Internal memos released by the Oversight and Government Reform Committee show the Army Corps of Engineers, a co-sponsor of the Waters of the U.S. regulation released last year and scheduled for implementation later this month, doesn't believe the rule's merits will hold up in a legal setting.
"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."
The WOTUS rule governs which waters are under jurisdiction of the Clean Water Act, legislation that EPA and the Corps share. Several key farm groups are opposed to the rule, arguing that it could limit private landowners' rights and negatively impact farming operations.
According to the American Farm Bureau, an opponent of the rule, the memos indicate political appointees ignored objections of Corps staff to move the rule through the comment and review process.
AFBF also suggests the Corps were concerned that it would be difficult to know if "a low depressional area on a farm field that ponds water after a rainstorm for ten days" would be a regulated "water" or an excluded "puddle." EPA has noted that "puddles" will not be regulated.
Both the American Farm Bureau and National Cattlemen's Beef Association, also an opponent of the rule, say the memos could make the case against the WOTUS rule stronger.
"It is clear from the memos that there were dire concerns internally that EPA was getting it wrong and with a high degree of arrogance," said AFBF President Bob Stallman. "The flawed economic study is just the tip of the iceberg, and it was known internally that trouble was ahead. In fact, the memos themselves were stamped 'Litigation Sensitive.' They were never intended to see the light of day."
Philip Ellis, NCBA president, said the documents show that EPA is not ready to begin enforcement of this flawed rule -- which is scheduled for Aug. 28.
"The EPA snubbed concerns from the countryside, and now, these memos reveal they even disregarded concerns from the Army Corps," he said.
In court and in review
Several ag groups, states and business organizations have pending court cases against the EPA challenging the scope of the rule.
Shortly after the rule was finalized, NCBA announced it would consider legal routes to alleviating issues it says have been created by the rule. Colin Woodall, NCBA Vice President of Government Affairs, notes that the new memos should support their side.
"They talk about the fact that the science is not there to support what EPA has done, they don't believe this rule is defensible in court, and more importantly, they want their name, their logo and any reference to their involvement taken off," Woodall explained of the Army Corps' position in internal memos.
"That shows that once again, this rule is flawed … and we have to get rid of it."
According to Woodall, the House has requested that the Office of the Inspector General investigate the EPA's processes, specifically if the EPA went beyond their authority to get groups to submit comments in support of the rule. NCBA supports that effort.
While Congress is away for August recess, however, NCBA has submitted a letter to EPA and the Corps requesting delayed implementation based on new developments from the memos, Woodall said.