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Army Corps Leader Defends WOTUS Despite Criticism

The head of the Army Corps of Engineers defended the Environmental Protection Agency’s (EPA’s) controversial Waters of the U.S. (WOTUS) rule before Congress on Sept. 30, according to the National Stone, Sand and Gravel Association (NSSGA).

United States Assistant Secretary of the Army Jo-Ellen Darcy told the Senate Committee on Environment and Public Works Subcommittee on Fisheries, Wildlife and Water during a hearing that she approved WOTUS as-written because it was built upon “the technical expertise” of the Corps and her staff.

The Senate committee is investigating several internal Corps memos that were made publically available in July, which detail the agency’s multiple scientific, legal, and technical concerns and intense internal disagreement with WOTUS. The Corps asked EPA to not even “identify Corps as Author, co-author, or substantive contributor” of the EPA’s rule because of the significant problems with the regulation it would have to enforce.

WOTUS drastically expands the EPA’s jurisdiction over areas that do not have consistent water flow and requires the aggregates industry to obtain permits or mitigate mining on previously unregulated land.

Members of the committee noted during the hearing that while Sec. Darcy supports WOTUS and was unconcerned about the Corps memos, the U.S. judicial system is interested. A Federal District Court Judge granting preliminary injunction that blocks the Waters of the United States in 13 states cited these memos in his decision.

Subcommittee Chairman Dan Sullivan (R-Alaska.) questioned how an agency head could so completely and blindly approve WOTUS and overlook the rule’s shortcomings that were pointed out by her own staff. Sen. Sullivan was joined by Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.) in criticizing the Army Corps of Engineers’ internal process for responding to the Waters of the United States rule advanced by EPA.

The hearing was the first to examine the Corps memos in detail since their release, and will likely be followed by others, NSSGA said.