On May 27, the U.S. Environmental Protection Agency (EPA) and the U.S. Army said they are publishing final, new controversial regulations that define the term “waters of the United States” (WOTUS) under the federal Clean Water Act (CWA).

This move follows more than a year of acrimonious debate since the EPA and Army first published these new rules as a draft for public comment on April 21, 2014. (Related: “Government Affairs: ‘Waters of the U.S.'”)

Permits for planting trees

According to the opponents of the regulations, the new rules significantly expand the jurisdiction of EPA and the Army Corps of Engineers to include stream tributaries and wetland areas not previously regulated under the those agencies’ responsibilities.

Opponents of the WOTUS rules, which include AmericanHort and the National Association of Landscape Professionals (NALP), fear that expanding the jurisdiction of EPA and the Army would lead to new federal permitting and regulatory requirements for applying pesticides and fertilizers near small streams and wetland areas. Some even believe that the regulations give EPA and the Corps the ability to regulate the water in puddles and ditches.

Writing in this publication last fall, Sabeena Hickman, the CEO of the National Association of Landscape Professionals (formerly PLANET) asserted that the WOTUS regulations could require that landscape contractors and homeowners obtain a federal permit to plant a tree or shrub.

On the other hand…

For their part, EPA and the Corps have been almost strident in their attempts to explain that the new rules simply clarify confusion over the definition of waters of the U.S. created by two conflicting court decisions during the last decade. They claim that the new rules will “(make) permitting less costly, easier, and faster for businesses and industry.”

In fact, EPA and the Corps have issued a list of the things that the new rule will not do. According to EPA, the new rules will not:

• Protect any types of waters that have not historically been covered by the Clean Water Act;
• Add any new requirements for agriculture;
• Interfere with or change private property rights;
• Regulate most ditches;
• Change policy on irrigation or water transfers;
• Address land use;
• Cover erosional features such as gullies, rills and non-wetland swales; or
• Include groundwater, shallow subsurface flow and tile drains.

The regs also contain provisions that encourage the use of green infrastructure, such as planting forested riparian buffers, rain gardens, bioswales and other designed uses of plants to clean and filter stormwater runoff. This measure is something that landscape contractors should like.

So who’s right?

As I mentioned in my last blog, the impact of this new regulation may depend upon where you live and work. According to a study by the Environmental Law institute (ELI), half of the states have their own clean water laws that are broader in their coverage of waterways than the federal Clean Water Act. It’s unlikely that much will change in these states since their existing laws are already stricter than the federal CWA.

However, those states that have clean water laws that are less broad than the federal CWA (most are west of the Mississippi), could see some changes in the way EPA and the Corps regulate and enforce the federal law within their states.

Congress gets into the fight

Congress has been active in their opposition to the new regulations, with the House passing a bill to require that EPA and the Corps withdraw the regulations just weeks before the agencies announced that the regs would be published as final.

Not to be outdone, in late May the Senate held hearings on its own bill that would force withdrawal of the regulations.

The White House has threatened to veto any bills that would weaken or delay the implementation of the WOTUS regulations.

The bottom line

Ultimately, it will be the implementation and enforcement posture that EPA and the Corps take in implementing the new regulations that will determine their impact. Given the political firestorm that these regulations set off, I’m predicting that EPA and the Corps will take a slow approach to implementing any changes.

And I am also predicting, with almost certainty, that a federal permit will not be required to plant trees and shrubs.