White House and EPA at odds with U.S. Army Corps of Engineers over new “Waters of the U.S.” rule

After months of the Obama Administration and EPA arguing the new Waters of the United States rule (for our earlier story on the rule click here) as scientifically and legally sound, a series of memos from the Army Corps of Engineers have surfaced challenging the Administration’s assertions.

Current and former Army Corps of Engineers (Corps) leaders have begun to speak out against the arbitrariness of the way the environmental standards for the rule were created (the Corps wants more extensive environmental standards). The Corps so strongly disagreed with the rule that the agency requested that all references to the Corps be removed from the rule and all supporting documentation.

In a series of memos throughout the spring of 2015 Major General John Peabody, the Corp’s head of civil works, explained the Corp’s concerns over the new rule to the White House. These concerns included that the technical and economic analyses of the effects of the rule were fundamentally flawed, that the EPA had applied the data underlying the documents out of context and had made any “inappropriate assumptions” and “logical inconsistencies”. He also repeatedly asked that the Corps not be a co-author on the final rule.

The Corps had concerns about the ability to implement the rule on the ground. They argued that the rule needed to provide broader federal authority to regulate waterways in order to make it workable. The Corps also worried about the arbitrariness with which limits on federal authority were put in place. For instance the final rule only provides federal jurisdiction over tributaries that are within 4,000 feet of interstate waterways. A Corps memo reveals that originally the EPA had a 5,000 foot limitation and that it was changed without justification just days later. Corps’ lawyers call this change arbitrary.

Corps staff also argued that a full environmental impact study should have been conducted. However because these studies take more than a year to conduct, and the Obama Administration was pushing for the rule to be finalized by the Summer of 2015, a smaller study was conducted. The study found the rule would have no significant impact on the environment and therefore a more detailed study was not needed. The Corps doesn’t agree with this assessment.

The Corps also challenges the benefits of the rule which EPA estimated at $500 million. The Corps claims that EPA’s numbers are overestimated.

Only time will tell if these memos have any impact on the implementation of the rule. The memos do show that EPA acted arbitrarily in creating boundaries on the rule by ignoring the Corp’s expert advice. If allowed in as evidence, the memos could make it easier to challenge the rule in court.