The National Association of Manufacturers’ (NAM) Manufacturers’ Center for Legal Action (MCLA) is suing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to challenge a new rule that expands jurisdiction over “Waters of the United States.” The EPA’s jurisdiction is limited to “navigable waters,” meaning waters of the United States including the territorial seas, but the EPA has attempted to expand jurisdiction over a staggering range of dry land and water features: large and small; permanent, intermittent or ephemeral; flowing or stagnant; natural or manmade; and interstate or intrastate. The rule exceeds constitutional authority and violates protected individual rights.
The rule will require permits for any unauthorized “discharges” somewhere that qualifies as a water of the United States. The definitions are complex and vague and often require case-by-case determinations by the agencies. Manufacturers that own property that might constitute covered U.S. waters will have to try to determine whether any activities they want to conduct could be subject to the rule, as criminal penalties for negligent violations are up to $25,000 per day and up to a year in prison per violation. The EPA may also impose civil penalties of up to $37,500 per discharge, per day, per offense. These punitive provisions discourage the reasonable and productive use of improvements to land and water features. Read More