A new federal rule meant to protect the country’s clean water supply could actually make it harder for floral industry greenhouse and nursery growers to ensure that rainwater and runoff do not carry unacceptable levels of nutrients or sediment.
The Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) have jointly issued a rule that greatly expands the scope of waters subject to their control under the Clean Water Act (CWA).
The CWA provides the federal government with authority over “navigable waters” in the U.S. and requires permits from those that discharge into those waters.
“Over the years, the government has interpreted the term ‘navigable waters’ expansively and has been aggressive in blocking development and prosecuting those it considers in violation of the CWA,” said Shawn McBurney, SAF’s senior director of government relations. “ For example, the EPA and the Corps asserted authority in the past over isolated waters by saying those waters that are or could be used by migratory birds, which cross state lines, are interstate waters or ‘waters of the U.S.’”
The U.S. Supreme Court has said that the federal government’s interpretation of “navigable waters” grants nearly limitless authority over water under the CWA and existing regulations. The court also noted that the CWA confers federal jurisdiction over non-navigable waters only if they exhibit a relatively permanent flow, such as a river, lake, or stream. In addition, a wetland is covered if there is a water connection between it and a relatively permanent body of water.
In response, the Corps and EPA wrote new rules to clarify the CWA’s jurisdiction, McBurney said. “However, EPA’s ‘clarification’ is also a broad expansion of the types of waters and lands that would be subject to federal permit requirements and puts limits on farming practices and other land-uses.”
The rule, McBurney explained, “could complicate and impede implementation of ‘best management practices’ that industry growers use in greenhouse and nursery facilities to ensure that rainwater and runoff are not inadvertently carrying unacceptable levels of nutrients or sediment.”
The rule also includes new regulations that address the moving of soil and the impact that may have on bodies of water.
“These regulations could affect individual landowners and homebuilders, as well as farmers who want to plant trees, construct buildings, install drainage or plow soil,” McBurney said. “Even the simple act of digging a hole to plant a tree might become an activity that requires a federal permit.”
Read more about the issue and find out what supporters and detractors have to say about the rule.
