Internal memos from an Army Corps of Engineers top official to the Environmental Protection Agency contends the draft final rule defining waters of the United States is indefensible in court, reduces the government’s jurisdiction over certain waters now covered by the Clean Water Act, and will require the Corps to conduct an environmental impact statement before it can be implemented.
The memos, written before the rule’s release by Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, charge that the EPA disregarded the Corps’ concerns.
The memos were put on the record by Rep. Paul Gosar, R-Ariz. of the House Oversight and Government Reform Committee.
Peabody’s April 27 memo to Jo-Ellen Darby, assistant secretary of the Army for civil works, states: “As we have discussed throughout the rulemaking process for WOTUS over the last several months, the Corps of Engineers has serious concerns about certain aspects of the draft final rule.”
The memo contends that a review of the draft final rule by the Corps’ legal and regulatory staff found the rule “continues to depart significantly from the version provided for public comment, and that the Corps’ recommendations related to our most serious concerns have gone unaddressed.
“The rule’s contradictions with legal principles generate multiple legal and technical consequences that, in the view of the Corps, would be fatal to the rule in its current form.”
The Corps’ legal analysis found that if “serious flaws” were not corrected, the rule would be “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.”
It further found the final rule abandoned “sound principles of science” in the proposed draft and “introduced indefensible provisions into the rule.”
Among the allegations, the Corps contended:
• That the rule removes Clean Water Act protections from some bodies of water where it is now enforced. That’s because the rule limits coverage to lakes, ponds and other waterways that are within 4,000 feet of a navigable water or tributary. The Corps says there’s no scientific basis for the limit, and no legal authority for the agencies to abandon its current jurisdiction.
• That because the EPA acknowledged that abandoning jurisdiction could create “significant adverse effects on the human environment, the National Environmental Policy Act requires the Corps to perform an Environmental Impact Statement
• That while the rule envisions the agencies extending regulation to isolated bodies of water that have a “significant nexus” with navigable waters of the United States, the definitions of such bodies as having “no hydrological connection with navigable waters” makes it unlikely the agencies will be able to establish a nexus that will withstand a court challenge.
Peabody also stated the Corps’ concerns went unaddressed and EPA’s portrayal that the rulemaking process was a joint endeavor is false.
“The preamble to the proposed rule and the draft preamble to the final rule state that the rulemaking has been a joint endeavor of the EPA and the Corps and that both agencies have jointly made significant findings, reached important conclusions, and stand behind the final rule. Those statements are not accurate … as the process followed to develop it greatly limited Corps input — a practice that has continued thus far in the interagency review process. …
“The critical fact remains that the most important concerns regarding the defensibility and implementability of the draft final rule remain unaddressed … .”
In a May 15 memo to Darcy regarding EPA’s economic analysis of the final rule and technical support document, Peabody stated the Corps’ technical review “indicates both documents are flawed in multiple respects.”
“ … Corps data provided to EPA has been selectively applied out of context and mixes terminology and disparate data sets. … the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies, and logical inconsistencies. As a result, the Corps review could not find a justifiable basis in the analysis for many of the documents’ conclusions.”
Peabody further distanced the Corps from EPA’s documents.
“The Corps provided EPA with raw data … . However, the Corps had no role in selecting or analyzing the data that EPA used in drafting either document. As a result, the documents can only be characterized as having been developed by EPA, and should not identify the Corps as an author, co-author or substantive contributor.
“To the extent that the term ‘agencies’ includes the Corps of Engineers, any such reference should be removed. Finally, the Corps of Engineers’ logo should be removed from these two documents. To either imply or portray USACE as a co-author or contributor to these documents, other than as the provider of raw unanalyzed data, is simply untrue.”
When reached for comment, the EPA did not address specific concerns outlined in the memos.
“As with any multiagency rulemaking, the EPA and Army/Corps worked closely and carefully to make sure that all concerns surrounding the Clean Water Rule were addressed before finalization,” a spokesman said in an email. “The Peabody memos were internal, deliberative Army/Corps documents, so any questions regarding recommendations or issues that were raised within the Department of the Army prior to finalization of the Clean Water Rule should be directed to the Army.”