By Madeline Urbish
It appears all bets are off for the Environmental Protection and its finalized “Waters of the U.S.” rule as interagency memos from the U.S. Army Corps of Engineers became public today. On Friday, July 31st the House Oversight Committee released previously confidential memos from the Corps, detailing the agency’s serious concerns regarding the final rule.
The memos are unflattering for the EPA, to say the least. During interagency review of the final draft rule late April, Major General Peabody expressed serious concern for and disapproval of the EPA’s final draft rules in a memo to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. According to Maj Gen. Peabody’s memo, the final rule’s legal and technical flaws made it “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.”
Memos to Maj Gen. Peabody from the Corps’ Chief Counsel and Chief of Operations and Regulatory detail these significant legal and technical flaws. Most notably, the memos argue that the rule is unlikely to survive a court challenge in its current state. According to the Chief Counsel, while the original proposed rule “is based on sound principles of science and law;” much of the final rule drafted by the EPA “abandoned those principles and introduced indefensible provisions.”
The memos state that the final rule abandoned principles of “sound science” and misused data. According to a memo in May, Maj Gen. Peabody found that “Corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate data sets.” Additionally, the memo claims the EPA used incorrect and inappropriate assumptions with little-to-no regard for the data provided in formulating the final rule. And, in perhaps the most damning part of the memo, Maj Gen. Peabody contends the EPA used “misapplied data, analytical deficiencies, and logical inconsistencies,” to justify its rule.
At the conclusion of his memo dated May 15, 2015, Maj Gen. Peabody makes clear that the Corps should not be identified as the author, co-author, or substantive contributor, nor should its logo or any reference to “agencies” including the Corps be a part of the final rule and its documents. Despite the memo, the Corps and the EPA were listed co-equally when the final rule was rolled out.
House Oversight Chairman Jason Chaffetz (R-UT) detailed the concerns in these memos in a letter to Asst. Secretary Darcy yesterday asking whether or not the Corps’ recommendations have been adopted in the final rule, and for a detailed explanation if they have not. Chairman Chaffetz also demands an explanation for why the memos were not included in the administrative record for rulemaking. The letter gives Asst. Secretary Darcy until close of business on August 6th to respond.
During a hearing on EPA mismanagement on July 29th, Asst. Secretary Darcy claimed that she knew of the memos but did not know the details of their contents, including the concerns raised by MAJ GEN. Peabody. Nevertheless, she testified that, to her knowledge, all of the concerns raised by the Corps had been satisfied by the rule. The memos from April and May, however, indicate that the Corps’ issues were not addressed to the satisfaction of Maj Gen. Peabody, prompting his demand that any indication of the agency’s involvement be removed from the final rule.
It appears the Corps wanted to avoid the memos becoming public by watermarking each document as “For Committee Use Only” and “Litigation Sensitive.” Congressional Republicans are defending the document’s release by arguing it validates their allegations that the EPA’s rulemaking process was flawed and politically driven. In a statement, House Transportation and Infrastructure Subcommittee on Water Resources and Environment Chairman Bob Gibbs (R-OH) described the information as “extremely troubling” bust also commented on his lack of surprise. “The EPA controlled the rule-making process to get the result it wanted.”
It is hard to say whether or not these memos will be admitted to the House Oversight Committee’s record, or if they will have an implication on the pending litigation against the rule by 27 states and other entities. Regardless, the now-public correspondence undermines both the EPA and the Administration on an issue that was an environmental centerpiece for President Obama. The memos are especially politically damaging given the wide array of opponents to the Waters of the U.S. rule, who now have a great deal more leverage in their argument against the EPA and its purportedly flawed rulemaking process.
For more information, contact Madeline Urbish at firstname.lastname@example.org.