The Swamp Stomp
Volume 15, Issue 33
Earlier this year, the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) released the Clean Water Rule. The rule was fashioned to aid the Clean Water Act (CWA) by clarifying which bodies of water deserved protection and are suspect to federal regulation. However, the exact role that USACE had in the final rule is now being questioned.
The rule has been met with much opposition from Republicans who hold the rule to be federal overreach. The oil and gas industry also oppose the rule as they think it will suppress development.
On July 27, 2015, U.S. Senator for Oklahoma James Inhofe, chairman of the Senate Environmental and Public Works Committee, released a letter to Jo-Ellen Darcy, assistant secretary for the USACE’s Civil Works program, requesting documents relating to the Waters of the U.S. (WOTUS) rule.
In the letter, Inhofe said, “While intersperse 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.”
“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, 2015.”
Since releasing the letter, Inhofe claimed that a bill, the S 1140, has become the “the main vehicle in response to the WOTUS rule.” It calls for both the EPA and USACE to promulgate a revised WOTUS rule that would limit the amount of federal oversight. The bill has already been passed by Inhofe’s committee on July 16, and is now headed to the full Senate for approval.
The S 1140 bill will still include traditional navigable waters, interstate waters, and certain streams and wetlands, but it would exclude groundwater, isolated ponds, and other smaller bodies of water.
Inhofe claimed that based on a number of recently obtained documents—specifically, memos between Darcy and Major General John Peabody dated April 24th, April 27th, and May 15th—as well as a testimony given by Darcy on February 4th, “many of the determinations that purport to support expanded jurisdictions in the final WOTUS rule were not based on the experience and expertise of the Corps.”
In the memo from April 24, Darcy asserted that the final draft rule asserts jurisdiction under the Clean Water Act “over every ‘stream’ in the United States, so long as that stream has an identifiable bed, bank, and ordinary high water mark. 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 those ephemeral dry wastes, arroyos, etc. carry water infrequently and sometimes in small quantities if those features meet the definition of tributary.
In the same memo, Darcy also said that it “may be a challenge to identify a ditch that is a relocated tributary or excavated 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, Darcy claimed that “the process followed to develop [the draft final rule] greatly limited Corps input,” before then stating in the May 15 memo that USACE “was not part of any type of analysis to reach the conclusions described; therefore it is inaccurate to reflect the ‘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.”
Furthermore, in Darcy’s testimony in front of Inhofe’s committee, she said that USACE “has never interpreted groundwater to be jurisdictional water or [that there is] a hydrologic connection because the CWA does not provide such authority.”
Therefore, Inhofe asserted, “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.”
Please! Who in this industry doesn’t remember the Corps adding groundwater as means of connection in the 2nd & 3rd editions of the “post-Rapanos guidance?”