August 3, 2015

Corps and EPA clean water rule attacked by . . . the Corps?

By M. Reed Hopper Senior Attorney

We have been reporting on numerous challenges to the Corps and EPA’s new rule redefining “waters of the United States” for weeks, including our own.  More than 10 suits have been filed across the country challenging the rule for violating the Clean Water Act, controlling Supreme Court decisions, and long-held limits on federal authority under the Constitution.  Now we hear the “joint” rule was pushed through by EPA over Corps objections that the rule is “legally vulnerable” and “difficult to implement.”  This is government speak for “this is a bad law”

According to this detailed Bloomberg article, top officials at the Corps of Engineers warned  the final rule was shoddy and ill-advised.  We agree, and so do the 70 parties, including 30 states, who have sued the Corps and EPA to overturn the rule.

“To briefly summarize: our technical review  . . . indicate[s] the corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate datasets. In the corps’ judgment, the documents contain numerous inappropriate assumptions, with no connection to the data provided, misapplied data, analytical deficiencies, and logistical inconsistencies,” Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, told Jo-Ellen Darcy, assistant U.S. secretary for the Army for civil works, in a May 15 memo.

Naturally, the Corps and EPA have sought to block the release of these damning memos.  But, they have found their way to the press and now these agencies are in the unenviable, but not infrequent, position of having to defend the indefensible.

“The documents reveal a dysfunctional process within and between the agencies, where political officials were making decisions over the vigorous objections and against the findings of agency staff, without taking the time to address the concerns,” Don Parrish, the [American Farm Bureau’s] senior regulatory relations director, told Bloomberg BNA in a July 27 e-mail. “They show an ‘ends justify the means—get it done now, no matter what’ mentality that is not appropriate for agency rulemaking on such an important issue.”

We could not have said it better ourselves.

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