Last week, Bloomberg BNA obtained a leaked copy of the EPA/Army Corp of Engineers’ cost-benefit analysis on the draft Waters of the United States rule. The draft analysis looks at the costs of implementing new rules that expand federal jurisdiction and the benefits to be gained. Manufacturers are more than a little skeptical of this analysis and believe the EPA/Corps have underestimated the costs and over valued the benefits. For example, nowhere in the study does the EPA or the Corps discuss the costs of delays in projects and the inevitable cost of citizen suits as a result of the expanded jurisdiction.
On the other hand, the analysis acknowledges that the costs will rest squarely on the shoulders of landowners, natural resource extraction companies, developers, states, local governments and tribes investing in infrastructure, and manufacturers. These costs will come in the form of higher permit fees, additional permits and additional mitigation costs.
The EPA and the Corp continue to seek to expand their jurisdiction over waters that have typically not been under their purview. Upon hearing the words “navigable waters” one conjures up the image of ships, barges, tankers, sail boats, canoes, rowboats, perhaps even a raft, but the EPA has long ago moved past traditional navigable waters in terms of their jurisdiction. They are looking at such things as tributary streams both natural and artificial, farm ponds, ephemeral streams, and water flow of all kinds. They want to regulate all ponds, lakes and wetlands regardless of how tenuous their proximity might be to navigable waters.
If finalized, this rule will give the EPA and the Corps the ability to regulate virtually any body of water and claim there is a nexus to navigable waters. Manufacturers strongly opposed the rule in this form.