Monday, June 1, 2015

Regulating Your Garden Under the Clean Water Act

On Wednesday May 27th. 2015, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers released the long anticipated rule to expand protection and regulation under the 1972 Clean Water Act to include streams and wetlands and any body of water that the EPA previously needed to determine to be a “significant Nexus” to the “navigable waters of the United States” on a case by case basis. Though the new rule excludes artificial ponds and lakes on private property along with ditch systems that do not convey downstream, it expands the regulated community to individual property owners ill equipped to understand, comply with or fight federal regulations.

Slightly more than a year ago, the E.P.A. and the Army Corps of Engineers jointly proposed the original version of this rule, known as Waters of the United States,. Since that time the EPA has held more than 400 meetings about it with outside groups and read more than one million public comments (including a social media campaigns that according to the New York Times was orchestrated by the EPA and Farm Bureau) as it wrote the final language for the rule. Now, the White House has announced that the rule as will be implemented under executive authority of the President. It is expected to face fierce opposition and legal challenges, since executive authority and legal challenges seem to be the way that laws are made these days.

According to the EPA the Clean Water Act protects navigable waterways and their tributaries. The new rule says that a tributary must show physical features of flowing water (as determined by a regulator). The rule protects waters that are next to rivers and lakes. The rule protects prairie potholes, Carolina and Delmarva bays, bogs, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters (as determined by regulators). The rule protects ditches that are constructed out of streams or function like streams and can carry pollution downstream (as determined by regulators).

While the new rule limits the analysis necessary to declare that water will impact the navigable waters of the United States, it greatly expands the waters included by regulation. According to the EPA blog, the following impact the Navigable Waters of the United States and are included in the rule by assumption.
  • Streams, regardless of their size or frequency of flow. Seasonal streams are included in the regulation.
  • Wetlands and open waters in riparian areas and the 100 year floodplains are included in the rule.
In addition, many wetlands and open waters located outside of riparian areas and 100 floodplains may provide functions that could benefit rivers, lakes, and other downstream waters, even where they lack surface water connections and may be included in the rule. These include but are not limited to prairie potholes, Carolina and Delmarva bays, bogs, western vernal pools, and coastal prairie wetlands and other habitats that have a water component like man made ditches that connect to streams, wetlands or riparian areas.

The EPA news release called this a new era in the history of the clean water act and described the rule as "an action to clearly protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources." It is certainly a new era in regulation. We have created a system where administrators run and control everything under “laws” that no one understands or are fully aware of. If property owners fail to apply for permits to build, till, develop or perform “other potentially polluting activities” near water bodies, they can be sued by the EPA. Environmental activist groups, and even private citizens will be able to bring lawsuits against landowners who might be in violation of the regulations. The problem is the grey areas of the rule create a system of arbitrary administrative or political power. There is little doubt that some polarising or controversial figure will find himself in felony violation of the Clean Water Act. The rule of law is dead. There is no bright clean line that any citizen could understand and yet any citizen could carelessly committee a felony during a weekend of gardening. There is no deminimus standard in the rule and it can be applied at will.

For several years EPA has attempted to expand the reach of the Clean Water Act to all waters and discharges to include all sources. Federal authority has never before extended to non-point sources, such as from run off from agricultural and urban sources not part of a storm sewer system as well as other small sources such as septic systems, vegetable gardens, backyard chickens etc. The EPA has been frustrated in their attempts to address what they view as the current generation of environmental problems. These problems are subtle, much less visible to the naked eye and often not recognized because they are from diffuse or non-point sources.

Agriculture is reported to be one or the main non-point sources of water pollution and in studies done in the Chesapeake Bay Watershed and Sacramento River Delta and other locations the contamination from agriculture runoff has been the major source of contamination. Pesticide runoff is a large contributor of known pollutants to the watersheds and may be a significant contributor of endocrine disruptors to the freshwater supply, but so are suburban lawns and gardens. Now, EPA has expanded the Clean Water Act reach to all water and all sources of water pollution no matter the size and location.

Farmers fear that the rule could impose major new costs and burdens, requiring them to pay fees for environmental assessments and permitting just to till the soil near ditches or dry stream beds where water flows only when it rains. A permit is required for any activity, like farming or construction, that creates a release or discharge into any body of water covered under the Clean Water Act or impacts the health of the body of water. These regulations apply equally to a small, herb and vegetable gardens. Will I get my water discharge permits the same place I buy my plants? Now there is a business opportunity, discharge permits for homeowners.

EPA has expanded their authority to every bit of water in the US and will be able to directly regulate all sources of pollution without working through the states. This rule will be felt throughout the U.S and in all areas of our economy and lives not previously directly touched by the EPA. It will have a profound impact on many previously locally regulated activities, including home building, mining, road construction, commercial property development and water infrastructure projects and very small scale projects and even gardening or pesticide application by homeowners. The capricious application of the federal command and control regulatory scheme will directly impact all our lives, determine what we may do on our properties and change the very nature of our nation.
Note the drainage ditch coming off the road and traveling down the driveway

Pulling back you can see that the water can travel down hill to the stream 

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