WASHINGTON – NACS provided comments last week in support of a proposed rule to return the Waters of the United States (WOTUS) to its pre-2015 definition.
On June 27, the Trump administration announced the proposal to overthrow the Obama administration’s WOTUS regulations. The WOTUS regulations went into effect in August 2015 but were later blocked by the Sixth Circuit Court.
The WOTUS regulations were met with opposition from the business and agriculture industries, which felt that the regulations went too far and would drastically increase cost of permitting and compliance. For instance, any convenience store near or touching a protected water would face additional permitting and Clean Water Act requirements.
By way of background on this issue, NACS commented in November 2014 on the Obama administration’s proposed WOTUS rule, saying that our members had significant concerns with the proposed changes to the WOTUS definition. The proposal was subsequently finalized with minor changes on June 29, 2015, but our industry’s concerns were not alleviated in the final rule.
The final rule drastically expanded federal CWA jurisdiction and was excessively broad and ambiguous. Had it gone into effect, the final rule would have increased the already significant costs that NACS members incur through permitting and associated CWA regulatory requirements. Moreover, it would have undermined the U.S. Environmental Protection Agency’s (EPA) efforts to encourage fuel retailers to invest in equipment that is compatible with higher ethanol blends. This is because the final rule would have added a layer of regulatory complexity and cost to every investment and expansion decision that retailers make. In short, the final rule would have worked against EPA’s regulations under the Renewable Fuel Standard program, which relies on retailers investing in new equipment that can store and dispense gasoline-ethanol blends greater than 10% ethanol.
In finalizing the WOTUS rule, NACS believes the EPA and the Army Corps of Engineers did not sufficiently consider the rule’s impact on small businesses, including most fuel retailers. Given these concerns, NACS supports the recent decision to rescind the Obama-era rule and re-codify a pre-2015 definition ahead of a rulemaking process intended to review and revise the WOTUS definition.
NACS is also urging the agencies to consider the comments of respondents to ensure that any new rule is clear, appropriate and properly balances any impacts on small businesses.