Sep 09, 2014 - 2:45pm

EPA Tries Again to Calm the Waters Over Water Rule

Senior Editor, Digital Content

Ever since EPA and the Army Corps of Engineers released its propose Waters of the U.S. (WOTUS) rule, farmers, home builders, other small businesses, and even golf courses have risen up in opposition.

And for good reason. WOTUS would extend federal regulatory authority beyond anything intended by Congress when it wrote the Clean Water Act in 1972. It would cover wetlands, intermittent streams, ephemeral steams (those that only flow after a rainfall or snowmelt) , and man-made bodies of water like ditches, ponds, and canals.

The House of Representatives is expected to vote this week on H.R. 5078, the “Waters of the United States Regulatory Overreach Protection Act.” The bill would require EPA and the Army Corps of Engineers to more carefully consult with states before they finalize the rule.  Unfortunately the White House has threatened to veto the bill.

Business groups strongly support the legislation. The U.S. Chamber issued a Key Vote Letter urging House Members to vote for it. The letter explains, “This change is comprised of a complicated set of regulatory definitions, including new and poorly defined terms, based on ambiguous and untested legal theories and regulatory exclusions.” U.S. Chamber members of all sizes are reporting that the proposed rule will significantly harm economic development:

This rule could put projects and investments in a holding pattern due to the uncertainty of what would be federally regulated and who would or would not need federal permits. Chamber members who have never had the need for a federal water permit would suddenly find themselves having to apply for one or risk $37,500 per “discharge” per day in penalties. This proposed rule could also impact existing businesses or facilities.

Since the release of the proposed regulations, and after EPA Administrator Gina McCarthy called critics’ arguments “ludicrous” and “silly,” the agency has been on defense claiming that WOTUS isn’t an expansion of federal authority and will actually improve regulatory clarity. Their latest attempt is a set of questions and answers that states in part:

Simply put, if an activity was exempted or excluded before this proposal, it will remain exempted or excluded. If you didn’t need a permit for a type of activity before, you won’t need one now.

This isn’t likely to ease farmers’ worries in Texas:

“The Clean Water Act is a great thing,” said Brandon Boughen, a coordinator for the Farm Bureau in Denton County. “It makes sure everybody is doing stuff that’s on the level. But once the EPA goes too far, it is never going to stop.”

Boughen said one major problem is the proposed rule doesn’t clearly define “navigable” waterways. “It doesn’t mean the water has to be big enough to hold a boat,” he said, “or it doesn’t have to hold water all the time.”

He fears if the proposed rule is allowed to pass, the EPA could require landowners to get a permit to fertilize their yards if they’re so many feet away from a body of water like a creek.

Other businesses are also worried about WOTUS’ ramifications. Rep. Sam Graves (R-MO), Chairman of the House Small Business Committee, quoted from testimony at a recent hearing:

As Missouri homebuilder Tom Woods testified before the Small Business Committee, “I am a businessman. I need to know the rules. I can’t play a guessing game of ‘is it federally jurisdictional?’ But that’s just what this proposal would force me to do.  Builders would face new, costly delays just waiting for the agencies to determine if a road ditch is a ‘Water of the United States.’ The only winners are the lawyers, as this rule will certainly lead to increased litigation.”

Alan Parks of the Memphis Stone and Gravel Company also testified that “The proposed rule has no clear line on what is ‘in’ and what is ‘out,’ making it very difficult for our industry and other businesses to plan new projects and make hiring decisions. If it is determined development of a site will take too long or cost too much in permitting or mitigation, we won’t move forward. That means a whole host of economic activity in a community will not occur – all of this in the name of protecting a ditch or farm pond.”

Even the golf industry has gotten involved:

A handful of leading golf groups on Tuesday, including PGA of America, National Club Association, and the Golf Course Superintendents Association of America (GCSAA), joined a Waters Advocacy Coalition of 35 other organizations to fight the EPA's Waters of the U.S. proposal.

"We support the Clean Water Act and can see that there is a need to clarify some of the jurisdictional questions, but this proposed regulation goes too far," said Mark Johnson, of the golf course association.

The organizations claim the rule would expand the EPA and Army Corps jurisdiction to include all drainage ditches, storm water ditches, and water storage, as well as treatment ponds on golf courses.

Such an expansion, the golf industry says, would add unnecessary regulatory burdens and costs that would prevent golf course managers from fighting "routine erosion" and keeping up with "best management practices."

By passing H.R. 5078, the House will take an important step to “Ditch the Rule” and push back against this regulatory overreach.

About the Author

About the Author

Sean Hackbarth
Senior Editor, Digital Content

Sean writes about public policies affecting businesses including energy, health care, and regulations. When not battling those making it harder for free enterprise to succeed, he raves about all things Wisconsin (his home state) and religiously follows the Green Bay Packers.