Tuesday, November 11, 2014

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.  

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