| Internal memos detailing the Army Corps of Engineers’ fierce criticisms of the Obama administration’s controversial water rule were publicly released yesterday afternoon by the House Oversight and Government Reform Committee.Committee Chairman Jason Chaffetz (R-Utah) included the Army Corps memos in a letter to U.S. EPA Administrator Gina McCarthy after she testified during a Wednesday hearing that she had not seen the documents herself but understood “all concerns” to have been satisfied in the final Waters of the U.S. rule (E&ENews PM, July 29).
In his letter, Chaffetz asks McCarthy to respond in writing about whether each of the Army Corps’ recommendations have been adopted and for detailed explanations if they have not. He also asks for an explanation for why the memos have not been included in the administrative record for the rulemaking.
The documents, first reported by Greenwire on Monday, outline technical and legal issues with the joint EPA-Army rule and its supporting documents, calling the end product “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.” They focus particularly on changes made in the final version of the rule that Army Corps experts argue could leave a significant number of currently protected wetlands and ponds beyond the reach of the Clean Water Act (Greenwire, July 27).
The memos were sent by the Army Corps’ top general for civil works to Jo-Ellen Darcy, the Department of Army political appointee who oversees the corps, as a near-final version of the rule was undergoing interagency review at the White House this spring.
The Army Corps appears to have been angling to avoid such a possibility by watermarking the versions handed over to the committee in response to a request, “for committee use only” and “litigation sensitive.”Although such documents are often kept confidential on the argument that they are internal and deliberative, their publication by the committee raises the possibility that they could be admitted into the record.
Congressional Republicans are arguing that the memos validate their allegations that the process for developing the water rule has been fatally flawed and politically driven.
“While interspersed with staff recommendations and legal conclusions that I understand you wish to keep confidential and hidden from the American public, the facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final [Waters of the U.S.] rule, that the rule is lacking factual, technical and legal support,” wrote Senate Environment and Public Works Chairman James Inhofe (R-Okla.) in a letter to Darcy earlier this week (E&E Daily, July 28).
In light of the memos, the chairman of the National Association of Home Builders yesterday called for the rule to be withdrawn, saying EPA had made a “mockery” of the regulatory process.
“It is bad enough that EPA would push through new regulations that would put millions of additional acres of private land under federal control, needlessly raise housing costs and add more regulatory burdens to small businesses,” said the group’s chairman, Tom Woods, in a statement. “But it is absolutely scandalous that EPA disregarded the objections of the U.S. Army Corps of Engineers, which expressed strong concerns that the rule was arbitrarily written, is legally indefensible and would be extremely difficult to implement. We call on EPA to act immediately to withdraw this rule and put an end to this federal land grab.” |
