Internal docs said to undermine WOTUS rule

By Philip Brasher

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WASHINGTON, July 27, 2015 - Internal memos that the Army Corps of Engineers turned over to a Senate committee undermines the scientific and legal basis for the new rule that re-defines the jurisdiction of the Clean Water Act, the panel's chairman says.

In a letter Monday to the assistant secretary of the Army who oversees the Corps, Jo-Ellen Darcy, Senate Environment and Public Workers Chairman Jim Inhofe said that the documents show the “rule is lacking factual, technical and legal support.”

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Inhofe, R-Okla., also told Darcy it appears that the Environmental Protection Agency didn't provide the draft final rule to the Corps of Engineers until April 3 when it was submitted for interagency review.

The rule, which defines what streams, ditches, wetlands and other areas are subject to regulation as “waters of the United States” (WOTUS), is supposed to be a joint product of the EPA and Corps, which share regulatory responsibility under the law. The rule is set to take effect in August.

“These recently obtained documents, as well as some of your responses to hearing questions and statements in existing Corps guidance, confirm my suspicion that many of the determinations that purport to support expanded jurisdiction in the final WOTUS rule were not based on the experience and expertise of the Corps,” Inhofe wrote.

Inhofe's eight-page letter quotes select passages from documents, including two staff memos sent in April and May to the Army's deputy commanding general for civil and emergency operations, Maj. Gen. John Peabody. Darcy asked that the committee not make the documents public.

A passage from an April 24 memo asserted that the rule would give federal officials jurisdiction “over many thousands of miles of dry washes and arroyos in the desert Southwest, even though those ephemeral dry wastes, arroyos, etc., carry water infrequently and sometimes in small quantities.”

An appendix to the April memo also seems to raise questions about provisions of the rule defining what ditches would be regulated as tributaries of rivers:

“How far back in history does the regulator need to go? If it can't be determined definitely, who bears the burden of proof? The landowner or the agency? Need to provide a set of tools/resources that the field can use to make the determination of the history of the ditch.”

A May 15 Corps of Engineers memo denies a statement in a technical document that the Corps contributed to a “very thorough analysis” of the interactions between upstream waters, wetlands and downstream rivers “to reach the significant nexus conclusions underlying” the draft final rule. The same memo also is quoted by Inhofe as saying the Corps had no role in performing the analysis or drafting” the technical document.

In a reference to Darcy's request for keeping the memos confidential, Inhofe said the documents were “interspersed with staff recommendations and legal conclusions that I understand you wish to keep confidential and hidden from the American public.”

In a July 17 letter to Inhofe agreeing to turn over the documents, Darcy said that the concerns raised in the April memorandum “were thoroughly considered prior to issuance of the draft final rule.” The issues in the May memo “were likewise discussed in detail with the EPA,” Darcy wrote.

EPA said in a statement Monday that the agencies “worked closely and carefully to make sure that all concerns surrounding the Clean Water Rule were addressed before finalization.”

A series of lawsuits have been filed against the rule by 30 states and a coalition of industry groups, including the American Farm Bureau Federation, National Cattlemen's Beef Association, American Petroleum Institute, National Association of Home Builders and the National Association of Manufacturers. Provisions in pending appropriations bills  would block the administration from implementing the rule during fiscal 2016.

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