Appeals court exempts Army Corps memos in WOTUS case

Those opposed to WOTUS rule receive setback in decision to not allow memos showing Corps' reservations about EPA rule.

The panel from the Sixth Circuit Court of Appeals that has been hearing challenges to the Environmental Protection Agency's waters of the U.S. (WOTUS) rule has now ruled that it will not consider several Army Corps of Engineers memos that revealed concerns regarding the WOTUS rule and the rule-making process.

Last year, the House Committee on Oversight & Government Reform released more than 50 pages of memos, some labeled "litigation sensitive," in which the Corps sometimes strongly disagreed with EPA on the process of drafting the final WOTUS rule.

The documents, which were not intended to be made public, tell a story of two agencies in disagreement over not only the process but the use of data, the definitions in the final rule and the scientific and legal justifications for what EPA was doing.

Some of the memos went so far as to seek removal of the Corps' logo from the final documents, as well as removing it as an "author, co-author or substantive contributor."

Referring to specific points in the final rule, the memos stated that the "1,500 ft. limitation is not supported by science or law" and that the "4,000 ft. bright line rule is not based on any principle of science, hydrology or law," rendering both, therefore, "legally vulnerable."

In one letter just two weeks before the final rule was released, Maj. Gen. John Peabody, the Corps’ deputy commanding general for civil and emergency operations, wrote to Jo-Ellen Darcy, assistant secretary of the Army for Civil Works, saying, “Corps data to EPA has been selectively applied out of context and mixes terminology and disparate data sets. In the Corps' judgment, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”

The ruling that these memos will not be used in the court’s decision is a challenge to states and companies seeking to overturn the burdensome WOTUS regulation. The plaintiffs said memos show that the rule is politically motivated and not based on science.

The court’s decision came on the heels of a motion by major environmental groups that the court accelerate its decision on which records will be included in the judicial review of the rule.

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