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