Army Corps memo fears fatal flaw in implementing and defending Waters of the U.S. rule

Army Corps of Engineers officials have questioned "the legal and technical basis" for the Obama administration's Waters of the U.S. (WOTUS) rules under the Clean Water Act, fearing that the rule "had 'fatal' problems that would make it difficult to implement or defend in court," according to internal documents released by a House committee, Philip Brasher reports for Agri-Pulse.

Committee leaders wrote to EPA Administrator Gina McCarthy, "demanding that she specify whether the administration addressed each of the issues raised by the Corps before finalizing the rule," Brasher writes. "McCarthy told the committee at a hearing Wednesday that the EPA had satisfied the Corps of Engineers concerns."

Maj. Gen. John Peabody, the deputy commanding general for civil and emergency operations for the Corps, said in the April memo to Jo-Ellen Darcy, assistant secretary for the Army who oversees the Corps, "that the draft rule 'contradicts long-standing and well-established legal principles undergirding' the way the Clean Water Act is enforced," Brasher writes. He wrote that “the rule's contradictions with legal principles generate multiple legal and technical consequences that in the view of the Corps, would be fatal to the rule in its current form.”

In a May 15 memorandum, concerns were raised "with the economic analysis and technical support documents for the rule," Brasher writes. "Both documents, Peabody said, were 'flawed in multiple respects.' He noted that the Corps of Engineers had only been provided the draft final versions two weeks earlier.

The memo says, “In the Corps' judgment, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies. As a result, the Corps' review could not find a justifiable basis in the analysis for many of the documents' conclusions.”

Peabody "also said the Corps had no role in analyzing the data that EPA used in drafting the documents and that the Corps logo should be removed from them," Brasher writes. "Peabody closed the memo by saying the Corps stood ready to help the EPA 'develop logically supportable conclusions for these documents, if and when requested.'" (Read more)