Internal memos leaked to the media and key congressional committees show that military and civilian leaders at the Army Corps of Engineers (Corps) fiercely disagreed with changes made in the final rule to define Waters of the U.S. (WOTUS) subject to the Clean Water Act.
One official argued that the U.S. Environmental Protection Agency (EPA) had overtaken the rule-writing process to the extent that the Corps should withdraw its name as a cosponsor of the final rule. Corps officials were concerned that new geographical limits set in the final rule are not based on science or experience, and would in some cases remove waters from federal jurisdiction, yet over-regulate other water features. The Corps' top environmental lawyer argued that language was too broad in the final rule that extends automatic protection to all wetlands and ponds within 1,500 feet of an otherwise jurisdictional water if they're also in that water's floodplain. The Corps contended that 300 feet would be more defensible.
Congressional opponents of the Obama Administration's water rule claim that the Corps memos confirm their contention that the rule is fatally flawed. The Chair of the Senate Environment and Public Work Committee, James Inhofe (R-OK), stated that the Corps memos, "confirm my suspicion that the determinations that purport to support expanded jurisdiction in the final WOTUS rule were not based on the experience and expertise of the Corps." Chair Inhofe also sent a letter to Assistant Secretary Jo-Ellen Darcy, the political appointee who oversees the Corps, to explain the discrepancies between Corps officials and the final rule.
The Corps memos add to the fervor by some in Congress to block the rule, which will take effect August 28, 2015. The House has already passed a stand-alone measure to kill the regulation, and has approved riders to two spending bills that would block its implementation. However, the real fight is in the Senate, where WOTUS opponents will need to get 60 votes to bring to the floor a bill that passed in the Environment and Public Works Committee on a party line vote. A separate attempt to restrict the rule as the Senate considers a long-term transportation bill has been postponed until the bill is again considered in September.
Meanwhile, 30 states have filed law suits on procedural and policy grounds against the final rule, contending that insufficient analysis was conducted and that EPA exceeded its authority in issuing a rule that was originally intended to clarify jurisdiction of one permit program under the Clean Water Act.