From our friend, Rebecca Logan
(NGP Photo), General Manager, Alaska Support Industry Alliance:
The new EPA rule on Waters of the United States (WOTUS) is perhaps the most critical issuing facing us today. The article below gives a great perspective on why so many are concerned about the rule, and the rule-making process.
Alaska Support Industry Alliance
U.S. Sen. Lisa Murkowski, (NGP Photo), today convened the Senate Energy and Natural Resources Committee to continue consideration of the bipartisan Energy Policy Modernization Act of 2015 with discussion on 20 additional amendments to the bill. In total, the committee has worked through 45 of the 94 amendments filed to the bipartisan legislation since the markup process began on Tuesday.
Critics of new rule say Army Corps memos prove their case
Published: Tuesday, July 28, 2015
This story was updated at 9:31 a.m. EDT.
Congressional opponents of the Obama administration's water rule are arguing that newly revealed memos critical of the regulation from the country's on-the-ground experts at the Army Corps of Engineers confirm their argument that the rule is fatally flawed.
"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," Senate Environment and Public Works Chairman James Inhofe (R-Okla.) wrote
to the political official who oversees the Army Corps yesterday.
Documents first reported by Greenwire yesterday show that leaders at the Army Corps, which is responsible for the lion's share of calls about which streams and wetlands fall under the scope of the Clean Water Act, fiercely disagreed with changes made in the final version of the U.S. EPA-Army Corps rule. At least two congressional oversight committees have also obtained copies of the memos.
The main thrust of the Army Corps' concerns was about new geographical limits set in the final rule that for the first time deemed some wetlands and ponds to be too far from the tributary network to warrant federal protection. But the memos also called out some changes in the final rule that the corps said went too far in claiming federal authority.
For instance, the corps' top environmental lawyer argued that language in the rule extending automatic protection to all wetlands and ponds within 1,500 feet of a larger covered water if they're also in that water's floodplain was too broad. The corps contended that 300 feet would be more defensible.
And the memos raised questions about the special approach the final water rule has regulators take when making calls about five categories of wetlands that are often seen as being too far from the river system to be federally regulated.
The approach taken under the final rule -- which would have the importance of such wetlands judged not in isolation, but in combination with other similar wetlands -- could easily be struck down in court, the corps legal analysis states.
In his letter yesterday, Inhofe used some of these newly revealed concerns from the corps to reiterate requests for information about how the rule's provisions were developed.
The corps memos, as well as other statements from the agencies, "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," he wrote.
House Transportation and Infrastructure
Subcommittee on Water Resources and Environment Chairman Bob Gibbs (R-Ohio) also requested and obtained copies of the memos from the Army Corps.
In a statement to E&E Daily yesterday, he said the documents raise major concerns about the process by which the rule was developed.
"This information is extremely troubling, but I have to say I am not surprised," he said. "States, local governments, and other stakeholders opposed this flawed and biased rule throughout the rulemaking process. Their input and concerns were clearly ignored by the EPA, and now we have evidence they ignored their own federal counterparts."
Gibbs contended that the corps was "cut out" of the process by EPA.
"The EPA controlled the rule-making process to get the result it wanted: the ability to maximize the federal government's regulatory power over waters, wet areas, and adjacent lands," he said. "There is too much ambiguity in the rule to give federal regulators the discretion to do whatever they want and give activists plenty of room to create havoc."
The memos have come to light as congressional opponents of the water rule are attempting to block it legislatively.
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.
But the real fight is in the Senate, where opponents are scraping to get 60 votes.
Inhofe's Environment and Public Works Committee approved the upper chamber's lead measure to scrap the rule,S. 1140
, on a party-line vote in June. It is unclear if and when it might come up for a floor vote. Sen. John Barrasso (R-Wyo.) signaled his interest in the issue this week when he filed a version of that measure as an amendment to the upper chamber's highway package.
Reprinted from E&E with permission from Environment & Energy Publishing, LLC. www.eenews.net