Representatives ask OIG to investigate EPA's Waters of the U.S. rulemaking

Representatives ask OIG to investigate EPA's Waters of the U.S. rulemaking

Letter asks OIG to investigate EPA's tactics in soliciting comments on its Waters of the U.S. rule

Following release of a series of memos that question the Army Corps of Engineers' cooperation with EPA in the Waters of the U.S. rulemaking process, a group of legislators has formally asked the Office of the Inspector General to investigate EPA's solicitation of public comments on the rule.

Reps. Rick Crawford, R-Ark., Bob Gibbs, R-Ohio, and Tom Marino, R-Pa., led the delegation of about 100 legislators sending the letter.

Letter asks OIG to investigate EPA's tactics in soliciting comments on its Waters of the U.S. rule

It requests that the OIG open a formal investigation into the EPA's lobbying effort on the "Waters of the United States" rulemaking. The lawmakers allege that, according to a May New York Times report, "EPA apparently used an assortment of social media campaigns to solicit comments" and partnered with green groups to promote the rule.

"We are particularly concerned that the most essential and democratic component of the rulemaking, the public notice and comment process, was abused and corrupted in a way that drowned out opposition to help justify the Agency's actions," the letter continued.

In a press statement, Crawford's office notes that all rulemakings require stakeholder engagement. But with alleged social media and green group involvement, anti-lobbying statutes and U.S. Department of Justice guidelines could have been violated.

The laws prohibit agency employees from "engaging in substantial 'grass roots' lobbying" and from "provid[ing] administrative support for the lobbying activities of private organizations", as such activities undermine the spirit of the public comment period, the letter says.

Related: Waters of the U.S. pushback continues with U.S. Chamber lawsuit

"Rulemakings by unelected agency officials should take into account all the views of the affected public – not just its own and its political allies," Crawford said.

If the EPA cooperated with groups like the Sierra Club and Organizing for America to promote WOTUS as alleged, Gibbs added, "this will be just one more issue that troubles me about the Waters of the United States rule process."

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According to the EPA, more than one million comments were received on the rule, and about 90% of them were supportive.

However, according the U.S. Army Corps of Engineers, only 20,567 of those comments were considered "unique," and of those, only 10% were considered substantive, the letter says. About 98% "appeared to be mass mailings generated by the EPA's lobbying efforts."

In the letter, legislators specifically ask OIG to dive deeper into "all matters relevant to EPA's efforts in generating support for the WOTUS rule, including the EPA's engagement and coordination with outside organizations.

Ag groups have long expressed concern about the rule, which officially takes effect Aug. 28. According to the American Farm Bureau – which last year led a campaign against the EPA's proposal – EPA ignored concerns of farmers, ranchers, business owners and its own staff to move the rule through quickly.

In June, the group released a series of documents that compared the proposed and final WOTUS rules, and suggested that EPA's final version granted the agency "sweeping powers" to regulate land use.

Those concerns are shared by the National Cattlemen's Beef Association, which earlier this week warned that several House members had already prepared an OIG audit request on the EPA's lobbying efforts.

"We are supporting an effort by the House of Representatives to request an OIG investigation," NCBA's Vice President of Government Affairs Collin Woodall said, "specifically if the EPA went beyond their authority to get groups to submit comments to support the rule – basically lobbying on their own behalf."

NCBA has requested that the Army Corps of Engineers and EPA delay implementation of the rule based on these allegations and information in internal memos that were recently released by the Oversight and Government Reform Committee.


Catch a legal perspective on the rule with ag attorney Gary Baise's "Inside EPA's Waters of the U.S. Ruling" series:
Part one: What you should know about the EPA ruling
Part two: Understanding 'significant nexus'
Part three: Does this impact private property rights?
Part four: The government's boundless appetite for regulation
Part five: Confusion over exclusions


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