EPA Meeting on Water Rule Impact Comes ‘Too Little, Too Late,' Rural Utilities Say

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By Amena H. Saiyid

Oct. 16 — The Environmental Protection Agency's meeting to evaluate the impact of the proposed waters of the U.S. rule on small businesses has come “too little, too late,” the National Rural Electric Cooperative Association said Oct. 15.

“Both the law and good sense require the agencies to meet with those businesses most likely affected by expanding the definition of regulated waters prior to publishing the rule in the Federal Register,” NRECA Executive Director Jo Ann Emerson said in an Oct. 15 statement after the EPA meeting to discuss the proposed rulemaking ended. NRECA represents rural electricity generators and distributors.

Also present at the meeting were representatives of the American Farm Bureau Federation, the Associated General Contractors of America, the National Association of Home Builders, the International Council of Shopping Centers and the National Cattlemen's Beef Association, among others.

At the meeting, the EPA asked the various representatives to discuss what aspects of the proposed rule they found particularly confusing, suggestions for improving and clarifying the rule and impacts they saw on their businesses. The EPA also asked them to comment on any benefits they saw arising from this rulemaking.

Representatives Critical

Most of the industry representatives present were critical of the EPA's effort to discuss the impact of the proposed rulemaking on small businesses after publication, Don Parrish, senior congressional relations director for the American Farm Bureau Federation, told Bloomberg BNA Oct. 16.

As recently as Oct. 1, the EPA and the U.S. Army Corps of Engineers were criticized by the Small Business Administration's Office of Advocacy for improperly certifying that the proposed rule clarifying Clean Water Act jurisdiction wouldn't have significant impacts on small businesses.

The SBA Office of Advocacy said the agencies should have conducted a Small Business Advocacy Review panel prior to releasing the proposal for public comment.

The Small Business Administration Office of Advocacy is an independent office that holds its own viewpoints that aren't necessarily reflective of the broader agency.

Rulemaking Covers Streams, Other Waters

Published jointly in April, the proposed rulemaking seeks to bring under federal jurisdiction all tributaries of streams, lakes, ponds and impoundments as well as wetlands that affect the chemical, physical and biological integrity of larger, navigable downstream waters. Public comments on the proposed rule are being sought through Nov. 14 (79 Fed. Reg. 22,188).

Parrish said the EPA billed the Oct. 15 meeting as being for small businesses, when in fact “this meeting didn't comply either with the letter of the law or the intent, the law being the Regulatory Flexibility Act.”

“None of the people present thought the agencies were doing the right thing. Everybody supported the Small Business Administration's demand that the agencies withdraw the rule and conduct a panel for small businesses,” Parrish said.

He said the Regulatory Flexibility Act requires the agency to follow a process for evaluating the impact on small businesses that includes creating a Small Business Advocacy Review Panel to assess the impacts on small businesses prior to releasing the proposed rule for comment to the public. “EPA is now trying to use this meeting as a surrogate for the processes laid out in the law,” he added.

Not All Aboard with SBA

Not all small businesses are backing the position taken by the SBA Office of Advocacy.

“The SBA Advocacy comments submitted on the proposed water rule do not represent the views of most small businesses as shown in recent independent polling,” said David Levine, chief executive officer for the American Sustainable Business Council, which represents 200,000 businesses nationwide and more than 325,000 entrepreneurs, executives, managers and investors.

The poll commissioned by the ASBC showed more than three-fourth of businesses representing both political parties supporting the Clean Water Act jurisdiction rulemaking.

ASBC spokesman Bob Keener told Bloomberg BNA that the council maintains its support for the rulemaking process. Keener, however, didn't know whether the council was invited to this meeting.

Among nonprofits, the National Wildlife Federation and the Natural Resources Defense Council criticized the industry groups for continuing to block the rulemaking process.

Jan Goldman-Carter, senior manager for NWF Wetlands and Water Resources, told Bloomberg BNA that the farm bureau, the NAHB and the AGC are members of the Waters Advocacy Coalition that has opposed the Clean Water Act jurisdictional rulemaking right from the start.

Looking for Excuse to Delay Rulemaking

According to Jon Devine, senior attorney with the NRDC Water Program, the opponents are looking for any excuse to delay the rulemaking to impart clean water protections.

“We hear from fishing guides, brewers, coffee roasters, farmers, ranchers, caterers—real small businesses—who depend on clean water for their businesses and who therefore support the Clean Water Rule,” Goldman-Carter told Bloomberg BNA in an Oct. 16 e-mail. “The Office of Advocacy was not listening to these folks, and they do not represent these folks. They were listening to the Waters Advocacy Coalition, a well-heeled collection of industry associations.”

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com