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The Obligate Maine Association of Wetland Scientists Februrary 2002 Volume 11; Number 1; Internet Version |
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The Obligate Maine Association of Wetland Scientists Februrary 2002 Volume 11; Number 1; Internet Version |
| In this issue.... |
| President's Message |
| Executive Committee Directory |
| Legislative and Regulatory |
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wet·land (w_t´-l_nd) n. A lowland area, such as a marsh or swamp, that is saturated with moisture, especially when regarded as the natural habitat of wildlife. sci·en·tist
(s_´-_n-t_st) n. A person having expert knowledge of one or more sciences, especially a natural or physical science. as·so·ci·a·tion
(_-s_´-s_-_´-sh_n) n.
An organized body of people who have an interest, activity, or purpose in common; a society. Maine
(m_n) The way life should be¼ (you fill in
the rest) In the old days – say, back in 1999 – people used to look up words in a dictionary – the kind with a cover, and pages. But
now we have the Internet, and – I learned this from my teenage son – you can look up the words more easily at www.dictionary.com. Sadly, a search for the term ‘wetland
scientist’ yielded no results. Dictionary.com offered suggestions ranging from ‘wetland’, to ‘with longing’, to ‘Wyethia helianthoides’. Separate searches for each word yielded the results shown above. The definition falls down a bit when it focuses in on “wildlife”, but overall the combination is a pretty good start
on a definition. If you combine the words, and evaluate the Maine Association of Wetland Scientists in that context, I think we’re doing well:
an organized body of people having expert knowledge of, and a common interest in, lowland areas saturated with moisture. Membership/diversity, programs/workshops/education, communication, certification, regulatory interface – these have been the recurring topics in The Obligate since
MAWS began eleven years ago. Vernal pools, the MAWS web site, and closer interactions with our counterparts in New Hampshire, Massachusetts, and the Society of Wetland Scientists
have become recurring topics more recently. The research stipend is a popular idea with members. The winners have given excellent presentations, and are
deserving of the awards. But, we have struggled in most years to get more than two or three applicants. This is an area that could use greater input from members. Communication amongst ourselves and to the general public remains an important function of MAWS. The World Wide Web was first
mentioned in The Obligate in 1999, with excitement and enthusiasm for its potential as a new communication tool. The Executive Committee spent many hours discussing first whether,
and later how, to establish a Web presence. Karen Bolstridge initially, and Rich Jordan recently, put significant effort into its development and maintenance, and I thank
them for their dedication and hard work. If you haven’t viewed the MAWS web site recently – or ever – I encourage you to do so. It probably is not being used to its
full potential by members. We’re paying about $300 a year to keep it up, not counting all the volunteer time of our Webmaster. The
address is: www.mainewetlands.org
. I’m sure Rich would appreciate items for inclusion, and suggestions for improvement. If the web site is “the new kid on the
block”, then The Obligate is “old reliable”. Long-time members appreciate the consistency it has provided over the years (I pulled out all the old issues I could find
to help me prepare this message). All members appreciate the great depth and variety of information it provides. Those of you who know
Dave Cowan know what a tremendous service he has provided to us over many years as an active, informed wetland scientist, Past-President, and Editor of The Obligate. Thank you, Dave. Regulatory interface has also been important to members since our inception. Several MAWS members participated on the Maine Wetland Compensation Steering Committee in 2001 and Jackie Sartoris will present its work to us at the Annual Meeting. Wetlands
legislation has changed less slowly of late, as compared with the early and mid-nineties, but there have been changes and Marcia Spencer-Famous has been tracking them for us. Her
report follows on the inside pages of this newsletter. The topic of vernal pools may not go back to our inception, but it certainly has come on strong in the past few years, and our
2001 stipend recipient will present his vernal pool work at the Annual Meeting. 2001 saw the beginnings of closer interaction with our counterparts to the south. In addition to the MAWS/NHANRS workshops, several MAWS members attended the Society of Wetland Scientists-New England Chapter Research Conference. At
the close of the conference, leaders and other members from wetland associations in the six New England states met to discuss how we can build stronger cohesiveness among the groups. Much of the success we achieved in 2001 is due to the volunteer efforts of the MAWS Executive Committee. They’re a great group of dedicated wetland scientists, and I thank them for their efforts on behalf of the Membership. Normally, this is the part in the President’s Message where I would thank the members, and turn over “the reins” to Gary Emond, our President-Elect. However, due to the change we made in the constitution at the 2000 Annual Meeting, I’ll be serving one more year. But I will take this opportunity to thank you for becoming or remaining members of the Maine Association of Wetland Scientists, and to ask you to be very vocal in your comments and suggestions to me and other Executive Committee members in 2002. And come to the Annual Meeting! - Jim Boyle |
| Executive Committee members serve two-year terms. Terms of Office due to expire in 2002 are Treasurer, Membership
Chair and Ethics Chair (underlined below). An election to fill these offices will be held during the Business Meeting portion of the Annual
Meeting on February 27, 2002.
President Jim Boyle
Boyle Associates 27 Gorham Road, Suite 12 Scarborough, ME 04074
(w) 883-6040
FAX 883-6039 President-Elect Gary Emond E-Pro 41 Anthony Avenue Augusta, ME 04330 (w) 621-4479 FAX 626-9600 Secretary Sandy Lare
Northern Ecological Associates 451 Presumpscot Street Portland. ME 04103 (w) 879-9496 Treasurer Curtis C. Bohlen, Ph. D. Bates College Lewiston, ME 04240 (w) 786-8315 FAX 786-8334 Legislative
Marcia Spencer-Famous Land Use Regulation Commission 22 State House Station Augusta, ME 04333-0022 (w) 287-4933 FAX 287-7439 marcia.m.spencer-famous@state.me.us
Membership Lauren Stockwell Eco-Analysts, Inc. PO Box 224 Bath, ME 04530 (w) 443-2629 Program Chair Jeff Simmons Normandeau Associates, Inc. 253 Main Street Yarmouth, ME 04096 (w) 846-3598 FAX 846-6527 Ethics Chair Alan Haberstock Kleinschmidt Associates 75 Main Street PO Box 576 Pittsfield, ME 04967 (w) 487-3328 Past President Peter Tischbein U. S Army Corps of Engineers Maine Project Office 675 Western Avenue, #3 Manchester, ME 04351 (w) 623-8367 peter.tischbein@nae02.usace.army.mil
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Wetlands Legislative Report Marcia Spencer-Famous, Legislative Chair During 2001 and January of 2002 there were a variety of state and federal regulatory activities that may be of interest to MAWS members.
At the federal level, a revision to the Clean Water Act created worries in the press that Corps regulations had been compromised, but in actuality that has not happened. The Clean Water Act revision amended the
definition of “discharge of dredged material” to establish that activities such as ditching, mechanized land clearing, and in-stream mining create more than incidental fallback, and therefore constitute a fill. Although not directly relevant to permitting activities in Maine because of the Programmatic General Permit (PGP), Nationwide Permits (NWP) were re-issued in the January 15, 2002
Federal Register. Two of the more significant modifications to the NWPs included a reduction of the threshold acreage for NWP 26 from 1 acre to ½ acre, and allowed a waiver of the
300 foot prohibition for intermittent streams only. Finally, to achieve a greater emphasis on “no net loss”, Corps offices may now meet this goal as a result of their entire
program rather than case-by-case. For General Condition 19, which is related to mitigation, the Corps will increase flexibility so that environmentally appropriate mitigation can
be allowed. For example, such mitigation may include vegetated buffers for stream protection. The Federal Register website provides additional information about changes to federal regulations: http://www.access.gpo.gov/su_docs/aces/aces140.html
In addition to legislation, this year there were several court cases affecting national policy and regulations. In the news
during the previous year as well, the SWANCC (Solid Waste Agency of Northern Cook County vs U.S. Army Corps of Engineers, January 9, 2001) decision potentially affected the scope of federal regulatory jurisdiction under any
program that involves “waters of the United States”.
As a result of the decision, EPA and Corps field staff may no longer use habitat for migratory birds of a water or wetland as the sole basis for assertion of Clean Water Act jurisdiction over “isolated,
non-navigable, INTRAstate waters used as habitat by migratory birds” (the court’s holding was limited to only this area of jurisdiction). Jurisdiction over navigable waters, INTERstate waters, their tributaries, and wetlands adjacent to each was upheld. This decision will be interpreted in light of
other court rulings that uphold Clean Water Act authority. For now, most Clean Water Act jurisdiction remains basically intact. The case of Pallazzo vs Rhode Island was a “takings case” involving 18 acres of coastal marshland in Westerly, RI. During
2001, the US Supreme Court overturned a state Supreme Court ruling by finding that that the landowner had the right to challenge the state’s ban on development of his coastal marshland, but the federal court did not go so
far as to rule that the state owed compensation for the claimed economic losses. The federal court overturned the state’s rulings on two points: (1) it decided that all other
avenues of obtaining a permit were exhausted, and therefore the takings case could be brought before the court; and (2) found that the case could not be rejected by the court because the owner purchased the property after the
state imposed environmental regulations. The federal court upheld the state’s decision that the land retained some economic value, and therefore there was not a “Lucas”
taking (i.e. there is no value left to the property as a result of environmental regulations). The case was sent back to the state to determine the amount of economic loss and
compensation
In Ohio, a state common pleas court judge issued an order approving a settlement agreement that found construction activities and harvesting trees around and in wetlands
without a permit caused degradation to the wetlands and impacted waters of the state. The case involved a development project that resulted in harvesting of category 2 and 3
wetlands; and clear-cutting and grading of upland to the jurisdictional wetland edge without a permit. The settlement included a $1,000,000 civil penalty, $250,000 in costs for
staff, attorneys, and transcripts; creation of 5 acres of category 3 wetlands; and the purchase of wetlands and mitigation off-site. Maine legislation
Maine enacted four bills, and is currently considering a fifth, that affects how wetland and shoreland zoning regulations are applied. The
current legislation under consideration, LD 2076 (January 2002), addresses amendments to the Department of Environmental Protection’s (DEP) permit-by-rule standards (Chapter 305) keep regarding cutting and removal of
vegetation. There were many minor changes to Title 38 as a result of LD 1477, entitled “An Act to Amend
Certain Laws Regarding Land and Water Quality Protection”. Among other things, the bill removed the exemption from wastewater discharge licensing requirements for use of control
material on invasive aquatic plants by the DEP, or person appointed by DEP. In regard to the Land Use
Regulation commission’s (LURC) jurisdiction over wetlands in the unorganized townships, towns and plantations, the bill clarified that LURC may amend permits for projects in LURC jurisdiction that were previously issued by
DEP pursuant to natural resource protection laws; and corrects a conflict in the language to read that LURC would issue permits in its jurisdiction pursuant to Title 38, section 480-E-1. Finally,
this bill required a second report to the joint standing committee having jurisdiction over natural resources matters concerning a wetlands compensation program; and changed the date for providing for a wetlands compensation
program from October 15, 2001 to October 15, 2003. LD 1812 dealt with issues related to invasive aquatic species. Under LD 1812, DEP will be required to undertake a program to address threats posed to inland waters by invasive aquatic plants and nuisance species. The program must address control and eradication of such species, provide an educational program, and be done in collaboration with other agencies and interest groups. Under this rule, DEP & IFW can issue emergency orders for a waterbody with invasive aquatic species infestation. LD 281 removed the requirement to hold a public hearing for projects involving dredging of tidal waters but, if one is held, it must be in the municipality where dredging
would occur. Also, in determining if a hearing is to be held, the Commissioner of the Department of Marine Resources must consider potential impacts of the project on fishing in
the area to be dredged. Under the provisions of LD 516, professional prehistoric and historic archaeological excavation was added to the list of activities in the shoreland zone that do not need a
permit under natural resources protection laws (DEP) or LURC regulations. Several bills introduced during 2001 did not pass into Maine law. In particular: LD 1601, which would have allowed construction of public pathways in the shoreland zone; LD 1199 which would have allowed farm ponds in low-value wetlands; and LD 612, which would have allowed excavation within 25 feet of a stream for mineral extraction. Wetlands Isolated But Not Forgotten Dave Cowan Not exactly breaking news we know, but in case you haven’t already received one, this issue of The Obligate includes a copy of the fact sheet from the New England
Corps concerning the SWANNC decision last January. As an added bonus, Ruth Ladd of the Corps tells us that the following unofficial definitions
may be employed by the Corps in determining whether they have jurisdiction over isolated waters/wetlands: Nexus - a connection or link. A nexus
to interstate commerce may exist if an isolated wetland is: (1) open to the general public for recreation such as fishing, hunting or passive
activities, (2) used industrially/commercially such as for cranberry production or silviculture, or (3) used for commercial fishing or shellfishing, i.e., if the catch is sold. Adjacent - bordering, contiguous, or neighboring wetlands. Actually, this one is official—see the November 13, 1986 regulations under 328.3(c).
You may remember this one if you were involved in applying NWP No. 26 back before the Maine PGP was issued. Bordering, Contiguous - Hydrologically connected with a waterway. Neighboring - wetlands that are hydrologically separated from a waterway and its bordering/contiguous wetlands
by a natural or man-made hydrologic discontinuity, but that retain an ecological interdependency. Where the hydrologic separation is wider than a
man-made (e.g., highway) or natural (e.g., river berm) barrier, there needs to be some sort of biological connection between the neighboring wetland and the waterway that is part of the tributary system. For example, a vernal pool might be considered neighboring if spotted turtles fed there in the spring, but hibernated along the banks of a stream several
hundred feet away. Neighboring might also apply to a hydrologically separated wetland if raccoons use its permanent or temporary pool for feeding, or
its trees for denning, plus use the neighboring waterway for feeding, escape cover, vacationing (just kidding!), etc. This is the most nebulous of the
types of adjacent wetlands. The further a wetland is from a water, the harder it is to make the connection. However, in Maine there are moose, otter, beaver, and other species that may routinely or seasonally travel long distances between wetlands and thereby
establish and interdependency. Ruth reminds us that isolated waters that cross state boundaries are interstate and thereby jurisdictional. Also, whereas the presence of migratory waterfowl alone is not sufficient to establish a nexus with interstate commerce, if they are hunted the nexus may exist via recreation. MAWS Constitution Amended
The following amendments to the Constitution were approved by a two-thirds vote of the membership at the 2001 Annual Winter Meeting. A complete copy of the Constitution is available for reference on our web site at www.mainewetlands.org
. Article IV
· Executive Committee: o Section A – The Executive Committee of this Association will consist of the President, President-elect, Secretary, Treasurer, and the Chairpersons of the Standing Committees
o Section G – Elections Item 1. The
President-elect shall automatically assume the office of President biennially
Item 3. The
President-elect shall be elected by majority vote of the active membership Corps Issues National Mitigation Guidance
Joanne Barry, Chief, Policy Analysis and Technical Support Branch New England District Corps of Engineers, Regulatory Division On 31 October 2001, Regulatory Guidance Letter No. 01-1 was issued. It provides guidance for the establishment and maintenance of compensatory mitigation projects under the Corps regulatory program pursuant to Section 404(a) of the Clean Water Act and Section 10 of the Rivers
and Harbors Act of 1899. This guidance is designed to increase effectiveness and compliance of mitigation.
The guidance uses the following terminology, included above, not typically used in
the New England District:
To facilitate tracking mitigation projects and to avoid confusion among federal agencies and the general public, New England District plans to
adopt these new definitions.
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