The National Federation of Independent Business (NFIB) has sent a comment letter to the Environmental Protection Agency (EPA) and the Department of the Army. This action follows their recent notice requesting suggestions on how future regulations pertaining to the Clean Water Act (CWA) align with the U.S. Supreme Court's decision in Sackett v. EPA.
NFIB, a leading advocate for small businesses, offered recommendations aimed at providing clear and consistent guidelines for small businesses regarding regulations on “waters of the United States” (WOTUS).
“Uncertainty is a nemesis of small business owners,” stated Rob Smith, Senior Attorney at NFIB. “Small business landowners, and all property owners, deserve straightforward, invariable guidelines from their regulating bodies. Many family-run or small enterprises do not have dedicated lawyers or compliance officers helping them decipher and implement new regulations. NFIB is pleased that the EPA and Army are working diligently to incorporate the Court’s decision into their rulemaking process in a way that protects the nations waters while respecting the rights and needs of small business landowners.”
The NFIB's letter suggested five specific ways for the EPA and Army to implement new WOTUS regulations. Firstly, any regulation should clearly define the extent to which wetlands are considered waters. Secondly, small business owners should have the opportunity to correct violations with enforcement action reserved for willful, repeated violations. The third recommendation is for the EPA and Army to propose legislation to Congress amending the Clean Water Act to include a practical definition of “navigable waters.” Fourthly, the agencies are advised to adopt an easy-to-understand "bright line" rule to clarify the meaning of “relatively permanent.” Lastly, the NFIB recommended excluding ditches from the CWA’s general authority.
Previously, in 2022, NFIB filed an amicus brief in the Supreme Court case of Sackett v. EPA. This move was in response to the confusing WOTUS standards affecting small business owners nationwide. NFIB opposed the past administration's WOTUS rule, which aimed to expand federal jurisdiction over private property.
