|In the wake of the Biden administration’s decision in June to rewrite the definition of navigable waters hashed out during the Trump administration the U.S. District Court in Arizona announced in a ruling on August 30th that it was vacating the current rule while a new rule is rewritten.
On Tuesday, EPA announced on their website that they have halted implementation of the rule stating that they remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.
Both the announcement and the ruling have met with considerable criticism from agricultural interests nationwide. This week a number of agricultural groups have asked EPA for an extension to the comment period on the new rule stating that one month is entirely insufficient to craft in depth arguments for why the current rule should stay in place.
The Biden administration is reverting to the 1986 definition within the Clean Waters Act that would conceivably place any amount of standing water under the jurisdiction of the federal government. The process of rulemaking is expected to take several years to finalize and implement. In the meantime, projects that were initiated under the Trump rule may need to be reevaluated, reassessed or redecided. Additionally, some states enforce Clean Waters Act themselves rather than the Army Corps of Engineers, adding to the legal confusion and inflating costs involved.
NALP has previously expressed support for the Trump rule as a workable solution that allows for both environmental protection of water and landscape professionals to perform necessary maintenance functions without fear of unintentionally running afoul of rules surrounding temporary flows of water as might be experienced after rainfall.
EPA’s statement on the current implementation of WOTUS can be found here: https://www.epa.gov/wotus/current-implementation-waters-united-states
EPA releases draft biological evaluations of three neonicotinoid insecticides
The much anticipated draft biological evaluations for imidacloprid, clothianidin and thiamethoxam were released by EPA’s Office of Pesticide Programs on August 26th and opened for public comment. These reports are part of the reregistration process for all registered pesticides and this step is designed to evaluate each active ingredient under the requirements of the Endangered Species Act.
Each of the neonicotinoid insecticides were found to be likely to adversely affect species that are listed as endangered or to affect the habitat in which they reside. The process EPA uses to make these evaluations includes three steps. The first step asks if the chemical will have any effect, either positive or negative, on a species or habitat. If it is determined that the chemical may have an effect, it goes on to the second step which asks if the chemical is likely to adversely affect the habitat or species. With a determination of “likely to adversely affect” the chemical would them move on to the final step which is determined by the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.
These evaluations are admittedly very conservative on the part of EPA leading to a large number of species listed as being affected. Going through the three step process, species and habitats are filtered out of the initial evaluation such that in the final step the chemicals are determined to jeopardize a species or adversely modify a critical habitat. At that point, options are evaluated to mitigate the effects of the pesticide.
Numerous issues with the biological evaluation process are evident which raises concerns that uses of existing active ingredients may be eliminated due to overly conservative estimates, erroneous assumptions or missing data. NALP noticed in reviewing the evaluation of imidacloprid that EPA found there to be impacts from non-agricultural uses of the product (including lawn and landscape uses) but provided no data to establish how many acres of turf and ornamentals were being treated. It is this kind of collaboration with stakeholders that is so fundamental to arriving at logical and science based decisions.
NALP is working with our industry partners in digesting the voluminous reports and preparing comments to submit to EPA.