Puddles and ponds

Kelli Rodda

On May 27, the U.S. EPA and the U.S. Army finalized the Clean Water Rule, which many in congress and industry are calling a “power grab.” In fact, the House passed a bill trying to stop the ruling. Similar legislation (S. 1140, the Federal Water Quality Protection Act), which directs the EPA and the Corps to issue a revised rule, is expected to come up for a vote in the fall.

The original Clean Water Rule (also known as Waters of the United States or WOTUS), subjected all waters to regulation, including man-made water bodies, golf course ponds, ditches and flood plains. In its original form, the rule would have impacted every pesticide and fertilizer application, and required permits for professionals, landowners and homeowners, even on private property, according to RISE (Responsible Industry for a Sound Environment). The proposed jurisdiction was so wide that it would have included almost any body of water.

However, the EPA and the U.S. Army Corps of Engineers made a few tweaks to the rule language before finalizing the CWR. According to the EPA, the rule “focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.” The EPA says it also “reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”

However, there’s still a lot of confusion swirling around this rule. Craig Regelbrugge, vice president for government relations and research at AmericanHort writes, “The final rule creates confusion and liability for growers and business owners. It redefines which waters are subject to federal [Clean Water Act] regulation. In the past, only navigable waters were subject to the CWA. Now, in addition to large water bodies, the CWA’s regulatory jurisdiction includes some man-made water bodies or areas that have flowing water during heavy storms. It also subjects to CWA requirements any water body deemed to have a ‘significant nexus’ to a larger body.”

The House Interior & Environment Appropriations Subcommittee passed its fiscal 2016 funding bill in June, which includes language that would prevent EPA and the Corps from implementing the final rule, according to Regelbrugge. As of June 24, the final Clean Water Rule has still not been published in the Federal Register, but it will be enacted 60 days after its publication date.

NPR’s Diane Rehm show on June 18 focused on the CWR and its impact on ag. Listen to it here: http://bit.ly/1SO3Tmb. Hat-tip to RISE for sending out the link in its newsletter.

Watch for updates on this rule at NurseryMag.com.