from said alleged corruption and brutality)  would cost roughly $75,000 to initiate, and roughly $15,000/year for replacement (assume 20% replacement annually).  That's a one-time cost of 1.4% of the Department's annual budget, and a recurring cost of 0.3% of the Department's annual budget.

It is virtually certain that those two technologies, in combination, would have led to a valid and rapid assessment of what happened between Mr. Brown and Officer Wilson that would have satisfied a large swath of the public, despite the prejudices for judgment on both sides.  The Department would have saved millions of dollars they've since expended in materiel and officer overtime, to say nothing of the civil suit that is nearly inevitable, and which the the Department may in fact lose.   For a one time cost of 1.4% of the budget. 

So why not spend the 1.4%?  Because the Ferguson, Missouri Police Department, among thousands of other law enforcement agencies across the country, doesn't believe that they need to be accountable to the public.  They sincerely pursue what taxpayers have conveyed to them as their charge - to mop up what they perceive to be threats to public safety, and to not be asked questions about how they accomplish that, or whether or not their tactics are the most effective in use.

Is this "police tool" really appropriate for our streets?
What crimes will it "prevent?"
America has given our law enforcement agencies a list of quite impossible tasks:  "preventing" gun violence, "stopping" all terrorist attacks, and "ending" the narcotics trade chief among them.  Taxpayers and lawmakers have refused to listen to decades of officer testimony that these things are in fact, unachievable, in a nation of 300 million, with thousands of miles of international borders, and as a result, law enforcement agencies have convinced themselves that they can utilize any and all tools necessary to toward those means, no matter how quixotic the goal may be.  Their decisions are reinforced by grand juries who conclude that police officers on the scene (in many cases, the shooter himself/herself) are the best ones to determine what type of force was appropriate.   This seems really, really bad.

Here locally, the Baltimore City Council unanimously approved a police body-cam bill (that both funds the body cams and requires their use) recently.  It was a bold move that civil rights and law enforcement advocates both strongly approve, especially given BPD's nearly continual payouts for police brutality settlements.  Yet, Mayor Rawlings-Blake (with the support of the Baltimore Police Commissioner) strongly disapproves of the bill, and is not only threatening to veto the bill, but has promised to do so.   The Police Department doesn't seem terribly interested in seeing the daily operations of its officers.   While Baltimore is a major east coast city with big city problems, and BPD is a massive, well-trained and well-funded law enforcement agency, the parallels to the Ferguson Police Department are pretty easy in this case:  "We aren't accountable to You."

It's time to wake up to this widespread reality, and to plan for a different future where the outcome of police-involved shootings are not left to scattered facts, expired camera batteries, and the testimony of whichever party survived the incident.  Maybe we need to admit that laws and the police, while vital to our society,  can't solve all of society's problems. And maybe Americans need to rejoin the human race and honestly tackle some of our most difficult problems and begin to care about each other, ourselves, and our communities in a very deep way, instead of criminalizing all of that which makes us afraid, and incarcerating all those who step onto the wrong side of that fear.


Monday, November 17, 2014

Annual Trip Down Pneumonia Lane...

"So tell me, what do you do for asthma treatment?"

"I don't have asthma."

"You've had bronchitis for the past five Novembers, and this is your second go-around with pneumonia in that time.  You have asthma."


That's how last week ended.



One of my first memories of my life was lying in the hospital with pneumonia.  I was five.   I remember how horrible the TV shows (tiny TV mounted near the ceiling) and the food (cheap jello....barf) were.  It was 1979 and those facts haven't changed since.

I've had bronchitis at least once a year since that time, and haven't thought too much of it.  Guess the doctors haven't, either.  I was hospitalized with pneumonia again at age 22 (no insurance).  I nearly had to drop out of grad school the following year (no insurance) when my bronchitis finally beat my pride, and I went and got free antibiotics from the school clinic.  24 was a good run, near the end of which I got real health insurance and promptly got really sick with bronchitis.

Now I'm 40 and being sick for weeks on end seems less noble.  In a thoughtful turn from the standard spousal speech on my health, my wife correctly noted that this continued pattern is doubly related to the outdoors - when I first get sick, I keep going out in the woods and the water, probably compromising any slight possibility of healing myself due to.....whatever defect I have.  Then once I get really sick, I'm out of commission for solid chunks of our fairly long hunting season.  I hadn't really tied those two together.  But here we are.  It's duck season, and it will be 35 and raining tomorrow - perfect weather for ducks.  I won't be out there.

Talk to you all soon, after I schedule something called a Comprehensive Pulmonary Function Test. Can't wait.


Friday, November 14, 2014

2014 Bow Hunt #4: Clean Miss Heartbreak

I hadn't missed a bow shot on a deer in a few years.  Hadn't.  I am conservative with my shots, leaving the absolute minimum variables to chance.   Which is interesting (as I edit this text), because I am more of an aggressive tactician in other parts of my life.

I had the animal I wanted at less than 10 yards.  I was in the shadows of dusk, dressed in black, unseen.  I had time to exhale, inhale, and exhale again.  But the shot was not true.

No blood.  No fur.

This is the heartbreak of the hunt.  When there are no more things to blame, no more uncooperative universal forces in your way, when you've practiced and prepared and are fully paying attention, sometimes you still fail.  

I wanted to close the book on bow hunting this spot for this fall.  I'll return.

Wednesday, November 12, 2014

My Comments on the Proposed Rule for Waters of the US: 8 of 8: Conclusion

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

Conclusion
The EPA should be applauded for its continued interest in natural resource protection through the Clean Water Act.  However, the application of the New Rule is likely to result in ineffective and arbitrary application of regulatory policy, federal policies that cannot survive litigative challenges, and continued unacceptable hindrances to voluntary habitat restoration and enhancement efforts nationwide.

EPA staff are fond of blaming Rapanos for CWA's failings.  However, let us recall that EPA was directed to clean all of the nation's waters - and not just federally jurisdictional waters - by 1984.  Let us also recall that in 1989, President George HW Bush implemented a federal "no net loss" policy for federally jurisdictional wetlands, which was to be tabulated annually.  Presidents Clinton, George W Bush, and Obama have reiterated the pledge.  Yet,  EPA has never achieved "no net loss," in the ensuing 25 years, and in fact, the agency lacks a credible strategy for achieving it.  EPA refused to enforce CWA for the Chesapeake Bay's main stem - one of the world's largest remaining estuaries supporting a wild-caught fishery -  until litigation in 2010 compelled the agency to follow its own existing regulations. Most practitioners now envision a clean Chesapeake Bay by roughly 2040 - a far cry from EPA's Congressional mandate to accomplish that goal in 1984.


 Combining these unacceptable shortcomings in natural resource conservation with the ambiguous and unpredictable policies described above make the New Rule unworkable, and in fact, a hazard to the remaining protections afforded to significant habitats by the Clean Water Act.  I urge the EPA to devise well thought out regulations that will survive litigation and help guide our nation toward a healthy balance between economic production and ecosystem conservation. 

My Comments on the Proposed Waters of the US Rule: 7 of 8: Ongoing Illegal Federal Regulation of Stormwater Ponds to Continue

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

Stormwater Ponds
Comment:  EPA claims that stormwater ponds will not be regulated as wetlands under the New Rule.  However, some federal regulators have repeatedly attempted to regulate impacts to existing, maintained stormwater ponds if the pond has developed wetland vegetation.  Allegedly, federal mitigation has been required for pond basin "wetland" impacts associated with reconfiguring the footprint of an existing, maintained stormwater pond.


Recommendation:  Add language to the New Rule exempting from Section 404 all pond basins and slopes in pond and stormwater facilities that are adhering to the state's and municipality's guidelines for pond management and maintenance.  Abandoned stormwater ponds can be regulated as federal wetlands, as they have been for 20 years. 

My Comments on the Proposed Waters of the US Rule: 6 of 8: Illegal Regulation of Concrete Ditches Underway, to Continue

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

Concrete Ditches
Comment:  Corps and EPA employees have regulated concrete swales alongside highways as ephemeral streams, intermittent streams, and even federal wetlands in the past.  Mitigation has been required to relocate these "resources," such as they are.  Iron stains in the concrete have been claimed of evidence of "seasonal high water" and even "top of stream bank" by federal staff.  EPA's claim that such judgments would not occur under the New Rule do not take into account this history, or likely agency culture to continue to regulate concrete ditches, as they have been doing for the last 20 years (illegally).  This is another oversight of the New Rule.


Recommendation:  Add language to the New Rule explicitly exempting from regulation "ephemeral ditches or channels whose hydrology is dominated by roadway or parking lot runoff leading directly to the channel."  Notably exempted should be channels lined with stone, rubble, gabion, or concrete.

Tuesday, November 11, 2014

My Comments on the Proposed Waters of the US Rule: 5 of 8: Regulating Impacts to Previously Impaired Urban Ditches and Streams

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

Regulating Urban Streams
Comment:  On America's east coast, streams and wetlands have suffered through 400 years of deforestation and soil loss, three horrendous wars, unsustainable farming practices, dangerous dumping and landfill practices, and most recently, expansive pavement and drainage of impervious surfaces into surface waters (and uplands that become gullies).  EPA and USACE maintain strict preservationist stances on these waters, now surrounded by up to 90% impervious area, lacking all plant species and most wildlife that were dominant 400 years ago.  These urban stream systems are nothing like they were historically, and yet, they are regulated in the east the way that Gila Trout habitat in the west might be regulated.   

In many cases, the streams themselves do not hold considerable wildlife habitat, and so EPA has regulated the adjacent upland floodplain as well.  This is illegal, and has been repeated several times in the Mid-Atlantic.   As a result, claims that the New Rule "will not regulate floodplains" are specious at best.  EPA is already regulating floodplains, and will likely continue to do so until prevented by litigation.  EPA's Science Review Board (SRB) notes that a gradient of natural resource protection needs to exist, despite EPA's continued claims that science does not support gradients of connectivity or habitat quality.   As such, the agency contends that all perennial waters must be protected - not restored or enhanced - but protected as is, whether eroding, leaking toxic waste, or full of decaying tires.  The preservationist mindset endures, even when there is precious little left to preserve.


Recommendation:  Remove federal permitting requirements for urban (>20% impervious in drainage area) stream enhancement activities that can demonstrate a net gain in natural resource function and permanent protection of the site from fills related to real property development.  Require land and infrastructure development projects to improve urban stream beds to historic structural conditions and improved biological conditions.  This will ensure that the New Rule's proposed stream connectivity is not only transporting urban waste and sediment down to lower reaches from degraded areas. 

My Comments on the Proposed Waters of the US Rule: 4 of 8: Continued Illegal Regulation of Non-Agricultural Ephemeral Ditches and Gullies

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

Regulation of Non-Agricultural Ephemeral Ditches and Gullies

Comment:  Despite repeated SCOTUS rulings explicitly to the contrary, EPA and USACE continue to regulate actively eroding ephemeral channels that exist due to historical and/or ongoing erosive flows during and immediately after storms.   While EPA correctly notes that they cannot and do not require mitigation for activities (like voluntary stream restoration) that occur in these ephemeral gullies, the federal agencies require full permit coordination for the sake of "documentation," a federal action that requires the project proponent to spend up to $200,000 on permit drawings, legal papers, and even public hearings for a voluntary habitat project that may only cost $100,000 to construct.  

My opinion is that the federal agencies conduct this intimidating behavior to encourage permit applicants to withdraw their proposal to enter any ephemeral waterway for their project.   Federal cases are currently underway challenging EPA (notably, Foster vs. EPA) on their ability to legally regulate activities in dry, eroding gullies.    It is likely that the plaintiff, a land developer, will win the case, in which EPA fined him for filling a landscape feature that SCOTUS has thrice instructed EPA not to regulate.   Other more reasonable provisions of CWA are likely to also be stricken during that litigation.  As a wetland ecologist and a staunch conservationist, I do not view this (eventual de-regulation of legitimate federal water resources) as a favorable outcome.


Recommendation:  Strike the portion of the New Rule dealing with ephemeral gullies that are actively eroding (regulating them as if they are blue ribbon trout streams - the current status quo).  Replace it with language that requires, as part of any grading project's federal water quality certification, that the eroding ephemeral gully must be restored to a stable and functional waterway that has measurable habitat benefits and high stability under storm flows.  Specifically, make provisions in regulatory language that an individual Section 404 permit (IP) will never be necessary to conduct that activity when the primary goal is stream restoration or floodplain reconnection, and when the net benefits to Waters of the US can be accurately documented and monitored.  

My Comments on the Proposed Waters of the US Rule: 3 of 8: Farm Ditch Regulation for Change of Use

Note:  Portions of this letter to the US EPA will be posted every eight hours between November 10 and November 12.  Check back in! 

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.


Regulation of Farm Ditch and Farmed Wetland Change of Use
Comment: Practitioners and landowners are well aware that the change of use of most farm ditches triggers CWA compliance, though EPA artfully works to avoid this discussion.  Relocating farm ditches for infrastructure or farm expansion (i.e. new barn site) projects triggers CWA compliance and sometimes federal mitigation requirements.  EPA consistently denies that farm ditches can or will be regulated without adding the "change of use" caveat.  CWA opponents correctly see this as EPA's attempt to avoid discussion of change of use CWA compliance on agricultural properties. 

EPA and USACE staff have halted or administratively stalled numerous voluntary aquatic habitat projects involving prior-converted crop fields and existing farm ditches and gullies by asserting that converting the ditches back to their pre-agricultural condition constitutes "change of use" and would require mitigation.   To clarify, federal agencies have required federal wetland and stream mitigation for voluntary wetland and stream projects on American farms.  These projects, driven by federal conservation dollars, small non-profit organizations, and small family farmers, are unduly scrutinized.


Recommendation:   1) Habitat creation, restoration, and enhancement projects must be exempted from "change of use" regulation or policy implemented at the national, regional, or district level by federal employees.  Caveats should exist to maintain permit exemption, such as a provision that a net increase in habitat function and habitat acreage/footage occur as a result of the habitat project. 2) Provide a 5,000 sf exemption for "single and complete" projects requiring permanent (not temporary) conversion of cropped wetlands or farm ditches proposing a change of use, where no other federal resources (NHPA, ESA, etc) would be impacted. Formally apply CWA Section 404 to permanent (not temporary) disturbances over 5,000sf as these disturbances apply to habitat projects that are not tied to a direct loss, like compensatory mitigation.  

My Comments on the Proposed Waters of the US Rule: Part 2 of 8: New Rule is NOT Science Based

Note:  Portions of this letter to the US EPA will be posted every eight hours between November 10 and November 12.  Check back in! 

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

Science vs. Policy
Comment:   EPA has repeatedly claimed that current agricultural exemptions will remain in place as a result of the science-based New Rule.   However, the previous sentence cannot be true, as a whole.  Federal reports in the public domain contain numerous references to the fact that much, even "the majority" of surface water pollution originates on active farmland and rangeland.  EPA itself has stated that the final frontier of unregulated surface water pollution is American agriculture.  Therefore, to exempt current farming activities from future regulation eviscerates any claim that the New Rule is science based.  Good reasons (such as economics and export balances) exist to exempt many current farming activities from CWA provisions, however, stream biology and aquatic chemistry - the EPA's purview - are not among those reasons.    This is in no way "science based."

In addition, the glaring omission of prairie pothole wetlands, by their very nature failing Justice Kennedy's "significant nexus" test, will remain wholly unregulated by the Clean Water Act even under the New Rule - an outcome which I personally and professionally find unacceptable.  Unlike many types of wetlands, restoration of prairie potholes is exceedingly difficult, as proper soils take hundreds or thousands of years to develop in that region.   Moreso than most regions in the country, the Missouri Coteau has wetlands that simply cannot easily be replaced or mitigated.  EPA knows this, yet chose to omit prairie pothole wetlands from jurisdiction under the New Rule, while choosing to regulate highway ditches with seasonally high flow, instead.  This is an aberration of science, not a rule based on it.


Recommendation:  Strike any reference to the New Rule being "scientifically derived" or "science based," since EPA readily admits that the single greatest unregulated threat to federal waterway integrity will in fact not be regulated under this proposed Rule.  

Monday, November 10, 2014

My Comments on the Proposed Waters of the US Rule: Part 1 of 8

Note:  Portions of this letter to the US EPA will be posted every eight hours between November 10 and November 12.  Check back in! 

My name is River Mud.  I am a wetland systems ecologist and twice-confirmed Professional Wetland Scientist with 17 years experience siting, monitoring, designing, and constructing habitat and stormwater projects in 14 states.   I have reviewed the documents proffered by the US EPA on the "New Rule" for Waters of the United States, and have also reviewed the Scientific Review Board's findings.  As a career professional in wetland and stream conservation, and as a staunch conservationist in my personal life and actions, I cannot and do not support the New Rule as currently drafted in October, 2014.  I have ample experience and expertise to support this position.

I have been involved in the completion of over 100 water resource restoration, enhancement, creation, and reclamation projects since 1997.  Clients and partners have included Ducks Unlimited, Trout Unlimited, the Nature Conservancy, US Fish and Wildlife Service (AZ, DE, MD, MI, NC, NJ, NY, PA, VA), the state fish and wildlife agencies of CT, NY, NJ, PA, DE, MD, and VA, the US Department of Defense, Federal Highway Administration, National Park Service, and Federal Aviation Administration, among many others.   

I completed doctoral coursework and fieldwork at the University of Maryland (focused on the dispersal mechanics of plants in coastal wetlands), completed a Masters Degree in Geography and Planning at Appalachian State University (focused on wetland and forest remote sensing), a BS in Fisheries and Wildlife Science at Virginia Tech (focused on amphibian conservation), and a BA in Geography at Virginia Tech (focused on GIS applications to wildlife conservation).   I have taught college courses in Ecosystem Restoration, Environmental Science, Ecology, Geography, Physical Geography, Landforms and Soils, and other topics for approximately 15 years in my spare time, and have lectured around the country on issues related to wetland and stream permitting, construction, plant selection, and project success.

I have served as a Clean Water Act (CWA) permit consultant, applicant, agent, and permittee on hundreds of occasions over the course of my career through Section 401, 404 and other permit systems afforded by the Act.  While many professionals have completed as many or more permits than I have, the majority of permitting work I have completed in my career has revolved around the federal regulation of 1) degraded gullies, agricultural fields, and urban ditches that are slated for voluntary restoration or enhancement, and 2) wetland and stream compensatory mitigation projects associated with state and federal infrastructure projects, often proposed within these same marginal areas.  This unusual body of work gives me a unique perspective on EPA's proposed "New Rule" for amending CWA protections, a perspective I would like to share with you today.

I support strict surface water regulations that are functionally based, practicable, and safe from litigious attacks meant to weaken CWA via federal precedent.  I fully understand the role of good topsoil, the insidious nature of polluted runoff, and the impact that seasonal and isolated resources, namely wetlands, have on wildlife that are important to our society.  I know and appreciate that regulating those resources may have a negative short term impact on landowner rights and property values, and I remember where I was when I heard about the SWANCC decision that throttled the Migratory Bird Rule.   Our nation's public resources need and deserve thorough regulations that take into account habitat value, invasive species, and landscape characteristics, and regulations that celebrate habitat enhancement, repair, and restoration projects instead of seeking to penalize them.


To that point, the single greatest obstacle I have faced in restoring, reclaiming, and creating critical aquatic habitats over the last two decades has been federal regulators' inconsistent, sometimes arbitrary and occasionally illegal application of the Clean Water Act, notably the Section 404 program, to non-jurisdictional areas and degraded sites that are slated for restoration, reclamation, or enhancement.   While it would be easy and somewhat therapeutic to list these many inconsistencies, outright agency failures, and acts of arbitrary jurisdictional determinations and/or regulatory overreach that I have witnessed and documented, I need only point to GAO-05-898, GAO-04-297, GAO-88-110, as well as CRS IB97014 and CRS 7-5700 / 97-223 to demonstrate that my experience has been far from unique.    The simple fact is that federal field staff occasionally make precedent-setting jurisdictional and permit decisions that directly oppose SCOTUS majority opinions while sometimes reflecting unofficial back-channel EPA and USACE policies implemented at the Region/District level. Permittee requests to be present when these interagency discussions occur are met with one answer: No.   As a career-long customer of the federal regulatory agencies, this reality gives me great pause when asked if I can personally or professionally support the New Rule.

Part 2: Science-Based vs Policy-Based

Part 3:  Farm Ditch Change of Use 

Part 4: Current Illegal Regulation of Non-Agricultural Ephemeral Ditches and Gullies to Continue

Part 5: Regulating Impacts to Previously Impaired Urban Streams

Part 6: Current Illegal Regulation of Concrete Ditches to Continue

Part 7:  Current Illegal Regulation of Stormwater Ponds to Continue

Part 8:  Conclusion

2014 Bow Hunt #3: Down to 8 Yards

In urban bow hunting, I'm not sure that luck exists.  Deer exist where they can, using carefully prescribed pathways under heavy cover, usually exotic vines, to slink between food sources, water, and their bedding area.  The paths vary seasonally, but within a hunting season, it remains consistent.

The urban deer highway I've been hunting this fall is one I identified while bowhunting on a sandy blufff on the opposite edge of the swamp last October.   The only "luck" involved is that I'm "lucky" to have access to both sides, privately owned and completely posted.   I keep getting closer.  

During my first hunt this season, I hunted at a pinch point in the swamp but downhill of the deer highway.  Not surprisingly, no deer crossed the pinch point during my hunt, but dozens crossed above me on the slope.  

During my second hunt, I hunted upslope of the highway, but 100+ yards from the pinch point, which gave me an excellent view of a 6-8 point buck crossing the pinch point, right past the first hide I'd used - within 2 yards of it, in fact.  So I moved to the pinch point, at which time the 6-8 point buck started feeding under a white oak 4 yards from the hide I'd been sitting at.   I waited for a clear shot at about 20 yards from my awkward stump hide, and at the exact moment I had that shot lined up, a spike buck walked in front of the larger deer, while the larger one sauntered off, away from me.

During my third hunt, I returned to the same hide above the deer highway, committed to stay there, which I did.  The winds blew in a favorable direction, but at 25+ mph, which I believe kept the deer bedded down.  Around 830am, two does crossed the swamp's pinch point and angled toward me, a small ridge hiding them in the shadows in front of me, less than 60 yards away.   One doe disappeared, while the other came toward me in the shadow of another tree, just 8 yards from my position.  She arrived at the base of the tree, turned, and in one motion, walked back in the shadow of that tree, away from me.  I saw her entire brown flank for less than a second, well within killing distance.  

This is an interesting juncture for me.  As someone who prefers the more social aspects of bird hunting to the solitary focus of deer hunting, my patience for chasing these city deer is beginning to run thin.  Plus, duck season is now in - and goose season will follow in another two weeks.  Statistics are that even in these deer-thick areas, bowhunters are successful less than 25% of the time.  I'm running right up against that statistic, and like many hunters in the same pattern, I feel as if I am a champion deer watcher.  

I have abandoned my very able Fred Bear compound bow for my crossbow - the crossbow does not miss at 20 yards.  Ever.  I am ready to kill a deer, perhaps kill another soon after it, and say good riddance to these animals for another 11 months.   Most dedicated bowhunters have now taken an animal, as the rut started four days ago.  Will I make my fourth trip count?  

We'll know within days. 




Monday, November 3, 2014

An Unusual Freshwater Skunk

I didn't have much time to fish, but I went anyway.  We have had a series of huge storms in 2014, and water quality is worse than usual.  The fish seemed to notice, as I looked for them on a day when the previous two days had seen not only a flash flood, but 39 degree air temperatures.  The warmwater fish might be done, it seems.

I tried everything, to no avail.  I found my thoughts wandering to hunting, and then to work tasks, and eventually packed it up and went back to work.

A few more days on saltwater and some effort towards trout might be about all I have left in me for 2014.  Hoping for some tighter lines in 2015!