May 21, 2015 - 9:00am

WOTUS Update: If It’s a Holiday, It Must Be a Regulatory Surprise!

Former Senior Vice President, Environment, Technology & Regulatory Affairs

In typical Washington style, the Environmental Protection Agency (EPA) is expected to release its final rule on Waters of the U.S. (WOTUS) definition on the Friday afternoon of Memorial Day weekend.  In today’s Washington, our fourth and most powerful branch of government, the federal bureaucracy, operates on  the theory that if you don’t want the public to know what its government is doing, then release the information when the public is not paying attention. Therefore, holidays become the prime release time for announcing major new federal mandates.

But on WOTUS, people who own and manage property across the country -- along with countless business owners, farmers, industry leaders, and states and local governments -- pleaded with EPA and  the Army Corps of Engineers not to issue the rule until the agencies followed proper rule-making procedures.  Yet the agencies failed to conduct any meaningful regulatory or economic impact analyses prior to issuing the final rule that fundamentally redefines “waters of the U.S.”—areas that are subject to federal, rather than state and local, regulation.  Instead, as The New York Times reports, EPA spent hard earned taxpayers’ monies to organize “broad public outreach campaigns, using the tactics of elections, in support of federal regulations before they are final.”

The purpose of the federal rule-making process is to provide transparency to the public and to solicit public comment. EPA’s efforts to manufacture public comment subvert the public participation requirements of the Administrative Procedure Act. Why even have public comment if the agency “cherry picks” information and drives the outcome based on campaign tactics such as asking commenters whether they “support clean water,” implying falsely that the additional waters covered by the new rule are not already fully and adequately regulated by the states?  

Since issuing the proposed rule for public comment in April 2014, the agencies have somehow kept a straight face while they have maintained that the proposal will have no significant regulatory or economic impact -- and in fact the agency is simply “clarifying” the current state of federal jurisdiction over waters.  Such statements fly in the face of reality.  Over the last 13 months that stakeholders have evaluated the proposal, it has become clear that the WOTUS rule would significantly broaden federal regulatory jurisdiction over private activities on land and in waterways, wetlands and drainage ditches, and fundamentally change the scope and extent of long-standing state-delegated Clean Water Act programs.  

The Chamber filed lengthy public comments identifying exactly how the proposal could affect businesses of all sizes, including local municipalities, and requested the agencies convene a small business review panel to study and evaluate those impacts.  Numerous state, local and business stakeholders and the Small Business Administration (twice) echoed that request, to no avail. The agencies’ failure to consider these impacts renders the rule-making procedure fundamentally flawed.

For decades, the EPA has been attempting to expand its jurisdiction over waters of the U.S., but the Supreme Court has held it in check through key rulings. This latest attempt from EPA to make virtually every river, stream and creek in the U.S. subject to the authority of the Clean Water Act would put the agency effectively in charge of zoning the entire country. This proposed definition would more than double the miles of waterway EPA regulates, which would have serious economic repercussions. The U.S. Chamberand the 374 other organizations from all 50 states that signed onto our commentsvigorously oppose this flawed proposal.  Is EPA so afraid to listen to the public that it has to try to manipulate public opinion to manufacture support for its proposed rules?

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About the Author

About the Author

Former Senior Vice President, Environment, Technology & Regulatory Affairs

Kovacs is the former Senior Vice President for the Environment, Technology & Regulatory Affairs at the U.S. Chamber of Commerce.