Gary H. Baise
Gary H. Baise

There is "…overwhelming evidence that EPA's proposed WOTUS [Waters of the U.S.] rule would have a devastating impact on businesses of all sizes, States, and local governments without any real benefit to the environment,…"  says the U.S. Chamber of Commerce.

The U.S. Chamber, along with other business groups, has prepared and released a letter to EPA and Corps of Engineers comprised of 44 pages. The letter describes and criticizes EPA's grab for power over land use in the United States.

I have written frequently about EPA's misrepresentations regarding what defines a "Water of the U.S."

In prior columns, I have quoted the EPA Administrator claiming the rule merely clarifies portions of the Clean Water Act. I have pointed out the facts do not match the rhetoric of the EPA Administrator.

The U.S. Chamber of Commerce comes to the same conclusions.

The Chamber claims "…the proposal as written represents an unjustified expansion of the Clean Water Act jurisdiction far beyond the limits of federal regulation explicitly established by Congress and affirmed by the courts."

EPA clearly seeks control over the land use of farms, and the Chamber now claims, "The [EPA] proposal would for the first time give federal agencies direct authority over land use decisions that Congress has intentionally preserved to the States."

It is hard to imagine that two government agencies (EPA and the Army Corps of Engineers) would seek this kind of power over American businesses and farms.

he Chamber letter suggests that EPA and the Corps are not telling the truth. The Chamber, apparently, has been assured along with other business groups that mere non-substantive definitions are being suggested. The letter makes it clear that the EPA/Corps proposal will "…subject ordinary commercial and industrial activities to new layers of federal requirements under the Clean Water Act."

The Chamber letter says, "EPA asserts newfound authority to regulate millions of small sources -- including retail stores, offices, apartment buildings, shopping centers, schools and churches…"

Wealth of information
The 44-page letter is a wealth of information demonstrating EPA's and the Corps' untruthfulness. One section points out EPA claims the rule would only cover 3.5 million miles of rivers and streams. Apparently there are new maps developed by EPA which demonstrate that approximately 8.1 million miles of rivers and streams will be covered by the new proposed definition of water.

On page 10 of the draft letter, there is an excellent listing of permitting impacts on industrial and commercial facilities. I will describe several of them.

Air emissions from industrial and commercial facilities which leave dust deposits on vacant areas or adjacent areas around the plant and are washed into sewers will require a Clean Water Act permit.

Stormwater which is collected will for the first time be treated as jurisdictional water and EPA would require a permit for a discharge of that water from the facility.

Stormwater conveyance pipes may be classified as a "tributary."

Ditches at an industrial or commercial facility may be regulated either as tributary, adjacent water, or other waters. As a result, maintaining these ditches by clearing vegetation may subject the facility to a Clean Water Act permit.

Control of weeds growing near ditches and impoundments may trigger permit requirements if there is a herbicide application.

The U.S. Chamber's letter is worth reading to see the 11 categories of massive expansion of EPA's jurisdiction over water in the United States. The letter describes impacts on heavy manufacturers, mining operations, building products manufacturers, mineral processing facilities, and even the construction and maintenance of transmission lines for electricity.

If we think the impact on agricultural activities is enormous, EPA's impact on industry is staggering. EPA claims an innocent rationale for its proposed definition for what is a water of the U.S. Its proposal is biased at best and evil at worst.

A new Congress elected in November needs to make this issue one of its first orders of business to protect agriculture and industry.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.