The topics I will address in my testimony relate to the scientific validity of the Nationwide No. 26 provision of the Nationwide Permit Program, recently reauthorized and revised by the U.S. Corps of Engineers (13 December, 1996, FR 61:241, 65874-65922).
CREDENTIALS AND WORK EXPERIENCE
I received by Bachelors degree in geology from the University of Rhode Island, my Masters degree in geology from Pennsylvania State University, and my doctorate in Hydrogeology from the University of Minnesota. After receiving my Masters degree I was employed by Amerada Hess Petroleum Corporation as an exploration geologist where I conducted geological studies to locate oil and gas in the Rocky Mountains and southwestern United States. During my subsequent doctoral studies, I joined the U.S. Geological Survey (USGS) as a district hydrogeologist in the Minnesota District. There, I managed and supervised projects designed to: determine how copper and nickel mining might contaminate or otherwise affect surface and ground water in a wetland-rich region of Minnesota, determine how much ground water enters and leaves wetlands and lakes, and how "acid rain" affects surface and ground waters.
Following my doctorate, I was promoted to a regional hydrogeologist /geochemist position. In this capacity, I supervised and conducted studies including ones on regional wetland hydrology. Following my employment with the USGS, I joined Syracuse University where I was promoted to Professor of Earth Sciences. At Syracuse University, I teach elementary and graduate level courses in geology, hydrogeology and geochemistry and conduct a broad research program including projects designed to evaluate how wetland hydrology (the flow of water in and out) affects wetland vegetation, surface-water quality, and release to the atmosphere of carbon dioxide and methane ("swamp gas" ). My research has been substantively funded by the National Science Foundation and the Department of Energy. I have published widely in peer-reviewed journals on these topics as well as topics related to groundwater contamination.
In recognition of my expertise and experience in wetland hydrogeology and geochemistry, the Hydrogeology Division of the Geological Society of America (GSA) selected me as the 1994 Birdsall Distinguished Lecturer in Hydrogeology. I was elected and served as the 1995 Chairman of the Hydrogeology Division of GSA. and was selected by the National Academy of Science (National Research Council, NRC) as a member of panels to determine the vulnerability of aquifers to potential groundwater contamination and, at the recommendation of the National Groundwater Association, the recent wetlands characterization committee. I have served as Associate Editor for the peer-reviewed journals, Water Resources Research and Wetlands. I also review articles and books for many other peer-reviewed journals publishing in hydrology and geochemistry and have offered short courses and graduate-level courses in Wetland Hydrology and Geochemistry.
INTRODUCTION
The U.S. Army Corps of Engineers (COE) administers Section 404 of the Clean Water Act that regulates fill activities in wetlands and other waters of the United States. The COE recently revised and re-authorized this program (13 December, 1996, FR 61:241, 65874-65922). The NWP No.26 of the Nationwide Permit Program contains wetland size restrictions related to the extent to which the wetland modification is regulated. Previous to the 1996 revisions, wetlands less than 1 acre in size could be effectively filled without notifying the COE (through the pre-construction process) and the cap on maximum allowable acreage for each wetland fill was 10 acres.
The 1996 previsional revision, effective for 2 years from February 11, 1997 to February 11, 1999, now requires that the COE be notified of any proposed wetland filling greater than 1/3 acre in size and the maximum allowable fill allowed is 3 acreas. The COE's intent is to replace the current two-year provisional NWP No.26 with activity-specific replacement general permits and has directed its districts to:
"...carefully review...NWP 26 to revoke applicable NWPs in high value aquatic ecosystems, and to add regional conditions to limit the applicability of the NWPs to ensure that no more than minimal adverse effects occur in each district."(FR, 1996, p.658776).
Explicit in the revised COE approach is the eventual setting of regional limitations to specifically address protection of specific environmental "assets." The COE emphases that the purpose of the NWP is to authorize activities that cause only minimal individual and cumulative adverse environmental effects and that evaluating such effects needs to be be done on an individual watershed basis. In their 1996 revisions, the COE states that defining minimal impact is difficult on a Nationwide basis because environmental effects geographically can vary significantly "from resource to resource, state to state and county to county, and watershed to watershed.." The COE further argues that tightening the NWP No.26 for an interim two years is appropriate because headwater and isolated wetlands may be as valuable or even more valuable than other wetlands, a conclusion reached by the National Research Council Committee (NRC) on Wetland Characterization.
Finally, the COE argues that there are benefits to be gained from a future regionalization approach with respect to wetland regulation, a conclusion also reached by the NRC committee. As I understand it, the controversies over the revised NWP No.26 pertain to a perceived restrictive nature of having to apply for a COE permit to fill wetlands as small as 1/3 acre and whether headwater and isolated wetlands should be separately regulated as a distinct wetland class.
THE SCIENTIFIC ISSUES RELATED TO HEADWATER AND ISOLATED WETLANDS
Isolated wetlands in the context of NWP No.26 are defined as nontidal waters that are not a part of a river or stream tributary system to interstate or navigable waters of the United States and that are not adjacent to such tributary waters. Examples of such wetlands are the vernal pools and playas in the arid western states, prairie pot-hole wetlands of the great plains, alpine wet meadows, and small wetlands in headwater regions of streams in the humid eastern states. All these wetlands qualify for protection under Section 404 jurisdiction, although historically many have been filled, resulting in large cumulative loss.
Scientifically, the NRC wetland characterization panel recognized that small isolated wetlands can be very important to maintain regional ecosystem health and surface-water quality (NRC, 1995). For example, isolated prairie pot-hole wetlands constitute only 4% of the geographic area in the Dakotas while supporting a large percentage of the total populations of the most abundant waterfowl (e.g. Kantrud et. al, 1989). The shallowest pot-holes, often the "least wet," provide the best invertebrate forage for waterfowl in the Mississippi flyway. In the more arid west, intermittently flooded wetlands have distinctive biota that depend upon water. These biota persist and reestablish themselves quickly after flooding. A well known example is California's vernal pool fairy shrimp. Intermittently flooded wetlands in coastal areas, such as bottomlands in Louisiana, clearly provide critical habitat for fish and shellfish (e.g.Lambau, 1990).
Some isolated wetlands in the prairie pot hole region and elsewhere also can replenish local underlying groundwater resources, and many isolated wetlands help attenuate the onset of flooding and maintain water quality. In particular, streamside wetlands and isolated wetlands in headwater areas can remove suspended sediment, contaminants, and harmful nutrients from surface waters. Brinson (1993) shows that longer lengths of stream floodplain are more affected by small-scale wetland disturbance where streams are small than where they are large, and argues that the greatest emphasis should be placed on maintaining the integrity of small (technically, first- and second -order ) streamside environents and their watersheds to maintain water quality. The surface area of a wetland is less important than it's length, relative to the dimensions of the resource being affected (Brinson, 1993). Johnston et. al. (1990) studies support Brinson's by showing that shallow and isolated wetlands in Minnesota effectively remove suspended solids, phosphorous and ammonia during high flow while removing more nitrate during low flow when anoxic (no oxygen) conditions can be established.
Isolated wetlands can remediate poor water quality more effectively than do wetlands directly connected to streams and lakes because more time is available for settling out of sediment and biological removal of nutrients. The chemiical processes and biological communities found in shallow wetlands, isolated wetlands, and intermittently flooded wetlands are similar to those found in larger wetlands. Headwater wetlands and isolated wetlands in headwater watersheds partly control the extent to which non-point nutrients and contaminants reach major surface water bodies. Headwater and isolated wetlands protect navigable waters from water quality degradation far more than do wetlands associated with larger streams. Also, with respect to stream flooding, small depressions in landscapes must first fill up with water before there can be substantial overland flow to headwater streams..
.
APPLICABILITY OF NATIONWIDE No.26
Applying Nationwide No.26 still is juristictionally and scientifically problematic despite the general scientific consensus that headwater and isolated wetlands, large and small alike, can substantively control surface-water quality and to some extent, attenuate flooding, First, as the COE readily acknowledges, it is difficult to assign quantitative thresholds governing acceptable impacts on water quality and quantity caused by individual wetland loss. For individual small wetlands, these impacts are very difficult to determine because they are cumulative and water quality effects may not be identifiable until substantive loss has already occurred.
Depending upon landscape geography and climate, headwater and isolated wetlands may be less important or have less "value" in some regions than in other regions of the country with respect to sustaining biological resources deemed important by society (e.g. wildfowl) and maintaining legislated quality of water. For example, the NRC wetlands committee felt that it is important to preserve remaining prairie pot hole wetlands in the great plains states and playa lakes and vernal ponds in the arid western states because it is well documented that these wetlands are critical for migratory wildfowl habitat in such arid regions. Playa lakes and vernal ponds are effectively the wettest parts of a generally dry landscape, and therefore have very special and important biochemical and water quality functions within the watershed context. In contrast, some isolated wetlands in the humid northeastern or north-central states may be less important with respect to water quality and biological habitat because these wetlands occupy a much larger part of the regional landscape.
A major question is how to take Nationwide No .26 and regionalize it so that it is scientifically credible and is fair to users of wetlands. The revised NWP No.26 indicates After the current provisional two year period, the COE will further revise NWP No. 26 to regionalize the permitting process. During the initial two years, the COE will
"..gather interested parties at the national level as well as the district and division levels, to develop replacement permits for NWP 26. The replacement permits will be activity-specific rather than the geographic based approach of NWP 26 (FR, 1996, p. 65876)."
and
"Once the Corps establishes activity-specific replacement permits that have clear national conditions to ensure the aquatic environment is protected and the impacts will be no more than minimal, each district, working with the Corps divisions, will establish regional conditions for the activity-specific replacement permits. This may result in the revocation of certain NWPs in aquatic environment of particularly high value, and the addition of regional limitations to specifically address the need for protection of specific environmental assets (FR, 1996, p. 65876) ."
The NAS Wetlands committee fully recognized the need for regionalization of wetland regulatory practices, including NWP No.26. It recommended that proposals for (and review) of regional practices should be solicited from scientific experts in the private and public sectors, both within and outside the region being considered. It also recommended that all federal agencies involved in wetland regulatory practice be involved in the regionalization process.
Several regionalization approaches for wetland classification are available, based on ecological, hydrologic, geomorphologic and climatic factors. How the COE will regionalize Nationwide No. 26 is perhaps the most pressing issue to resolve, time and I urge the COE to actively solicit scientific advice on which classification method best suits the regulatory process. I also urge the COE to quickly and publically define what "activities" they expect to consider in their evaluation process and to similarly solicit as much opinion and discussion as possible. Based on my understanding of the diverse opinions and conerncs related to wetland regularion, I am concerned that the two years provisional NWP No.26 revision is an insufficient time to resolve regionalization and activity issues.
In summary, I think that the new provisional changes to NWP No.26 are a step in the right direction to a more scientifically meaningful and sound regulation of our Nation's wetlands. I applaud the COE's effort to both constrain the piece-meal loss of small isolated and headwater wetlands by temporarily implementing stricter wetland regulations while concurrently working to develop scientifically meaningful "activity-based" regionalization of NWP No.26. I think the COE has struck a balanced position with respect to wetland regulation, somewhere between the extreme positions of preventing any further nationwide wetland loss to allowing relatively unrestricted filling of isolated and headwater wetlands. There remains the issue whether the COE has the staffing available to address what surely will be increased regulatory case-loads at the district level, but this issue is a personnel issue, not a policy or scientific issue. This ends my testimony at this hearing. I thank the Committee on the Environment and Public Works for soliciting my views and I welcome any questions.
Donald I. Siegel
Professor of Earth Sciences
Syracuse University, New York
References Cited:
Brinson, M.M, 1993, Changes in the functioning of wetlands along environmental gradients: Wetlands, 13: 65-74.
Johnston, C.A., N.E. Detenbeck, and G.J.Niemi, 1990, The cumulative effect of wetlands on stream water quality and quantity: a landscape approach: Biogeochemistry, 10: 105-141.
Kantrud, H.A., G.L. Krapu, and G.A. Swanson, 1989, Prairie basin wetlands of the Dakotas: a community profile, U.S. Fish and Wildlife Service Bio. Rep.85.
Lambou, V.W., 1990, Importance of bottomland hardwood forest zones to fishes and fisheries: the Atchafalaya Basin, a case history. Pp.125-193 in G. Gosselink, L.C. Lee, and T. A. Muir, eds., Ecological Processes and Cumulaive Impacts: Illustrated by Bottomland Hardwood Wetland Ecosystems. Chelsea, MI: Lewis Publ. Inc.
National Research Council, 1995, Wetlands: Characteristics and Boundaries, National Academy Press, 307p.