What the Waters of the U.S. Injunction Means for Small Business

Date: August 31, 2015

For Immediate Release
Andrew Wimer, 202-314-2073 or 703-298-5938 (cell)
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Despite
Setback, EPA May Still Target Landowners

Washington, DC (August
31, 2015)
–While a federal court judge in North Dakota has placed an
injunction on enforcement of the Environmental Protection Agency’s waters of
the United States rule, small business owners should watch out for attempts by
the agency to move forward with the expansion of their power. National
Federation of Independent Business legal experts believe the injunction should
apply nationwide, but the EPA may try to go around the court and apply the rule
to most of the country.

“A preliminary injunction issued by a federal court should put
the brakes on the EPA’s attempt to broaden the Clean Water Act, but small
business owners should still think carefully before making changes to their
property that could attract the attention of the agency,” said NFIB Senior Staff Attorney Luke Wake. “The agency seems to be
intent on pushing the boundaries of the law and could issue dramatic fines just
to prove a point. If this rule stands, the EPA could very well bankrupt small
businesses with enforcement actions.”

For now, the injunction definitively covers the states of North
Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana,
Nebraska, Nevada, New Mexico, South Dakota and Wyoming. These are the states
that were parties to the suit before Federal Judge Ralph Erickson of the North
Dakota District Court. A number of other states, the NFIB and other groups are
suing the government in other jurisdictions. At this time, only the North
Dakota court has issued an injunction.

NFIB recommends that small business owners consult legal
counsel before developing, grading, dredging or doing anything with portions of
their land over which water occasionally flows, or which are wet for significant
periods of time. The EPA has the ability to impose fines of up to $37,500 a day
for violations.

“The injunction is a good indication of the strength of the
case against the EPA,” said Luke. “But this is just the beginning stages, it
could be years before we get a conclusive decision. Twice in the past 15 years,
the EPA has seen the U.S. Supreme Court reject its attempts to expand the Clean
Water Act. Most legal observers expect this case will also go all the way to
the nation’s highest court.”

More information on the rule is available at www.nfib.com/waters

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