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Destruction of wetland and vegetation to allow apartment construction next to Fayetteville's National Cemetery continues: video for public television starting Sunday

Crafton Tull's Web site lists guideline changes for wetland and waterways

Guideline Changes for Wetlands and Waterways

on Oct.18, 2011, under Infrastructure

Wetlands & Waterways: Changes in jurisdictional determination approach will expand protection
On July 31st, the U.S. EPA and Army Corps of Engineers closed the comment period on their proposed guidance for identifying Waters of the U.S. that would be protected under the Clean Water Act. Most are probably familiar with the current guidance that requires a “continuous surface connection” between a wetland, water body, or waterway and navigable waters in order for Clean Water Act protection to be extended and the water in question to be deemed jurisdictional. The most common consequence of a jurisdictional determination for public works projects is the requirement for a Section 404 permit from the Corps. The proposed guidance has stated that it will “provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act.” They go on to state that “based on relevant science and recent field experience, that . . . . the extent of waters over which the agencies assert jurisdiction under the CWA will increase compared to the extent of waters over which jurisdiction has been asserted under existing guidance.” Because of this assertion, owners need to be aware that project costs and schedules are likely to increase.
Why the change?
The most recent Supreme Court decision regarding the issue of wetlands was Rapanos vs. United States 547 U.S. 715 (2006). In this case, the Court issued five different opinions with no single opinion representing a majority. Justice Scalia’s plurality opinion has served as the foundation for jurisdictional determinations. His opinion contained the view that only wetlands with a continuous surface connection to other jurisdictional waters were protected by the CWA. The agencies now plan to expand the decision making process to include views contained in Justice Kennedy’s concurring opinion. Justice Kennedy’s opinion asserts that a wetland with a “significant nexus” to traditional navigable waters should also be protected, as well.
Significant nexus
The guidance gives insight into when a significant nexus exists. It says “Waters have the requisite significant nexus if they, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters.” These three criteria underlined for emphasis are further explained as:
1) Similarly situated waters will be defined as a tributary, adjacent wetland (i.e. has a continuous surface connection), or is in “close physical proximity” to a protected waterway.
2) In the region is defined as lying within a watershed that drains to a navigable waterway.
3) Significantly affect the chemical, physical, or biological integrity cannot be “speculative or insubstantial,” but no longer is the surface connection neccessary. Now a connection can be justified by sub-surface hydrologic connections and, in some cases ecological connections. The guidance encourages field staff to look for the following examples of how the effect can be substantiated.

• · Physical/ Hydrology: Does the water provide transport of suspended materials, water retention, or a movement of aquatic organisms, or release of retained waters to other waters?
• · Chemical: Does the water have capacity to carry pollutants or flood waters to downstream navigable waters? To what extent can the water reduce the amount of pollutants or flood waters? To what extent can the waters perform physical functions related to maintenance of downstream water quality such as sediment trapping?
• · Biological: Does the water have capacity to transfer nutrients to downstream food webs? Does the water provide maintenance of habitat for resident aquatics species (e.g. amphibians, aquatic turtles, fish or waterfowl)?

The guidance is unclear as to what degree the above indicators must be proven. For example, will it require a specific study conducted within the watershed? Or will academic literature that describes the general benefits of similarly functioning waters within a different watershed be sufficient evidence on which to base a decision. Many of the chemical, physical, and biological benefits of nearly all waters are widely known and accepted. Will this general industry knowledge be sufficient evidence to extend protection? To us, these are the questions that remain to be answered. We’ll continue to seek out clear guidance from the agencies with jurisdiction over your projects, but in the meantime want to make you aware of these pending changes.
You can read the full text of the guidance at the following link, from which the information and quotes above were taken. http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf
Prepared by: Steven Beam, P.E., LEED AP / Vice President for Infrastructure/ Rogers, AR

Sample of short takes to run starting Sunday on Public Access Television in Fayetteville AR: Come do your own between 5 and 6 Monday or 11 a.m. to noon Thursday. Free for residents of Fayetteville AR

Dan Millican talks about impaired urban streams in Arkansas

Preview sample of short takes to run Sunday through Friday, Feb. 12-17, 2012. You too can do a short take each week FREE at Fayetteville Public Television. Shows run on the Internet site of YOUR-MEDIA and on both Cox Cable 218 and AT&T Uverse 99 several times each week.

Dan Millican removes litter from shoreline of a stretch of the Town Branch of the West Fork of the White River

Women who have worked to protect water quality in northwest Arkansas discuss decades of activism

Resident of Illinois River watershed in Fayetteville, Arkansas, reports state-sanctioned pollution of tributary of the Illinois River to Northwest Arkansas Times

Front-page story in Saturday, January 28, 2012, Northwest Arkansas Times by Joel Walsh with photos by Andy Shupe documents misbehavior and lack of environmental awareness of the powers-that-be at the Arkansas Highway and Transportation Department. For more photos of that site and many similar AHTD worksites, see Flickr AHTD set of photos: 

All the excuses in the newsstory given by city and state officials mean nothing. There is NO excuse for allowing significant siltation of any stream!

Did you express an opinion you really would like to share with more people than heard it? I did, and I am sharing on the shortake-segment of Fayetteville public television for the coming week of January 29 through February 4, 2012, on Fayetteville's public-access television station, Cox 218 and AT&T U-verse, as well as on You Tube, linked below: Don't miss your chance to do the same every week

To learn how and when you can have your own 5-minute short takes recorded, please see
the Your Media Web site.

Video on public television Jan. 16-21, 2012

Park board hears comments on value of preserving soil and native plants on proposed construction site on Rochier Hill west of Pinnacle Prairie and World Peace Wetland Prairie

Dredging and filling seasonally wet prairie for small-lot housing just plain WRONG

December 20, 2011, meeting of Fayetteville AR city council draws comment on several important local issues on a 3-hour, 37-minute video

Slide show on video to run Jan. 1-5, 2011, featuring cats, dogs, birds, butterflies, native wildflowers, bad development sites both old and new

Developers keep chipping away at Northwest Arkansas prairie and former wet prairie:

Please click on individual images beneath the video file to enlarge view of wet-prairie and tree-protection area slated to become construction site.

More than 100 photos of mounded wet prairie parcel proposed as site for convention center on north side of Holiday Inn Express available on Flickr near bottom of urban infill set. A sample of the photos appears below the meeting video. Discussion of the site occurs near the end of the meeting. A slide bar at the bottom of the video allows a person skip over discussion of other subjects.

Please click on individual images to ENLARGE.

View east shows tiny wooded-wetland tree-protection area on low corner of several acres of  remnant of mounded wet prairie.

Mowing vegetation out of swale that carries water north to a creek unnecessary and harmful.

Healthy habitat important especially where it also protects watershed

Existing tree-protection area is best place for natural swale and sheet-flow surface water to soak in.

Ditch and pipe from existing Holiday Inn Express parking lot exemplies outmoded  high-impact water management

Existing stormwater pipe causes erosion of big ditch that sends dangerous flow to swale along road toward creek, increasing erosion and flooding of downtream property.

Natural swale through wet prairie takes water to low, wooded wetland at NW corner of property

Urban infill, even on the outskirts of Fayetteville, threatens Illinois River watershed

Please click on individual images beneath the video file to enlarge view of wet-prairie and tree-protection area slated to become construction site.

More than 100 photos of mounded wet prairie parcel proposed as site for convention center on north side of Holiday Inn Express available on Flickr near bottom of urban infill set. A sample of the photos appears below the meeting video. Discussion of the site occurs near the end of the meeting. A slide bar at the bottom of the video allows a person skip over discussion of other subjects.

Please click on individual images to ENLARGE.

View east shows tiny wooded-wetland tree-protection area on low corner of several acres of  remnant of mounded wet prairie.

Mowing vegetation out of swale that carries water north to a creek unnecessary and harmful.

Healthy habitat important especially where it also protects watershed

Existing tree-protection area is best place for natural swale and sheet-flow surface water to soak in.

Ditch and pipe from existing Holiday Inn Express parking lot exemplies outmoded  high-impact water management

Existing stormwater pipe causes erosion of big ditch that sends dangerous flow to swale along road toward creek, increasing erosion and flooding of downtream property.

Natural swale through wet prairie takes water to low, wooded wetland at NW corner of property

Nature photos on next week's video include frost flowers from this week and last year

Please click on image to ENLARGE for easy reading.