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July 27 — The economic analysis and the technical support documents used in developing and justifying a regulation to clarify the scope of the Clean Water Act are flawed and out of context, the U.S. Army Corps of Engineers said in memos just before the rule was released.
“To briefly summarize: our technical review of both documents indicate the corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate datasets. In the corps' judgment, the documents contain numerous inappropriate assumptions, with no connection to the data provided, misapplied data, analytical deficiencies, and logistical inconsistencies,” Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, told Jo-Ellen Darcy, assistant U.S. secretary for the Army for civil works, in a May 15 memo.
The top regulatory and legal corps officials also said the rule would be “legally vulnerable” and “difficult to implement.”
The memo and other documents related to the final regulation (RIN 2040-AF30) were reviewed by Bloomberg BNA on July 24 and 27. The clean water rule was jointly published on June 29 by the corps and the Environmental Protection Agency. It has since been challenged by states, industry and environmental groups (80 Fed. Reg. 37,054).
“The corps had no role in selecting or analyzing the data that the EPA used in drafting either document,” Scodari said. “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.”
Implying or portraying otherwise is “simply untrue,” Scodari said. He said the corps merely provided raw data to the EPA, which, in turn, chose to use the data to justify the benefits of the rule, estimate costs for mitigation in states where no mitigation programs exist, account for waters not previously identified by the corps and represent geographical regions that the data didn't support.
For the economic analysis document, Scodari said the corps provided the EPA with raw dredge-and-fill permitting data under Section 404 of the Clean Water Act spanning fiscal years 2009 to 2014. The corps also provided the EPA with both preliminary and approved jurisdictional determinations for the given years.
Peabody also included a separate memo by Jennifer Moyer, chief of the corps' regulatory programs.
“Section 404 data provided to the Corps has been used out of context as if it were applicable to all Clean Water Act programs despite the fact that this data is only meaningful for a specific authority under the Clean Water Act (Section 404) and does not represent data under sections 303, 401, 402, or other programs implemented by the EPA and states for different purposes under the Clean Water Act,” Moyer wrote.
Under the Clean Water Act, Section 402 governs the National Pollutant Discharge Elimination System permitting program, Section 401 gives states the authority to certify that federal hydropower projects meet state water quality standards, Section 303 governs the oil and hazardous chemical spill programs and Section 301 governs water quality standards.
Regarding the technical support document, Moyer was equally critical.
“It appears EPA used a considerable amount of corps data in preparing the TSD; no data was requested or provided to the EPA to produce the TSD; the corps also had no role in performing the analysis or drafting the TSD,” she wrote.
As an example, Moyer said the document overestimated the case-specific determinations the corps has completed since 2008.
The technical support document cited the figure of more than 500,000 jurisdictional determinations of which more than 50 percent have involved case-specific determinations to ascertain a significant nexus with downstream navigable waters. In reality, Moyer said, the corps has completed 424,000 jurisdictional determinations of which 17 percent involved significant nexus evaluations.
A landowner or property owner seeks a jurisdictional determination to find out whether a given wetland or water falls under the Clean Water Act and therefore is subject to federal water pollution programs. Under the final rule, the EPA and the corps have sought case-by-case determinations for isolated waters that fall within the 100-year floodplain and within 4,000 feet of the ordinary high water mark of a traditional navigable water, interstate water or territorial sea.
Both Moyers and Scodari questioned what they termed the “arbitrary” use of the 4,000-feet threshold limit to evaluate federal jurisdiction.
Darcy for her part told Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, that the May 15 and April 27 memos by Peabody weren't released outside the Army, but the contents were discussed in detail with the EPA and other federal agencies when the White House Office of Management and Budget began the interagency review April 3.
She urged Inhofe not to release the documents to the public. Inhofe acknowledged Darcy's request by not releasing the memos publicly, but questioned her in a July 27 letter about the corps' actual support for the rulemaking by quoting various sections of the documents in question.
The corps declined to comment on July 27 on analyses done by its top regulatory and legal officials that show the final clean water rule to be flawed from a legal and practical standpoint.
“Due to the ongoing litigation, we are not commenting on the draft final rule at this time,” corps spokesman Doug Garman told Bloomberg BNA in a July 27 e-mail.
The EPA in turn sidestepped questions concerning the substance of the memos. Corps officials were unsparing in their criticism of the agency for moving ahead with the rulemaking despite it being flawed.
“As with any multiagency rulemaking, the EPA and Army/Corps worked closely and carefully to make sure that all concerns surrounding the Clean Water Rule were addressed before finalization. These memos were internal, deliberative Army/Corps documents, so any questions should be directed to the Army,” EPA spokeswoman Monica Lee told Bloomberg BNA in a July 27 e-mail.
The EPA and the corps are facing challenges from 30 states, with Tennessee being the latest state. The clean water rule also is being challenged by nearly 20 business, agriculture and industry groups as well as four different sets of environmental groups over the clean water rule.
The Natural Resources Defense Council and the National Wildlife Federation, which also are challenging the rule on grounds that it isn't protective enough of the nation's waters and wetlands, didn't respond to e-mails seeking comment.
However, the memos included concerns expressed by the environmental groups that the 4,000-feet threshold limit to establish case-by-case jurisdiction over isolated waters would exclude large lakes, ponds and wetlands.
The American Farm Bureau Federation saw its position validated with the corps memos showing the EPA taking a unilateral rather than co-regulator approach to rulemaking.
“The documents reveal a dysfunctional process within and between the agencies, where political officials were making decisions over the vigorous objections and against the findings of agency staff, without taking the time to address the concerns,” Don Parrish, the bureau's senior regulatory relations director, told Bloomberg BNA in a July 27 e-mail. “They show an ‘ends justify the means—get it done now, no matter what' mentality that is not appropriate for agency rulemaking on such an important issue.”
But Scodari told Peabody that the corps “can't run away from the rulemaking.”
“The [corps] is just going to have to live with it and leave responsibility for defending it to the EPA and the OMB,” he said.
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The Economic Analysis of the EPA-Army Clean Water Rule is available at http://www2.epa.gov/sites/production/files/2015-06/documents/508-final_clean_water_rule_economic_analysis_5-20-15.pdf.
The Technical Support Document for the Clean Water Rule: Definition of Waters of the United States is available at http://www2.epa.gov/sites/production/files/2015-05/documents/technical_support_document_for_the_clean_water_rule_1.pdf.
The Senate Environment and Public Works July 27 letter to U.S. Assistant Secretary for Civil Works Jo-Ellen Darcy is available at http://www.epw.senate.gov/public/_cache/files/0b3784b6-a338-4b23-9afe-7f1a4428f1ab/07.27.2015-dear-secretary-darcy-re-facts-in-peabody-memos.pdf.
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