Sullivan calls in Corps to bash EPA over water rule

The controversial “Waters of the U.S.” rule took effect in most states this summer, redefining which bodies of water are covered by the federal Clean Water Act. But a judge has blocked its application in Alaska and a dozen other states, pending a legal challenge. As that and other lawsuits progress, the rule, known as WOTUS, remains a political hot button. U.S. Sen. Dan Sullivan pushed that button at a hearing this morning in Congress.

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Wetlands in the Izembek NWR. (Kristine Sowl/USFWS)
Wetlands in the Izembek NWR. (Kristine Sowl/USFWS)

Sullivan is gravely dissatisfied with the EPA, and its new rule for carrying out the Clean Water Act.

He says many of his constituents believe “the EPA is a rogue agency, accountable to no one.”

Sullivan maintains the water rule is an EPA power grab that goes beyond the agency’s authority in law.

The EPA says the rule simply clarifies which waters are subject to the Clean Water Act – basically, how far upstream the federal law applies. The agency insists it doesn’t add any new types of water bodies not already covered. But farmers, miners and real estate developers – among others – say it’s an expansion that threatens their livelihoods.

Sullivan called the hearing of a subcommittee he chairs — Fisheries, Wildlife and Water, within the Senate Environmental and Public Works Committee — to discuss a trove of memos that recently came to light. They were written by officials within the Corps of Engineers who harshly criticized a late draft of the rule this spring. The senator wanted to show the EPA steamrolled the Corps, dismissing the concerns of its experts. Sullivan didn’t get much help from the hearing’s only witness, Assistant Secretary of the Army Jo-Ellen Darcy, who, as the civilian appointee in charge of the Corps of Engineers, endorsed WOTUS.

“Did the EPA pressure you, as the head of the Corps, to sign the final rule, when your senior leadership obviously wanted nothing to do with it?” Sullivan asked.

“I was under no pressure to sign any rule, senator,” she said.

Darcy chalked the critical memos up to internal differences, normal disputes that she says ultimately strengthened the final product.

“Senator those documents and those memos were a snapshot in time –” she said.

“No, no, no,” Sullivan interjected. “They weren’t a snapshot in time. They were at the end of a long process.”

The rule has enflamed Congressional Republicans for years now. Some have raised the specter of a federal crackdown on puddles and muddy fields. But Democratic Sen. Sheldon Whitehouse says the Clean Water Act is important to a downstream state like his, Rhode Island. Whitehouse says he’s open to improving the rule, but he says the GOP is in full-throated attack mode.

“You hear this extreme rhetoric about a rule whose purpose is to keep our waters clean,” Whitehouse said. “So that pollutants aren’t dumped into a ditch, and then the foreseeable next big rainstorm washes them down into our bay.”

Ironically, the internal memos show one objection of officials within the Corps of Engineers was that the new rule would trim the regulatory reach of the Clean Water Act in some cases, removing federal protection from what they described as important lakes, ponds and wetlands. Darcy, the assistant Army Secretary, says some of their concerns were addressed in the final version.

A majority of states are now suing to challenge the legality of the WOTUS rule.