Army Corps Criticizes EPA for Flawed Rulemaking, Warns WOTUS has Little Legal Standing and is Not Based on Science

Taylor HillmanWater

Internal memos released by the House Oversight and Government Reform Committee reveal the Army Corps of Engineers, the primary regulator over Environmental Protection Agency’s “waters of the United States” rule, believes that the rule will not hold up in the courts and that it grossly misinterprets Corps data.

“Corps data to EPA has been selectively applied out of context, and mixes terminology and disparate data sets,” one memo from General Peabody to Assistant Secretary of the Army reads. “In the Corps judgement, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”

Enforcement of the rule is set to begin August 28, 2015, but the more than 50 pages of released documents clearly illustrate the discrepancies between the two agencies that share jurisdiction of the Clean Water Act.

“These documents clearly show that EPA is not ready to begin enforcement of this flawed rule, and demonstrate why this rule should be withdrawn and rewritten with input from all stakeholders,” said Philip Ellis, National Cattlemen’s Beef Association president. “The EPA snubbed concerns from the countryside, and now, these memos reveal they even disregarded concerns from the Army Corps. The fact that other federal agencies’ concerns were ignored is appalling, especially given the scope of this rulemaking.”

The memos show the Corps are so concerned about the implications of this disastrous rule that at one point they state that any reference to the Army Corps name and logo should be removed from all documents pertaining to the rule.

“The EPA placed their radical agenda above the law and went far beyond the scope of the Clean Water Act,” said Ellis. “This rule is nothing more than an attempt to run roughshod over Congress and the courts in the largest land grab in regulatory history. The legal flaws identified by the Corps in these memos are the same vulnerabilities we’ve identified in our lawsuit against this rule. The fact is, cattlemen and women still need certainty in the Clean Water Act, not a radical and arbitrary political agenda.”

NCBA calls for the EPA to immediately withdraw the final WOTUS rule and work with stakeholders and Congress to craft a rule that achieves clarity and works for all landowners.