Two months after the Obama administration unveiled a final rule changing the definition of what constitutes Waters of the United States (WOTUS), a powerful Republican lawmaker opposed to the rule is asking the U.S. Army Corps of Engineers (USACE) to confirm by Thursday that it played a limited role in formulating it.
Last May, USACE and the Environmental Protection Agency (EPA) released the Clean Water Rule (CWR), regulations designed to bolster the federal Clean Water Act (CWA) by clarifying what water deserved protection. The oil and gas industry is opposed to the CWA because they believe it could stifle development, while Republicans deride it as an overreach by the federal government (see Shale Daily, May 27).
On Monday, U.S. Sen. James Inhofe (R-OK), chairman of the Senate Environment and Public Works Committee, sent a letter to Jo-Ellen Darcy, who serves as assistant secretary for the USACE's Civil Works program and is responsible for its policy direction and supervision. Inhofe thanked Darcy for her "prompt response" to a letter he sent on July 16, in which he requested documents relating to the WOTUS rule.
"While interspersed with staff recommendations and legal conclusions that I understand you wish to keep confidential...the facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final WOTUS rule, that the rule is lacking factual, technical and legal support," Inhofe said.
"I also was surprised to learn that, even though the rule was purportedly a joint effort of EPA and the Corps, it appears that the Corps did not receive the draft final rule until EPA submitted it to interagency review on April 3..."
Inhofe spokeswoman Kristina Baum told NGI's Shale Daily that a bill, S 1140, has become "the main vehicle in response to the WOTUS rule." The bill -- which calls for EPA and USACE to issue a revised WOTUS rule and would limit the scope of federal oversight -- is headed to the full Senate after being marked up and passing Inhofe's committee on July 16.
Specifically, S 1140 would include traditional navigable waters, interstate waters and certain streams and wetlands, but it would exclude groundwater and isolated ponds, among other things (see Shale Daily, May 21).
Inhofe said that recently obtained documents, as well as Darcy's own testimony on Feb. 4 before the committee, confirmed his suspicion "that many of the determinations that purport to support expanded jurisdiction in the final WOTUS rule were not based on the experience and expertise of the Corps."
Specifically, Inhofe focused on memos -- dated April 24, April 27 and May 15 -- between Darcy and Maj. Gen. John Peabody, USACE's deputy commanding general for civil and emergency operations.
In April 24 memos from Darcy to Peabody, she said the final draft rule asserts CWA jurisdiction "over every 'stream' in the United States, so long as that stream has an identifiable bed, bank and ordinary high water mark [OHWM]. That assertion of jurisdiction over every stream bed has the effect of asserting CWA jurisdiction over many thousands of miles of dry marshes and arroyos in the desert southwest, even though those ephemeral dry wastes, arroyos, etc. carry water infrequently and sometimes in small quantities if those features meet the definition of a tributary."
Also on April 24, Darcy told Peabody that it "may be a challenge to identify a ditch that is a relocated tributary or excavated in a tributary," and that "the draft final rule...characterizes literally millions of acres of truly 'isolated' waters (i.e. wetlands that have no shallow subsurface or confined surface connection with the tributary systems of the navigable waters or interstate waters) as 'similarly situated.'"
On April 27, Peabody told Darcy that "the process followed to develop [the draft final rule] greatly limited Corps input."
Darcy told Peabody, in a May 15 memo, that USACE "was not part of any type of analysis to reach the conclusions described; therefore it is inaccurate to reflect that 'the agencies' did this work or that is reflective of Corps experience or expertise," and that USACE "also had no role in performing the analysis or drafting the technical support document."
According to Inhofe, Darcy told his committee that USACE "has never interpreted groundwater to be a jurisdictional water or [that there is] a hydrologic connection because the CWA does not provide such authority." In a May 15 memo to Peabody, Darcy added that in 2001, the U.S. Supreme Court ruled in Solid Waste Agency of Northern Cook County (SWANCC) v. USACE that no geographically isolated water has been found to be jurisdictional.
"Given [those] statements, please confirm that the Army does not have a record of field observations supporting the assertion of federal jurisdiction over ephemeral streams that do not have a surface connection to navigable water or over other geographically isolated bodies of water, by alleging a connection through a groundwater aquifer," Inhofe said.
In 2006, in a ruling in the case Rapanos v. U.S., the Supreme Court narrowed the definition of WOTUS even further to include "only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features,'" which it deemed as streams, oceans, rivers and lakes.
EPA and USACE said the CWR was necessary because of confusion created by the SWANCC and Rapanos rulings -- specifically, over how the CWA should protect streams and wetlands (see Daily GPI, March 26, 2014).