Three quarters of the Earth’s surface is water and the federal Environmental Protection Agency (EPA) seems intent on regulating every last drop of it. The agency is seeking to expand its authority under the Clean Water Act.
The Clean Water Act, adopted by Congress more than 30 years ago, authorizes the EPA to regulate only navigable U.S. waterways. No administration, Republican or Democrat, in the past four decades has sought to expand the federal government’s regulation of water to include farmers’ ponds, seasonal streams and accumulations of water that form temporarily after heavy rains. This administration, however, is determined to write new rules that would give to the EPA exactly that authority and the consequences could be severe for small business, consumers and the larger economy.
Farmers, builders, businesses that own property and even residential home owners could be required to obtain expensive permits to modify or improve land that includes water no matter how incidental. The fines alone that could be imposed by the EPA for any infraction could cost up to $37,500 per day.
As you can imagine, small businesses and local land owners likely don’t have that kind of money. That’s why the National Federation of Independent Business (NFIB) is fighting back. On behalf of our members we filed concerns recently with the EPA. NFIB is closely monitoring the issue. And we are working hard to educate the public about how the new rules could devastate small business and douse local economic development.
It’ll be a tough fight but we were pleased recently to learn that we’re not alone. The SBA Office of Advocacy two weeks ago also warned the EPA that its plan could threaten small business. In a letter to the agency, Chief Counsel Winslow Sargeant urged it to withdraw the rule. He argued correctly that it and the Army Corps of Engineers skirted the Regulatory Flexibility Act (RFA), which requires agencies to conduct a comprehensive economic impact study before they enact new rules.
The RFA specifically requires agencies to assess the impact of a federal rule to determine whether it will have a damaging effect on small businesses. If the agencies find that a proposed rule would have a significant and direct effect on small businesses, they must revise or rescind the regulation. Chief Counsel Sargeant pointed out that according to the administration’s own estimates, the new water rule would cost small businesses tens of millions of dollars. That estimate undermines the EPA and the Army Corps in their argument that small businesses would be only indirectly affected.
Whether NFIB and the Office of Advocacy can succeed in this debate remains to be seen. The EPA doesn’t seem to be influenced. Congress must intervene in this issue to protect America’s job-creating small businesses. It must take seriously its responsibility to oversee the EPA and the rest of the regulatory bureaucracy. And it should, if necessary, pass additional legislation that would reestablish Congress as the only branch of government that has the constitutional power to make rules for the American people.
Dan Danner
President of the National Federation
of Independent Business
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