Last week, states and industry groups critical of the Obama Administration's controversial Waters of the U.S. (WOTUS) rule asked the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) to hold off on putting the regulations into effect as scheduled on August 28, 2015.
Additionally, 31 states have filed suit against the rule on procedural and substantive grounds. Environmental groups that generally support the rule have raised the prospect of also filing suits after internal communications at the Corps were leaked to the media and congressional committees indicating the Corps’ concern that the final rule would exempt previously protected wetlands.
Five major agricultural groups wrote EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy last week stating that there is still real confusion among their agencies' staff about what waters will be in and out under the rule. The groups asked that the rule not go into effect until all agency staff responsible for implementing the regulations have been fully trained.
Apart from concerns about leaving some areas unprotected, the internal memos and letters from senior Corps officials to their political head, Assistant Secretary Darcy, concluded that the final rule was advanced by EPA without Corps knowledge, that some rule provisions were not based on science or experience administering the Clean Water Act, and that many aspects of the rule were legally indefensible and impossible to enforce. Corps officials went on to urge the Assistant Secretary to withdraw the Corps’ name as an author of the rule.
Adding to confusion about implementing the rule, EPA and the Corps announced last week that they will not issue a new manual or guidance document to their regional offices to help implement its Clean Water Rule. In a memo from EPA Administrator Gina McCarthy and Assistant Secretary Darcy, the agency heads say they will provide their respective field offices with a comprehensive but less formal question-and-answer document based on discussion with field staff. According to McCarthy and Darcy, specifics in the final WOTUS rule eliminate the need for a new manual or guidance. Issuing a formal manual or guidance document could expose the agencies to legal questions at a time when dozens of states, industry groups and environmentalists are already suing over the rule.
The agencies expect to release the Q&A document before the rule takes effect later this month. EPA will also create a database to track jurisdictional determinations of waterways and wetlands protected under the Clean Water Act. The Corps and EPA will make this information publicly available on a quarterly basis.
The agencies are also creating a work group to help individuals navigate the federal permitting process under the rule. The group will focus on the appropriate use of tools like general permits and better coordination with states to reduce redundancy in permit reviews. The group is expected to provide the agencies with a "suite of options" by the end of the year.