EPA proposes Clean Water Act expansion

From Craig Regelbrugge, AmericanHort:

EPA and the U.S. Army Corps of Engineers have jointly released a proposed rule intended to “clarify protection under the Clean Water Act (CWA) for streams and wetlands that form the foundation of the nation’s water resources.”

Under current law, the CWA applies to “navigable waters.” Under the draft rule’s definition of a tributary, many additional waters, including ditches, could be subject to Clean Water Act regulation. The proposed rule could expand CWA jurisdiction over many man-altered and man-made water bodies, including residential lakes, ponds, golf course water hazards, and ditches.

In addition to the proposed rule, EPA and the Army Corps issued a separate “interpretive rule” that takes effect immediately. That rule reflects a decision with the U.S. Department of Agriculture (USDA) to exempt 53 farm conservation practices from CWA Section 404 dredge and fill permitting requirements. These practices include tree and shrub establishment, tree and shrub pruning, mulching, and other practices. The interpretative rule would only exempt these practices from CWA Section 404 permit requirements if they are implemented according to USDA standards. These practices would not necessarily be exempt from other CWA requirements. EPA and the Army Corps also entered into a Memorandum of Understanding with USDA to continue to review the list of conservation practices under the interpretive rule and determine if that list needs to be expanded.

The rules will be published in the Federal Register later this week or early next week, which will begin a 90-day public comment process. A copy of the proposed rule, the interpretative rule and other EPA materials can be found at www2.epa.gov/uswaters.

AmericanHort is analyzing the nearly 400-page rule to further assess the impact on our members. We are very concerned that the proposal could subject many additional water bodies, including “ditches,” to federal regulation, placing restrictions and liabilities on growers. We will coordinate with allied organizations, prepare comments, and work to oppose overregulation in this area.