For Immediate Release
Jack Mozloom, 202-406-4450 or 609-462-5610 (cell)
Washington,
DC (July 27, 2015) – The National
Federation of Independent Business (NFIB), which filed a suit recently
challenging the constitutionality of a major new EPA water regulation, urged a
federal judge late last week to block the agency from enforcing the rule until
the case can be settled.
“The moment this rule goes into effect small
businesses will have to seek a federal permit from the EPA to improve or
develop any land that includes water no matter how incidental,” explained Karen Harned, Executive Director of the
NFIB Small Business Legal Center.
“That includes even the smallest project, like digging a post hole or
laying mulch, as long as part of that land is wet.”
The EPA in May finalized the Waters of the United
States rule, which dramatically expands federal authority under the Clean Water
Act to regulate any water, anywhere, including farmers’ ponds, small streams
and even topographical depressions that hold water only occasionally.
“The Clean Water Act authorized the EPA to
regulate navigable waterways like rivers, lakes and bays,” said Harned. “Under no reasonable interpretation of the
original law does that jurisdiction extend to small bodies of water like
drainage basins and seasonal wetlands on private properties. The EPA has overstepped its authority and it’s
going to cause severe hardship on small businesses and private property
owners.”
An EPA permit can cost tens of thousands of
dollars, enough to discourage many local projects, and the fines for a business
owner who unknowingly violates the regulation could be ruinous. There’s also the high likelihood of lawsuits
filed by environmental activists who’ll use the regulation to property owners,
including small businesses, from doing just about anything on their own land.
“The potential for activists to cause real
economic damage is limitless under this rule,” warned Harned. “They are very well funded and they’ll use
this new rule to block businesses from building, renovating or expanding.”
Not only has the EPA essentially rewritten the
Clean Water Act, said Harned, but it completely ignored another federal law
under which it should have performed a small business impact analysis before it
moved forward.
“The Regulatory Flexibility Act requires the EPA
to assess the impact on small businesses before it imposes regulations of this
scope,” she explained. “In this case the
EPA simply denied that small businesses would be affected and refused to
perform the analysis.”
Earlier this year the Small Business
Administration (SBA) Office of Advocacy formally urged the EPA to withdraw the
waters rule because of its potentially huge impact on small businesses. It cited the EPA’s own estimate that the rule
would cost the economy more than $100 million.
“On the one hand the EPA acknowledges that the
rule will affect the economy. On the
other hand it argues that the rule will not, somehow, affect small businesses
in the economy. That’s a highly
improbably economic theory and we doubt that the court will find it
persuasive.”
Indeed, the US Supreme Court two weeks ago slapped
down the EPA on another rule seeking to regulate mercury emissions. It did so because the agency in that case
performed a mandatory economic impact analysis only after it imposed the
regulation.
“The EPA is on even thinner ice in this case
because it refused to perform any analysis,” said Harned. “The waters rule has the potential to cause
severe economic injury to many thousands of businesses and private property
owners in American and we feel very good about our chances in court.”
