In Hot Water: Internal memos show the Corps of Engineers has major concerns with Waters of the U.S. rule |

In Hot Water: Internal memos show the Corps of Engineers has major concerns with Waters of the U.S. rule

Maria Tussing
Assistant Editor

The importance of water is universally agreed-upon, but who manages that water and how has always been an issue. Recently-released memos written by the U.S. Army Corps of Engineers reveal that they have many concerns with the Waters of the U.S. rule that has been touted as a joint rule between the Corps and the EPA that is supposed to be implemented August 28, and is the subject of several lawsuits. Photo by Amanda Merkel.

The internal memo by the U.S. Army Corps of Engineers is difficult to read under the large stamp that says, "House Oversight and Govt Reform. For Committee Use Only. Litigation Sensitive."

But enough of it is legible to determine that several members of the Corps are not happy with the EPA and their draft final rule regarding the Waters of the United States (WOTUS).

The EPA ploughed ahead with their draft WOTUS rule, in spite of objections by the Corps, the recently-released memos reveal.

The Corps has a major interest in the legality and implementation of the draft rule, since it has been touted as a "joint rule" between the EPA and Corps, and much of the enforcement will be up to the Corps.

“The EPA placed their radical agenda above the law and went far beyond the scope of the Clean Water Act. “Philip Ellis, National Cattlemen’s Beef Association president

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In a Memorandum for Assistant Secretary of the Army for Civil Works (Jo-Ellen Darcy), dated April 27, 2015 and sent by John W. Peabody, Major General U.S. Army Deputy Commanding General for Civil and Emergency Operations, Peabody spells out why he and the Army's legal and technical advisors believe the Corps should not be associated with the economic analysis and technical support documents that are used to support the WOTUS rule scheduled to take effect August 28.

Peabody asked for a legal and regulatory review of the draft final WOTUS rule and included that team's findings in the memo: "That just-completed review reveals that the draft final rule continues to depart significantly from the version provided for public comment, and that the Corps' recommendations related to our most serious concerns have gone unaddressed. Specifically, the current draft final rule contradicts long-standing and well-established legal principles undergirding Clean Water Act (CWA) Section 404 regulations and regulatory practices…"

Section 404 requires a permit before any dredged or fill material can be discharged into waters of the U.S., unless the activity is exempt from 404 regulation, as some farming and forestry activities have been. There has been some confusion in the application of this regulation. Landowner Andy Johnson in Fort Bridger, Wyoming, built a stock dam on his property and was later threatened with fines because he hadn't gotten a 404 permit. "At this point nobody actually knows if we truly do need a 404 permit or not. That's pretty much what the whole case is about," Johnson said in an interview in May of 2014 (read that story here).

The WOTUS rule was supposed to clarify some of those murky elements, but according to the Corps, the EPA has left itself wide open to interpretation and litigation on a number of points.

The memo from the Corps continues its objections, saying the preamble to the draft rule claims that the rulemaking has been a joint endeavor between the Corps and the EPA, and that both agencies made "significant findings, reached important conclusions and stand behind the final rule." Peabody writes, "Those statements are not accurate with respect to the draft final rule as the process followed to develop it greatly limited Corps input—a practice that has continued thus far in the interagency review process."

Peabody continues, saying he believes the Corps has done all it could to assist and support the rulemaking, but that their most important concerns regarding the defensibility and implementation of the draft final rule went unaddressed.

Peabody writes, "I have reviewed all of the attached documents and have concluded that unless the draft final rule is changed to adopt the Corps' proposed 'fixes,' or some reasonably close variant of them, under the National Environmental Policy Act, the Corps would need to prepare an Environmental Impact Statement to address the significant adverse effects on the human environment that would result from the adoption of the rule in its current form."

The accompanying documents include a memo to Peabody, prepared by Chief Counsel, U.S. Army Corps of Engineers, signed by Lance D. Wood, Assistant Chief Counsel, Environmental Law and Regulatory Programs, responding to Peabody's request for legal analysis of the final rule.

The summary of the analysis says, "The draft final rule regarding the definition of WOTUS contains several serious flaws. 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."

It further points out that they have provided numerous edits or "fixes" to rule language to correct errors, but the fixes have not been adopted.

"The fundamental problem reflected in every one of the flaws described below is that the proposed rule that was published April 21, 2014, is based on sound principles of science and law, but many provisions of the draft final rule have abandoned those principles and introduced indefensible provisions into the rule."

In a memo regarding the Economic Analysis and Technical Support Document Concerning the Draft Final Rule on Definition of "Waters of the United States" Peabody summarizes, saying. "…our technical review of both documents [Economic Analysis and Technical Support Document] indicate that the Corps data, provided to the EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps judgment, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies, and logical inconsistencies."

Peabody further requests that the Corps be completely disassociated from those two documents, which are the foundation of the WOTUS rule.

"…the Corps had no role in selecting or analyzing the data that EPA used in drafting either document. As a result, the documents can only be characterized as having been developed by the EPA, and should not identify the Corps as an author, co-author or substantive contributor." He also asked that the Corps not be included in any reference to "agencies" and that the Corps of Engineers logo be removed from those two documents. "To either imply or portray USACE as a co-author or contributor to these documents, other than as the provider of raw, unanalyzed data, is simply untrue."

According to the most recent documents published online, Peabody's request to remove any mention of the Corps from the technical documents and economic analysis was not heeded, and none of the suggested changes were made to the final rule.

At the end of July, Gina McCarthy, EPA administrator, and Jo-Ellen Darcy, U.S. Assistant Secretary of the Army sent a joint memo including both of their signatures and the logos of both agencies, announcing the implementation of the new rule to regional administrators and engineers.

Ag groups and many other agencies have been arguing that the rule doesn't adhere to scientific principles or clarify the necessary points since it was first published more than a year ago. The Corps' claim that in some cases the EPA is arbitrarily expanding their jurisdiction without a legal foundation has also been heard before.

"The EPA placed their radical agenda above the law and went far beyond the scope of the Clean Water Act," said Philip Ellis, National Cattlemen's Beef Association president in a press release. "This rule is nothing more than an attempt to run roughshod over Congress and the courts in the largest land grab in regulatory history. The legal flaws identified by the Corps in these memos are the same vulnerabilities we've identified in our lawsuit against this rule. The fact is, cattlemen and women still need certainty in the Clean Water Act, not a radical and arbitrary political agenda."

The American Farm Bureau Federation has been campaigning against the WOTUS rule since it was announced. Their #ditchtherule campaign included social media, news releases, a dedicated website and public meetings across the country. They have called it a "land grab" and "regulatory overreach."

"U.S. Army Assistant Secretary Darcy pleaded with Congress to keep these memos from the public eye," said AFBF president Bob Stallman in a press release. "Well, now we know what they say, and we want to know more. What other internal agency documents are out there? If the Corps' economists objected so strongly, what did the EPA's economists think? What else are these agencies hiding from the public? As Americans, we expect better, but during the entire WOTUS rulemaking process, we got worse – much, much worse."

"These documents clearly show that EPA is not ready to begin enforcement of this flawed rule, and demonstrate why this rule should be withdrawn and rewritten with input from all stakeholders," said Ellis. "The EPA snubbed concerns from the countryside, and now, these memos reveal they even disregarded concerns from the Army Corps. The fact that other federal agencies' concerns were ignored is appalling, especially given the scope of this rulemaking."

Don Parrish, senior director of regulatory relations for AFBF, has been working on this issue since the beginning. He summarizes, "The memos show that there are significant problems with the WOTUS rule and EPA has killed their credibility."

Gene Pawlik, U.S. Army Corps of Engineers public affairs officer said, "At this time, the U.S. Army Corps of Engineers is not commenting on the draft final clean water rule because of the ongoing litigation brought by a number of states and other parties."

The EPA has not responded to phone calls.

What’s their problem?

The U.S. Army Corps of Engineers objected to the draft final rule on the definition of Waters of the U.S. for several reasons. Here are some of their objections.

1. Rule text contains non-equivalent requirements for significant nexus determinations

2. Arbitrary limits for case-specific significant nexus determinations not rooted in science

3. Arbitrary limits within definition of “neighboring” not rooted in science and beyond reasonable reach of defining adjacency by rule

4. Lack of definitions for multitude of terms used within rule text

5. Grandfathering provisions lacking in granularity and clarity

6. Preamble does not reflect Corps technical experience and expertise, nor does it accurately reflect the Corps understanding of the substantive public comments

One of the Corps’ major objections from both legal and technical standpoints is that the draft final rule would exclude lakes, ponds and similar water bodies that are components of the tributary system of the navigable waters that have been federally regulated since 1975. The new rule says that any waters more than 4,000 feet outside of a stream’s ordinary high water mark or high tide line would be excluded.

The memo points out that on a conference call between the EPA and Corps staff in March of 2015, the EPA said they would cut off the CWA jurisdiction at 5,000 feet, but three days later the EPA staff changed their position and reduced it to 4,000 feet. “Both distances are arbitrary and either limitation would be very difficult to defend in the federal courts when the final rule is challenged because neither limitation on CWA jurisdiction is supported by science or field-based evidence,” the Corps claims in the memo.

While the 4,000-foot rule would remove about 10 percent of water bodies that are currently considered “adjacent” to navigable or interstate waters from EPA jurisdiction, other terminology would add land to their jurisdiction.

One of the objections to the proposed final rule has been that it fails to clarify many terms, and therefore leaves open to interpretation what the EPA has jurisdiction over, or makes it overly specific. For example, “The draft final rule asserts CWA jurisdiction by rule over every ‘stream’ in the United States, so long as that stream has an identifiable bed, bank and ordinary high water mark. That assertion of jurisdiction over every stream bed has the effect of asserting CWA jurisdiction over many thousands of miles of dry washes and arroyos in the desert Southwest…”

Some of the objections are to verbiage that just doesn’t make sense. One sentence in the final rule reads, “Waters subject to established, normal farming, silviculture and ranching activities (33 U.S.C. 1344(f)) are not adjacent.”

The memo points out that, “On its face, the sentence is indefensible: it is a textbook example of rulemaking that cannot withstand judicial review. This is true because a wetland is, by definition, ‘adjacent’ to a tributary stream if, as a matter of geographical fact, that wetland is ‘bordering, contiguous or neighboring’ to the stream, regardless of whether farming, forestry or ranching activities are taking place on that wetland.”

The draft rule is also called into question for its treatment of five categories of “isolated” waters—such as prairie potholes. The Corps grants that the EPA’s concern with protecting those waters is understandable for ecological reasons, but reminds the EPA that to be subject to CWA jurisdiction, “the isolated water bodies must be demonstrated to have a significant nexus with navigable or interstate waters.”

The issue of the isolated waters leaves the entire rule vulnerable to legal challenge, the memo reads, making it difficult, if not impossible, to convince a federal court that millions of acres of isolated waters have “significant nexus” with navigable or interstate waters.

“As a result,” the memo reads, “this assertion of CWA jurisdiction over millions of acres of isolated waters may well be seen by the federal courts as ‘regulatory over-reach,’ which undermines the legal and scientific credibility of the rule.”

Read the memos:

Draft Final Rule on Definition of ”Waters of the United States” from John W. Peabody, Major General U.S. Army Deputy Commanding General for Civil and Emergency Operations to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works

Legal Analysis of Draft Final Rule on Definition of Waters of the United States signed Lance D. Wood, assistant chief counsel, Environmental Law and Regulatory Programs

Technical Analysis of Draft Final Rule on Definition of Waters of the United States signed Jennifer A. Moyer, Chief, regulatory program (USACE)

Appendix of Representative Examples

Appendix of Implementation Challenges

Economic Analysis and Technical Support Document Concerning the Draft Final Rule on Definition of “Waters of the United States” from John W. Peabody, Major General U.S. Army Deputy Commanding General for Civil and Emergency Operations to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works

Economic Analysis and Technical Support Document Concerning the Draft Final Rule on Definition of “Waters of the United States” signed Jennifer A. Moyer, Chief, regulatory program (USACE)

Review Comments on Economic Analysis of the EPA-Army Clean Water Rule (April 27, 2015) Paul Scodarl, CEIWR-GW