Water Policy

Greenwire's Snider talks leaked memos, future of legal and congressional action

How could leaked memos signaling concerns at the Army Corps of Engineers about the final U.S. EPA-Army Waters of the U.S. rule affect anticipated legal challenges to the regulation? On today's The Cutting Edge, Greenwire reporter Annie Snider discusses her latest reporting on the fallout from the release of the memos.


Monica Trauzzi: Welcome to The Cutting Edge. What's next for the water rule following the leak of Army Corps memos? Greenwire's Annie Snider initially broke the story on the memos and has been digging into what's next on legal and congressional action. Annie, these memos have been getting a lot of attention for a variety of reasons. What's so controversial about the content?

Annie Snider: So these are memos that are sent from Army Corps of Engineers legal and technical experts, and they really lay out a scathing review of changes that were made between the proposed and the final versions of the water rule, particularly new limits that are set for when Clean Water Act protections just couldn't reach a stream or a wetland, and they really as much as 10 percent of wetlands that are currently protected under the Clean Water Act might no longer be under this rule. What you have to understand is EPA has ultimate authority for making calls about when a stream or wetland is protected by the Clean Water Act, but the vast, vast majority of those on-the-ground decisions are made by the Army Corps of Engineers because they run the permitting program for filling in wetlands

The corps is sort of this funky agency. It's run mostly by civilians, but it's actually overseen through the military chain of command, so there's generals. And so they report up the military chain of command, but there's policy bosses. A policy is set out of the political side of the Pentagon, and so they've got a political appointee who is assistant secretary of the Army who sets these sort of policy decisions. And so what we're seeing in these memos is a disagreement between those two parties, between the people who implement this on the ground and between their policy bosses, and what's really interesting is the arguments are sort of the flip of what people on the outside would have expected. So a lot of folks would have thought that EPA and the Obama administration political folks would have been pressing for broader Clean Water Act jurisdiction, broader federal jurisdiction and that the corps might have been pushing back. But what we're seeing in these memos is exactly the opposite of that.

Monica Trauzzi: So what's the aftermath look like? I mean, are EPA and the Army Corps of Engineers, is there friction between the two? I mean, how have the two agencies responded to all of that?

Annie Snider: Well, they haven't been able to say much because this is in active litigation now. So my story ran on Monday, and on Wednesday, EPA Administrator Gina McCarthy appeared before the House Science Committee and was asked about these memos. At that point in time, she said she hadn't seen them herself but had been in touch with her political counterpart at the Army about them and said she understood all concerns to have been resolved. The Army and the Army Corps are saying even less, but I can tell you from my reporting that most of the substantive concerns laid out in the memos still stand at the corps.

Monica Trauzzi: How do you anticipate these memos will affect legal action?

Annie Snider: Yeah, that's the game now. So the first thing we need to know is whether the memos will be admitted into the administrative record. That sort of sets the playing field for what can be brought up in court. We don't know whether the agencies are going to put them in there yet, but lawyers I've talked to say that the fact that these have been reported on and have now been made public make it a lot more likely that they'll be made part of the record, either by the agencies themselves or by the court. So then, if they are in there, they open the door to a number of different legal arguments under a number of different laws, but the one that they really hit repeatedly in the memos is questions around the National Environmental Policy Act, or NEPA.

So under that law, an agency is supposed to do an environmental impact statement, a really close look at any proposed action that could have a significant adverse impact on the environment. And so what the corps argues in these memos is that giving up jurisdiction over wetlands, you know, over as much as 10 percent of wetlands could have a significant adverse impact on the environment and, therefore, a more thorough analysis needed to be done. The interesting thing here is that the folks who are most likely to make that argument are the environmental groups who are suing from the left, and their stated goal in those lawsuits is not to bring down the rule, but to just kind of go in and fix the parts they don't like, and that's where this gets really tricky because NEPA, you know, if they make that argument and if they win it, they really stand to bring down the whole rule.

Monica Trauzzi: Let's talk politics. What kind of political maneuvering has been happening on this on the Hill and what are you anticipating in terms of congressional action once Congress returns?

Annie Snider: So these memos were put out by the Republicans on the House Science Committee. They were handed over by the Army but with the intent of not making them public. They went ahead and made them public, and we've seen, over the past two weeks, a lot of statements coming out of Republicans on Capitol Hill saying that these memos confirm their concerns around the process that they'd had all along. Now, the interesting thing there is that they're actually, you know, their perspective on what the rule would do is really the polar opposite of what the corps is laying out in these memos, so it's a little bit ironic, but there's still some process concerns that they're raising. At the end of the day, I mean, the political fight on the Hill is going to ramp back up come fall. There's still efforts to try to kill the rule through stand-alone legislation. The House has passed that. The Senate is still trying to figure out if they've got enough votes and, failing that, we're talking about an appropriations showdown.

Monica Trauzzi: Wow. Your coverage on this has been excellent. Thank you for coming on the show and sharing.

Annie Snider: Thank you.

Monica Trauzzi: The Cutting Edge will be on hiatus through the congressional recess, and we return on September 11th. See you then.

[End of Audio]



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