- DTN Headline News
Something in the Water
Monday, August 3, 2015 12:16PM CDT

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- U.S. Army Corps of Engineers experts raised serious legal questions about the waters of the United States rule in the months leading up to EPA's release of the final rule this spring, internal Corps memos released by a congressional committee show.

Despite objections raised by the Corps about the rule's language and the validity of an economic analysis, many of those concerns went largely unaddressed by EPA officials in the final rule.

A set of eight documents consisting of 105 pages of Corps memos was released by the House Oversight and Government Reform Committee. The release came despite a request of Congress from Jo Ellen Darcy, assistant secretary of the Army for civil works, to keep the memos out of the public eye. All the documents are stamped as "litigation sensitive" as they outline concerns from Corps legal counsel just weeks ahead of the release of the final rule.

The Corps' analysis adds more irony to the controversial rule that agencies have spent years developing specifically to try to add more clarity regarding which waters should be regulated under the Clean Water Act and which waters should not.

The document release comes just days after attorneys general from 28 states that sued EPA asked the agency to delay the rule's implementation for at least nine months to make way for court proceedings. On Friday, however, EPA released a memo sent by EPA Administrator Gina McCarthy and Darcy, to all EPA regions outlining how the agency will be implementing the rule, which is set to take effect Aug. 28.

Also, it was announced Friday that 12 lawsuits filed against EPA on the rule would be consolidated and heard in the U.S. Circuit Court for the Sixth District.

When contacted by DTN regarding the release of the Corps' memos, an EPA spokesperson provided this comment: "As with any multi-agency 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. 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."

When contacted by DTN, a Corps media representative said the Corps would not comment on the memos because of ongoing litigation on the rule.

Lance Wood, assistant chief counsel for environmental law and regulatory programs for the Corps wrote in a 20-page internal memo dated April 24, 2015, to Army Major General John W. Peabody, that EPA changes to the preliminary rule bring the final rule into legal question.

"The draft final rule regarding the definition of WOTUS contains several serious flaws," Wood wrote. "If the rule is promulgated as final without correcting those flaws it will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement."

Wood later said despite "numerous edits or fixes" by Corps staff to correct rule language "to date, the fixes have not been adopted so the flaws remain."

Upon reading the suggested changes in the memo and comparing those to the final rule, DTN found the final rule does not include most of the Corps' suggested changes.

The final EPA rule says if waters such as lakes, ponds and wetlands are found to have a "significant nexus," or connection to waters regulated as waters of the United States, the entire water body is a water of the United States, as long as a portion is located within the 100-year floodplain or within 4,000 feet of an ordinary high-water mark or high-tide line.

In the memo, Wood wrote, "the 4,000-feet cut-off line (or 'bright-line rule') for jurisdiction has no basis in science or law, and thus is 'arbitrary.'"

Wood said that during a March 2015 conference call, EPA officials told Corps' personnel the EPA was considering changing that number to 5,000 feet.

"Then, three days later, EPA staff changed its positon and decided to cut off CWA jurisdiction at the narrower 4,000-feet limit from the OHWM/HTL," Wood wrote. "EPA staff has never provided any scientific support or justification for either a 5,000-feet or 4,000-feet cut-off."

That provision will leave many water bodies beyond the 4,000-foot mark potentially out of CWA jurisdiction, he said. This means EPA should have conducted an environmental impact statement.

EPA left the 4,000-foot provision in the final rule.

'ADJACENT' CHANGED

On the day the draft rule was sent to the White House Office of Management and Budget, Wood said in the memo, EPA made an addition to the definition of the word "adjacent" that would exclude large areas of wetlands that are used, or have been used, for farming, forestry, or ranching activities.

That sentence says, "Waters subject to established, normal farming, silviculture and ranching activities are not adjacent."

Wood wrote, "On its face, the sentence is indefensible: It is a textbook example of rulemaking that cannot withstand judicial review... That sentence must be removed or modified to retain credibility and legal defensibility for the final rule's definition of adjacent."

EPA left the sentence unchanged in the final rule.

Wood brings into question EPA's definition of "neighboring" when declaring jurisdictional all water bodies within 1,500 feet of an ordinary high-water or high-tide line, as long as a water body is in a 100-year floodplain.

"The 1,500-feet limitation is not supported by science or law and thus is legally vulnerable," Wood wrote. "The Corps has advocated the more scientifically and legally defensible distance of 300 feet for declaring by rule that all neighboring water bodies are jurisdictional..."

The final rule leaves the number at 1,500 feet.

'ISOLATED' WATERS

Wood raised concerns about the final rule's treatment of so-called isolated waters including prairie potholes, western vernal pools, Carolina bays and Delmarva bays, Texas coastal prairie wetlands, and pocosins, or swamps in a coastal plain.

"The draft final rule would declare that all isolated waters in each of the five listed categories of isolated waters are similarly situated," he said, "but the Corps has never seen any data or analysis to explain, support, or justify this determination."

EPA's assertion that all prairie potholes are "similarly situated" is "legally vulnerable," Wood writes.

According to the memo, Wood crossed out, "Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis" and added a clarifying paragraph that does not appear in the final rule.

'TRIBUTARIES' DEFINED

Wood said EPA changed the definition of tributary in the draft final rule, to exclude all lakes, ponds and wetlands that are part of the tributary system of the navigable or interstate waters without conducting an environmental impact statement.

"Excluding those lakes, ponds, and wetlands from CWA jurisdiction under the draft final rule is not supported by an administrative record," Wood wrote. "...Also, no notice of such a change was provided in the proposed rule to allow for public comment leaving the rule vulnerable to an APA (administrative procedures act) challenge..."

In an Army internal memo dated April 27 to Darcy, Peabody said the draft final rule "contradicts long-standing and well-established 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."

ECONOMIC ANALYSIS

In a May 11 economic analysis, Corps employee Paul Scodarl questioned the way EPA requested the analysis to be conducted -- suggesting the agency wanted just the benefits of the rule to be illustrated.

That analysis resulted in the often-cited figure of an estimated increase in the number of positive jurisdictional determinations of 4.67% with the new rule.

In a memo written about the analysis, Scodarl said an analysis of the benefits of the dredge and fill permit program, also known as Section 404, wasn't useful.

"USACE has always recognized that the Section 404 benefits analysis is meaningless," he said. "However, agencies are required by administrative policy to develop benefits estimates for rulemakings whenever possible.

"The OMB representative for this rulemaking encouraged and appears comfortable with the benefits transfer approach applied for Section 404 benefits analysis, and from the beginning EPA was intent on including a benefits analysis that would show that rule benefits outweigh costs (even though the CWA does not require such a showing).

"There is nothing more to say or do relating to this benefits analysis, however. USACE is just going to have to live with it and leave responsibility for defending it to EPA and OMB."

In a news release Friday, the American Farm Bureau Federation said the documents reveal what the group believed about the rulemaking process.

"It is clear from the memos that there were dire concerns internally that EPA was getting it wrong and with a high degree of arrogance," AFBF President Bob Stallman said. "The flawed economic study is just the tip of the iceberg, and it was known internally that trouble was ahead. In fact, the memos themselves were stamped 'Litigation Sensitive.' They were never intended to see the light of day.

Access the Army Corps memos here, https://oversight.house.gov/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(GH/CC/AG)


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