EPA Water Rule May Enable Pollution, Government Expert Warned

New reports reveal that a controversial water-protection rule written by the EPA had sparked major questions within the government before it was published in May.

The controversial regulation has the stated aim of protecting U.S. waterways and clarifying the EPA’s authority under the Clean Water Act. Fiercely opposed by agricultural interests and House Republicans, the update also prompted concerns within the government about a potential negative impact on drinking water sources, according to reports.

“The Obama administration has sold its controversial new water rule as protecting vital streams and wetlands based on sound science, deep technical expertise and solid legal principles. The federal government's on-the-ground experts disagree,” Greenwire reported.

“According to documents obtained by Greenwire and interviews with former Army Corps of Engineers leaders, the agency's top brass has argued behind the scenes that changes made in the final version of the rule will significantly limit the reach of the Clean Water Act, potentially leaving as much as 10 percent of water bodies that feed communities' drinking water supplies and are important for fish and wildlife no longer protected from pollution,” the report said.

Greenwire reported on reservations expressed by top regulatory officials:

Experts at the corps, which is responsible for the vast majority of the calls about whether a creek or marsh warrants federal protection under the [original] 1972 law, contended that the new limits under the rule are arbitrarily drawn, supported neither by science nor by law, and will be unworkable on the ground. In an April 27 memo to the political official who oversees the corps, the agency's top commander for civil works, Maj. Gen. John Peabody, said that even after the rule had been sent to the White House for final interagency review, the corps continued to have "serious concerns" about several aspects of it. "The rule's contradictions with legal principles generates multiple legal and technical consequences that, in the view of the Corps, would be fatal to the rule in its current form," he wrote to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, a Pentagon-based political appointee.

Peabody sent another memo in May stating additional concerns, according to the report:

After getting a copy of the agencies' technical and economic analyses underpinning the rule -- which were partially based on raw data provided by the corps -- the agency's experts had determined that those documents were fundamentally flawed, too, he wrote. "Our technical review of both documents indicate[s] that the Corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate data sets," Peabody's second memo states. "In the Corps' judgement, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies, and logical inconsistencies."

Industry stakeholders who opposed the rule seized on the news to advocate against the regulation.

“Industry groups say memos released by a congressional oversight committee show significant flaws with the Environmental Protection Agency's clean water rules, which appear to ignore input from a sister agency that said the regulations were legally vulnerable,” the Washington Examiner reported.

“The National Cattlemen's Beef Association said internal memos released by the House Oversight and Government Affairs Committee ‘reveal the Army Corps of Engineers, the primary regulator over Environmental Protection Agency's 'waters of the United States' rule, believes that the rule will not hold up in the courts and that it grossly misinterprets Corps data,’ “the report continued.

In the advocacy world, proponents of environmental regulation give the rule a mixed review. Despite praising many aspects of the new rule, a coalition of environmental groups including the Center for Biological Diversity is criticizing it on the grounds that it does not go far enough.

The groups said in a statement that the regulation is rife with concessions to industry: “The new rule reaffirms longstanding federal protections for some types of waters, but largely as a result of industry pressure, arbitrarily exempts and removes safeguards for critically important streams, wetlands and other waterways, many of which had been protected since the 1970s. These unprecedented exemptions are contrary to clear scientific evidence demonstrating the importance of these waterways for drinking water, recreation, fisheries and wildlife.”