Industry Speaks Out Against “Waters Of The U.S.” Rule

WaterMany growers capture water from their irrigation in ponds or tanks to meet runoff regulations, but a proposed rule change to the Clean Water Act could potentially result in the federal government having jurisdiction over those water sources, further complicating growers’ practices.

The U.S. Environmental Protection Agency (EPA) proposed the rule change, known as “waters of the U.S.” It would allow for a broader interpretation of the Clean Water Act, giving the EPA regulatory jurisdiction over a variety of waterways and water sources, many of which are not considered navigable waterways.

“Lengthy and costly permitting processes could become commonplace for landscape and nursery businesses,” AmericanHort Senior Vice President Craig Regelbrugge said in a news release, in which he recommended industry members take action on the issue. “It could potentially mean that chemical applications, ground disturbances (planting included) and many other normal business activities could require permitting and further, could be subject to EPA oversight.”

Regelbrugge says the rule is a regulatory overreach that could pose a significant challenge to nursery and landscape business operations across the country. Legislation to address this issue (H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act), passed the House of Representatives in September.

“Unfortunately, the outlook is not favorable for action in the Sentate this year,” Regelbrugge says.

The Industry Takes Action

AmericanHort, along with many other associations, including the National Christmas Tree Association and the Society of American Florists, submitted comments to the EPA on November 14, which marked the close of the comment period.

“The proposed rule will negatively impact the vertically integrated horticulture industry, from nursery and greenhouse plant production through the installation and maintenancce of residential and commercial landscapes,” the comments say.

In the letter, the groups urge the EPA to withdraw the proposed rule.

“Water is essential to the horticulture industry. Our members strive to be responsible water users, to protect both water quality and supply,” Regelbrugge says. “As an industry, we have sourced and leveraged many dollars of investment toward water-related best practices research, development and education.”

The worry is, he says, that the proposed rule could create confusion, and require new permits that do not enhance environmental protection, and thus negatively impact stewardship efforts.

“The rule could complicate and impede implementation and maintenance of best management practices, measures we take on nursery and greenhouse farms and facilities, to ensure that rainwater and runoff are not inadvertently carrying unacceptable levels of nutrients or sediment,” Regelbrugge says.

“For landscape professionals, the simple act of digging a hole to plant a tree might become an activity that requires a federal permit.”

A Regulatory Overreach

Eric Larson, executive director of the San Diego Farm Bureau, says the proposal could prevent some professionals in his region from running their operations normally. In California, for example, growers cannot allow pollutants to leave their land, so most have systems in place for capturing and recycling water.

“Our fear is that the farmers in San Diego County are already heavily regulated in their runoff. They have to be in a monitoring group, they have to institute best management practices and they have to be responsible for any runoff leaving their property. If they change this rule, now they’re also going to be responsible for any water that may accumulate on their property,” Larson says. “And some of that accumulation could actually be the result of normal farming practices.”

If ditches or culverts gather storm water or runoff water, those bodies of water, regardless of how small, could potentially be regulated.

“Let’s say someone has an area where they normally grow plants, and maybe seasonally, that area may be inundated or subject to flooding and accumulates water. That grower might not be able to go into that area and work the ground if there’s standing water there,” Larson says.

Proposed Rules Lack Clarity

The proposal includes a number of terms such as “adjacent,” “riparian area” and “floodplain,” that do not clearly delineate which waters are covered.

Other waters may be subject to jurisdiction on a case-by-case basis. According to Regelbrugge, the lack of clear definitions will make it harder for professionals to determine if Clean Water Act permits are needed to install fertilizer or pesticides.

“The vague definitions and concepts will likely result in litigation over their proper meaning,” he says. “These murky definitions will make it extremely difficult for nursery and greenhouse growers and landscape professionals to understand and comply with the law.”

“It’s just another layer of regulation that’s going to make it that much more difficult to do business,” Larson says. “That’s what is really troubling about this. It’s one thing to have to comply with a regulation; it’s quite another if a portion of your operation becomes unusable and you can’t use it for production.”

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