Final Clean Water Rule Released

WASHINGTON — On May 27, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers finalized the Clean Water Rule, created to “clearly protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources.” (Click here to read the EPA release).

The proposed rule was first published in the Federal Register in April 2014 for public comment, which, after two extensions, closed in November 2014. The final rule will go into effect 60 days after the final rule is published.

As part of this ruling, the definition "waters of the U.S." has been expanded, requiring permits for pesticide applications near any collected water, no matter how small or contained. Additionally, the final rule specifically includes language that would maintain the current status quo concerning the National Pollution Discharge Elimination System (NPDES). NPDES is a national permit program that regulates the point source discharge of pollutants and chemicals into waters of the U.S. EPA has delegated NPDES authority to the states; currently 46 of the 50 states regulate NPDES permits independent of the EPA.

The National Pest Management Association issued a summary and analysis of this ruling, noting that although the association does not anticipate that the final rule will have a significant impact on PMPs, NPMA “does not support regulations that potentially limit PMP tools, increase burdens or consume resources. Currently, NPDES permits are required for the application of residual pesticides directly to waters of the U.S. to prevent mosquitos and flying insects. Increased reporting requirements for applications are generally only triggered after applications directly to WOTUS exceeds the 6,400 acre annual threshold. The definition of WOTUS has expanded, but the traditional practices of PMPs have not changed. The final rule does not change the NPDES permitting, which will continue to enable the application of pesticides directly to waters, while FIFRA remains the dominant regulatory authority for the application of pesticides.”

Since Wednesday’s release of the final rule, NPMA noted that several high-ranking Congressional leaders have publically denounced the rule as executive overreach and demanded Congressional action to halt the implementation. Congressional disapproval has been predominantly lead by the Republican majority, but several Democrats in both the Senate and House have recently expressed disapproval of the final rule. Legislation has been introduced in both the House and Senate to address the final rule. The President would most likely veto any of the above bills if they reached his desk, and without stronger bipartisan support it may be difficult to get the 2/3 majority to override the President’s veto.