Hearing looks into Corps of Engineers' role in WOTUS release

By Spencer Chase

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WASHINGTON, Sept. 30, 2015 - Republican senators used a congressional hearing Wednesday to press an Army representative for an explanation on why the Corps of Engineers opted to support the Environmental Protection Agency's Waters of the U.S. (WOTUS) rule despite opposition in some internal memos.

GOP members of the Subcommittee on Fisheries, Water, and Wildlife peppered Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy with questions about the Army's role in the rule while their Democratic counterparts questioned why the hearing was happening in the first place. WOTUS, or the Clean Water Rule as it's called by EPA, went into effect in 37 of the 50 states at the end of August; a federal judge in North Dakota granted an injunction against its implementation in the remaining 13 states.

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At the heart of the issue were memos released in July by the House Oversight and Government Reform Committee. In one memo, Maj. Gen. John Peabody told Darcy in April that the draft WOTUS rule “contradicts long-standing and well-established legal principles” relating to Clean Water Act enforcement. He later suggested that the Corps' name and logo should not appear on the final rule.

In his questioning, subcommittee Chairman Dan Sullivan, R-Alaska. asked Darcy if she was under pressure from the EPA to approve the rule despite some internal opposition, but she said the memos represent a “snapshot in time.” Sullivan disagreed, saying the memos were sent “at the end of years and months of working on this rule,” and that some of Darcy's superiors were saying they couldn't support enforcement actions authorized by the WOTUS rule.

After Darcy testified that the Corps had provided information used in a technical analysis, but did not perform the analysis, Sullivan cautioned:

“Your senior people - who are probably closer to this than you are - are saying (the Corps) had nothing do with it. So be careful when you're telling the Congress of the United States that (it) did,”

Darcy added that the memos don't necessarily reflect the official opinion of the Corps, adding that some people within the unit “had some differing opinions on some of the final decisions that needed to be made in order to finalize this rule.

“I am proud of the Army's role in developing the rule,” she said in her opening statement. “We stand shoulder to shoulder with our colleagues at EPA in support of the merits of the final rule and the process used to develop it.”

For the most part, Democrats on the panel didn't use their time to press Darcy for answers on issues related to WOTUS, but rather to express their confusion about the nature and intentions of the hearing.

“It would be one thing if we were talking about the merits of the rule. We could argue the specifics, but it seems to me what we're arguing about here makes little sense,” Maryland Democrat Ben Cardin said.

The rule redefines the waters of the U.S. that can be regulated under the Clean Water Act. Most of the agricultural community and many Republicans say the rule represents a vast and unwarranted expansion of federal power over private lands.

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