New EPA Regulations
From The Florida Wire June 2010
The EPA is currently in the process of creating new regulations that may require property owners with ponds and lakes to obtain a federal permit to treat their water and wetlands for control of aquatic weeds, algae, mosquitoes, midge flies, etc. Through a series of lost court cases dating back to 1996, the EPA has now been directed by the 6th Circuit Court to expand the National Pollution Discharge Elimination System (NPDES) permitting to include the application of all pesticides to water. Until now, aquatic pesticide applications were exempt from federal permitting but beginning in April 2011 many application exemptions may end.
Will homeowner’s associations be required to obtain NPDES permits? Will there be a charge for the permit? Will the new permit regulations require increased monitoring, record keeping and reporting that will drive up the cost of lake management services? Maybe and maybe not. The first draft of the NPDES regulations will be published this April 10th and the impact to homeowners associations, if any, will become clearer. Soon after the draft is published the EPA will begin a series of public hearings to explain the proposed permitting program and respond to questions regarding the permit requirements and complex legal language in the draft. The final version of the regulations will be published in December 2010 leaving state agencies, homeowner associations, lake management companies and other stakeholders just four months to develop individual state permitting procedures so that permits can be applied for and received by the April 2011 deadline.
In Florida, a different court case resulted in requiring the EPA to develop water quality standards for ponds, lakes, streams and canals throughout the state. The EPA will set limits on the levels of TN (Total Nitrogen) and TP (Total Phosphorus) that may be discharged offsite. EPA has published draft regulations, and is currently conducting public hearings concerning the language and requirements of the regulations. Again, it is unclear yet which, if any, homeowner associations will be required to test and report the water quality of their pond, lake or canal discharges.
Both of these new regulations draw their authority from the Clean Water Act (CWA) . The only waters that will be subject to the new regulations are those that are currently under the control of the CWA. The CWA pertains mostly to navigable waters of the US, which appears to exempt nearly all homeowner associations, retention ponds, and waterways. There are a few exceptions, such as coastal communities, where their waters are influenced by the ocean, bay or gulf tides. But, there is pending legislation that may expand the jurisdiction of the CWA, thus broadening the impact of the two new EPA regulations in the future. Last summer, the Clean Water Restoration Act (CWRA), S. 787 was passed by the Senate Environment and Public Works Committee. This amendment, if passed by Congress would redefine “waters of the U.S.” as “… all interstate and intrastate waters” and “all tributaries of the above waters.” This could leave almost any water body open to litigation concerning the EPA’s capacity to regulate that water body.
As for now, these two new regulations are not in effect and will not be any time this year. Ultimately, there is a good chance that the vast majority of communities will be exempt from one or both regulations. For further information, the latest updates, links and resources to better follow the development of these federal initiatives and how they may affect your community go to:www.aquaticsystems.com/resources/epa or read the following:
