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Congress passed the Clean Water Act more than four decades ago to safeguard our nation’s major waterways. These rivers and other bodies of water are sources for drinking water and transportation, known as “navigable waters.” In my northern Missouri district, situated between the Missouri and Mississippi rivers, healthy rivers are absolutely essential to the local economy and farm communities.
The Environmental Protection Agency and U.S. Army Corps of Engineers seem to be losing sight of their fundamental mission and instead are more concerned with expanding their own regulatory footprint. Under a newly proposed “Waters of the United States” rule, thousands of small streams, ditches, ponds and other isolated bodies of water, and lands near them, will be subject to federal jurisdiction and all the regulation, permitting and mitigation that entails. The consequences for millions of small businesses, farmers and local governments could be dire.
Over the years, the agencies’ regulatory interpretation of CWA jurisdiction has been stretched further and further to include bodies of water that have little or no connection to waters that are used for traditional commerce. This proposed rule was touted as necessary to provide more clarity, but is doing the exact opposite by using vaguely defined terms that may be read to include small ponds, ditches or small streams that run only when there is heavy rain. And this extraordinary regulatory intrusion into the lives of many farmers, ranchers and small-business owners has the likely potential to be economically devastating.
Recently, the Small Business Committee, which I chair, held a hearing and heard from small businesses that will be affected by the proposed rule. Alan Parks, an executive with a Memphis, Tenn., stone and gravel company explained the proposed rule’s problems and consequences for small businesses, stating, “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.”
While the proposed rule clearly has significant consequences for small businesses, the agencies failed to assess those impacts. Had the agencies conducted outreach to and solicited input from small businesses, as required by the Regulatory Flexibility Act, they may have identified and fixed some of the problems with the rule before it was proposed. My colleagues and I on the Small Business Committee have called on EPA and the Army Corps of Engineers to withdraw the proposed rule and examine the real-world consequences of their rule on small businesses before they move forward. Although I appreciate the EPA’s recent decision to extend the comment period, it would be wiser still to withdraw the rule altogether, step back and thoroughly weigh the costs and economic consequences for small businesses.