EPA broke law by using Web to promote WOTUS, GAO finds

By Stephen Davies

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WASHINGTON, Dec. 14, 2015 -- EPA violated restrictions on using appropriations for grassroots lobbying when it employed social media to promote the proposed Clean Water Rule, the Government Accountability Office said in a legal opinion

Application of the rule, also known as “WOTUS” for “waters of the United States,” has been stayed by federal courts, and language prohibiting the rule's implementation has become an issue in the continuing tug-of-war over the omnibus bill to fund the federal government.

The timing of the legal opinion could not be worse for EPA, considering the congressional debate. Bob Stallman, president of the American Farm Bureau Federation, which has been prominent in the fight against the rule, wasted little time in using it to call on Congress to take action.

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“Courts already have declared serious doubts about the legal authority for the rule,” Stallman said. “Now that it has become clear that the agency used illegal tactics to manufacture ill-informed support for the rule, Congress should act immediately to prohibit implementation of this rule, which is the product of an unlawful and misguided process.

“The GAO findings vindicate those, like the American Farm Bureau Federation, who have claimed all along that EPA's tactics advocating for this rule stepped past the bounds of proper agency rulemaking,” Stallman said.

GAO's opinion was signed by General Counsel Susan A. Poling and sent to Sen. James Inhofe, R-Okla., chairman of the Senate Environment and Public Works Committee, who had asked GAO to look into the matter. The GAO said EPA violated provisions of the Financial Services and General Government Appropriations Act of 2014 and the Department of the Interior, Environment, and Related Agencies Appropriations Act of 2015.

A year ago, Congress included provisions in two different spending bills that prohibited the agency from spending money on grassroots lobbying, Poling's letter noted.

EPA's social media campaign included a blog post by the communications director for its Office of Water that included hyperlinks to a Natural Resources Defense Council (NRDC) webpage and to a Surfrider Foundation blog post.

In the blog post, the EPA official provides two reasons why “clean water rules:” - “because he is a surfer and because he is a beer drinker,” GAO said in the opinion.

“It was EPA's decision to link to external websites belonging to environmental action groups to support statements made in its blog” GAO said. “In doing so, EPA associated itself with the content reached by clicking those hyperlinks.”

“We do not suggest that every hyperlink must constitute an endorsement of the linked webpage. But these facts-the continued debate surrounding the rulemaking, the inclusion of the hyperlinks to websites of environmental action groups within a blog post announcing a campaign designed to recruit public voices to indirectly support finalization of the rule, and the pendency of legislation that would directly prevent the rule from moving forward - preclude a good faith characterization of these hyperlinks as mere citations.”

EPA also used Thunderclap, “a ‘crowdspeaking platform' that allows a single message to be shared across multiple Facebook, Twitter, and Tumblr accounts at the same time,” GAO's opinion explained.

The agency disputed the agency's finding. 

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“We maintain that using social media to educate the public about our work is an integral part of our mission,” according to an EPA statement. “We have an obligation to inform all stakeholders about environmental issues and encourage participation in the rulemaking process. We use social media tools just like all organizations to stay connected and inform people across the country about our activities.”

The agency said its social media campaign merely pointed people to a general webpage with information about the rule. 

“EVERY stakeholder and EVERY stakeholder group --- whether they supported or opposed the rule --- was provided the same link to the general webpage on education and outreach materials, emails, and presentations, and were told the deadline for submitting public comments and how to do so,” the statement said. 

The agency noted that the report said some elements of the EPA's pro-WOTUS campaign were legal, including its use of the #DitchtheMyth hastag, a play on the slogan, “Ditch the Rule,” used by opponents of the rule. GAO said the “DitchtheMyth” effort adequately identified EPA as the source. 

The National Cattlemen's Beef Association said EPA's “zealous advocacy” of the WOTUS rule  “shows the extremes to which this administration will go to subvert public opinion in favor of their far-reaching environmental agenda.”

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