Tony Gagliard

The White House recently approved an Environmental Protection Agency and Army Corps of Engineers' rule that could give the agencies vast new power over water. The impact of this will be felt by every farmer and rancher in Colorado who happens to have a farm pond or dry creek bed on his or her property.

The new rule defines the waters of the United State so expansively that the federal government could apply the decades-old Clean Water Act to creeks, small ponds and even streambeds that are dry much of the year. The Clean Water Act was supposed to govern navigable waterways, not every place where water could possibly flow or pool.

Compliance and enforcement could put several family agricultural businesses in the poor house. Even before the new rule, the average cost of a Clean Water Act permit cost $270,000 and daily fines for violations can reach up to $37,000.

There really isn't a small business out there that can afford these costs. "This has the potential to bring local development to a stop and make it much more difficult for small businesses to make even minor improvements to their properties," said Dan Danner, president and CEO of America's largest small-business association, the National Federation of Independent Business. "It gives the EPA and the Army Corps of Engineers new power to regulate local projects and local businesses, and it creates for the trial lawyers and the environmental activists a whole new class of potential defendants."

The way EPA and the Corps went about it was sordid. "The process was rigged in favor of the agencies," said Dan Bosch, NFIB's senior manager of regulatory policy. "They simply decided that they didn't even need to consider the effects on small business. That analysis is required by law. It's not optional."

House Resolution 1732 would stop the rule, and kudos to Colorado Reps. Ken Buck, Mike Coffman, Doug Lamborn and Scott Tipton for voting in favor of it. Now Sens. Michael Bennet and Cory Gardner need to act to protect small business, either by supporting similar legislation or by including language in the appropriations process that could halt the rule from moving forward.

The new rule even drew rare public opposition from another government agency in the same administration. Last fall, the Small Business Administration Office of Advocacy wrote to the agencies expressing its concerns. The chief counsel for the office wrote that the waters rule could cost small businesses tens of millions of dollars. He asked them to withdraw it.

Recently, the Senate Small Business Committee held a hearing on the rule. A witness from the Office of Advocacy again called for the rule to be halted. He said that refusal to conduct small business analysis was a violation of federal law and that there might even be room to sue the government if it isn't done correctly. Beth Milito, NFIB's senior executive counsel, testified at the same hearing and told senators that the uncertainty of federal regulation could lead many owners to forgo development.

Small businesses employ half of all Americans, but it's regulations like this that make it hard for more people to find a job. Do we want business owners using their limited resources on red tape, or on growing their business? When a manufacturer builds a new facility or a farmer grows more crops, there are many who benefit. When the government makes it hard to do these things, we all lose out.

"The state's do a much better job of balancing environmental protection with economic development because they need both," said Danner. "This [new rule] tips the scale in favor of distant regulators and ideologues who won't have to live with the consequences."

The new rule is wrong on many counts and deserves to be stopped.

Tony Gagliardi is Colorado state director for the National Federation of Independent Business.

Riley Johnson

The White House just approved an Environmental Protection Agency and Army Corps of Engineers’ rule that could give the agencies vast new power over water. The impact of this will be felt by every farmer and rancher in Montana.

The new rule defines the waters of the United States so expansively that the federal government could apply the decades-old Clean Water Act to creeks, small ponds and even streambeds that are dry much of the year. The Clean Water Act was supposed to govern navigable waterways, not every place where water could possibly flow or pool.

House Resolution 1732 would stop the rule, and kudos to Montana Rep. Ryan Zinke for voting in favor of it. Now Sens. Steve Daines and Jon Tester need to act to protect small business, either by supporting similar legislation or by including language in the appropriations process that could halt the rule from moving forward.

Compliance and enforcement could put several family agricultural businesses in the poor house. Even before the new rule, the average cost of a Clean Water Act permit cost $270,000 and daily fines for violations can reach up to $37,000.

There really isn’t a small business out there that can afford these costs.

“This has the potential to bring local development to a stop and make it much more difficult for small businesses to make even minor improvements to their properties,” said Dan Danner, president and CEO of the National Federation of Independent Business. “It gives the EPA and the Army Corps of Engineers new power to regulate local projects and local businesses, and it creates for the trial lawyers and the environmental activists a whole new class of potential defendants.”

The way EPA and the Corps went about it was sordid. “The process was rigged in favor of the agencies,” said Dan Bosch, NFIB’s senior manager of regulatory policy. “They simply decided that they didn’t even need to consider the effects on small business. That analysis is required by law. It’s not optional.”

The new rule even drew rare public opposition from another government agency in the same administration. Last fall, the Small Business Administration Office of Advocacy wrote to the agencies expressing its concerns. The chief counsel for the office wrote that the waters rule could cost small businesses tens of millions of dollars. He asked them to withdraw it.

Recently, the Senate Small Business Committee held a hearing on the rule. A witness from the SBA Office of Advocacy again called for the rule to be halted. He said that refusal to conduct small business analysis was a violation of federal law and that there might even be room to sue the government if it isn’t done correctly. Beth Milito, NFIB’s senior executive counsel, testified at the same hearing and told senators that the uncertainty of federal regulation could lead many owners to forgo development.

Small businesses employ half of all Americans, but it’s regulations like this that make it hard for more people to find a job. Do we want business owners using their limited resources on red tape, or on growing their business? When a manufacturer builds a new facility or a farmer grows more crops, there are many who benefit. When the government makes it hard to do these things, we all lose out.

“The states do a much better job of balancing environmental protection with economic development because they need both,” said Danner. “This [new rule] tips the scale in favor of distant regulators and ideologues who won’t have to live with the consequences.”

The new rule is wrong on many counts and deserves to be stopped.

Riley Johnson is Montana state director for the National Federation of Independent Business.

Ella Foley Gannon, Kenneth S. Komoroski

Expansion could result in significantly increased costs in permitting requirements for the regulated community.

On May 27, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (the Army Corps) released the final version of their controversial Clean Water Act jurisdiction rule. Despite assertions in the preamble that it constitutes only a clarification of existing law, the rule contains several provisions that will likely lead to expansive applications of the Clean Water Act. For example, the rule declares all “tributaries” and “adjacent waters” categorically jurisdictional in lieu of the existing case-specific analysis currently required for most intermittent and ephemeral streams. It also continues the use of a case-by-case “significant nexus” analysis for certain classes of water, but it includes a very broad definition of what constitutes a “significant nexus.” Although EPA and the Army Corps maintain that the final rule does not expand the scope of the Clean Water Act, they nonetheless predict that it will result in an increased number of positive jurisdictional determinations each year. Such an expansion in application could result in significantly increased costs in permitting requirements for the regulated community, including energy (especially oil and gas) companies, developers, and farmers.

Background

The scope of jurisdiction under the Clean Water Act has long been controversial. It is also an important issue for stakeholders, because it determines the regulatory scope of the act, including the section 402 point source discharge permit program, the section 404 dredge and fill permit program, and the section 311 oil spill prevention program. The Clean Water Act applies to “navigable waters,” which are defined in the statute as “waters of the United States, including territorial seas.” EPA and the Army Corps, the agencies charged with administrating the Clean Water Act, have sought to define the act’s scope through rulemaking and, more recently, through issuance of regulatory guidance. The definition of “waters of the United States” has also been subject to numerous legal challenges. The US Supreme Court has weighed in on the issue three times, most recently in Rapanos v. United States, 547 U.S. 715 (2006), which resulted in a fractured decision that lower courts have found difficult to apply. Against that backdrop, EPA and the Army Corps sought to promulgate a rule that clarifies the act’s scope.

EPA and the Army Corps issued a proposed version of the rule in March 2014. The agencies characterized the proposed rule as a clarification of existing law that did not alter the extent of Clean Water Act jurisdiction. Stakeholders such as farmers, industry groups, and property rights advocates felt otherwise and expressed concern that the proposed rule significantly expanded the waters over which EPA and the Army Corps would assert their authority under the Clean Water Act.

The Final Rule

Although the final rule scales back the scope of the definition of “the waters of the United States” from the proposed rule in some areas, it remains an expansive assertion of jurisdiction. The final rule establishes a framework of “bright-line” categories of waters that are always jurisdictional, categories of excluded waters that are never jurisdictional, and a remaining set of waters to be analyzed “case by case” under a “significant nexus” test. A wide variety of waters may be considered jurisdictional as part of a bright-line category or under the significant test, whereas the excluded categories of waters are relatively narrow.

The “bright-line” categories of always-jurisdictional waters in the final rule are (1) traditional navigable waters, (2) interstate waters, (3) the territorial seas, (4) impoundments to jurisdictional waters, (5) tributaries to jurisdictional waters, and (6) waters adjacent to jurisdictional waters. The “tributaries” and “adjacent waters” categories are newly created by the rule. The “tributaries” category includes waters that have “a bed and banks and an ordinary high water mark” and contribute flow to another jurisdictional water. In the preamble to the final rule, EPA and the Army Corps make clear that ephemeral or intermittent streams may be considered tributaries as long as they sometimes contribute flow and have the physical characteristics described in the rule. The rule defines “adjacent waters” as those waters located (1) within 100 feet of the ordinary high water mark of a jurisdictional water, (2) within the 100-year floodplain and not more than 1,500 feet from the ordinary high water mark of a jurisdictional water, or (3) within 1,500 feet of the high tide line of a jurisdictional water. Existing regulations only specified that adjacent wetlands were jurisdictional, so the final rule significantly expands the types of waters that are jurisdictional based on their proximity to other jurisdictional waters.

The final rule also creates several new categories of waters that are excluded from the definition of “waters of the United States.” Some of these exclusions, including stormwater control features and certain types of ditches, were added in response to comments about the proposed rule. But the exclusions are still narrow when compared with the types of waters that may be considered jurisdictional. Indeed, the explicit exclusions for features such as “small ornamental waters,” “swimming pools,” and “puddles” underscore the rule’s potential scope.

When waters fall into neither a bright-line jurisdictional category nor an exclusion, they will be analyzed on a case-by-case basis under the significant nexus test, which was developed in response to Supreme Court Justice Anthony Kennedy’s plurality opinion in Rapanos and implemented through regulatory guidance issued by the Army Corps and EPA in 2008. Under the final rule, the significant nexus test applies to (1) five specific types of waters—prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands and (2) waters within the 100-year floodplain or 4,000 feet of the high tide line or ordinary high water mark of another jurisdictional water. The agencies have, for the first time, provided a definition for “significant nexus” under which a water will be jurisdictional if it “significantly affects the chemical, physical, or biological integrity” of another jurisdictional water “either alone or in combination with other similarly situated waters in the region.” The rule goes on to list a number of indicators relevant to this analysis, including “nutrient recycling,” “pollutant trapping,” and “provision of life cycle dependent aquatic habitat.” Given that the evaluation will take into consideration a feature together with similarly situated features, there remains significant uncertainty about how “other similarly situated waters” will be defined.

Implications

By creating broader categories of features that will be per se jurisdictional, the final rule is likely to provide greater certainty in many cases as to the jurisdictional nature of a specific feature. That certainty, however, is likely to come at the price of expanding the number of features that will now fall within the regulatory ambit of the Clean Water Act. The certainty is also undermined by the fact that the final rule continues to apply the significant nexus test for features that do not fall into the bright-line jurisdictional/nonjurisdictional categories. Expanding the significant nexus evaluation to include consideration of “similarly situated waters in the region” is likely to also increase the areas deemed jurisdictional. Though EPA and the Army Corps do not perceive the final rule as an expansion of their jurisdiction, the agencies predict that the final rule will result in a 2.8–4.7% increase in the number of positive jurisdictional determinations per year. These additional positive jurisdictional determinations can have a tremendous effect on stakeholders who would be newly subject to Clean Water Act regulatory requirements.

ICYMI: Last week the Environmental Protection Agency (EPA) release its final “Waters of the U.S.” (WOTUS) rule. Jim Inhofe, chairman of the Committee on Environment and Public Works (EPW), has been an out spoken opponent of the rule.

The Tulsa World commended the chairman in an editorial today saying that “Sen. Jim Inhofe has sworn to roll back the EPA overreach with legislation… Nobody favors water pollution. But nobody wants federal bureaucrats running amok, regulating American farms into bankruptcy. If this huge new extension of EPA authority is needed, it should be passed into law through the normal legislative process with debate and evidence, and not interpreted into existence by bureaucratic fiat."

Today, Sen. Inhofe had an opinion piece published in FoxNews.com further explaining his position on the WOTUS rule.

Why every property owner should fear the EPA’s “Waters of the United States” rule

By Sen. Jim Inhofe

June 2, 2015, click here to read online

The Environmental Protection Agency released its final rule last week defining “waters of the United States” (WOTUS), a measure that hugely expands the ability of this aggressive agency to disregard the conservation efforts of American states and interfere with the daily lives and property of the American people.

Not only does this final rule break promises EPA has made, but it claims federal powers even beyond what EPA originally proposed a year ago. This will drastically affect—for the worse-- the ability of many Americans to use and enjoy their property.

EPA claims that it now has the right to regulate any water in a 100-year floodplain of a navigable water, any water that is 4,000 feet from a tributary, and any prairie pothole, pool or wetland that EPA has declared a “regional water treasure,” if it can identify a “significant nexus” with a navigable water.

EPA defines “significant nexus” so broadly that this test can be met in almost every instance. If EPA shows that a pond or wetland holds water – EPA can regulate it. If EPA shows that a pond or wetland seeps into the ground to an aquifer that feeds a stream or river miles away – EPA can regulate it. And, if EPA can show that a pond or wetland provides “life cycle dependent aquatic habitat for a species” that spends part of its time in a navigable water - EPA can regulate it. The “water” that EPA can regulate does not even have to be wet. It is also defined by “chemical, physical, and biological indicators.”

This will drastically affect—for the worse-- the ability of many Americans to use and enjoy their property.

This power grab defies the 2001 limits placed on EPA and the U.S. Army Corps of Engineers by the Supreme Court, which ruled that the mere fact a pond is used by “approximately 121 bird species…, including several known to depend upon aquatic environments for a significant portion of their life requirements” does not create federal jurisdiction.

This also is a radical departure from the kind of public-private conservation efforts that have been a great American contribution to environmentalism. For example, the U.S. Fish and Wildlife Service acknowledges that prairie “potholes”—marshy glacial depressions located primarily in the northern Mid-West-- are not federally regulated, so the agency works with farmers throughout the region on cooperative conservation measures. But under the EPA’s new final rule, federal regulators can throw cooperation out the window and simply tell farmers when and where they can farm.

The Senate Committee on Environment and Public Works has conducted five hearings on EPA’s WOTUS rule. In a February hearing, both EPA Administrator Gina McCarthy and Assistant Secretary for the Army for Civil Works Jo-Ellen Darcy admitted the proposed WOTUS rule was flawed, inconsistent, and ambiguous and promised to fix it.

Some fix. Many of those promises were simply abandoned. For example, Administrator McCarthy told the National Farmers’ Union that irrigation ditches were of no interest to the agency. But, because irrigation water is not “ephemeral” or “intermittent”— just about the only terms limiting the new scope of federal water regulation over ditches—it is now vulnerable to EPA regulation.

EPA also promised to clarify an important distinction between regulated tributaries of navigable water and exempt water-induced erosion features. Erosion channels are created when it rains. But, according to EPA, the term tributary also includes streams that hold water only when it rains.

The final rule does not provide a clear way to distinguish the two. Instead, EPA continues to use the nebulous wording of “bed, bank, and ordinary high water mark” to define a tributary. This is a very subjective test. In a May hearing, we learned that EPA brought a criminal action against a landowner claiming that the ordinary high water mark that defines the width of a stream is based on flooding, not ordinary stream flows. In 2014, the United States District Court for the Central District of California found in favor of the landowner, but the Technical Support Document for the final rule relies on the same Corps guidance that EPA used to prosecute that case.

In other words, EPA is not even listening to what the courts have already told them about reining in its arbitrary grab for authority.

The EPA final rule in fact further confuses the definition of a tributary by asserting that EPA and the Corps can identify them by using remote sensing technology, even though the Corps’ own internal guidance says this is not appropriate and the U.S. Geological Survey warns that some of these tools will find channels everywhere, most of which will be erosion features, not waterways.

With respect to promises to address ponds, ditches, and stormwater and wastewater management systems in the final rule, what the agencies give with one hand, they can take with the other. The final rule exemptions for these features are limited to those created on “dry land.” However, the agencies declined to define “dry land” and will decide what that means during implementation – creating significant uncertainty, particularly for water management features that were built long ago.

The huge expansion in federal authority under the final rule means that it is more important than ever for Congress to act. Last month, a bipartisan group of Senators unveiled S. 1140, the Federal Water Quality Protection Act, to rein in EPA’s attempt to use the Clean Water Act to expand federal control while protecting those waters that need to be protected to keep pollution from reaching traditional navigable waters.

I intend to move S. 1140 through the EPW Committee as soon as possible this summer. I will not allow EPA to advance its agenda on controlling private lands, and will work with my colleagues for a veto proof majority in support of this legislation.

Americans also need to make their voices heard, if they want to maintain their right to control their fields, farms, and ranches-- and possibly their back yards.

Republican James "Jim" Inhofe represents Oklahoma in the United States Senate. He is chairman of the Environment and Public Works Committee.