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States Want WOTUS Delayed
Thursday, July 30, 2015 7:52AM CDT

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Attorneys general from 28 states suing EPA over the waters of the United States rule have asked for a nine-month delay in implementation of the rule until judicial review is complete.

In a letter sent Tuesday to EPA Administrator Gina McCarthy and Assistant Secretary of the Army Jo Ellen Darcy, the attorneys general said more time will be needed beyond the targeted effective date of Aug. 28, 2015, to allow courts to review the WOTUS rule.

"Although the states promptly filed their actions challenging the WOTUS rule, it will necessarily take some time for the courts to resolve the merits of these various cases with their different claims," the state AGs said. "... Even under a fairly aggressive schedule, the pending challenges will likely not be fully briefed and argued for at least nine months."

The attorneys general who signed the letter came from these states: Nebraska, Kansas, Missouri, Indiana, South Dakota, North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Montana, Nevada, Wyoming, New Mexico, Texas, Louisiana, Mississippi, Alabama, Florida, Georgia, Kentucky, South Carolina, Utah, West Virginia, Wisconsin, North Carolina and Oklahoma.

Because of an overlap in the timeline for the rule taking effect and the court schedules of ongoing lawsuits filed, the states said a delay in implementing the rule is needed to prevent harm to states.

States will need time and additional resources to implement the rule, the AGs said in the letter.

"Absent a court granting preliminary injunctive relief, this schedule will cause immediate harm to the states because their delegated authority under the Clean Water Act, own regulatory programs governing state waters, and local industries will be affected by increased permitting and compliance requirements under the EPA's and ACOE's sweeping new asserted jurisdiction," the letter stated.

"... As acknowledged by the EPA in its economic analysis, the regulation will result in an increased volume of permit applications, each of which will be of increased scope and complexity under the new rule. This administrative burden will require significant commitment of additional state resources."

WOTUS CONSULTATION

McCarthy took heat Wednesday during a House Oversight Committee hearing on whether EPA fully considered U.S. Army Corps of Engineers concerns on technical aspects of the new rule before it was submitted for interagency review.

Sen. James Inhofe, R-Okla., sent a letter to Darcy on Monday, indicating documents the U.S. Army Corps of Engineers provided to him as chairman of the committee on environment and public works show the Corps was not properly consulted by EPA on the final rule.

Inhofe said in his letter the documents released to his committee may be relevant to the lawsuits filed by the states and industry groups.

"Specifically, while 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 (sic) states that have already filed lawsuits challenging the final WOTUS rule," he wrote, "that the rule is lacking factual, technical and legal support."

As part of a document request made by Inhofe, he asked the Corps to provide all field observations relied on by the Corps in developing the final rule related to presence of an ordinary high water mark used to make Clean Water Act determinations on tributaries.

Among the documents provided to the committee was a May 15, 2015 Army memorandum sent to Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, U.S. Army Corps of Engineers. In that memo it states "the Corps also had no role in performing the analysis or drafting the TSD" (technical support document) for determining ordinary high water marks. "It is inaccurate to reflect that the Corps experience and expertise is reflected in the conclusions drawn within the document."

Darcy disputed the claim in a letter to Inhofe dated July 17, 2015, in which she said the Corps' concerns were addressed prior to the final draft.

Rep. Paul Gosar, R-Ariz., a member of the House Oversight Committee, challenged McCarthy during a hearing Wednesday on whether EPA fully addressed the Corps' concerns.

"There's huge deficiencies in this rule," he said. "You didn't address those deficiencies."

McCarthy said EPA and the Corps did work out a handful of issues before the final rule was issued, although the Corps did not receive a final draft of the rule before it was submitted for interagency review.

As part of a document request made by Inhofe, he asked the Corps to provide all field observations relied on by the Corps in developing the final rule related to presence of an ordinary high water mark used to make Clean Water Act determinations on tributaries.

Among the documents provided to the committee was a May 15, 2015 Army memorandum sent to Peabody. That memo stated, "the Corps also had no role in performing the analysis or drafting the TSD" for determining ordinary high water marks. "It is inaccurate to reflect that the Corps experience and expertise is reflected in the conclusions drawn within the document," the memo to Peabody said.

Read Inhofe's letter here, http://tinyurl.com/…

Read Darcy's letter in response to an information request here, http://tinyurl.com/…

Read the attorneys general letter here, http://tinyurl.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(KM/AG)


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