Earlier this week, the Small Business Administration(SBA) hosted an Environmental Roundtable meeting on the proposed rule defining the waters of the US under the jurisdiction of the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) according to the Clean Water Act (CWA). Panelists included Ken Kopocis, Senior Advisor for the EPA Office of Water, William James, Acting Deputy Chief, Regulatory Program, and Virginia Albrecht, Counsel for the Waters Advocacy Coalition with Hunton & Williams.
Following Ken Kopocis's presentation explaining the EPA and Corps’ reasoning for offering the proposed rule and its impact, Virginia Albrecht spoke about the concerns of the small business community. It is the opinion of the EPA and Corps that the proposed rule clarifies the definition of waters of the US without expanding their regulatory jurisdiction. Mr. Kopocis highlighted the perceived legislative and judicial vagueness in establishing definitions for regulatory jurisdiction under the CWA. EPA and Corps believe the proposed rule is simply defining waters that already fall under the their jurisdiction vis a vis the CWA. This belief runs counter to that held by Industry, which holds the proposed rule as a massive expansion of jurisdiction over waters thus far outside the control of the EPA and Corps. As was said several times by both sides during the two-hour roundtable, industry and the Agencies do not hold a common view of the current jurisdiction of CWA and therefore see the rule in fundamentally different lights. Because EPA and Corps believe the waters being clarified already fall under the jurisdiction of CWA, the proposed rule does not appear to them as the jurisdictional land grab Industry considers it to be. Conversely, based on the current limitations as established in two separate Supreme Court cases; Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States (Rapanos), which respectively set limitations on the regulatory jurisdiction of CWA by finding against the Agencies' use of the Migratory Bird Rule and restricting the definition of “navigable waters", this rule can be seen as tremendous and conscious overreach.
Following the presentations, the panel took questions from the audience, the majority of whom represented various industries. The overall message from participants to the EPA and Corps was that the proposed rule and its implications were unclear based on the information provided. Several participants commented that the panel, although helpful, should have happened during the earlier phases of the rulemaking and urged the EPA, Corps and SBA to pull the proposed rule and start over with a SBREFA Panel in order to establish the impact on small businesses. Despite the calls for a more active collaboration on drafting a rule, Mr. Kopocis responded by highlighting the opportunity to submit public comments during the comment period. If the interaction during the question and answer session is any indication, further collaboration on the proposed rule will happen through comments, rather than through other potentially enlightening and useful processes.
IMA-NA is part of the Water Advocacy Coalition and strongly opposes the expansion of jurisdiction of the CWA. To read more about the proposed rule click here.