The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) set off a firestorm of protest, especially with farmers, when on April 21 they jointly issued a proposed regulation under the Clean Water Act (CWA).
At stake, according to some, is your ability to use your land without significant interference from EPA and the Corps.
Two recent Supreme Court decisions have created some confusion as to the limits of the EPA and the Corps’ jurisdiction when it comes to implementing the federal CWA. This proposed regulation attempts to clarify the limits of federal jurisdiction over what is referred to as “Waters of the U.S.”
Let’s take a look at the potential impact of the rule if it were approved.
Heightened application regulations
Some believe the new regulation would significantly expand the jurisdiction of the EPA and the Corps. The American Farm Bureau Federation (AFBF), for example, opposes the new rule, believing it would interfere with normal farming practices such as applying pesticides and fertilizers. The AFBF believes, say, a ditch filled with water or a low wet area of a field could be subject to the same rules and permitting requirements that now control pollution discharges into major rivers and streams.
If the AFBF is correct in its analysis, then the EPA and the Corps could impact landscape contractors as well, creating new permitting requirements for the application of pesticides and fertilizers near water.
On the other hand, the EPA and the Corps say nothing will change for farmers under the new rule. The current agricultural exemptions in the CWA will continue to be in force under the new regulations.
So who is right?
The role of state laws
Well, it may depend on where you live. Federal and state laws regulating water pollution are complex and intertwined. Some states have laws governing water pollution that are broader than the CWA; others do not. The federal law is supposed to set the standards for water pollution. Some states see it as a ceiling and have passed laws to that end.
An analysis of state laws governing water quality by the Environmental Law Institute (ELI) found states to be evenly split on the coverage of their water protection laws, with 25 being broader than the CWA and 25 being less broad. Generally, the laws in states in the eastern half of the U.S. are broader than those in the western half of the U.S.
States with broader laws are unlikely to feel as much regulatory change under the new rules, while those with less broad laws could feel more change.
Pennsylvania as an example
Pennsylvania has one of the most comprehensive laws governing water pollution in the country: The Clean Streams Law, which was passed in 1937. In Pennsylvania, water resources are seen as the common property of all the state’s residents. They cannot be owned by any one person.
Also in Pennsylvania, rain falling in a roadside ditch is considered to be “waters of the Commonwealth” and is subject to state regulation and control. The underlying theory is all water is connected in one hydrologic system. Pollution in a ditch eventually will make it to groundwater or a stream and then into a river. The EPA and the Corps’ proposed rule takes a similar approach to defining “waters of the U.S.”.
Because of our strong state laws, we in Pennsylvania don’t anticipate much change in how water is regulated as a result of the new regulation.
The EPA/Corps regulation is 317 pages and very complex. Given its impact is dependent on your state water pollution laws makes it even more complicated to analyze.
Stay in touch with your state and national trade associations to keep up with this regulation. It could have significant impacts on landscape contractors, especially in those states that have weaker state water pollution laws.
Photo: Maliz Ong/PublicDomainPictures.net
