Tuesday, November 11, 2014

My Comments on the Proposed Waters of the US Rule: 3 of 8: Farm Ditch Regulation for Change of Use

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.

Regulation of Farm Ditch and Farmed Wetland Change of Use
Comment: Practitioners and landowners are well aware that the change of use of most farm ditches triggers CWA compliance, though EPA artfully works to avoid this discussion.  Relocating farm ditches for infrastructure or farm expansion (i.e. new barn site) projects triggers CWA compliance and sometimes federal mitigation requirements.  EPA consistently denies that farm ditches can or will be regulated without adding the "change of use" caveat.  CWA opponents correctly see this as EPA's attempt to avoid discussion of change of use CWA compliance on agricultural properties. 

EPA and USACE staff have halted or administratively stalled numerous voluntary aquatic habitat projects involving prior-converted crop fields and existing farm ditches and gullies by asserting that converting the ditches back to their pre-agricultural condition constitutes "change of use" and would require mitigation.   To clarify, federal agencies have required federal wetland and stream mitigation for voluntary wetland and stream projects on American farms.  These projects, driven by federal conservation dollars, small non-profit organizations, and small family farmers, are unduly scrutinized.

Recommendation:   1) Habitat creation, restoration, and enhancement projects must be exempted from "change of use" regulation or policy implemented at the national, regional, or district level by federal employees.  Caveats should exist to maintain permit exemption, such as a provision that a net increase in habitat function and habitat acreage/footage occur as a result of the habitat project. 2) Provide a 5,000 sf exemption for "single and complete" projects requiring permanent (not temporary) conversion of cropped wetlands or farm ditches proposing a change of use, where no other federal resources (NHPA, ESA, etc) would be impacted. Formally apply CWA Section 404 to permanent (not temporary) disturbances over 5,000sf as these disturbances apply to habitat projects that are not tied to a direct loss, like compensatory mitigation.  

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