Waters of the United States Rulemaking (WOTUS) found to be politicized by House Oversight Committee.

The “Clean Water Rule,” commonly referred to as the “waters of the United States” (WOTUS) rule, was signed by Environmental Protection Agency Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy on May 27, 2015. (S. 1140: Federal Water Quality Protection Act).

Committee Chairman Jason Chaffetz (R-UT) issued the following statement regarding the report:

“WOTUS was a doomed rule out of the gate. The Obama administration prioritized politics over policy by rushing through a legally and scientifically deficient rule. This report illustrates the many ways in which the White House and EPA abused their authority to advance one of their top regulatory priorities.”

The EPA assembled a Scientific Advisory Board (SAB) to review a draft report titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of Scientific Evidence” (Connectivity Report) in July 2013.

The report’s purpose was to show the need for WOTUS. The Connectivity Report, however, was finalized after the proposed rule was published, which creates the appearance that EPA’s policy decisions were foregone conclusions.

Despite serving as the scientific basis for the rulemaking, the report was not finalized until January of 2015, well after the rule was drafted. OIRA noted this belated submission violated its information quality procedures. A high-ranking OIRA official further admitted this schedule was pursued “for primarily political reasons.”

As the WOTUS rule evolved throughout the rulemaking process, especially with last minute additions, Army and Corps staff testified that no new science was conducted or incorporated, as doing so would have interfered with the deadline for finalizing the rule.

Key findings include:

  • The agencies pushed the rule through on an accelerated timeline that appeared to have been motivated by political considerations. Some officials involved in the process believed politics deprived them the opportunity to conduct a meaningful and full review of the rule before its promulgation.
  • The U.S. Army Corps of Engineers (Corps), which shares jurisdiction over CWA, was cut out of the rule development process. 
  • The EPA made no effort to ensure the rule was based on sound science. The EPA did not conduct additional research (which the Corps believed was necessary) to justify the rule’s conclusions.
  • The agencies did not consider alternatives to the rule, and even went so far as to gut the discussion of alternatives after the Office of Information and Regulatory Affairs (OIRA) stated such discussion was necessary.
  • The agencies went to unusual and unprecedented lengths to avoid compliance with the National Environmental Protection Act, the Regulatory Flexibility Act, and Small Business Regulatory Enforcement Fairness Act.
  • Public comments were not fully reviewed and considered before agencies drafted the final rule.

Majority Staff Report

Hon. Jason Chaffetz,  Chairman Committee on Oversight and Government Reform

Hon. Cynthia Lummis,  Chairman Subcommittee on the Interior

Hon. Mark Meadows, Chairman Subcommittee on Government Operations

Hon. Jim Jordan, Chairman Subcommittee on Health Care, Benefits, and Administrative Rules

Hon. John Mica, Chairman Subcommittee on Transportation and Public Assets

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