The Environmental Protection Agency and the U.S. Army issued the Final Clean Water Act Wednesday, defining the scope of “waters of the United States.” The new rule places some smaller bodies of water like man-made lakes, ponds, trenches and other areas that could overflow during heavy rainfall.
What this means for you:
- National Pollutant Discharge Elimination System (NPDES) permits are currently required for the application of pesticides to water to control algae, aquatic weeds and mosquitoes. Since the rule extends CWA regulation to some man-made residential community lakes and ponds, NPDES permits could be required for pesticide applications to these waters.
CWA Section 404 (wetlands dredge and fill) permits could be required to install trees, plants, patios and other landscape features on private property that are deemed to be in a floodplain or include Waters of the United States.
Total Maximum Daily Loads (TMDLs) are the maximum amount of a pollutant allowed in a given water body. EPA used the TMDL program in the Chesapeake Bay to compel states to set limits on nutrient applications. Smaller water bodies that are now subject to CWA regulation could now face similar requirements.
The rule is meant to clarify which smaller streams, tributaries and wetlands are covered by the Clean Water Act, which was created to protect the drinking water of 117 million citizens.
Proponents of the rule say it does not expand the Clean Water Act’s coverage or add new permitting requirements, but opponents are calling the rule a “power grab.” Many are concerned about the impact this will have on land use and construction, as well as public and environmental health.
“Along with thousands of stakeholders, we asked EPA and the Corps for clarity on the definition of the waters of the U.S. What we got in return is a regulation so expansive it includes golf course ponds or water collecting in ditches,” said Aaron Hobbs, RISE president, in a statement. “The sweeping redefinition impacts every pesticide treatment near water, including those to treat mosquitoes and help prevent mosquito-borne diseases; to keep power, highway, rail and shipping infrastructure safe and useable; and to eradicate invasive and non-native plant and insect species.”
According to the EPA, the final rule would place upstream waters or tributaries under the protection of the Clean Water Act. This could include ditches and trenches, but only if they act as tributaries that could move pollution downstream. Ponds and man-made lakes may also fall under the rule if they have overflow water during heavy rainfall.
The EPA said this will be determined by signs of flowing water like a bank, a bed and an ordinary high water mark. The rule also protects water features like prairie potholes, coastal prairie wetlands and more when they impact downstream waters.
“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA Administrator Gina McCarthy in a release. “Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures – which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”
Most ditches will not be regulated by the act, said the EPA, and groundwater, shallow subsurface flows or tile drains are not covered.
In 2001 and 2006, Supreme Court rulings left 60 percent of the country’s wetlands and streams without protection as they are not “navigable waters.” The EPA said those rulings made protection “confusing, complex and time-consuming,” necessitating a better definition of the Clean Water Act’s scope.
The House of Representatives voted May 12 to overturn the rule. Passage of the legislation fell largely along party lines by a vote of 261-155. However, 24 Democrats voted for the legislation, H.R. 1732, also known as the Regulatory Integrity Protection Act. Passage of H.R. 1732 would require the EPA and U.S. Army Corps of Engineers to withdraw the proposed Waters of the United States (WOTUS) rule within 30 days and craft a new one in consultation with state and local governments and other affected stakeholders. Similar legislation could be introduced in the Senate soon.
The rule will be effective 60 days after publication in the Federal Register.
What you can do
Here is what the National Association of Landscape Professionals recommends:
- Send a letter to your senators through our advocacy website asking them to support S. 1140.
- Tweet your concerns about the new rule using #landscapeadvocacy, #4CWAclarity and #ditchtherule.
- Tweet at your members of Congress and senators and @EPAWater.
- Find your senator and representative by going to the Legislative Action Center and using your address in the search bar to find your elected officials.
- Some suggested tweets include:
- Let’s stop the overreach of the EPA. Support S. 1140. #landscapeadvocacy #4CWAClarity #ditchtherule
- Protect landscape professionals from costly new regulation. Support S. 1140. #landscapeadvocacy #4CWAClarity #ditchtherule
- Do I really need a CWA permit to plant a tree? #landscapeadvocacy #4CWAClarity #ditchtherule
Register for the National Association of Landscape Professionals Legislative Day on the Hill, July 20-21, and make your voice heard in Washington, DC.