12/05/2005
CONTACT: Melissa Sharp, (202) 554-9000
WASHINGTON, D.C. — The National Federation of Independent Business’ Legal Foundation filed an amicus brief with the U.S. Supreme Court last Friday on behalf of two landowners who are fighting the U.S. Army Corps of Engineers’ authority, under the Clean Water Act, to regulate all wetlands, including wetlands on private property that have no connection to federal waters.
The U.S. Supreme Court has agreed to hear two cases related to the Clean Water Act, and the outcomes will have a major impact on the increasingly burdensome federal regulations imposed on private-property owners across the country. The cases are Rapanos v. United States and Carabell v. United States. At issue is whether the Army Corps can exercise broad, land-use decisionmaking authority over essentially any and every wetland in the United States. In both cases, the Sixth Circuit Court ruled in favor of the Army Corps.
“The Sixth Circuit’s rulings mean that there is virtually no limit to what land the Corps can regulate,” said Karen Harned, executive director of NFIB’s Legal Foundation. “Current Corps wetlands ‘policies’ are unconstitutional and costly to small businesses and other private-property owners, who lose valuable time and money waiting on Corps approval for projects that the Constitution says the federal government should not even be regulating.”
Permitting schemes under Sections 402 and 404 of the Clean Water Act are costly and burdensome, especially for small businesses. A September 2005 study commissioned by the Small Business Administration reveals that environmental and tax compliance regulations are the main cost drivers in determining the severity of the disproportionate impact of regulations on small firms. Compliance with environmental regulations alone costs small firms 364 percent more than large firms.
According to the study, on average, it takes 313 days to obtain a nationwide permit at a cost of $28,915. For individual permits, it takes an average of 788 days, with costs of over $271,596 -- more than many small businesses gross in one year.
“The costs associated with obtaining federal wetlands permits are extremely difficult for small businesses to absorb and deter small businesses from expanding and creating new jobs. It’s critical that the U.S. Supreme Court strongly considers the negative implications the Sixth Circuit’s ruling has on our nation’s small businesses and determines that the Clean Water Act does not lawfully authorize the Corps to regulate any and every wetland in the United States, ” said Harned.
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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.
