Inhofe asks Corps to confirm lack of support for WOTUS rule

Sen. Jim Inhofe (R-OK)

WASHINGTON, DC – U.S. Sen. Jim Inhofe (R-Okla.), chairman of the U.S. Senate Environment and Public Works Committee, today sent a letter to Jo-Ellen Darcy, assistant secretary of the Army for Civil Works, requesting confirmation of factual statements made in internal Army Corps of Engineer documents provided to the committee.

“Thank you for your prompt response to my July 16, 2015 letter to you requesting certain documents, the existence of which only recently came to my attention, relating to the development of the revised definition of the term 'waters of the United States' (WOTUS),” wrote Inhofe. “[W]hile interspersed with staff recommendations and legal conclusions that I understand you wish to keep confidential and hidden from the American public, 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, and according to Peabody’s April 27, 2015 memorandum to you, ’the process followed to develop it greatly limited Corps input.'”

EPA and the Army Corps of Engineers published a final rule changing the definition of “waters of the United States” (WOTUS) on June 29, 2015.

The Corps documents echo some of the concerns identified by Inhofe and others that the rule’s expanded federal control over land and water is not supported by the experience and expertise of the agencies. As an accommodation to Darcy, these documents are not being publicly released at this time. Inhofe’s letter instead describes factual statements from senior Army Corps officials about the Corps’ limited involvement in the development of the rule and the rule’s departure from the Corps experience and expertise. Given the fact that the Corps is the agency tasked with making jurisdictional determinations, these issues are highly relevant to the committee’s ongoing oversight of this rulemaking.

As noted in the letter sent today, among the facts set forth in these documents are the following:

“[T]he process followed to develop [the rule] greatly limited Corps input.”

“The Corps … had no role in performing the analysis or drafting the TSD.”

“The TSD states that the 4,000-foot distance threshold limit for (a)(8) waters ‘will protect the type of waters that in practice have been determined to have a significant nexus on a case-specific basis.’ This statement is unfounded.”

“The draft final rule would declare that all isolated waters in each of those five listed categories of isolated waters are ‘similarly situated,’ but the Corps has never seen any data or analysis to explain, support, or justify this determination.”

Today’s letter follows on a July 6, 2015 letter asking for bases for the decisions made by the Corps in promulgating the WOTUS rule.

To read the full text of today’s letter, click here.

To read the July 6, 2015 letter, click here.