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SBA To EPA: Ditch the Waters of the U.S. Proposal

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The Small Business Administration tells EPA to ditch its Waters of the United States proposed rule.

The SBA has an Office of Advocacy and that office advises EPA and the U.S. Army Corps of Engineers to withdraw its proposed WOTUS definition and start over.

It is one thing for private sector interests to attack EPA. It clearly is a man bites dog story when one federal agency attacks another federal agency and tells it to withdraw its proposed rulemaking because it breaks the law.

On October 1, 2014, an unexpected ally from within the administration filed comments with EPA claiming that EPA and the Corps “have improperly certified the proposed rule [WOTUS] under the Regulatory Flexibility Act because it (WOTUS) would have significant effects on small businesses.”

EPA, of course, said its rule would not have a significant effect on small businesses.The SBA’s Office of Advocacy further recommended EPA withdraw the proposed water rule and not proceed further until more information was generated as to the impact EPA’s rule would have on small business.

EPA Administrator Gina McCarthy once said, “Our proposal does not add to or expand the scope of waters historically protected under the Clean Water Act.” Here we have an office that was created by Congress to advocate for the interests of small businesses and small local governments saying EPA and Ms. McCarthy are simply wrong.

You have probably never heard of the Regulatory Flexibility Act or the Office of Advocacy, which is an independent office located in the SBA. The RFA requires any federal agency to consider the impact of a proposed rule on a small business or small local government. Moreover if an agency determines there will be a significant economic impact, then less burdensome alternatives must be reviewed and in EPA’s case it is required to convene a Small Business Advocacy Review Panel.

As you might guess EPA ignored SBA requirements.EPA in fact has “…certified that revising the definition of the Waters of the United States will not have a significant economic impact on a substantial number of small businesses.”

The SBA is kind and bureaucratic in its response to EPA and the Corps. SBA claims that the two agencies “…have improperly certified this rule.”

In plain English, SBA tells EPA it broke the law.It gets better.

SBA says that EPA and the Corps mislead the public by claiming that using a 1986 definition of the scope of the waters of the U.S. EPA is actually narrowing its jurisdiction SBA points out correctly, as does the Office of Management and Budget, that EPA should not be using the 1986 definition but use its current method for determining jurisdiction. SBA claims
“Using an obsolete baseline improperly diminishes the effects of this rule.” Again, it appears EPA is attempting to mislead citizens and farmers. SBA describes Clean Water Act permitting costs. It points out the misleading nature of EPA’s estimated costs by saying “these amounts do not reflect additional possible cost increases associated with other Clean Water Act programs, such as Section 402 permitting or Section 311 oil spill prevention plans. “

SBA says the EPA and Corps rule “…will have a direct and potentially costly impact on small businesses.” It goes on to charge that EPA’s certification that there will be no small business impact is “inappropriate.” SBA provides an example. SBA claims that small entities in the utility industry which construct and maintain roads that provide access to the utility grid power lines would now become subject to CWA permitting.

Utility lines cross all sorts of lands and conditions which are sometimes in flood plains or wetlands. SBA believes that the present exemption contractors have to construct and maintain roads to power lines would become worthless. EPA’s proposed rule would require this type of work to have a CWA permit.

SBA, in a scathing conclusion aimed at EPA, states “the agency’s certification and analysis contradict each other.”

(This article first ran in Farm Futures on December 10, 2014)
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