When it comes to traditional rule-making procedures, the process EPA took to develop its final rule to regulate waters of the U.S. has been anything but traditional.
Instead, some believe EPA abused and distorted the normal rule-making process to predetermine the outcome of its controversial rule, which was to add clarification on what waters are jurisdictional under the federal Clean Water Act.
EPA touts that it received over 1 million public comments on WOTUS, but it appears many of those comments resulted from EPA's own grassroots lobbying campaign, which came under scrutiny when the New York Times reported on possible legal and ethical violations at the agency.
Ellen Steen, American Farm Bureau Federation general counsel, testified in a Senate Judiciary Committee in June that while inviting and openly considering public input, EPA conducted an aggressive advocacy campaign to obscure the on-the-ground impact of the rule and to smear groups, like Farm Bureau, that dared to explain those impacts to the public.
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"The notice-and-comment procedure for rule-making is designed to ensure that agencies take honest account of the thoughts and concerns of the regulated public," Steen says. "Legitimate concerns over how the rule would affect agriculture, in particular, were subtly twisted and then dismissed as 'silly' and 'ludicrous' and 'myths.' Public statements from the agency's highest officials made it clear that the agency was not genuinely open to considering objections to the rule."
Twisting the numbers
EPA Administrator Gina McCarthy told a Senate committee in March that 87.1% of comments favored the agency's proposal. Although federal law forbids the president and political appointees like the EPA administrator from promoting government policy, late last year EPA sponsored a drive on Facebook and Twitter and through social media tools, such as Thunderclap, to promote its clean water rule in conjunction with the Sierra Club.
"A deeper look at the '1 million comment' claim shows a more complicated story," three senators wrote in a letter to McCarthy in May. "According to the U.S. Army Corps of Engineers, only 20,567 of those comments are considered 'unique,' and of those, only 10% were considered substantive."
In addition, EPA finalized its rule despite the fact that according to the Corps of Engineers, 60% of the comments filed opposed the rule, including 32 states, the U.S. Conference of Mayors, the National League of Cities and the National Association of Counties.
Phillip Ellis, president of the National Cattlemen's Beef Association, says former Obama campaign officials that received political appointments at EPA are apparently putting their "activist knowledge base to use." He says, "Soliciting endorsements and support is a far cry from simply educating the public, as EPA officials claim."
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Brenda Richards, Idaho rancher and Public Lands Council president, adds, "The EPA has been spending taxpayer dollars employing a grassroots lobbying campaign, hiding information, dismissing concerns from stakeholders and holding closed-door meetings with environmental activists. There is no question that this rule will infringe on private property rights and usurp state authority over land and water use. Ambiguous language included will only serve to further jam courtrooms across the country with jurisdictional challenges."
Since EPA first proposed the rule, it has been widely criticized by agriculture and small business. Those criticisms continue with the release of the final rule in May. Most concerning to agriculture is the expanded definition of tributaries, adjacent waters, prairie potholes and other features designated as national treasures.
Congress has some power left to hold EPA accountable for its actions. Sen. Thad Cochran, R-Miss., who chairs the Senate Appropriations Committee, says he expects challenges to the final rule in Congress and the courts.
A major concern includes whether or not agriculture and other stakeholders were adequately allowed to voice input during the entire rule-making process. This is the base of legislation passed in the House and out of the Senate Environmental and Public Works Committee, which would block the current rule and require EPA to go back to the drawing board and work better with stakeholders to write a new rule.
Without any congressional action, the final rule goes into effect Aug. 28.