Their comments address the proposed rule dated April 21, 2014, in which the agencies state the proposed rule would "enhance protection of the nation's public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of 'waters of the United States' protected under the Act." EPA and the Corps are claiming that areas where water is present, as infrequently as once every few years, should be subject to CWA permit requirements, because the water could potentially be connected to navigable water.
"While the processes and inter-relationships identified in the report provide mechanisms to establish potential chemical, biological and physical ties between waters, the idea of a universally applicable mechanism for every water or drainage feature that exists on the landscape lacks any degree of scientific robustness,” the groups said. “Given the financial and potential criminal liabilities associated with violating the CWA, the connectivity of an area to a navigable water is best established on a case-by-case basis. This vague concept of connectivity cannot be applied universally to all areas and navigable waters, thereby defeating the agencies' stated purpose of avoiding case-by-case determinations for waters of the US.”
The proposed rule would assert jurisdictional authority over countless dry creeks, ditches, swales and low spots that are wet because it rains or a farmer has installed practices to sustain the viability of his operation, they added. “Even worse, the proposed rule attempts to claim authority over remote ‘wetlands’ and/or drainage features solely because they are near an ephemeral drainage feature or ditch that are now defined as a water of the US subject to CWA jurisdiction. Such unnecessary expansion of CWA jurisdiction significantly burdens poultry and egg production operations without any meaningful public health or environmental benefits," the groups concluded.