The Senate Environment and Public Works Subcommittee on Fisheries, Wildlife and Water on Wednesday held a hearing to consider the Army Corps of Engineers' participation in crafting and finalizing the Waters of the U.S. regulation, focusing on internal memos released earlier this year.
The memos, unveiled by the House Oversight and Government Reform Committee, suggest the Corps had concerns about the merits of the Waters of the U.S. regulation before it was finalized.
The hearing provided opportunity to consider allegations based on those memos that the Corps didn't agree with the U.S. EPA in the process of finalizing the rule, and also that it held the position that the rule would be unable to stand up in court.
Sen. Dan Sullivan, R-Alaska, chairman of the FWW subcommittee, pressed Army Corps' Jo Ellen Darcy, the sole witness, on each of those issues.
"I don't see how you can claim that the Corps even supports the rule and the technical aspects of the rule," he said, after quoting directly from the memos that suggested otherwise.
Darcy responded, telling legislators that internal comments suggesting the Corps should remove its name from the joint rule and questioning its legal merit were "a snapshot in time" and made in regards to a draft rule, not the final rule.
In a statement following the hearing, NCBA President Philip Ellis said the group is concerned the rule is dangerous to land use.
"This rule is clearly not based on science, nor does it relate to keeping our waters clean," Ellis said. "It is a transparent land grab by the administration and EPA. Cattlemen and women will continue to oppose this rule in Congress and in the courtroom.
"This rule and the flawed rulemaking process underlie the need for legislation to withdraw the rule and compel the agencies to work with all stakeholders."
The position is echoed by other farm groups, which suggest that the rule creates an additional strain on farmers and negatively impact common farm operations.
The WOTUS rule became effective in all but 13 states on Aug. 28.
While a Federal Circuit Judge in North Dakota granted a temporary preliminary injunction on implementation of the WOTUS rule in the case brought by 13 states, EPA said the rule would be enforced in states not named in the suit.
Since enforcement of the rule, NCBA says 31 states and other entities have engaged in 22 lawsuits challenging EPA's WOTUS rule.
A group of U.S. representatives also asked the Office of the Inspector General to review the rule in August, suggesting that a formal investigation is required to determine if EPA used inappropriate tactics to solicit comments on the WOTUS regulation.
NCBA and PLC support S. 1140, the Federal Water Quality Protection Act, bipartisan legislation that would direct the EPA to withdraw the final WOTUS rule and work with stakeholders in drafting a new rule to clarify the Clean Water Act.
The House passed a measure in May that would repeal the regulation.
Catch the archived webcast of the hearing, "Oversight of the Army Corps of Engineers’ Participation in the Development of the New Regulatory Definition of “Waters of the United States" on the EPW committee website.