Michigan Landowners, Small Business, Farmers, Hurt by Recent Land Rights Decision

Date: October 31, 2018

Obama-era EPA rule no longer on hold after court decision

The following guest editorial by Michigan’s NFIB State Director, Charles Owens, appeared in the Detroit News on October 31.

A recent decision by a federal judge is going to drastically impact the routine operations and finances of small businesses and landowners in Michigan, especially farmers, excavators, builders, and landscapers.

A rule put into place during the Obama administration — on hold until now — will expand the Environmental Protection Agency’s control over wide swaths of land adjacent to already-regulated waterways. Traditionally, the state of Michigan regulated lakes and wetlands that were larger than five acres, and other waters within 500 feet. But, the EPA rule extends federal control to 4,000 feet from navigable waters, and now includes adjacent waters that could even be dry-bed tributaries, and some temporary ponds or puddles.

That means when a small business or farmer wants to build, grade, dredge, drain, fill or landscape private land, a federal EPA permit is likely to be required. Those permits cost $327,000 on average and are slow to be granted. That can screech a project to a halt and create a great financial hardship. Penalties for a violation can cost $37,000 a day. This new rule is complex and hard for small businesses to interpret, so they could unintentionally face fines.

It helps to understand how we got here. In 1972, the Clean Water Act gave the EPA the authority to regulate “navigable” waters of the United States (WOTUS) and those adjacent. It was a time of heightened and legitimate concerns about water pollution. Today, America’s waterways are significantly healthier due to the Act’s pollution control and clean up requirements.

Then, in 2015, under President Obama, that regulatory definition of “navigable” waters was broadly expanded to incorporate most bodies of water across the United States, including many that are already managed by local governments. It was a huge overreach. Suddenly some ponds, streams, ditches and depressions, far from a “navigable” river or lake where boats sail, could come under the EPA’s jurisdiction. Even when water pools on a farm or at a construction site for a short period during a year, it could be subject to federal regulation.

This shameless land grab has a significant financial impact on landowners and small businesses. Last year, NFIB, along with the Michigan Farm Bureau and other stakeholders, succeeded in getting an injunction to temporarily stop the new WOTUS rule until the Trump Administration could review it. The potential for financial loss was significant, and the federal government hadn’t weighted the impact on small businesses as required.

Later, a group of Attorney Generals from mostly Western states sued and succeeded in barring the enforcement of WOTUS in their states. But in August an environmental group was granted an injunction to enforce the rule in the remaining states. Now, Michigan and 21 other states must comply. 

Just as the national economy is improving, small businesses are expanding and jobs are being created, it’s a shame this onerous rule will set our state’s economy back. Michigan is much less competitive when more than half the U.S. states don’t need to follow the same oppressive restrictions. NFIB is now pressing for a solution in federal court, and we are urging the EPA and Army Corp of Engineers to move quickly on rewriting the WOTUS rule. 

Charles Owens is the state director of NFIB in Michigan, an association that advocates for 10,000 small and independent businesses in the state.


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