EPA makes unprecedented land grab; claims no impact on small businesses

It is no secret that federal regulators often don’t want their rules held up for scrutiny. But recent actions by the U.S. Environmental Protection Agency regarding how it defines “waters of the United States” are – at best – alarming.

For years, EPA has been trying to expand the authority Congress gave it under the Clean Water Act to regulate waters of the United States. EPA generally has had authority over streams and bodies of water that flow into major navigable waters. More recently, it is trying to claim that ditches and other land anomalies that collect water only during heavy rain events are “wetlands,” and subject to EPA’s jurisdiction.

While it is no surprise the agency is making such a push, their blatant disregard for following proper rulemaking procedures is stunning.

EPA’s expanded definition would require more small business owners and other private landowners to obtain EPA approval before doing any kind of development or alterations on covered land. As of 2002, the most recent year we have a figure for, the average cost of a Clean Water Act permit was around $270,000. The fine for altering land without a permit can be as high as $37,500 per day.

At first, EPA claimed that this large undertaking wasn’t actually a rule at all, therefore bypassing normal rulemaking procedures that allow for public comment and scrutiny. The agency tried to push through “guidance” – essentially an enforcement memo for field staff – stating that it would regulate temporary ditches as streams. It sent that document to the White House for review, where it sat for 18 months because even the White House knew it went too far.

Last week, EPA withdrew the guidance and replaced it with a proposed rule. But that caused another procedural problem – by law if a rule will have a significant economic impact on small businesses, EPA must do an analysis of that impact and convene a meeting with small business owners to get feedback on the rule. By sending the proposal to the White House for review, EPA is certifying this rule won’t impact small businesses.

In NFIB’s opinion, there is no way a rule that will substantially expand EPA authority and require costly permits would not have an impact on small businesses. We sent this letter to the White House this week demanding that it return the rule to EPA for this small business analysis.

NFIB simply wants EPA to follow the law and have a discussion about how this rule will affect small businesses.

EPA’s troubling disregard for the law makes one wonder why the agency doesn’t want to have that discussion.

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About Dan Bosch

Dan Bosch, Manager of Regulatory Policy, has been in this role since October 2010. Dan is based in NFIB’s Washington, DC office. His primary responsibilities include identifying federal regulatory issues that impact NFIB’s small business-owner members, filing comments with federal agencies, and educating Capitol Hill staff on how small businesses are impacted by federal regulation. Dan also works closely with representatives of other industry groups on regulatory issues that affect businesses in various industries. Prior to his current role, Dan worked for NFIB’s Small Business Legal Center for five years. He is a graduate of Syracuse University and has a Master of Public Administration degree from The American University.
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