04/16/2003
Small Business Asks Agencies to Define Environmental Terms
After two long years, it's time for federal regulators to get their vocabulary straight when it comes to managing America's isolated wetlands, the NFIB Legal Foundation told federal agencies today. In comments filed on an advanced notice of proposed rulemaking on the Clean Water Act's definition of "waters of the United States," Executive Director Karen Harned wrote that because of a lack of clear, set definitions for terms like "tributary," "adjacent," and "isolated," federal regulators have spent the last two years concocting legal theories to inappropriately regulate small business.
The Environmental Protection Agency (EPA) and Army Corps of Engineers intend to promulgate new rules for managing isolated wetlands, and federal law requires that the agency seek comment from the public and interested parties. The new regulations come long after 2001's Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). In that case, the Supreme Court ruled that federal regulators had overstepped the bounds of the Clean Water Act, which limited the government's jurisdiction to "navigable waters." In order to enforce the spirit, as well as the letter, of this ruling, it is essential that EPA and the Corps be held to a consistent standard that clearly defines what these agencies may and may not regulate.
"The Supreme Court told EPA and the Corps two years ago that their jurisdictions could not extend to non-navigable, isolated intrastate waters," Harned said. "Despite this ruling, small businesses have been in an unmapped wilderness for the last two years. Federal regulators cannot use undefined terms like 'adjacent' to sweep under federal control every inch of land that collects water, whether it's a ditch or a puddle."
"If you're a small-business owner who wants to build on your own land, there is no good way to know whether you need an expensive permit to do it," Harned continued. "When the government is this loose with the language, sometimes the only way to get a straight answer is for a judge to impose one, as in the SWANCC case."
In the two long years since the SWANCC ruling, the NFIB Legal Foundation has been involved in two such cases, filing amicus briefs in U.S. v. Newdunn and U.S. v. Rapanos. In both cases the Army Corps of Engineers bluffed its way into jurisdiction over wetlands far from navigable waters. In order to build on areas designated as wetlands, a small business must get a permit that can take 11 months to two years and cost thousands of dollars to obtain.
"Small-business owners make good-faith efforts to comply with sensible wetlands regulations. However, it's impossible for small business to comply with any regulation when the regulators get to change the meaning of their words at whim. Small business just wants clear direction from the federal government about their regulatory obligations. To do that, EPA and the Corps need to get their vocabulary straight," Harned concluded.
EDITORS NOTE: For a copy of Harned's letter to the EPA, CONTACT: Michelle Dimarob, (202) 554-9000. The NFIB Legal Foundation is a 501(c)(3) organization created to protect the rights of America's small-business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. The National Federation of Independent Business (NFIB) represents the consensus views of its 600,000 members in Washington and all 50-state capitals. More information is available at www.nfiblegal.com.
