House Small Business Committee Chairman Sam Graves (R-MO) today wrote
to Environmental Protection Agency (EPA) Administrator Gina McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy to urge withdrawal of the recently proposed “Waters of the United States” rule. The rule, as drafted, would result in an unprecedented jurisdictional expansion of the Clean Water Act (CWA), subjecting thousands of streams, ditches and other small waters to federal permitting and other requirements. The Committee is particularly concerned that the regulation, which lacks clarity, will impose unnecessary burdens on small businesses.
“We are concerned that the proposed rule could have a significant economic impact on small businesses, yet the agencies have not assessed those consequences as required by [the law],” Graves stated in the letter. “We believe the agencies should withdraw the proposed rule and conduct the required small business outreach and analysis before proceeding with the rulemaking.”
Graves urged that the EPA and Corps of Engineers to withdraw the rule and comply fully with their obligations under the Regulatory Flexibility Act (RFA) before proceeding with the rulemaking. The RFA requires EPA to conduct small business advocacy review panels to get input from affected small businesses before proposing a rule. Furthermore, the RFA requires all agencies to assess the economic impacts of their rules on small businesses.
“Small businesses such as farmers and ranchers, home builders and transportation construction firms that conduct activities and projects on lands with ‘waters of the United States,’ will be directly affected,” the letter continued. “For example, permits may be required for activities such as removing debris and vegetation from a ditch, applying pesticides, building a fence or pond, or discharging pollutants. Permitting can be a costly and time-consuming process that requires small businesses to hire attorneys and environmental consultants. In addition, the future development potential of certain land may be affected which could diminish its value. Small businesses also could be subjected to litigation under the CWA’s citizen suit provisions.”
Graves, who alerted small businesses to the rule on April 23, detailed his concerns in the letter regarding the new rule’s application to countless farms, ranches and small businesses, stating, “the proposed definition includes a number of imprecise and broadly-defined terms such as ‘adjacent,’ ‘riparian area’ and ‘floodplain’ that do not clearly delineate which waters are covered. For the first time, ‘tributary’ is defined and includes bodies of water such as manmade and natural ditches. ‘Other waters’ also may be subject to the jurisdiction of the CWA on a case-by-case basis if there is a ‘significant nexus’ to a traditional navigable water. The expanded jurisdiction and the imprecision of the terms used by the agencies may result in significant added legal and regulatory costs for small businesses – impacts that the agencies should have assessed under the RFA.”
The Committee will hold a hearing on this proposed rule and its effect on small businesses and farms next Thursday, May 29. To read the full letter, click HERE.