EPA Makes Land Grab; Fails to Consider
Small Business Impact
The U.S. Environmental Protection Agency
(EPA) and Army Corps of Engineers (ACE) recently proposed a rule that will
greatly expand its authority over private landowners and small businesses. Even
more troubling is the fact that EPA blatantly bypassed critical analysis of the
rule’s impact on small businesses – which a clear violation of federal law.
What are EPA and ACE seeking to do?
Under the Clean Water Act, EPA and ACE have
authority over “waters of the United States,” even those on private
property. If land is defined as a wetland, or has another significant
connection to downstream water quality, the owner must get a permit from
EPA/ACE in order to do any kind of development or alteration to that
parcel. As of a decade ago, the average cost of a Clean Water Act permit
was more than $270,000.
Altering land without a permit can lead to fines of up to $37,500 per day.
EPA/ACE is seeking to vastly broaden the
definition of what a wetland is. In the proposed rule, the agencies are
aiming to go so far as to regulate land with a ditch or hole that collects water for as little as a few days per year.
How did EPA violate the law?
Under federal law, if a rule will have a
significant impact on small businesses EPA must analyze it and meet with a
group of small business owners to get feedback before it is published. However EPA never conducted such a meeting because it wrongly claims the rule will
have no harmful impact on small businesses.
What is NFIB doing to fight this?
NFIB put the EPA and the White House on notice
last fall letting them know in a letter that the rule would violate
important procedures. NFIB stands ready to get Congress to hold the agency
accountable, and if necessary, pursue legal action.
If the rule is eventually finalized, NFIB can
sue the EPA for a violation of administrative procedure. NFIB’s Small Business
Legal Center successfully sued ACE over a similar issue in the 2000s. In
the meantime, NFIB will continue to oppose the rule. As part of this
opposition, NFIB will file comments with the agencies this spring.