Memos may open Obama rule to legal assault from left

By Annie Snider | 08/05/2015 01:03 PM EDT

The biggest threat to the Obama administration’s ambitious water rule may come not from industry foes or states challenging what they call a federal power grab, but from greens suing under one of the country’s foremost environmental laws, legal experts say.

The biggest threat to the Obama administration’s ambitious water rule may come not from industry foes or states challenging what they call a federal power grab, but from greens suing under one of the country’s foremost environmental laws, legal experts say.

Internal Army documents first reported by Greenwire last week show the Army Corps of Engineers’ on-the-ground experts had major concerns about the final U.S. EPA-Army Waters of the U.S. rule, particularly about limits to Clean Water Act protections that were added toward the end of the process (Greenwire, June 27).

Those concerns are likely to fuel legal challenges under a number of laws. But it was a call for a more thorough assessment of the rule under the National Environmental Policy Act (NEPA) that corps experts repeatedly sounded in the memos — and that ultimately went unheeded by their Pentagon policy bosses.


"This is not quibbling over little things within EPA’s discretion," said Patrick Parenteau, an environmental law expert at Vermont Law School who has testified on Capitol Hill in support of the rule. "NEPA is a mandate. NEPA is a clear, clean procedural requirement, so if the Corps of Engineer experts are saying the way you’ve drawn this line excludes certain waters that we’ve historically regulated under [the Clean Water Act] and have all sorts of value, that sets off alarm bells for me."

Environmental groups that have been preparing lawsuits against the rule, which they see as too weak, say the corps memos validate their concerns (Greenwire, June 15).

"They definitely confirm a lot of the issues that we have raised with the final rule, and raised with the proposed rule, and they indicate that the corps internally had a great deal of concern about what was being proposed," said Kelly Foster, senior attorney for the Waterkeeper Alliance.

Brett Hartl with the Center for Biological Diversity, which is part of the lawsuit with Waterkeeper, said the memos also strengthen his concerns about the rule’s potential endangered species impacts.

"The memos confirm that there will be significant losses of wetlands across the country, and unfortunately the Army Corps did not assess the ecological impacts on downstream waters," Hartl said by email. "This failure becomes even more problematic when coupled with the failure to consider impacts to endangered species."

Greens have said that they want to see the court make changes to strengthen parts of the final rule but that they support the regulation overall. Foster said she is confident the court "has the power to fashion an appropriate remedy."

But legal experts say making the NEPA argument could be playing with fire for environmentalists who don’t want to see the entire rule scrapped.

"It’s not like fine brain surgery. You can’t just go in there and excise the part of the rule you don’t like," Parenteau said. "If they win the NEPA argument, they are going to bring the whole rule down."

Internal call for ‘robust analysis’

Signed into law in 1970, NEPA requires federal agencies to weigh the environmental effects of actions they are contemplating.

If the proposed action is minor, the agency can complete a relatively simple environmental assessment, but if the action stands to have a "significant" impact on the environment — either positive or negative — the agency must take a more detailed look in an environmental impact statement, which can take months or even years to complete.

Because EPA’s mission is to protect the environment, the agency is exempt from NEPA in many cases, including for Clean Water Act moves.

The Army is not exempt.

So under NEPA, the key question is whether the water rule — which redefines which streams and wetlands get protection under the Clean Water Act — will significantly change the status quo, said James McElfish Jr., a senior attorney at the Environmental Law Institute.

"What EPA and the corps said they were engaged in was interpreting existing law," McElfish said. "I think what each of the agencies would assert is going on is very much at the margins — clarifications — as opposed to adopting new policy."

Indeed, EPA and the Army officially estimate that the final rule will result in only an "incremental" increase in federal jurisdiction — between 2.8 and 4.6 percent.

But in the internal memos, corps technical experts argue that estimate is flawed because the agencies examined only the streams and wetlands that had previously been outside Clean Water Act protections to see how many would get counted in under the new rule. They failed to look at which previously covered waters would no longer be protected.

Doing a rough analysis, corps experts estimated that changes made in the final rule could put as much as 10 percent of wetlands that have been protected under the Clean Water Act beyond its reach. But the experts said the corps does not systematically collect the type of geographical data the new rule keys off of, so they don’t have a clear picture of exactly what the new limits would mean.

For that reason, they called for a full environmental impact statement.

"To verify the exact portion of the 10% of currently jurisdictional waters that would be lost to Federal jurisdiction as a result of adoption of the draft final rule in its current form, the Corps would need to complete a robust analysis of its data that would yield statistically significant and reliable results," regulatory chief Jennifer Moyer said in an April 24 memo, while the rule was undergoing final White House review.

"This is precisely the type of research and analysis that would be undertaken in completing an Environmental Impact Statement," her memo states.

But with political leaders racing to get the final rule out the door before presidential politics ramped up this summer, only an environmental assessment was completed.

That document, produced primarily by staffers in the office of the Army’s assistant secretary for civil works, maintained the same approach of looking only at which streams and wetlands would get newly counted in under the rule, with no additional analysis of what would now get counted out.

The assessment does acknowledge that some protections could be lost because of a new 4,000-foot outer limit on jurisdiction but estimates that it would be minor.

In making that estimate, the document cites the experience of the agencies, despite the fact that the corps experts who are responsible for the lion’s share of on-the-ground calls about which streams and wetlands are covered strongly disagreed.

"In the agencies[‘] experience the vast majority of wetlands with a significant nexus are located within the 4,000 foot boundary," the assessment states. "It is anticipated that the incremental decrease in jurisdictional determinations for wetlands outside the 100 year floodplain or 4,000 feet of the high tide line or ordinary high water mark of jurisdictional waters would correspondingly be small."


Whether a judge will get to consider the corps’ concerns about the final rule when weighing the 12 separate challenges that have been lodged against it in the 6th Circuit Court of Appeals is an open question.

The agencies have not publicly said whether the memos will be made part of the administrative record for the rule.

Jamison Colburn, a former EPA litigator who now teaches at Penn State Law and runs a website focused on NEPA issues, said the fact the memos have been made public could encourage the court to add them to the record if the agencies do not do so themselves.

But even with the corps memos, NEPA challenges will not be easy, he said.

The corps has successfully argued in the past that changes of scope like those made in the water rule do not themselves affect the environment. That is to say, while the rule will determine which streams and wetlands are regulated under the Clean Water Act, it is subsequent, individual permit decisions that will determine the actual impact on the environment.

"The Justice Department lawyers can rightly argue that the chain of causation isn’t direct," Colburn said.

But those permit decisions later tend to be smaller and more individual, he noted, meaning they are less likely to cross NEPA’s threshold for significance.

"That’s where you get to: Justice delayed is justice denied," Colburn said. "There really is a kind of obscuring of the real issue, which is, did anybody think about the big policy shift and what it means to the environment overall?"

And environmentalists are not alone in raising concerns about whether the agencies adhered to NEPA requirements in the final rule.

In a lawsuit that includes more than a dozen states, North Dakota’s attorney general has already alleged that the agencies violated NEPA requirements by failing to do an environmental impact statement and not considering a wider range of alternatives in the environmental assessment. But the substance of his argument is the opposite of the corps’ — that the final rule will significantly increase federal jurisdiction.

Meanwhile, opponents of the water rule who would rather see Congress intervene to kill the regulation than duke it out with the agencies in court are also touting the corps memos in the political arena.

They contend that the documents back up their concerns about the process for developing the rule, even though the substance of the memos argues the opposite of their take on what the rule would do (E&E Daily, July 31).

All this has left some greens feeling jaded.

Jan Goldman-Carter, senior manager for wetlands and water resources at the National Wildlife Federation, has backed the Obama administration throughout its work on the water rule. She argued that the memos just show the ugly sausage-making behind tough policy decisions, not any legal or policy missteps.

Moreover, she said she found it ironic that the corps — an agency that conservation groups like hers have challenged any number of times over environmental damage from their flood control, lock and dam, and other projects — was raising the concerns.

"It sounds a lot like the pot calling the kettle black," she said. "These are the same types of criticisms and complaints that we have of the corps on many of their permit reviews and civil works projects."

Parenteau, the Vermont Law School professor, has brought lawsuits against the corps over wetlands protections for decades and said he, too, was dumbstruck by the corps memos.

But he said the revelations convinced him that EPA went too far with changes in the final rule and that a NEPA challenge could have real traction.

"You can’t appreciate how amazing this turn of events is with the Corps of Engineers," Parenteau said. "This is the agency that had to be sued to protect wetlands.

"Now you have, 40 years later, the Corps of Engineers is saying EPA is giving away the store."